1. Several objections have been argued in support of this appeal.
2. The first of them is that specific performance cannot be decreed against a minor. Section 28 of the Specific Relief Act mentions the persons against whom specific performance cannot be decreed and a minor is not mentioned as one of them.
3. No doubt Section 11 of the Contract Act mentions persons who have attained majority as persons competent to enter into contracts. But this does not exclude the power of a guardian of a minor to represent him and enter into contracts on his behalf either beneficial or necessary to the minor.
4. The English law is, it is true, that a minor cannot claim specific performance, and this proceeds on the ground of want of mutuality. It is on this ground that Mr. Justice Norris acted in Fatima Bibi v. Debnauth Shah I.L.R. 20 Cal 508 citing as his authority Flight v. Bolland 4 Buss. 298 But there is reason to believe that Flight v. Bolland 4 Buss. 298 was a case in which the contract was made with the minor himself who was also himself seeking to enforce it. In Fatima Bibi v. Debnauth Shah I.L.R. 20 Cal. 508 the Judge has not noticed the provision of Hindu law that a guardian is competent to act for a minor and bind him by contract within certain limits.
5. Moreover, as pointed out by Mr. Whitley Stokes, the doctrine of mutuality on which Flight v. Bolland 4 Buss. 298 proceeded has no application in this country.
6. We agree with the ruling in Mahamed Arif v. Sarasvati Debya I.L.R. 18 Cal. 259 that a contract with a minor is merely voidable by him and that this principle is not affected by Section 11 of the Indian Contract Act.
7. The next objection is that there is no finding that the contract now sought to be enforced is binding on the minor. This is a mistake. The Subordinate Judge has found the contract to be both true and valid.
8. The third objection pressed upon us is that, as plaintiff did not pay the deficient Court fees as soon as the first issue was decided against him, the Subordinate Judge should have held that the suit had been properly dismissed. The District Munsif ought to have called upon the plaintiff to pay the deficient Court fee; as he failed to do so, the Subordinate Judge was not in error in entertaining the appeal and dealing with it. It appears that the requisite Court fees have since been paid. We do not, therefore, think this objection is entitled to weight. We have to observe, however, that the Court fees should have been collected before passing the decree, and the decree is clearly irregular in directing that, in default of payment of the fees, the prayer for possession alone would be disallowed instead of saying that the suit would stand dismissed.
9. As to the last objection, viz., misjoinder of parties, we do not consider it to be well founded. The cause of action, namely the right to obtain a sale-deed and possession of the property purchased, concerns both the defendants and entitles plaintiff to relief against both.
10. The case Luckumsey Ookerda v. Fazulla Cassumbhoy I.L.R. 5 Bom. 177 is distinguishable in that unity of title did not exist in that case. A case more in point is to be found in Mokund Lall v. Chotay Lall I.L.R. 10 Cal. 1061
11. We dismiss this appeal with costs.
[Section 28: Specific performance of a contract cannot be
What parties cannot be enforced against a party thereto in any of the following
compelled to perform. Cases:
(a) if the consideration to be received by him is so grossly inadequate, with reference
to the state of thing's existing at the date of the contract, as to be either by
itself or coupled with other circumstances evidence of fraud or of undue advantage
taken by the plaintiff;
(b) if his assent was obtained by the misrepresentation (whether wilful or innocent),
concealment, circumvention, or unfair practices, of any party to whom performance
would become due under the contract, or by any promise of such party which has not
been substantially fulfilled;
(c) if his assent was given under the influence of mistake of fact, misapprehension or
surprise: Provided that, when the contract provides for compensation in case of
mistake, compensation may be made for a mistake within the scope of such provision
and the contract may be specifically enforced in other respects if proper to be so
[Section 11: Every person is competent to contract who is
Who are competent to of the age of majority according to the law to which he is
contract. subject, and who is of sound mind, and is not disqualified from
contracting by any law to which he is subject.]