1. This is an appeal from the judgment of the District Court of North Arcot in a suit for specific performance of a contract. The defendants Nos. 1 to 5 were the members of a joint family of which the 5th defendant was the father and the 1st defendant the eldest son. Defendants Nos. 6 and 7 were persons who had taken from the 5th defendant a sale of the property in question after the date of the contract sued on. The contract is dated the 27th August 1906 and by it the property was agreed to be sold for Rs. 2,375 and it was executed by the 1st defendant and witnessed by the 5th defendant. The sale to defendants Nos. 6 and 7 of the same item of property is dated the 20th of September 1906 and was for a sum of Rs. 2,900. The District Judge has given a decree to the plaintiff directing defendants Nos. 1 to 3 and the 2nd defendant as guardian of the 4th defendant to execute a ssile-deed to the plaintiff and put the plaintiff in possesirm and with other reliefs has given a declaration that the sale-deed to the 6th and 7th defendants was void and ineffectual as against the plaintiff. The 5th defendant is dead. Defendants Nos. 6 and 7 appeal and their contentions are as follows:-(1) that prior to the date of the agreement in favour of the plaintiff there was an oral agreement between them and the other defendants dated the 22nd August 1906 to sell the property to them for the sum of Rs. 2,275, (2) that at the date of the sale to them there was no subsisting contract between the plaintiff and the other defendants, (3) that the plaintiff's contract is not binding on any party but himself because (a) the first defendant was not the managing member (b) even if he was de facto manager it was not made with the express consent of the 2nd and 3rd defendants as alleged in the plaint and the 4th defendant being a minor specific performance cannot be had against him with the result that the plaintiff could only bind the 1st defendant on his contract in which circumstances the court would not grant the specific relief sought for but would only award damages. We will take these contentions in order and see how far they are proved and are an answer to the plaintiff's claim.
2. We are unable to accept the evidence of the alleged oral agreement of the 22nd August 1906. Mr. K. Srinivasa Aiyangar relies chiefly on the fact that defendants Nos. 6 and 7 purchased stamp papers soon after the date of the alleged agreement and also on the fact that that agreement is recited in the sale deed. The story however is utterly improbable on the face of it. The 6th and 7th defendants allege that they were in negotiation for this property for a month prior to the alleged oral contract, that they originally having offered Rs. 2,000 and the family insisting on Rs. 2,500, at the end of the month they eventually agreed to pay Rs. 2,275, If this be so it is inconceivable that they should have subsequently paid Rs, 2,900 for the same property instead of insisting on their contract being carried out. According to their own case the negotiations for the oral contract were carried on with the 5th defendant, the father, whom they themselves alleged to be the managing member and lastly it is unlikely that after such protracted negotiations the agreement should not have been reduced to writing. We have no doubt that the idea of this oral contract was first conceived on the 20th of September 1906 when the sale-deed was executed.
3. For the contention that there was no subsisting contract at the date of the sale reliance is sought to be placed on a discussion that is said to have taken place between the plaintiff and the defendants Nos. 1 to 5 on the 5th of September on which date he undoubtedly asked the 1st defendant to execute a sale-deed and we are asked to hold that he abandoned his right to the execution of the deed, stated that he was going away to Nellore for his father's ceremony and that he would resume negotiations when he returned, but that if he did not return shortly they could sell the property to any body else. We have examined the whole of the evidence very carefully and do not find that this contention is proved. We are satisfied that what took place with regard to the plaintiff's contract is as follows. The 1st defendant undoubtedly entered into a contract with the plaintiff on the 27th August 1906 for the sale of the lands, which contract was witnessed by the 5th defendant, but we do not believe that this was made with the express consent of defendants Nos. 2 and 3 as the evidence called for the plaintiff would have us believe. On September 5th, when the plaintiff demanded his sale-deed the 1st defendant informed him that the 2nd and 3rd defendants would not agree. The plaintiff then recognised that the agreement to sell to him was executed by the 1st defendant only and was not binding on defendants Nos. 2, 3 and 4. He did not abandon his contract but he hoped to get the consent of defendants Nos. 2 and 3 by paying a little more and left them to go to Nellore intending to make that arrangement when he returned. Mr. T. Rangachariar for the plaintiff contended that the 1st defendant was the de facto managing member, the father being old and ill, having resigned the management and that even if express consent is not found there was necessity proved which makes the contract binding on the junior members, while Mr. Srinivasa Aiyangar contra contended that the 1st defendant did not intend to convey more than his own interest and that even if he did intend to do so the document does not purport to convey more than his own interest and lastly that necessity was neither set up in the plaint nor proved and therefore the family interest would not pass. In support of the second proposition he relies on a recent decision of the Privy Council in Balwant Singh v. R. Clancy I.L.R. (1911) A. 296. This case however does not support his proposition. The decision did not turn on the words of the document but on the surrounding circumstances which were examined by the Court to ascertain the true intent of the document. In that case the executant was shown to have been claiming the property as the owner of an impartible Raj and the document itself recites this claim.
4. The case is an authority far the exactly opposite proposition that surrounding circumstances must be looked to to see whether the executant purported to convey his interest or the family interest. This was expressly decided by a Full Bench of five judges in Kanti Ghunder Goswarni v. Bishesivar Goswami I.L.R. (1897) C. 585. It is true that in Sinibhu Nath Pande v. Golap Singh I.L.R. (1887) C. 172, their Lordships of the Privy Council say that a purchaser who is bargaining for the entire family estate would hardly be satisfied with a document purporting to convey only the right and interest of the father, but their Lordships used that as one test only of the intention of the parties. We cannot therefore accept the contention that this agreement purported only to convey the 1st defendant's interest. We have no doubt that when the 1st defendant executed that document he wished the plaintiff to believe that he was conveying the whole family interest in the property. But on the question of necessity we can find no evidence of pressure. What is required to justify such a sale has been laid down long ago in Hanooman Persaitd's case (1856) 6 M.I.A. 393, 'The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded'. There is no evidence of the condition of this estate or of any threatened proceedings or even pressure of creditors and it further tells very strongly against the plaintiff that within a month from the date of this agreement the family was able to obtain Rs. 525 more for the same property: such an agreement on that ground alone could not in this case be upheld as being for the benefit of the estate. We therefore find that neither consent nor necessity has been made out.
5. The questison whether specific performance can be had against a minor of a contract made on his behalf to sell property has been argued at great length. Mr. Srinivasa Aiyangar relied on a decision of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri I.L.R. (1911) C. 232 and Anr. in Waghela Raj Sanji v. Shekh Masludin I.L.R. (1882) B. 551 and the case of Jugul Kishori v. Chowdhrurani v. Anunda Lal Chowdhuri I.L.R. (1895) C. 545. If this is the law it cannot be denied that it will have a very serious effect on Hindu families. There are very few joint families one member of which at least is not a minor. If therefore a specific performance cannot be had on a contract by such a family to sell property there can be no contract for the sale of land entitling the other party to specific performance. We have examined the case Mir Surwarjan v. Fakhruddin Mahomed Chowdhuri I.L.R. (1911) C. 232 very carefully and are satisfied that that is not what their Lordships decide. The language relied on is at page 237 and it is as follows : ' Their Lordships are of opinion that it is not within the competence of the guardian of a minor to bind the minor or the minor's estate by a contract for the purchase of immovable property.' The first thing that appears is that this is not a case of a contract made by a managing member purporting to bind the whole family but by the guardian of a minor and the manager of his estate. The family in that case were Muhammadans in each of whom including the minor was vested a separate though undivided share of the property and what was considered was the power of such guardian--manager to bind the minor or his property by a contract for the purchase of immovable property. It is obvious that the question which is vital to sales by a managing member, namely, necessity, cannot arise in a contract for the purchase, not for the sale, of immoable property. The Guardians and Wards Act (VIII of 1890) Section 27 expressly provides that a guardian may do all acts that are reasonable and proper for the protection and benefit of the property, but that where a guardian is appointed by the court he shall not dispose of immovable property except in the case of necessity or for an advantage to the ward and then only by permission of the court. The Act clearly contemplates such necessity arising, as of course it frequently does and as no guardian of the property of a minor who is a member of a joint Hindu family can be appointed with reference to his shire in the family property (vide Gharibullah v. Khalah Singh I.L.R. (1903) A. 407 it follows that the restriction in the Act cannot be applied. The decision is only an authority for the exact proposition quoted, namely, that the guardian and manager of a minor's property cannot bind him by a contract for the purchase of immovable property. The case above referred to Gharibullah v. Khalah Singh I.L.R. (1903) A. 407 is one in which a mortgage by the Karta of a family and the guardian mother of a minor was considered by the court: and their Lordships held that the execution by the guardian of the minor was a nullity but that execution by the Karta, that is, the managing member bound the minor. It is true that this was a completed transfer but we can find no principle which would uphold a transfer against the minor but avoid the transaction where it had not got beyond the stage of contract. Krishna Ayyar v. Krishnasami Ayyar I.L.R. (1900) M 597 relied on by Mr. Srinivasa Aiyangar is not an authority for that proposition. The other decision of the Privy Council, Waghela Rajsanji v. Shekh Mmludin I.L.R.(1887) B. 551 lays down that it will be a very improper thing to allow a guardian to make covenants in the name of his ward and that in so doing the guardian exceeded her powers with the result that a suit founded upon the personal liability of the minor must fail. This decision has no bearing whatever on the power of a managing member to bind a minor by a contract for sale of his interest for necessity. We hold therefore that a managing member has power in proper circumstances to so bind the minor's interest and specific performance can be given against that interest. In the present case, however, we are satisfied on the evidence especially with regard to Exhibit H series that the 1st defendant was not the managing member and so not entitled to bind the interest of any one but himself. The fact that the 5th defendant witnessed the agreement is of no materiality now as he is dead and his interest in the estate has disappeared. In the view that we take that the contract only binds the 1st defendant's share, Mr. Rangachariar does dot ask for specific performance as to his share nor should we grant it in the circumstances. of this case. He however claims damages against the 1st defendant's representative. He has not asked for damages in his plaint but we are of opinion that they can be awarded under Section 16 of the Specific Relief Act and we assess the damages at the difference between the sum for which the 1st defendant agreed to sell the property (Rs. 2,375) and Rs. 2,900 which is shown by the subsequent sale deed to be the value of the property. He is also entitled to Rs. 25 expended by him in purchasing the stamp paper and Rs. 20 paid by him at the date of the agreement. Defendants Nos. 6 and 7 will have their costs throughout from the plaintiff. The plaintiff will have his costs from the 8th respondent as legal representative of the 1st defendant. The other defendants will bear their own costs throughout.