1. This appeal arises out of a suit for specific performance. The suit property belonged to the father of the plaintiffs. He sold the suit property on 24-1-1956 to the defendant. On the same date, the defendant executed a registered deed of agreement for resale in favour of the plaintiffs' father. On 12-7-1957. the plaintiffs' father assigned the rights under the agreement of resale in his favour to the plaintiffs. To the plaintiffs' claim for specific performance, the defendant's contention was that the father of the plaintiffs had no right to assign the agreement of reconveyance, that there was no valid tender and that the suit was not maintainable, as the plaintiffs were minors. The only question of substance that was argued before this Court was that the plaintiffs could not maintain this suit as they are minors and the test of mutuality is not satisfied in this case. The plaintiffs based their contention on the decision in Mir Sarwarjan v. Fakhruddin. (1911) Cal 232 which was followed by a Full Bench of this Court in Venkatachalam Pillia v. Sethuramarao, AIR 1933 Mad 322 . In the Privy Council case in ILR(1911) Cal 232 the guardian of a minor entered into an agreement with another for the purchase of certain immoveable property by the minor. The minor after attaining the majority sued for specific performance of the contract. Their Lordships laid down the law as follows--
'They are however of opinion that 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 immoveable 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 majority cannot obtain sepecific performance of the contract'.
In AIR 1933 Mad 322, there was a sale In respect of a minor's property executed by his guardian and there was a covenant that in case the vendee sold the property, he should resell it to the minor or his heirs. It was held as follows--
'that the agreement for sale in the sale deed being an executory contract without mutuality was unenforceable by either party in a suit for specific performance irrespective of the question whether the contract was for the benefit of the minor or not'.
Before the Full Bench an attempt was made to get over the effect of the Privy Council decision by urging that as in the case beiore the Full Bench, the contract was for the benefit of the minor he should be able to enforce specific performance of the contract. But the Full bench pointed out that in the case before the Privy Council the contract was validly entered into and was for the benefit of the minor and was even ratified by him. The effect of these decisions seems to be considerably shaken by a later decision of the Privy Council in Subrahmanyam v. Subbarao , Dealing with this question under the heading 'Minors and the Doctrine of Mutuality' in his book, 'The Law of Specific Relief Prof. G.C. Venkatasubba Rao at page 159 observes as follows--
'Since the decision of the Privy Council in ILR(1911) Cal 232 , it must be taken as settled law that the doctrine of mutuality applies to India .....'. He observes at page 160 as follows-
'Thus it is clear that an executory contract for the transfer of immoveable property in favour of a minor is not capable of specific performance. In AIR 1933 Mad 322 dealing with an agreement of resale contained in a sale deed executed by a guardian and sought to be enforced by the minor after attainment of majority, the Madras High Court observed ------'The validity or enforceability of such a contract does not therefore, depend upon the question whether it was conducive to the benefit of the minor or not'. That contract was held to be unenforceable specifically as it was lacking in mutuality................'
'It may, therefore, be taken as well settled that an executory contract for the purchase of immoveable property entered into by a guardian on behalf of the minor is not capable of specific performance either at the instance of the seller or at the instance of the minor purchaser'.
At page 162 it is observed as follows--
'A recent decision of the Privy Council in AIR 1948 PC 95 has considerably shaken the authority of the long catena of decisions noticed above. In the case before the Privy Council the mother as the guardian of her minor son entered into an agreement for the sale of the minor's lands. The intended transferee was put in possession pursuant to the contract. The minor, however, sued by his next friend for recovery of possession of the properties. The defendant vendee relied upon the doctrine of part performance embodied in Section 53-A of the Transfer of Property Act, IV of 1882. The Madras High Court held that Section 53-A could not be invoked by the defendant as the minor plaintiff was not a 'transferor' as contemplated by that section. This decision was reversed by the Privy Council. Referring to the power of the guardian to enter into the contract of sale the Privy Council observed-- 'Their Lordships entertain no doubt that it was within the powers of the mother as guardian to enter into the contract of sale of 29th November 1935, on behalf of the respondent for the purpose of discharging his father's debts, and that if the sale had been completed by the execution and registration of a deed of sale, the respondent would have been bound under Hindu Law'.
The conclusion of their Lordships is thus formulated:
'It would appear, therefore, that the contract in the present case was binding upon the respondent from the time when it was executed. If the sale had been completed by a transfer, the transfer would have been a transfer of property of which the respondent, not his mother, was owner. If an action had been brought for specific performance of the contract it would have been brought by or against the respondent and not by or against his mother'. It may also be noticed that Lord Morton of Henryton in the above case expressly refers to and approves a passage in Pollock and Mulla's Commentary on the Indian Contract and Specific Relief Acts 7th Edn. page 70, where the learned authors observe that in the case of a contract entered into on behalf of a minor by his guardian, 'the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further, it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all.' That the first of these conditions is wanting in the case of a contract by the guardian for the purchase of immoveable property on behalf of the minor is perfectly clear from Mir Sarwarjan's case, ILR(1911) Cal 232 . That neither of the two conditions need be wanting when the contract is for the sale of the minor's immoveable property is equally clear from the latest decision of the Privy Council in . A contract for the purchase of immoveable property can rarely be demonstrably for the benefit of the minor's estate or for legal necessity but the same cannot be said of a contract for sale of the minor's property. This seems to be the basis for drawing a distinction between contract for the purchase of property and contracts for sale entered into on behalf of minors'.
At page 163 occurs the following passage-
'........A Full Bench of the Madras High Court has taken a different view. Govinda Menon J. expressed the view that the effect of the later Privy Council decision is to render the principle of mutuality inapplicable to contracts for sale of the minor's property leaving that doctrine still applicable to a contract of purchase of property for the minor which was the specific case dealt with by the earlier Privy Council decision. These conflicting decisions were considered in Abdulsattar v. Ismail, : AIR1958MP373 by the Madhya-Pradesh High Court, Newaskar J. was inclined to the view that the decision of the Privy Council in Mir Sarwarjan's case, (1911) Cal 232 is not overruled by the later decision thus endorsing the opinion of the Full Bench of the Madras High Court. The other learned Judge, Srivastava, J., however, did not share this view and was inclined to agree with the Full Bench decision of the Andhra Pradesh High Court.........'.
'This case focuses attention on the incompatibility between the decision in Mir Sarwarjan's case . The learned Judges who have distinguished the later Privy Council decision and have held that it has not shaken the authority of the earlier Privy Council ruling have not pondered over a situation in which both vendor and vendee are minors acting through their guardians. That the minor purchaser can say 'I rely on Mir Sarwarjan's case, ILR(1911)Cal 232 This is a contract of purchase. So it is beyond the power of my guardian to bind me. Ergo it cannot be specifically enforced against me.' To this the minor seller would say: 'I rely on . This is a contract of sale. It is for legal necessity. My guardian can enter into this contract. Ergo, I can specifically enforce it.' How are we to resolve this tangle? it is respectfully submitted that the Full Bench decision of the Madras High Court has erred in supposing that the two Privy Council decisions can stand together. The Full Bench of the Andhra High Court has rightly held that the earlier Privy Council decision must be deemed to have been overruled by the later pronouncement'.
It appears to me that on principle the contention on behalf of the appellant cannot be supported. In this case the agreement for reconveyance was in favour of the plaintiffs' father. That contract was not hit by the doctrine of want of mutuality. The only question that arises, therefore, in this case whether because the plaintiffs, who are the assignees of the contract in favour of their father, are all minors, they cannot enforce the contract for specific performance on the ground that the defendant would not be able to enforce contract for specific performance as against the plaintiffs. It would not be correct to say that the defendant would not be entitled to enforce the contract of specific performance as against the plaintiffs. A contract by a minor is void. The effect of the Privy Council decision in ILR(1911) Cal 232 is that a contract on behalf of a minor for purchase of a property is not valid and binding on the minor. The present is not a case of a contract by a guardian of a minor on behalf of the minor to purchase the property for the minor. The original contract is between the two adults and the contract is certainly valid. The fact that the assignee happens to be a minor does not mean that the contract cannot be enforced by the assignee-minors or that it cannot be enforced as against the assignee-minors. The relevant date on which this test of mutuality is to be applied is the date of the contract itself and not the date on which it is Bought to be enforced.
In AIR 1933 Mad 322 , it was pointed out at p. 325, that want of mutuality must be judged as on the date of the contract. In Fry's Specific Performance of Contract, 6th Edn. at 219 it is stated that a contract to be specifically enforced by the Court must, as a general rule, be mutual, that is to say, such that it might at the time it was entered into, have been enforced by either of the parties against the other of them. The further observation of the learned author that an infant cannot sue, because he could not be sued for a specific performance can only, therefore, refer to a case where the infant himself enters into a contract. The two cases relied on by him in support of this observation are both cases of contracts entered into by minors. (Flight v. Holland (1827-28) 4 Buss 8 and 9 George IV P. 293, and Lumley v. Revenscroft, (1895) 1 QB 683) In both those cases, if the Defendants had sued for specific performance the minor plaintiffs could have successfully urged that the contracts entered into by them could not be enforced against them as they were minors at the time the contracts were entered into. There being thus no mutuality the plaintiffs were not entitled to sue.
2. In Corpus Juris Secundum Volume LXXXI, the position regarding mutuality is stated thus at page 430--
'Where an infant plaintiff claims under a party who himself could have obtained specific performance, such infancy is no ground for refusing specific performance. Likewise, specific performance has been allowed, for or on behalf of, an infant where the contract involved was made for him by one competent to do so. Where there has been complete performance by the infant, his infancy has been held to be no bar to specific performance'.
There is, therefore, no valid legal objection to granting a decree for specific performance in favour of the plaintiffs in this case.
3. The defendant's appeal, therefore,fails and it is dismissed with the costs ofthe plaintiffs to be paid by the defendants.No leave.