1. This is an appeal against the judgment of Mr. Justice Devadoss in S. A. No. 51 of 1922. The point for decision is whether a guardian of a Hindu minor can bind his ward by a personal covenant for sale of the minor's estate so that specific performance of the contract may be decreed against the minor. The learned Judge held on the authority of a Full Bench ruling in Ramajogayya v. Jagannadhan ILR (1918) M 185 : 1918 36 MLJ 29 that the minor can be bound. Before us it has been argued that that Full Bench ruling does not go so far as the learned Judge takes it, and I am of opinion that this contention is well-founded.
2. It may be taken for purposes of argument in this case that the proposed sale was for necessary purposes. The same was the case in the Full Bench ruling. The question referred to the Full Bench was 'whether any decree, and if so, what decree can be passed against a minor or his estate on a covenant entered into on his behalf by a guardian for his benefit under which covenant no charge is made on the estate' and in answering this question full weight was given by the Full Bench to the decision of the Privy Council in Waghela Rajsanji v. Shekh Masludin (1887) LR 14 IA 89 : ILR 11 B 551 which was interpreted to mean that the guardian of a Hindu minor could not bind his ward by a personal covenant. That is how the learned Chief Justice begins his judgment, and he proceeds to lay down that the general proposition laid down by the Privy Council will not affect the liability of the minor's estate for necessary purposes, and he points out that in all the cases cited before the Full Bench the minor's estate could have been liable independantly of any contract by the guardian. He answered the question refered by saying that a decree cannot be passed against a minor or his estate on a covenant entered into on his behalf by his guardian for his benefit evidently drawing a distinction between a purpose of benefit and a purpose of necessity. The other two learned Judges were agreed that Waghela Rajsanji v. Shekh Masludin (1887) LR 14 IA 89 : ILR 11 B 551 (PC) meant that an onerous covenant cannot be imposed by the guardian upon the person or property of a Hindu minor, but laid down that where a Hindu minor's estate would be liable but for the interposition of the guardian, an undertaking by the latter of that liability would bind the estate, and that the Privy Council ruling in Waghela Rajsanji v. Shekh Masludin (1887) LR 14 IA 89 : ILR 11 B 551 (PC) did not affect the Hindu Law liability of a minor. They answered the question by saying that a decree can be passed on a contract by the guardian in cases where the minor's estate would have been liable under his personal law. I take this to mean that a guardian can bind a minor by contract or personal covenant only so far as his Hindu Law obligation will bind him, that when a contract by a guardian undertakes on behalf of the minor no more than the liability which the minor carries under his personal Hindu Law, that is, when the guardian's contract merely embodies that Hindu Law liability of the minor, it can be enforced against the minor; and that this is the sole exception to the general law that a guardian cannot bind the minor by a personal covenant. That this is their meaning is indicated by the statement of Seshagiri Aiyar, J., that his conclusion was the same as that of the learned Chief Justice, only that it was put in other words. So that the Full Bench case comes to this, that is, so far, and only in so far, as the contract by the guardian embodies the personal Hindu Law liability of the minor is it enforceable against the minor and in so far as it goes beyond that it comes under the general rule that a guardian cannot bind his ward by a personal covenant. The principle is clear : By such a restricted covenant the guardian is not laying on the minor any greater burden than he already has to bear under his personal law and therefore to enforce the covenant by the guardian is merely to enforce a liability which the minor has aliunde to carry.
3. Now in the case before us, in which it is sought to hold the minor liable for specific performance of a contract by his guardian to sell his property, it is obvious that the covenant goes beyond the personal Hindu Law liability of the minor. Hindu law does not compel him to discharge debts for necessary purposes by contracting to sell his property; it merely compels him to discharge the debts; it does not lay down the method in which he shall discharge or restrict him to any one method; it is not concerned with what method he adopts, provided the debts are discharged. It appears to me therefore that on this ground alone it must be held that the minor is not bound by the guardian's covenant in this suit. The minor's personal liability extends only to the discharge of the debt. He may choose his own method, by selling land or borrowing elsewhere by mortgage, by suffering decree in a suit. He cannot be forced by the law to adopt one particular method, nor is there any authority for that proposition in Ramajogayya v. Jagannadhan ILR (1918) M 185 : 36 MLJ 29. In this view I do not think it necessary to consider at length most of the cases cited before us. I shall deal with those cases put forward by the respondent as indicating in his view that the general proposition deduced from Waghela Rajsanji v. Shekh Masluddin (1887) LR 14 IA 89 : ILR 11 B 551 is too wide and that a Hindu guardian may in certain circumstances bind his ward by a personal covenant which goes beyond the ordinary Hindu Law liability of the ward. These cases were Watson and Company v. Sham Lal Mitter (1887) LR 14 IA 178 : ILR 15 C 8 (PC), Krishnaswami v. Sundarappier ILR (1894) M 415 : 1894 5 MLJ 164 and Krishna Chettiar v. Nagamani Ammal ILR (1915) M 915. In Watson & Company v. Sham Lal Mitter (1887) LR 14 IA 178 : ILR 15 C 8 (PC) a Kabuliat signed by the guardian agreeing to pay an enhanced rent for land was held binding on the ward. But this was really a case not of a contract, but of a compromise of itigation and I do not find it of such assistance here. Krishnaswami v. Sundarappayyar ILR (1894) M 415 : 1894 5 MLJ 164 is a ruling of a Bench of this Court in which it was held that a contract by a guardian of a Hindu minor for sale of his land was binding on the minor. It proceeded on the general ground that the English doctrine that specific performance cannot be decreed against a minor does not hold in this country; but the Privy Council has certainly laid down the contrary--see Waghela Raj-sanji v. Shekh Masludin (1887) LR 14 IA 89 : ILR 11 B 551 already cited and Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) LR 39 IA 1 : ILR 39 C 232 : 1911 21 MLJ 1156. The case in Krishna Chettiar v. Nagamami Ammal ILR (1915) M 915 held that a promissory note executed by a guardian of a Hindu minor for purposes binding on him is enforceable against his estate. But this, it appears to me, would come directly within the ambit of Rama-jogayya v. Jagannadhan ILR (1918) M 185 : 36 MLJ 29 and is in fact decided on the very same line of argument. A very similar case is in Venkata-swami Naicker v. Muthuswami Filial (1917) 34 MLJ 177.
4. Other cases cited before us may be very shortly dealt with. In Abdul Haq v. Muhammad Yahya Khan (1923) 4 Pat. LT 553 one learned Judge of the Patna High Court has held that the Privy Council case in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhury (1911) LR 39 IA 1 : ILR 39 C 232 : 1911 21 MLJ 1156 means that 'it is quite impossible for the court to decree specific performance against a minor'. So holds a Calcutta Bench in Srinath Battacharya v. Jatindra Mohan Chatterji (1925) 30 CWN 263. In Swarath Ram Ram Saran v. Ram Ballabh ILR (1925) A 784 a Bench of Judges also favour that interpretation although they do not definitely decide on it. In Innatunnessa Bibi v. Janaki Nath Sircar (1917) 22 CWN 477 a Bench of the Calcutta High Court, held that a contract by a guardian to sell the minor's property would bind the minor where the District Court had sanctioned the contract. No reasons are given. One of the learned Judges who was a party to that decision declined in a subsequent decision reported in Tarini Kumar Dutta v. Srish Chandra Das 85 IndCas 667 to decide the general issue whether a suit for specific performance of a contract for sale of a minor's property entered into by a guardian with permission of court was maintainable. Narayana Row v. Venkatasubba Row (1919) 38 MLJ 77 , a decision of this Court, follows Mir Sarwarjan v. Fakruddin Mahomed Chowdhury (1911) LR 39 IA 1 : ILR 39 C 232 : 21 MLJ 1156, and Sanka Krishnamurthi v. Bank of Burma : (1911)21MLJ620 follows Waghela Rajsanji v. Shekh Masluddin (1887) LR 14 IA 81 : ILR 11 B 551.
5. It was argued for the respondent that, on general principles, if a contract to sell by the guardian is not binding on the minor, the subsequent sale based on such contract must also be not binding. This contention does not resolve the difficulty in the respondent's way created by the Privy Council decisions, and would, if pressed to its logical conclusion, imply that no sale of a minor's property by his guardian even for necessary purposes can bind the minor. The solution of this problem is I think to be found in the view of the concurring Judges in Ramajogayya v. Jagannadham ILR (1918) M 185 : 1918 36 MLJ 29. When the sale has been completed there is no longer any Hindu Law liability on the minor. His debt has disappeared by the sale and the liability is therefore at an end.
6. I must hold therefore that the plaintiff cannot in law enforce on this minor specific performance of the guardian's contract to sell his estate. There was no mutuality in the contract and the contract is therefore void. Since the plaintiff cannot enforce it on the minor, he cannot enforce it on any third part)' such as the 3rd defendant, to whom the land was subsequently sold by the guardian. The 3rd defendant cannot in any sense be in the position of a trustee for the plaintiff of the property, since the plaintiff could not enforce his original contract.
7. In the result the decree of the learned Judge must be reversed. We reverse it and restore that of the lower appellate court with costs to the 3rd defendant throughout to be paid by plaintiff.
Tiruvenkata Achariyar, J.
8. I have had the advantage of perusing the judgment of my learned brother. I agree with him; but as the question is one of some importance and we are differing from Mr. justice Devadoss, I wish to add a few words.
9. The main question argued before us is as follows:Is an agreement of sale of the immoveable property of a Hindu minor entered into on his behalf by his natural guardian, assuming the same to have been entered into for necessity, binding on the minor and enforceable specifically against him?
10. As regards the powers of a natural guardian of a minor to deal with the minor's estate and bind the minor by his contracts, the following propositions are well established:
(1) The guardian may in case of necessity sell or mortgage his ward's property to the extent of such necessity.
(2) The guardian may also without charging the estate, contract loans for necessary purposes which he could not otherwise meet; the term necessary purposes being understood as comprising all that is necessary to meet the wants of the minor and of other members of the family who have claims either against him personally or against his estate. The creditor in such cases cannot enforce the claim against the minor personally but may enforce it against his properties.
(3) The guardian cannot enter into any covenants in the name of the ward so as to impose a personal liability upon him.
11. In my opinion the present case falls under the third proposition, whereas, the case in Ramajogayya v. Jagannadhan ILR (1918) M 185 : 1918 36 MLJ 29 falls under the 2nd proposition, as I shall show presently. The suit in this case which was brought by the respondent is to enforce an agreement entered into by the minor's natural guardian binding the minor to convey to the plaintiff certain immoveable properties belonging to him for the purposes of discharging debts already due to him by the father of the minor and which may be enforced against the minor's estate which he has either inheritted from his father or to which he has succeeded by survivorship. Such an agreement does not fall under the first proposition, as an agreement of sale does not of itself create any right to or interest in immoveable property, nor does it fall under the second, because there has been no renewal of the 'debt or covenant on the part of the guardian on the minor's behalf for the repayment of the debt. The old debt still remains as it was before the agreement and the only covenant entered into on behalf of the minor is that he will convey his properties to the plaintiff in consideration of the debts mentioned in the agreement. Such a covenant is one which, if valid, imposes a personal liability upon him. It is beyond the competence of a natural guardian to enter into such covenants on behalf of the ward. This position must be taken to be conclusively settled by their Lordships of the Privy Council in Mir Sarwarjan v. Fakhruddini Mahomed Chowdhuri (1911) LR39 IA1 : ILR 39 C 232 : 1911 21 MLJ 1156 following the ratio dacedendi of their own previous decision in Waghela Rajsanji v. Shekh Masludin (1887) LR 14 IA 178 : ILR 11 B 551. So far as the covenant is concerned it makes no difference whether it is one which binds the minor to sell his property or to purchase the property of the other party to the agreement. In either case it is a covenant imposing upon him personal liability [see per Spencer, J., in Narayan Row v. Venkatasubba Rao (1919) 38 MLJ 77 ].
12. In Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (1911) LR39 IA1 : ILR 39 C 232 : 1911 21 MLJ 1156 the minor on whose behalf a covenant to purchase immoveable property was entered into by his guardian brought a suit to enforce the agreement. Their Lordships assuming that the contract was. for his benefit held nevertheless that he could not enforce it, as the agreement was not binding on him, as it was incompetent to the guardian to bind him by such a covenant which imposes a personal liability upon him. As he was not bound by the agreement, there was no mutuality and hence he cannot enforce it specifically against the other party. The circumstance that, when their Lordships were dealing with the case, the minor had attained majority made no difference. Being a void agreement it was not capable of being ratified by him after he attained majority. The ratio decidendi of this case has been held to be equally applicable to cases in which an agreement for the sale of his properties entered into by his guardian was sought to be specifically enforced against him. See Srinath Bhatta-charya v. Jatindra Mohun Chatterji (1925) 30 CWN 263, Abdul Haq v. Muhammad Yahya Khan (1923) 4 Pat. LT 553 and Swarath Ram Ram Saran v. Ram Ballabh ILR (1925) A 784
13. In Srinath Bhattacharya v. Jatindra Mohan Chatterji (1925) 30 CWN 263 an agreement for the sale of the minor's property was entered into on behalf of the minor for the payment of his father's debt. The learned Judges of the Calcutta High Court held that no distinction can be drawn between the case of the covenant binding a minor to purchase property and a covenant binding him to sell his property and that the latter covenant also should be held not binding on the minor on the authority of Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) LR 39 IA 1 : ILR 39 C 232 : 1911 21 MLJ 1156.The learned Judges also pointed out that if the guardian had effected the sale himself for some necessary purpose it would bind the minor but that a contract to sell stood on a different footing.
14. Abdul Haq v. Muhammad Yahya Khan (1923) 4 Pat. LT 553 is a decision of the Patna High Court, the question involved being whether an agreement entered into on behalf of the minor for the sale of his properties can be specifically enforced against him. The learned Judges, following Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) LR 39 IA 1 : ILR 39 C 232 : 1911 21 MLJ 1156, observe that no distinction can be drawn between an agreement to purchase and an agreement to sell and that the latter agreement cannot also be enforced against the minor. A further question was also raised in this case which also is raised in the present case, vis., whether the agreement can be enforced against a subsequent transferee of the same property who took with notice of the prior agreement. The learned Judges held that if the minor is not bound by the agreement the transferee is also not bound by it.
15. In Swarath Ram Ram Saran v. Ram Ballabh ILR (1925) A 784 the same view was held that an agreement binding the minor to sell his property cannot be specifically enforced as it was a contract to enforce a covenant imposing a personal obligation on the minor and that the question was concluded by the decision of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) LR 39 IA 1 : ILR 39 C 232 : 1911 21 MLJ 1156. The present case is on all fours with the above cases; but the learned Judge has however held that the agreement is specifically enforceable against the minor and it is governed by the decision of a Full Bench of this Court in Ramajogayya v. Jagamadhan ILR (1918) M 185 : 1918 36 MLJ 29. The material facts of that case are as follows: The mother and natural guardian of a minor son borrowed for a necessary purpose, vis., the marriage of the minor's sister, a sum of money from the plaintiff and to secure the loan she executed a deed of mortgage in his favour of the minor's properties and she also entered into a covenant on her own behalf to repay the debt. The mortgagee sued to enforce the mortgage but unfortunately for him the mortgage, which was of properties) within the Agency tracts of Godaveri, was held to be invalid as it could not be validly effected without the sanction of the Agent to the Governor, which had not been obtained. The mortgage having proved invalid the question was : what was the remedy open to the plaintiff (creditor) in respect of the loan which was found to have been incurred out of necessity. The Court of first instance gave a decree for the creditor against the properties of the minor. But on appeal the Agent to the Governor held that the creditor was not entitled to any relief at all. There was a further appeal to this Court and all that was held as a result of the reference to the Full Bench was that the creditor was entitled to have his loan satisfied out of the properties of the minor. All the members of the Full Bench agreed that the minor's sister's marriage was a necessary purpose for the expenses of which the minor's estate was under the law liable and that the loan borrowed for such purposes out of necessity could be enforced against the minor's properties. The only apparent difference was as to how that conclusion was reached. The learned Chief Justice regarded the loan to the guardian as supplying a necessary for the minor and as governed by the principle if not also the language of Section 68 of the Indian Contract Act. The other two learned Judges held that the loan raised by the guardian was only for discharging a pre-existing liability and that it was within the competence of the guardian to raise such a loan and the creditor besides his own remedy against the guardian on the personal covenant, entered into by the latter, had also his remedy against the minor's estate on which the liability to meet the charge for his sister's marriage already rested by law. If the creditor had sued the guardian alone on the personal covenant and recovered the loan from her, the latter had the right to be reimbursed from the estate and the creditor could therefore stand in her shoes and be allowed to enforce his claim direct against the estate itself as had been held in previous decisions of this and other courts. In the result the plaintiff was held to be entitled to recover the amount due to him from the other properties of the minor. I respectfully think that Ramajogayya v. Jagannadhan ILR (1918) M 185 : 1918 36 MLJ 29) does not touch the question that arises in this case and that it falls, as I have already observed, under the 2nd proposition mentioned above. The agreement in the present case merely provides a mode for discharging the pre-existing liability to which the minors' estate was subject, viz., by sale of the minors' property and the present suit against the minors is on the footing that they are bound by the covenant entered into in their names by the guardian to convey the properties to the plaintiff. Such a covenant is of a nature which imposes a personal liability on the minors, which according to the decision of their Lordships of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) LR 39 IA 1 : ILR 39 C 232 : 1911 21 MLJ 1156 must be held to be invalid. This suit is brought only to enforce that covenant and nothing else. The result is that the pre-existing liability subsists and it is open to the plaintiff to enforce the same. In fact even prior to the present suit, he has enforced a prior liability for the minors' estate in respect of one of the two debts referred to in the agreement as part consideration for the sale, viz., the promisory note debt. It is equally open to him hereafter to enforce the mortgage and likewise it is equally open to the guardian of the minors or to the minors themselves when they come of the age to discharge that liability raising the requisite funds in some other manner.
16. As regards the Privy Council case in Watson & Company v. Sham. Lal Mitter (1887) LR 14 IA 178 : ILR 15 C 8 (PC) relied on by the respondent, the decision of their Lordships that the Kabuliat executed by the guardian agreeing to pay enhanced rent to the Patnidar in respect of the holding of the minor was a proper arrangement made by the guardian and was binding on the minor, was based on the special circumstances of the case, vis., that the Patnidar was entitled to sue for enhancement of rent in respect of the holding and a suit for enhancement of rent previously brought by him against the mother and guardian as the representative of the estate had been decreed in his favour. That decree may technically not bind the minor, but his position qua the Patnidar was no better than that of his mother and guardian and resistance on the minor's behalf to the Patnidar's claim would only involve the minor's estate in litigation, in which the probability of success was decidedly in favour of the Patnidar. In these circumstances their Lordships held that the act of the guardian in executing the Kabuliat in which the rate of rent was lower than the rate decreed against her, though higher than the previous rate, was a proper arrangement binding on the minor. It was undoubtedly a fair compromise entered into for averting a litigation against the minor's estate and the decision therefore is authority for a proposition that it is within the power of the guardian to enter into such compromises on behalf of the ward. It will he noted that in this case the liability to pay rent in respect of the minor's holding was preexisting and the only object of the arrangement was to fix the amount of that liability. This decision in no way affects the rule laid down in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) LR 39 IA 1 : ILR 39 C 232 : 21 MLJ 1156.
17. I therefore agree that the present case falls directly within the authority of the decision of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) LR 39 IA 1 : ILR 39 C 232 : 21 MLJ 1156 and that the view taken by the learned Judge based on Ramajogayya v. Jagannadhan ILR (1918) M 185 : 1918 36 MLJ 29 cannot be sustained.
18. One other point was raised before us, viz., that though the agreement may not be specifically enforceable against the minors it can be enforced against the subsequent purchaser (3rd Defendant) who took with notice of the suit agreement. The short answer to this contention is that Section 27 (b) of the Specific Relief Act presupposes a valid contract. But if the original agreement itself is void and unenforceable against the minors, it follows as held by the learned Judges of the Patna High Court in Abdul Haq v. Muhammad Yahya Khan (1923) 4 Pat. LT 553 that it cannot be enforced against a subsequent transferee from the guardian.
19. The appellants' learned vakil wanted to raise some further contentions in support of the appeal, but he was stopped pending the consideration of the questions we have dealt with above and in the view we have taken on these questions it becomes unnecessary for us to hear him on those questions.
20. In the result I agree with my learned brother in the order passed by him.