Skip to content


Kona Adinarayana Vs. Dronavalli Venkata Subbayya and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtChennai
Decided On
Reported inAIR1937Mad869; (1937)2MLJ653
AppellantKona Adinarayana
RespondentDronavalli Venkata Subbayya and anr.
Cases Referred and Srinivasa Reddy v. Sivarama Reddy I.L.R.
Excerpt:
.....consent of the parties interested in remainder to make a good prima facie title to the fee simple at the..........document was not true; there was no legal necessity such as would justify the sale of the joint family property. the first court nevertheless gave a decree in favour of the plaintiff on the ground that that question was immaterial as the third plaintiff also sued adinarayana for specific performance. the learned subordinate judge on vcnkata appeal was of the opinion that on the date of the contract it subbayya, could not be enforced against the minor; there was a lack of mutuality; his subsequent affirmation was immaterial and the contract could not be enforced against him following the decision in mir sarwarjan v. fakhruddin mahomed chow-dhuri (1911) 21 m.l.j. 1156 : i.l.r. 39 cal. 232 (p.c.). he nevertheless gave a decree by directing specific performance in respect of two-third.....
Judgment:

Venkataramana Rao, J.

1. This second appeal arises out of a suit for specific performance of a contract of sale of immovable property. The contract is dated 4th August, 1930, and the property agreed to be sold thereunder was an extent of 75 cents by seri dry bapat wet land bearing Re-survey No. 276/3 with the paddy crop thereon in the village of Krishnapuram, Kistna District. The sale price was Rs. 1,500. The contract was executed in favour of the first defendant by the plaintiffs 1 and 2 and the 3rd plaintiff represented by the first plaintiff as elder brother and guardian as he was then a minor. The plaintiffs 1 to 3 are members of an undivided Hindu family of which the first plaintiff is admittedly the manager. The purpose recited in the contract of sale was to discharge a debt alleged to be due by the family. In pursuance of this contract an advance of Rs. 25 was paid by the first defendant and possession of the property was given over to him on the said date and ever since the first defendant has continued in possession. This suit has been instituted on the 4th August, 1933, by the three plaintiffs after the third plaintiff attained majority for specific performance of the said contract and for recovery of the balance of purchase money with interest thereon alleging that they were ever ready and willing to perform the contract. They have also impleaded defendants 2 to 4 along with the first defendant as they are the sons of the first defendant. The main defence was that the purpose recited in the document was untrue; the contract was not binding on the minor plaintiff; there was thus want of mutality and hence the contract was unenforceable. Two issues were raised in the case, namely:

(1) Whether the suit contract is binding on the minor third plaintiff?

(2) Whether the contract is unenforceable for want of mutuality?

2. It was found that the purpose recited in the document was not true; there was no legal necessity such as would justify the sale of the joint family property. The first Court nevertheless gave a decree in favour of the plaintiff on the ground that that question was immaterial as the third plaintiff also sued Adinarayana for specific performance. The learned Subordinate Judge on Vcnkata appeal was of the opinion that on the date of the contract it Subbayya, could not be enforced against the minor; there was a lack of mutuality; his subsequent affirmation was immaterial and the contract could not be enforced against him following the decision in Mir Sarwarjan v. Fakhruddin Mahomed Chow-dhuri (1911) 21 M.L.J. 1156 : I.L.R. 39 Cal. 232 (P.C.). He nevertheless gave a decree by directing specific performance in respect of two-third share in the plaint schedule property. Both parties have preferred appeals against this decision, the plaintiffs on the ground that specific performance prayed for by them should have been decreed and the defendants on the ground that the decree as given is unsustainable in view of the fact that what was decreed was nofwhat was bargained for and the contract was an indivisible contract and could not be split up in the manner directed by the learned' Subordinate Judge.

3. The question, therefore, is, is the principle of the decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 IndAp 1 : I.L.R. 39 Cal. 232 (P.C.) applicable to this case? In the said case, a minor after attaining majority sued to enforce a contract of sale of immovable property entered into by the guardian during the minority. It was held he could not sue. Their Lordships of the Judicial Committee expressed themselves thus:

It is not within the competence of a manager of a minor's estate: or within the competence of a guardian of a minor to bind the minor or the minor's estate by a contract for the purchase of immovable property, and they are further of opinion that as the minor in the present case was not bound by the contract, there was no mutuality, and that the minor who-has now reached his majority cannot obtain a specific performance of the contract.

4. The want of mutality, it will be seen, is based on the personal incapacity of the plaintiff to enter into the contract at the time the contract was entered into, and subsequent affirmation by the minor after attaining majority was held immaterial. Can this ground be available at all with reference to contracts entered into by a joint family which may consist of minors as well as adults and the family as such is treated as one entity in its relations with the outside world The family owns and possesses property and there is no minor's estate as such. The manager represents the family; he enters into contract on its behalf; the contract of sale entered into by him must be deemed to be on behalf of every member of the family adultor minor. If the transaction is one for a purpose binding on the family, the minor's interest in the property is also bound and it is within the competence of the manager to bind so unlike the manager or a minor's estate or the guardian of a minor who is not competent to bind the minor's estate by such a contract even though it may be for his benefit. No question, therefore, of lack of mutuality arising from incapacity to contract arises at all. I agree with Chamier, C.J., who delivered the leading judgment of the Full Bench in Hari Charan Kuar v. Kaula Rai (1917) 2 Pat. L.J. 513 : 40 I.C. 142 when he says that contracts made not by the minors but by persons who have power to make contracts on behalf of a joint family do not appear to come within the scope of the ruling in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 IndAp 1 : I.L.R. 39 Cal. 232 (P.C.) and it is wrong to dismiss a suit for specific performance on the ground that the contract lacks mutuality having been made by or on behalf of minors who are not competent to contract. The same view was taken by a Bench of the Allahabad High Court in Dhapo v. Ram Chandra I.L.R. (1934) All. 374.

5. It is contended by Mr. Somasundaram that the suit con tract could not be said to have been entered into on behalf of the family as all the members of the family were not parties and the third plaintiff was separately represented by the first plaintiff. I do not agree with this contention. The property sought to be sold was admittedly joint family property. The purpose alleged was joint family purpose. The first plaintiff, as manager and as the elder brother of the family, represented the third plaintiff because he only could represent him. If the first plaintiff alone had executed the contract as manager, he must, in law, be deemed to have represented the second and third plaintiffs. The fact that it is expressly stated in the contract that the first plaintiff represented the third plaintiff cannot take away the representative character of the first plaintiff. (Vide Dhapo v. Ram Chandra I.L.R. (1934) All. 374.) The association of the second plaintiff in the contract was for the purpose of obtaining his concurrence therein. I may usefully refer in this connection to a decision of the Privy Council reported in Gharib-ullah v. Khalak Singh (1903) L.R. 30 IndAp 165 : I.L.R. 25 All. 407 (P.C.). In that case there were three undivided brothers, Khalak Singh, Jangli Singh and Jai Singh.

6. On the date of their father's death, Jangli Singh and Jai Singh were minors and their mother obtained a certificate of guardianship from the Court. For discharging debts due by the family after Jangli Singh attained majority, a mortgage was executed and the parties to the mortgage were Khalak Singh, Jangli Singh, for themselves and Jai Singh represented by his mother as guardian. In a suit to enforce the mortgage, the plea was that Jai Singh was admittedly a minor and member of a joint family; the mother could not be appointed guardian; her representation in the mortgage of the minor was not a valid representation and Khalak Singh did not represent him in fact and, therefore, the mortgage could not be enforced as against the minor. Their Lordships accepting the contention that the mother could not have been appointed guardian of the minor in respect of the joint family property, nevertheless, held that the mortgage must be deemed to have been made on behalf of the family and observed thus:

Their Lordships think that the mortgages under consideration were not mortgages by the guardian, assuming the mother to have been a guardian, but mortgages by the family, entered into by the karta of the family, with the concurrence of Jangli, the only other adult member of the family.

7. In this case, therefore, the contract of sale must be deemed to have been entered into by the first plaintiff as the karta of the family with the concurrence of the adult male member, the second plaintiff.

8. The next contention of Mr. Somasundaram is that in view of the finding of the learned Subordinate Judge that the attempted sale was not for the purpose binding on the family and therefore the minor's interest could not have been validly conveyed in pursuance of the said contract, no decree for specific performance can be passed on the basis of such a contract. There is no doubt that the legal effect of the said finding is that the first and second plaintiffs could not have conveyed the entirety of the property sought to be sold. I will assume that the contract is indivisible and the vendors, the first and second plaintiffs, could not have compelled the first defendant to take a conveyance of their shares subject to payment of compensation; but it would not have precluded the first defendant from insisting upon a conveyance of their shares, if he so desired, subject to payment of compensation. Under such circumstances, it is very doubtful if, on the basis of lack of mutuality, a decree for specific performance can be refused at all. However, it was open to the purchaser to repudiate the contract on discovering a defect such as this but before repudiation or on discovery of the defect, if the purchaser omits to repudiate the contract and the vendor, the karta, cures the defect by obtaining also the concurrence of the third plaintiff and is able to convey the entire property, it is competent to the Court to decree specific performance. In my opinion the principle of the decision in Hoggart v. Scot (1830) 1 Russ. & M. 293 : 39 E.R. 113 would apply.

9. The said principle is this:

The plaintiff in a bill for the specific performance of a contract is entitled to a decree, if, at the hearing, he can show a good title, although he had not such title at the time of the contract; but the defendant might, if he had thought fit, have retired from the contract, as soon as the want of title was discovered, and was not bound to wait till the plaintiff could acquire a good title.

10. A similar principle was applied in the case of Salisbury v. Hatcher (1842) 2 Y. & C.C.C. 54 : 63 E.R. 24 where specific performance of a contract for sale of an estate in fee simple was decreed in favour of a vendor who at the time of the contract was tenant for life only; the purchaser not having rejected the purchase as soon as he had ascertained the real interest of the vendor, and the vendor being able by means of the consent of the parties interested in remainder to make a good prima facie title to the fee simple at the hearing. In this case, though the first defendant according to him discovered within six months after the date of the contract that the recital in the contract of sale that the property was sold for the purpose of discharging a debt in favour of Buchayya was not true, still he continued in possession of the lands and did not repudiate the contract and surrender possession thereof. The right to repudiate must be deemed to have been waived by the first defendant. It is after all an equitable right and cannot be enforced in favour of a person who has no equity in his favour. There is nothing in Hindu Law or in the Specific Relief Act which prevents the application of the principle of the said cases to the present case. The cases in Kosuri Ramaraju v. Ivalury Ramalingam : (1902)12MLJ400 and Srinivasa Reddy v. Sivarama Reddy I.L.R. (1908) Mad. 320 seem to suggest that a contract such as this is capable of ratification by persons who' are not parties to the contract of sale by a manager and it can be enforced by the purchaser against them after such ratification. If it could be enforced against them, it must also be capable of enforcement by them. Further, as on the date of suit the plaintiffs in this case are able and willing to give a valid title to and convey the property agreed to be conveyed under Ex. I, they are entitled to a decree for specific performance as prayed for. I therefore reverse the decree of the learned Subordinate Judge, allow the memorandum of objections with costs and restore the decree of the District Munsiff. As a result of this judgment, the second appeal fails and is dismissed, but I make no order as to costs in the second appeal.

11. Leave to appeal granted.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //