Madhavan Nair, J.
1. Defendant 2 is the appellant. Defendant 1 was a minor. On his behalf his guardian executed a contract of sale of the suit lands in favour of the plaintiff on 19th May 1923. The appellant (defendant 2) obtained a sale-deed of the same lands from defendant 1 on 13th July 1925. The suit out of which this second appeal arises was instituted by the plaintiff for the special performance of the contract of sale executed in his favour by the guardian of the minor, defendant 1, on his behalf. Defendant 2 contended that he was a bona fide purchaser of the suit lands for proper consideration, without notice of the contract of sale in favour of the plaintiff and that the contract in plaintiff's favour is not binding on him.
2. Both the Courts found that the contract in plaintiff's favour executed by defendant 1's guardian was supported by proper consideration and was for purposes binding on the minor. The lower Courts also found that the appellant had notice of the contract of sale in favour of the plaintiff and that he was not a bona fide purchaser for proper consideration. On these findings the plaintiff was given a decree for specific performance of the contract in his favour. In support of the decree the learned Subordinate Judge relied on the decision in Chidambaram Swamigal v. Ramakrishna Reddiar AIR 1924 Mad 863 in which it was held by Devadoss, J., that under the Hindu law it is competent to the guardian of a minor to enter into a valid contract for the sale of his immovable property for the purpose of discharging the debts of the minor's father for which the property in the minor's hands would be liable and that such a contract of sale can be enforced against the subsequent purchaser of property with notice, even though the latter has brought it for a higher price than that stipulated under the prior contract.
3. Subsequent to the disposal of the appeal by the Subordinate Judge, the decision in Chidambaram Swamigal v. Ramakrishna Reddiar AIR 1924 Mad 86 was reversed by Wallace and Thiruvenkatachariar, JJ., in a Letters Patent appeal preferred against that decision: see Ramakrishna Reddiar v. Chidmabara, Swamigal AIR1928Mad407. The learned Judges held that an agreement of sale of immovable property of a. Hindu minor entered into on his behalf by his natural guardian, assuming the same to have been entered into for necessity, is not binding on the minor and enforceable specifically against him or a subsequent transferee of the properties from the guardian who took with notice of the agreement. The appellant relying on this decision argues that the second appeal shall be allowed and that the plaintiff's suit should be dismissed.
4. Having regard to the decision in Ramakrishna Reddiar v. Chidamabara Swamigal AIR 1928 Mad 407, Mr. Varadachariar for the plaintiff-respondent frankly conceded that he could not support the lower Court's judgment on the ground on which it has been based by the learned Subordinate Judge, but he contended that the judgment could be maintained on the statement appearing in the appellate judgment under point 4 (whether defendant 2 had notice of the contract of sale in favour of plaintiff and whether he was a bona fide purchaser for proper consideration)
that the plaintiff has been in possession of the suit property since the date of Ex. A in 1923
5. His argument is, since the debts binding on the minor were discharged by the consideration paid by the plaintiff for the sale, and since he was put in possession of the property in pursuance of the contract, though the contract is not itself enforceable, the plaintiff has a good title to the property on the equitable ground of 'part performance.' I may say that 'part performance of the contract' as an alternative title to the property was not put forward at any stage of the suit till now and the sole basis of the argument is the statement occurring in the Subordinate Judge's judgment referred to above. The question is how far this argument can be accepted.
6. No direct authority in support of his argument was referred to by the learned Counsel, but he has drawn my attention to a decision in Nageswara Rao v. M. Kotamma : AIR1928Mad830 , in which there is a dictum of the learned Judges which appears to support him. In that case two suits were filed, O.S. Nos. 481 and 338 of 1919, and the first suit was a suit for specific performance of a contract for the sale of the plaint-mentioned lands entered into between the plaintiff and defendant 2 as guardian of defendant 1; while the second was to recover possession of the self same lands by defendant 3 in the first suit from the plaintiff therein and his sons, he having purchased the suit lands under a sale deed executed by defendant 1 in his favour. Defences similar to those raised in the present case were raised by the parties in those two suits.
7. The Courts found that the contract sat up by the plaintiff in O.S. No. 484 of 1919 was supported by consideration and necessity and defendant 3, the plaintiff in O.S. No. 334 of 1919, purchased the property with the knowledge of the contract with the plaintiff. The lower Courts granted specific performance against the minor in O.S. No. 484 of 1919, and in O.S. No. 334 of 1919 refused to the plaintiff a decree for delivery of possession. Two second appeals were filed in this Court. The learned Judges on the authority of the decisions in Rama Krishna Reddiar v. Chidambara Swamigal AIR 1928 Mad 407 held that the lower Courts were clearly wrong in granting specific performance against the minor and in the other case in refusing to the plaintiff a decree for delivery of possession. Then they stated the argument based upon 'part performance' that might have been raised in support of the claim of the plaintiff against the minor in the 'specific performance suit' and answered it in the following manner; and in that answer occurs the dictum relied on by the learned Counsel for the respondent:
The only possible question that might have been raised and argued is in the case whether the matter could be regarded as different if, as in the present case, there was not only a contract by the guardian to convey the property, but pursuant to the contract the guardian by way of partly performing the contract had placed the other party in actual possession. But we believe that a satisfactory answer to this has been furnished by Mr. S. Varadachariar, the learned vakil for the appellant The doctrine of part performance being a doctrine of equitable relief could be hold to apply only to the person concerned and if, as in this case, the contract was not a contract of the plaintiff who is suing, it follows that the equitable principle cannot be invoked as against him.
8. Having regard to the facts of the case, the latter part of the answer explaining the learned Judges' refusal to apply the doctrine is not very clear and if the observation refers to the specific performance suit, as it obviously does, the statement that 'the equitable principle cannot be invoked as against him' should, I think, be that the 'equitable principle cannot be invoked in his favour.' The counsel was not able to explain this difficulty very satisfactorily, but that does not affect in any way the statement expressed in the first part of the answer that the doctrine of equitable relief could be held, to apply 'to the persons concerned.' Mr. Varadachariar relying upon this dictum argues that in this case the persons concerned in the contract, the specific performance of which is sought against defendant 1, are defendant 1 and the plaintiff and that the latter is entitled to invoke that doctrine in his favour and claim a decree in the suit on the ground that he has been in possession of the suit lands since 1923. I was referred to no authority in support of this position. Mr. Varadachariar, who appeared in the case in Nageswara Rao v. M. Kotamma : AIR1928Mad830 and who appears in this case also, intimated to me that he quoted before the learned Judges the decision in Robert Blore v. Sir Richard Sutton 36 ER 91 in support of the proposition. It is conceded that, except suggesting such a doctrine, that decision has no direct bearing on this question. I am not able to find much support for the proposition contended for in that judgment.
9. In Subba Rao v. Veeranjaneyaswami : AIR1930Mad298 , Ramesam and Jackson, JJ., observed with regard to the doctrine of part performance that the doctrine is only used to complete an intended transfer between the transferor and the transferee where there is no other objection to complete the transfer. It has never been used to complete a transaction against a third person, such as the idol of a temple or cesti que trust or a minor against whom it cannot be regarded as operative. No doubt these observations were made in connexion with the application of Article 134, Lim. Act, to the facts of that case. But I do not think that would affect the principle enunciated by the learned Judges. In that case it was found impossible to hold that the suit was barred under Article 134 as there was nothing to show that there was a valid transfer of the suit lands between the transferor and the transferee, and reliance was placed on the doctrine of part performance in support of their title by the defendants.
10. The learned Judges held that the doctrine could not be relied on for the reasons mentioned in the extract already quoted. If the doctrine cannot be invoked to complete a transaction against a minor against whom the transaction could not be regarded as operative, then in the present case I do not think it is possible for the plaintiff-respondent to rely on it in his favour, defendant 1 being a minor and the contract for specific performance being invalid and not operative as against him in law. One of the necessary conditions for applying the doctrine of part performance is stated by Fry in his book on Specific Performance (Edn. 6, p. 276) to be that the contract to which the act of part performance referred must be such as in its own nature is enforceable by the Court. As already pointed out, the decision in Rama Krishna Reddiar v. Chidambaram Swamigal AIR 1928 Mad 407 has declared that the contract in the present case is not enforceable by the Court against defendant 1.
11. That being the case, this necessary condition is lacking in this case and there is no room for the application of the doctrine of part performance. In this connexion attention may be drawn to the decision of this Court in C. Venkataratnam v. B. Guravayya : AIR1930Mad84 , which contains general observations in support of the contentions urged by the appellant. I do not think that the other cases cited by the learned Counsel on both sides, Mir Sarwarjan v. Fakhruddin Mahomed (1912) 39 Cal 232, Nipendra Chandra v. Ekherali Joardar : AIR1930Cal457 and Hiralal Ramanarnyan v. Shankar Hirachand AIR 1921 Bom. 401, afford any direct help for deciding this question. There being no room for the application of the doctrine of part performance for the reasons above mentioned I am of opinion that this second appeal should be allowed and the plaintiff's suit dismissed. The appellant will get the costs of this second appeal from the plaintiff. The lower Court's order as to costs will stand.