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N.B. Sitarama Rao Vs. Venkatarama Reddiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtChennai High Court
Decided On
Reported inAIR1956Mad261; (1956)1MLJ5
AppellantN.B. Sitarama Rao
RespondentVenkatarama Reddiar and ors.
Excerpt:
- govinda menon, j. 1. the second defendant is the appellant in this appeal which rises out of a decree passed in favour of the plaintiffs for specific performance of a registered agreement, exhibit a-1 dated 29th november, 1933, for reconveying certain immovable properties. the facts which have given rise to this litigation may shortly be stated: by exhibit b-1, dated 29th november, 1933, the properties which are the subject-matter of the litigation were sold by five brothers namely, 8th defendant's father, defendants 3, 4, 6 and 7 of whom the 7th defendant was a minor represented by the father, of the 8th defendant as his guardian in favour of two brothers, defendants 1 and 2 of whom the first defendant was a major and the second defendant being minor was represented by the first.....
Judgment:

Govinda Menon, J.

1. The second defendant is the appellant in this appeal which rises out of a decree passed in favour of the plaintiffs for specific performance of a registered agreement, Exhibit A-1 dated 29th November, 1933, for reconveying certain immovable properties. The facts which have given rise to this litigation may shortly be stated: By Exhibit B-1, dated 29th November, 1933, the properties which are the subject-matter of the litigation were sold by five brothers namely, 8th defendant's father, defendants 3, 4, 6 and 7 of whom the 7th defendant was a minor represented by the father, of the 8th defendant as his guardian in favour of two brothers, defendants 1 and 2 of whom the first defendant was a major and the second defendant being minor was represented by the first defendant as his guardian, for a consideration of Rs. 32,000. On the same date Exhibit A-1 was executed? by which the vendees (defendants 1 and 2) agreed to reconvey the properties to the vendors after the second defendant attained majority on any day between the first and 30th of June, 1947, the consideration being the sum of Rs. 32,000 together with any sum spent by defendants 1 and 2 for the improvement of the properties during the interval. Under Exhibit A-2, dated 17th February, 1943, the benefit of reconveyance under Exhibit A-1 was transferred in favour of the plaintiffs who now seek to enforce specific performance of the contract of sale Exhibit A-1.

2. In the trial Court the suit was mainly resisted by defendants 1 and 2 whose contentions were similar in nature and most of which do not a rise for consideration now, except that both of them pleaded that the agreement of reconveyance will not be binding on the second defendant because the first defendant who acted as his guardian was not the family manager and also because it imposed an onerous obligation on the second defendant. It was further alleged that as it is an executory contract vitiated by want of mutuality the same cannot be binding on the second defendant, the agreement was neither prudent, nor necessary, nor beneficial to the second defendant at the time of its execution and that Exhibit A-1 and B-1 cannot be considered to be parts of the same transaction.

3. Defendants 3, 4 6, 7 and 9 did not file any written statement while defendants 5 and 8 filed a joint written statement contending that Exhibit B-1 should be deemed to be a usufructuary mortgage. The learned Subordinate Judge found that the plaintiffs are entitled to enforce the agreement and hence decreed the suit. Subba Rao and Panchapakesa Ayyar, JJ., before whom the appeal came on for hearing after expressing the opinion that they found it difficult to steer clear of the conflicting decisions placed before them particularly with reference to the validity of executory contracts entered into by a guardian on behalf of the minor because in their opinion the latest decision of the Privy Council reported in Subramanyam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.), ran counter to the trend of authority beginning with Mir Sarwarjan v. Fakhruddin Mahomed Choudhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.), and also because Viswanatha Sastri, J., in Ramalingam Reddi v. Babanambal Ammal (1950) 2 M.L.J. 597, had come to the conclusion that the principles enunciated in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.), cannot be said to be any longer in force after the decision in Subramanyam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.), referred the matter to a Full Bench for deciding as to what extent and how far the decision in Subramanyam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.), unsettled the established law. Hence this appeal has come before us.

4. Learned Counsel on either side have referred to a large body of case-law supporting the contention of each but no case where the questions for consideration was exactly similar has been brought to our notice. The first question for decision is whether Exhibits B-1 and A-1 constitute parts of one and the same transaction or whether Exhibit A-1 is a distinct and separate transaction from Exhibit B-1. The learned Subordinate Judge was of the opinion that both of them must be considered to be parts of one and the same transaction and this finding is seriously attacked by the appellant. It is argued that if the intention of the parties was that there should be only one transaction it was unnecessary to execute two documents for the reason that the agreement of reconveyance can properly be incorporated in the sale deed itself in which case the document might be construed either as a mortgage by conditional sale or as a sale with an agreement to reconvey. The duality of documents is put forward as an essential feature of difference in the transactions. The learned Subordinate Judge referred to the decision in Vishweshwar v. Durgappa A.I.R. 1940 Bom. 339, and relied upon the agreement relating to the option to repurchase in that case for his conclusion. In his opinion the recital in Exhibit A-1 that the vendors had requested that after the lapse of some time the vendees should convey back the properties covered by the sale deed imposed an obligation on the vendees to reconvey the properties and such being the case Exhibit A-1 contains a provision in the contract to reconvey as distinct from the option to repurchase. He also noticed the fact that despite the circumstance that the sale and agreement to reconvey in the Bombay case were executed within an interval of two days it was held that they formed part of one and the same transaction. In the present case it might be noted that both Exhibits B-1 and A-1 were executed on the same date and were presented for registration before the Sub-Registrar at the same time and since necessarily the sale deed had to be registered first, the agreement to reconvey was registered later.

5. In my view that finding of the lower Court on this aspect of the case is correct and I would also add that the agreement to reconvey was part of the original undertaking to transfer, the elements of each of which cannot be dissociated from the other. Defendants 1 and 2 are the sons of Bheemasena Rao by his second wife and it is admitted that at the time of this transaction the son by the first wife and Bheemasena Rao were alive so that it cannot be said that defendants 1 and 2 constituted a joint family or even a minor coparcenary in a joint family. D.W. 1 deposed that it was the father of defendants 1 and 2 who paid the money for the sale deed and that it was Bheemasena Rao that spent the moneys for improvements and litigation expenses. It is also clear that the first defendant acted as the guardian of his younger brother, second defendant, under the orders and with the consent of Bheemasena Rao who was admittedly the natural guardian. The evidence of P.W. 1 which I see no reason to reject is to the effect that the vendors under Exhibit A-1 whom I may call Naidus asked the first defendant to lend money on mortgage which he would not agree but he wanted a sale to be executed. The Naidus did not agree to the sale but the first defendant stated that he would write and give 'Ethiridai" or agreement to reconvey. The talk about the sale and agreement to reconvey took place on the same date and but for the agreement to reconvey the Naidus would not have agreed to sell the properties at all. This part of his evidence has not been either controverted by the defendants or shaken in cross-examination. The circumstances that either the first defendant or the second defendant or their father did not go into the witness-box to testify that the two documents were separate and distinct is also noteworthy. The defendants have also not examined Mr. C.R. Rajagopalachariar, an advocate, in whose house the negotiations took place and who is also an attesting witness to the documents themselves. Learned Counsel for the contesting respondents puts forward the reason as to why though it was only one transaction the documents were drawn separately and it is that if there was only one document then it would be construed as a mortgage by conditional sale in which case the mortgagors are entitled to redeem during a course of sixty years. On the other hand since a particular period was fixed for reconveyance the vendees wanted to safeguard themselves from being asked to reconvey the properties except during that period. In my view this is a legitimate argument. That the agreement to reconvey was entered into before the sale deed was completed is evident from the fact that both the documents were presented simultaneously before the Sub-Registrar and such a state of things could not have taken place if the agreement to reconvey was posterior to the sale deed. The two must have been written together, executed together and presented for registration together. Therefore, the request to reconvey should have been made as part and parcel of the contract to sell. The inference from the evidence of P.W. 1 is that Exhibit B-1 could not have come into existence but for the reciprocal agreement contained in Exhibit A-1. The reasoning of the learned Judges in Vishueshwar v. Durgappa A.I.R. 1940 Bom. 339, can be called in aid in support of the conclusion which I am arriving at especially since in the present case the documents are contemporaneous. I, therefore, see no reason to dissent from the learned Subordinate Judge that Exhibits A-1 and B-1 formed part of one transaction and should be read and interpreted together. The moment Exhibit A-1 gets registered the transaction relates back to the time of its execution which means that it must be contemporaneous with Exhibit B-1. If that is so, is it open to the second defendant to say that he would take benefit under Exhibit B-1 and repudiate the contract under Exhibit A-1? In my opinion he cannot do so. As a sale, Exhibit B-1 is subject to the conditions contained in Exhibit A-1 and if those conditions in Exhibit A-1 are to be repudiated then the sale also has to be repudiated. The second defendant has accepted and ratified the sale in his favour and proceeded on the footing that he has obtained valid title under Exhibit B-1. In that case he cannot be allowed to repudiate the essential prerequisite of the sale in his favour namely the agreement to reconvey. The legal position resulting from the two documents is the purchase made by two persons standing in the relationship of tenants in common of whom one is a minor is burdened with an obligation at the time of the purchase to reconvey the properties under certain circumstances subsequently and if in the transaction the minor tenant in common is represented by the other who is not his natural guardian, is it not open to the original vendor to specifically enforce the contract of reconveyance?

6. The learned Subordinate Judge was not inclined to accept the case that the consideration for Exhibit B-1 was not only Rs. 32,000 which was recited in the document but also the agreement evidenced by Exhibit A-1. If the two documents, relate to the same transaction the dissociation of consideration for one document from the other would be impossible for unless there is an agreement to reconvey there would have been no sale, and but for the sale the agreement to reconvey would not have taken place. Such being the case in my view each document should be deemed to be consideration for the other along with the money that is passed. It need not necessarily be that at the time the properties were sold they were worth more than Rs. 32,000 not that each of the documents should by itself be deemed to be consideration for the other. I do not, therefore, think it right to separate the two documents and to consider their legal import differently. In this view the argument put forward on the side of the second defendant that an onerous personal liability was cast upon him while he was a minor which under the law could not be enforced against him seems to be of little consequence for even if the doctrine of mutuality is applicable to a case like this the obligation for reconveyance cannot be separated from the purchase under Exhibit B-1.

7. The order of reference proceeds on the footing that Exhibit A-1 should be judged on its own merits apart from its interconnection with Exhibit B-1. The question, that has now to be considered is whether on that basis it is possible to justify a suit for specific performance of an agreement to reconvey. The argument on behalf of the second defendant is based on that assumption, for it is urged that even though the first defendant was not the natural or de jure guardian it is open to him to acquire the properties for and on behalf of the minor with the moneys of the minor and such a transaction would be perfectly valid on the authority of the Full Bench in Raghavachariar v. Srinivasa Raghavachariar (1916) 31 M.L.J. 575 : I.L.R. 40 Mad. 308 (F.B.), where it is laid down that a mortgage executed in favour of a minor who had advanced the whole of the mortgage money is enforceable by him or by any other person on his behalf and the same principle might be applicable to a case where the sale is in favour of a minor under similar circumstances. Therefore Exhibit B-1 is valid. But with regard to Exhibit A-1 the same principle cannot apply for it imposes an obligation on the minor to sell the properties under an agreement which was entered into by a person who was not his natural or de jure guardian. This argument is based on the assumption that Exhibits B-1 and A-1 have to be treated as distinct and separate transactions without any inter-connection with each other but as I have already remarked, such dissociation is not possible. It is certainly open to the second defendant when he became a major to repudiate the purchase under Exhibit B-1 and claim his part of consideration. It does not stand to reason that he could accept acquisition under Exhibit B-1 and renounce the agreement to reconvey. It is a well-settled principle of law that a party cannot both approbate and reprobate. As stated by Honyman, J., in Smith v. Baker (1973) L.R. 8 C.P. 350 at 357.

A man cannot at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and at another time, say it is void for the purpose of securing some further advantage.

See also the observations of Lord Kenyon, G.J., in Smith v. Hodson 2 Sm.L.C. 13th Edn. 14o-46, and also Ambu Nair v. Kelu Nair (1933) 65 M.L.J. 103 : L.R. 60 I.A. 266 : I.L.R. 56 Mad. 737 (P.C.), On this simple ground the decision of the lower Court can be justified.

8. With regard to agreements entered into on behalf of minors the question has to be viewed from various angles:

9. (1) When the subject-matter of the transaction is minor's separate property then a course of decisions has held that an agreement by the guardian to sell the same cannot specifically be enforced against the minor after he attains majority. See Ramakrishna Reddiar v. Kasi Vasi Chidambara Swamigal (1927) 54 M.L.J. 412, and Raghunathan v. Ravutha Kanni (1938) 2 M.L.J. 277. Conversely an agreement to purchase property for the minor entered into by the guardian cannot likewise be specifically enforced by the minor on attaining majority. See Sarwarjan v. Fakhruddin Mohomed Chowdhri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.), Narayana Row v. Venkatasubba Row (1919) 38 M.L.J. 77, Venkatachaldm Pillai v. Sethuram Rao (1932) 64 M.L.J. 354 : I.L.R. 56 Mad. 433 (F-B.), and Singara Mudali v. Ibrahim Baig Saheb (1946) 2 M.L.J. 103. As stated in Mayne's Hindu Law (11th edition at page 292) it is not within the competence of a manager of a minor's estate or of a guardian of a minor to bind the minor or the minor's estate by a contract for the purchase or for the sale of immovable property and as the minor is not bound by the contract there is no mutuality and the minor cannot obtain specific performance of the contract. Nor is he liable to return the sum of money paid to his guardian as earnest money in respect of a contract of sale of immovable property since the amount can only be treated as having been paid as security for the performance of a contract which in law is no contract at all. There are a number of cases cited by the learned author for this proposition.

10. The second category arises in cases where the minor is a member of a joint Hindu family and the transaction was entered into by the manager on behalf of the family in which case there will be no doubt that if it is for purposes of necessity or benefit to the family then the contract can be specifically enforced even as regards the minor's share. A third category of cases like the instant one would arise when the minor is a tenant in common with another and the contract is to bind both of them. What would be the measure of the minor's liability in such a case?

11. The doctrine of mutuality in the matter of contracts entered into on behalf of the minor by the guardian can arise only in cases where the subject-matter is minor's separate estate and all the cases which have refused performance of executory contracts relate to properties belonging separately to the minor. Where the contract related either to the joint family property or to property belonging to the minor and another as tenants in common then the doctrine of absence of mutuality cannot be applied for this reason that the contract is one and indivisible and mutuality exists between the co-owner or coparcener who is sui juris and the party with whom the contract is entered into. While the absence of mutuality inheres only with regard to the minor, can such a contract be dissected or bifurcated and converted into component contracts in one of which there is mutuality and in another there is not. In my opinion it is impossible to analyse a contract in that manner. Either the contract is void as being entered into on behalf of the minor or it is perfectly valid. In the case of a trading joint Hindu family consisting of majors and minors some properties were purchased from a customer for balance due from him and an agreement to recovery them to the vendor was also entered into. It was held that specific performance could be obtained against the minor members also on the ground of benefit. Where the contract is by the manager for the benefit of the family and the manager dies it can be enforced against the survivors, whether majors or minors. See Mayne's Hindu Law, 11th edition, page 394 and the cases cited in the footnotes (e) and (m). I do not think it is necessary to refer to those cases except Narayana Chetty v. Muthiah Chetty (1924) 46 M.L.J. 575 : I.L.R. 7 Mad. 92, where Ramesam, J., discusses various authorities. Referring to the decision in Narayana Rao v. Venkatasubba'Row (1919) 38 M.L.J. 77 Ramesam, J., holds that Spencer, J., has conceded that a contract made by a manager on behalf of the family may be enforced against the manager and where it is for the benefit of the family the completed contract will certainly bind the minor members.

12. Let me therefore refer to the cases cited at the bar to find out whether a departure has been made from the principle enunciated by Lord Macnaghten in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.) in the subsequent cases or to what extent the doctrine of mutuality adumbrated there can be applied. In my view that doctrine will apply only to instances where the contract is with regard to separate property of the minor alone and not where he is a coparcener in a joint Hindu family or co-tenant with other adults and the contract is with respect to such coparcenary or co-tenancy properties. Before that, it may be advantageous to consider the effect of an earlier decision in Waghala Rajsanji v. Sheikh Masludin (1887) L.R. 14 I.A. 89 : I.L.R. 11 Bom. 551 (P.C.), which related to a contract of indemnity entered into by the mother of a minor as his guardian in favour of the purchaser agreeing to indemnify him in case the Government claimed to enforce their right to revenue upon certain villages which she as guardian transferred to the purchaser as rent free. The deed of sale purported to make both the guardian and the ward personally liable in that respect and also charged the liability upon other parts of the minor's estate. On the minor becoming a major and the transferee attempting to enforce the liability under the sale deed the Privy Council held that no personal liability can be fastened on the erstwhile minor as a result of the contract of indemnity. Their Lordships held that the guardian of an infant had no power to make the minor personally liable with respect to any contract and observed as follows:

It would be a very improper thing to allow the guardian to make covenants in the name of his ward, so as to impose a personal liability upon the ward, and they hold that in this case the guardian exceeded her powers so far as she purported to bind her ward, and that, so far as this suit is founded on the personal liability of the talukdar, it must fail.

The principle enunciated in this decision has not so far been questioned anywhere even if the contract is for the benefit of the minor. The doctrine of mutuality was not expressed in so many words till the judgment of Lord Macnaghten in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.). The facts of the case show that it was a contract entered into on behalf of the minor by his manager or guardian found to be for his benefit. Still the Privy Council held that specific performance of the same cannot be had by the minor on attaining majority because of want of mutuality. In fact the manager of the minor's estate was one Mr. Garth and the agreement was entered by the agent of Mr. Garth which was not to be specifically enforced by the minor on attaining majority. At page 237 Lord Macnaghten states the law thus:

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 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 specific performance of the contract.

Here also the contract related to the separate property of a minor and the absence of mutuality was emphasised. The decision in Narayana Rao v. Venkatasubba Rao (1919) 38 M.L.J. 77, laid down that it is not within the competence of a guardian of a minor to bind the minor or his estate to a contract for the purchase of immovable property and the minor in such a case is not bound by the contract as there is no mutuality. Consequently it is not open to a minor on attaining majority to enforce specific performance of the contract following Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.). It is in this case that Spencer, J., assumed that if the contract was to sell or to purchase joint family property then the action of the guardian will be binding on the minor. Here again it related to the separate property of the minor. The Full Bench decision in Venkatachalam Pillai v. Sethuram Rao (1932) 64 M.L.J. 354 : I.L.R. 56 Mad. 433 (F.B.), was a case in which the guardian of a minor sold the minor's property to another and in the sale deed there was a covenant that in case the vendee or his heirs have to sell the property to others then such a sale must first of all be to the minor or his heirs at the same price. 13. On the erstwhile minor filing a suit for specific enforcement of the agreement to resell, the Full Bench held that as the contract cannot be enforced against the minor for want of mutuality the minor is also prevented from enforcing it on the same principle, having come to the conclusion that the contract in question was an executory one. Sundaram Chetti, J., who delivered the judgment of the Full Bench followed the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri(1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 I.L.R. 39 Cal. 232 (P.C.) and held that the contract is unenforceable for want of mutuality. This case also related to the separate property of the minor. The case reported in Singara Mudali v. Ibrahim Baig Saheb (1946) 2 M.L.J. 103 was one in which the contract was with respect to the joint family property of three minors and it was held that such a contract is not enforceable. Here also there is no question of the contract being enforced against another adult. As stated already in Raghunathan v. Ravutha Kanni (1938) 2 M.L.J. 277 andRamakrishna Reddiar v. Kasi Vasi Chidambara Swamigal (1927) 54 M.L.J. 412 inasmuch as the contract was by the guardian for the sale of property belonging to the minor such contracts were held to be not enforceable. At page 695 of Pollock and Mulla (7th edition) of Indian Contract Act and Specific Relief Act the learned author says that specific performance cannot be granted of a contract which can be enforced at the option of only one of the parties and it is immaterial whether the purchase was advantageous for the minor. Various authorities are cited the chief of which is Mir Sarwarjan case (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 I.L.R. 39 Cal. 232 (P.C.).

13. Other High Courts have also held that the doctrine of mutuality applies to executory contracts for transfer of immovable property either for the benefit of or by the minor entered into by his guardian. See Rambilas v. Lokenath (1948) I.L.R. 27 Pat. 143 and Abdul Rao v. Yehia Khan A.I.R. 1924 Pat. 81. In Swarath Ram Ram Saran v. Ram Ballabh (1925) I.L.R. 47 All. 784, the question as to whether Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 I.L.R. 39 Cal. 232 (P.C.), is applicable to a contract for sale entered into by a guardian was left open. Varadachariar, J., in Zeebunnissa Begum v, Mrs. Danagher (1935) 70 M.L.J. 477 : I.L.R. 59 Mad. 942 at 951, referred to Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 I.L.R. 39 Cal. 232 (P.C.) as well as Ramakrishna Reddiar v. Kasi Vasi Chidambara Swamigal (1927) 54 M.L.J. 412 and Venkatachala Pillai v. Sethurama Rao (1932) 64 M.L.J. 354 : I.L.R. 56 Mad. 433 (F.B.) and was of the opinion that the observations of the learned Law Lord in Mir Sarwarjan v. Fakhruddin Mahomed Ghowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 I.L.R. 39 Cal. 232 (P.C.) must be understood as indicating the limitations on the power of a guardian so as to give the minor the option of saying that he is not bound by such covenants and not that the convenants are void in the sense that the minor cannot stand by the contract and seek to hold the other party bound by it even for the purpose of remedies other than specific performance. The learned Judge felt bound that the doctrine of mutuality expounded in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 I.L.R. 39 Cal. 232 (P.C.), could be applicable so far as executory contracts are concerned. Likewise in Mahendranath Srimani v. Kailas Nath Das I.L.R. (1927) 55 Cal. 841 following the decision Mir Sarwarjan v. Fakhruddin Mahomed Chowdhri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 I.L.R. 39 Cal. 232 (P.C.), the learned Judges held that the doctrine of mutuality applied to executory contracts for granting renewal of lease for a further term of ten years entered into on behalf of the minor.

14. It has next to be considered as to whether this doctrine of mutuality has undergone any change or revision by the decision of the Privy Council in Subramaniam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.), as has been understood by Viswanatha Sastri, J., inRamalingam Reddi v. Babanambal Ammal (1950) 2 M.L.J. 597. The real question for consideration there was with respect to a contract of sale entered into by the mother of a minor as his guardian, who should be considered as the transferor within the meaning of Section 53-A of the Transfer of Property Act. The Privy Council held that the minor on whose behalf the contract was entered into by the guardian should be deemed to be the transferor within the meaning of the section and as such when the transferee was put into possession the minor on attaining majority is debarred from obtaining possession of the property. Their Lordships observed that it was within the competence of the guardian to enter into a contract on behalf of the minor for the purpose of discharging the minor's father's debts and that if the sale had been completed by the execution and registration of a deed of sale the minor on attaining majority would have been bound under the Hindu Law. That a mere agreement to sell without part performance of it under the provisions of Section 53-A of the Transfer of Property Act would not be valid was conceded before the Privy Council as is seen from the following sentence in the observations of their Lordships:

Their Lordships entertain no doubt that it was within the powers of the mother as guardian to enter in to the contract of sale of 29th November, 1938, 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. As the sale was not completed, it is conceded by counsel for the appellants that the present appeal must fail unless the appellants are entitled to the protection afforded by Section 53-A of the Transfer of Property Act. They are entitled to that protection if, but only if, the respondent comes within the words the transferor or any person claiming under him.

Therefore it is clear that there are no observations of the Privy Council which laid down that an executory contract entered into by a guardian on behalf of a minor can be specifically enforced against the minor on his attaining majority. What is stated is that part performance under Section 53-A of the Transfer of Property Act is on the same footing as a completed sale by the guardian which would be binding on the minor if it is for necessity or benefit of the minor's estate. During the course of the arguments the decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. : 1 I.L.R. 30 Cal. 232 (P.C.) was cited before the Judicial Committee and if there was any idea to cast any doubt on the dictum laid down by Lord Macnaghten, it stands to reason that some reference to it would have been made during the course of the judgment by the Privy Council. That the principles laid down in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. : 1 I.L.R. 30 Cal. 232 (P.C.) were not doubted is clear from the fact that though there is a quotation in the Privy Council's judgment from page 71 of Pollock and Mulla's Contract Act (7th edition) the quotation from Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. : 1 I.L.R. 30 Cal. 232 (P.C.) on the same page has not been extracted. It is, therefore, clear that before their Lordships the observation in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. : 1 I.L.R. 30 Cal. 232 (P.C.) and how the same had been understood by text-book writers had been prominent but still no dissent has been made of them. The excerpt from page 71 of the Pollock and Mulla on Indian Contract Act quoted by the Judicial Committee with approval is to the effect that contracts entered into on behalf of a minor by his guardian or manager of his estate can be specifically enforced by or against the minor if the contract is one which it is within the competence of the guardian who had entered into it on behalf of the minor so as to bind him by it and further if it is for the benefit of the minor. No doubt this pre-supposes specific performance of a contract against the minor also. The Privy Council decision should therefore be understood in the sense that a contract of sale of the property by the guardian of a minor which is partly performed should be put on the same footing as a completed sale and that the transferor contemplated under Section 53-A of the Transfer of Property Act was the minor and not his guardian. It seems to me therefore that the authority of Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. : 1 I.L.R. 30 Cal. 232 (P.C.) has not been shaken by the latest judgment of the Privy Council.

15. We have next to refer to the strong criticism levelled against the decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. : 1 I.L.R. 30 Cal. 232 (P.C.) by Viswanatha Sastri, J., in Ramalingam Reddi v. Babanambal Ammal (1950) 2 M.L.J. 597. The learned Judge followed the Privy Council case in Subramaniam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.) for holding that a contract for sale of the property of a minor entered into by his mother as his guardian for purposes considered necessary and proper under the Hindu Law would be binding on the minor from the time when the contract was entered into and is capable of being enforced against him. Strong dissent was expressed of the view of Lord Macnaghten in Mir Sarwarjan v. Fakhruddin Mohamed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. : 1 I.L.R. 30 Cal. 232 (P.C.) by Viswanatha Sastri, J., by using the Latin expression dormitat homerus euphemistically stating that Lord Macnaghten was wrong. It is difficult for me with all respect to the learned Judge to agree with him. It may be that the doctrine of mutuality was not an absolute one under the English Law. But that is no reason for holding that a contract entered into on behalf of a minor can make the minor liable personally. This was because under the Indian Law unlike under the English Law it is clear that a minor's contract is void. Though the learned Judge refers to a large body of case-law he does not note the distinction between the English and Indian Law in regard to a minor's contract.

16. To the extent to which Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.) should be restricted, namely to contracts entered into for purchasing property on behalf of the minor, I am in agreement with Viswanatha Sastri, J., and I also agree with him that the question of necessity and benefit cannot arise in the matter of contracts for purchase and conversely contracts for sale of a minor's properties. The prevailing Hindu Law that benefit or necessity should be the criterion has in no way been affected by the decision in Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.). That is also the ratio decidendi in Subramaniam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 L.A. 115 : I.L.R. (1949) Mad. 141 (P.C.). The observations regarding the correctness or otherwise of Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.) as well as the importation of the doctrine of mutuality into India by that decision were unnecessary for the disposal of the case before him.

17. In Ramalingam Reddi v. Babanambal Ammal (1950) 2 M.L.J. 597, the facts of the case show that the contract was one entered into for the sale of the minor's property for the necessity of the minor. In such cases a long catena of cases had held that under the Hindu Law necessity and benefit are the essential criteria for such contracts, have to be borne in mind. Whatever might be the case with regard to the position of minors belonging to other regions even with regard to contracts for sale of property which are governed by the provisions of the Guardians and Wards Act so far as Hindu minors are concerned, there is no difficulty in holding that the guardian of a Hindu minor is competent to enter into a contract of sale of the minor's property if it is for the benefit or for the necessity if the minor or the minor's estate. It may be that the concession made by the counsel for the appellant before the Judicial Committee in Subramanyam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 L.A. 115 : I.L.R. (1949) Mad. 141 (P.C.) that the executory contracts for the sale of a Hindu minor's property even if it is for the benefit or necessity of the minor's estate cannot be enforced has not taken note of the large body of case-law permitting such contracts. In my view the proper way of looking at the question is that the rules of Hindu Law by which the guardian of a Hindu minor can sell the minor's estate for necessity or benefit have not in any way been abrogated or rendered doubtful by the decision in Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.) which should be confined and restricted to this principle that the guardian of a minor is not at liberty to enter into a contract for the purchase of property in which case necessity or benefit might not arise and such a contract cannot be enforced by the minor on his attaining majority. I am therefore of opinion that the decision in Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.) and those decisions that followed the same should be confined to cases of purchase of property and not in respect of agreements to sell. Viewed in that light there is no difficulty in reconciling Subramaniam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 L.A. 115 : I.L.R. (1949) Mad. 141 (P.C.) with Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (1950) 2 M.L.J. 597. In the former the main question that was decided was whether it is the guardian or the minor who should be designated the transferor within the meaning of Section 53-A of the Transfer of Property Act and on that point the Judicial Committee held that legally the transferor can only be the minor for more reasons than one. The guardian has certainly no financial interests in the estate of the minor and applying the legal phraseology used in the Transfer of Property Act it cannot be said that the guardian who enters into a contract on behalf of a minor is the transferor and when part performance of that contract has been effected it is as if the sale had been concluded and that the transferor or the persons claiming under him cannot thereafter repudiate the contract. In the penultimate paragraph of their Lordships' judgment the reference to the circumstance that the contract was binding on the minor from the time when it was executed and that if the sale had been completed by the transferor the transfer would have been the transfer of the property of the minor of which the minor was the owner and not the mother shows that emphasis was on the meaning of the word transferor. It is relevant to note in this connection that the counsel for the respondent before the Judicial Committee relied upon Mir Sarwarjan's case (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.) also and if there had been any intention to depart from the rules laid down there or to whittle down the force of that decision it is proper to presume that the Law Lord who delivered the judgment would doubtless have referred to it in some way or other in the course of the judgment. The absence of any reference to it as well as the inapplicability of the points decided therein to the case in Subramanyam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R.(1949) Mad. 141 (P.C.) would lead us only to one conclusion, that is, that either expressly or by necessary implication there is no indication of doubting the correctness of the decision in Mir Sarwarjan v. Fakhruddin Mohamed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.), which should be restricted to cases where contracts have been entered into on behalf of the minor for the purchase of property and thereby mulcting the minor with the liability personally or otherwise which at the time of the contract cannot be enforced for want of mutuality. While, therefore, agreeing with Viswanatha Sastri, J., in his view that a contract for sale of property being an essential preliminary to the sale itself its enforceability against the minor has to be judged by the same test's as are applicable to the transfer of a ward's property by the guardian where it fructifies into a sale which can be upheld on the basis of necessity or benefit to the minor's estate, it seems to me that Viswanatha Sastri, J., is not right in holding that the principles of mutuality enunciated by Lord Macnaghten in Mir Sarwarjan's case (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.) cannot be applied to a case where the contract was by the guardian for the purchase of a property on behalf of the minor which in my view cannot be enforced by the minor. In essence and import the two kinds of contracts are distinct and different. While the principle of mutuality is applicable in one case it cannot be applied in the other. It seems to me, therefore, that the observations of Viswanatha Sastri, J., on the correctness of Mir Sarwarjan's case (1911) 21 M.L.J. 1156 : L.R. 39 I.A. 1 : I.L.R. 39 Cal. 232 (P.C.) being obiter, so far as the facts of the case before him were concerned, are not authority. Considering the difference in view in the principles to be applied with regard to the two kinds of contracts it seems to me that the view that even if a contract of sale of the minor's property is for his benefit or necessity still as has been held in come cases namely, in Ragunathan v. Ravuthi Kanni (1938) 2 M.L.J. 277, Ramakrishna Reddiar v. Kasivasi Chidambara Swamigal (1927) 54 M.L.J. 412. and Singara Mudali v. Ibrahim Baig Saheb (1946) 2 M.L.J. 103 that such contracts cannot be enforced is not good law.

18. In the case of contracts entered into by an individual on his or her own behalf and as guardian of a minor with respect to a property belonging to both of them the doctrine of mutuality cannot apply has been laid down by Varadachariar, J., in Chinnakkal v. Chinnathambi Goundan (1934) 67 M.L.J. 635. In that case a mother for herself and on behalf of her minor son sold certain property by a registered document and on the same date there was an unregistered deed for reconveyance of the same property to the original vendors themselves and when a suit for specific performance of the contract was brought by the mother an objection as to want of mutuality for such a contract so far as the minor son was concerned was raised. Varadachariar, J., held that no objection with regard to the question of mutuality can apply so far as the mother was concerned. He left open the question whether the doctrine of mutuality can be applied to such an indivisible contract but held that it was open to the mother to have specific performance of the entire contract. The learned Judge was inclined to think that the doctrine of mutuality was a doubtful proposition so far as optional contracts were concerned. One thing is clear from this judgment and that is that such contracts are capable of specific performance though the transaction does not relate to the joint family property but is concerned with the joint property as in the present case. I have already referred to the passage in Mayne's "Hindu Law" which deals with specific performance of contract of sale of land by the members of a joint Hindu family as binding on the minor. The decision in Chinna Munuswamy Nayudu v. Sahalaguna Nayudu (1925) 51 M.L.J. 229 and its confirmation, by the Privy Council inSagalaguna Nayudu v. Chinna Munuswami Nayudu (1928) 55 M.L.J. 198 : L.R. 55 I.A. 243 : I.L.R. 51 Mad. 533 (P.C.) related to a contract for repurchase entered into by a father on behalf of himself and his minor son with a counterpart document by which the vendee agreed to reconvey the property for the same consideration mentioned in the sale-deed itself if the vendors made an application for that purpose in the month of Ani thirty years later and in that case their Lordships held that the option created by the counterpart could be exercised not only by the father and his son personally but also by the assignees thereof. It was further held that taking the contract and the surrounding circumstances into consideration the option could be exercised by the two persons or their heirs or assigns, it is clear from this judgment that the doctrine of want of mutuality was never sought to be applied in a case where the property did not belong to the minor separately. In Adinarayana v. Venkata Subbayya (1940) 1 M.L.J. 251 : I.L.R. (1940) Mad. 852, it was decided that a contract for the sale of land belonging to a joint Hindu family signed by the major members and by the managing member as guardian of the minor could be specifically enforced against the whole family as such after the minor had attained majority. It was further held that if at the time of the hearing of the suit there was good title in the joint family though there was none such at the time of the contract still the same could be enforced. Here also the absence of mutuality was not considered as a bar to specifically enforcing the contract. It has been held that in the case of a de facto guardian dealing with a minor's estate where he is not de jure or a natural guardian, the transactions entered into by him will not be binding on the minor by an authoritative decision of the Supreme Court in Sriramulu v. Pundarikakshayya (1950) 1 M.L.J. 586: 1949 F.L.J. 288 (F.C.) while affirming the decision of this Court in Pundarikakshayya v. Sriramulu (1945) 2 M.L.J. 375. The principle deducible from that case is that where it is the minor's property that is being dealt with the de facto guardian as such has no authority and if the de facto guardian is also the natural guardian or de jure guardian then the touchstone is one of necessity for binding the minor. In view of the authorities discussed above it is clear that the doctrine of mutuality does not apply to a case where the property belongs to the minor and another as tenants-in-common.

19. A similar case in point is the judgment of the Chief Justice and Rajagopala. Ayyangar, J., in L.P.A. No. 121 of 1951 (Srinivasulu Naidu and Ors. v. Raju Naicker and Ors.) Since reported (1955) 2 M.L.J. 359, confirming the decision of Viswanatha Sastri, J., in Appeal No. 287 of 1947 where it was held that a sale followed by an agreement of reconveyance should be treated as one transaction and that consideration for the reconveyance should be the sale itself. In those circumstances it was held that such contracts can be specifically enforced. If the agreement to reconvey was part of the bargaining which permitted the same as in the present case then the agreement could be supported on the ground of benefit. There are also observations in the decision in Sohanlal v. Atal Naih (1933) I.L.R. 56 All. 142 at 151 in which the Chief Justice refers to a case where the property was purchased for the joint family with the moneys borrowed and when the question of repaying the debt came up for consideration the minors disputed the debt. The learned Judge observed as follows:

We do not think that a minor member of the family can take a share in the property so acquired, and at the same time repudiate the authority of the other members to enter into such a contract. If he wishes to repudiate such a contract he must repudiate the whole of it and not take benefit under it.

Therefore in the present case if the second defendant does not want to have the advantage of the purchase he can disclaim the purchase and claim the consideration paid for it but he will not be allowed to approbate and reprobate at the same time. As in my view the contract cannot be bifurcated it has specifically to be enforced and the second defendant cannot repudiate the liability to reconvey at the same time retaining to himself the advantage gained by the purchase. The decision of the learned Subordinate Judge is therefore correct. This appeal fails and is dismissed with costs.

20. Basheer Ahmed Sayeed, J.-I have had the benefit of reading the exhaustive judgment of my learned brother, Govinda Menon, J., just delivered. The facts of the case have been elaborately set out by my learned brother and I do not think it necessary for me to repeat the same.

21. However, among the facts disclosed in this case, a few points require to be noticed. The first is that the appellant second defendant was a minor at the time, the sale-deed, namely, Exhibit B-1, was executed in favour of the appellant and his major brother. This Exhibit B-1 was being executed on 29th November, 1953, by the vendors, who were the predecessors in interest of some of the present respondents among whom also there was a minor. But that fact is not of any consequence to the present appeal. The second point is that at the time of the execution of this Exhibit B-1, the sale-deed, the father of the present appellant was alive, and he was his natural guardian. But he did not act for the present appellant in the transaction, evidenced by Exhibit B-1. Despite the fact that the father was alive, and that he was not acting on behalf of his minor son for some reason or other, which has not been made clear, the fact remains that it was only the elder brother of the minor that was acting on behalf of the minor in the transaction under Exhibit B-1. This brother is not by any means a guardian of the minor-appellant in the circumstances that obtain in the case. Thirdly it is indisputable that the transaction under Exhibit B-1 was being entered into by the first defendant, not merely for himself, but also on behalf of the minor, and for this he had no authority under any rule of the Hindu Law, by which the parties are governed. Though the first defendant described himself as the guardian of the minor-appellant, the evidence is by no means satisfactory to prove that this first defendant had been appointed guardian of the minor by the father; or been authorised by him to act on behalf of the minor in any transaction. All that the evidence discloses is that the first defendant was managing the suit properties after that purchase and prior thereto, the other properties belonging to the joint family, of which defendants 1 and 2 together with their father were the members. It is beyond question therefore that the transaction covered by Exhibit B-1 was one that was entered into by a person not authorised to act on behalf of the minor.

22. The next point that is to be remembered in this case is that the full consideration for Exhibit B-1 was a sum of Rs. 32,000. Though some attempt appears to have been made to show that this sum of Rs. 32,000 was not an adequate consideration, and that the properties were actually worth Rs. 50,000 at the time of the execution of Exhibit B-1, I do not think that it has been satisfactorily proved that the properties were actually worth more than Rs. 32,000. In my view, the parties must have agreed that the sum of Rs. 32,000 was an adequate consideration for the properties. A careful reading of Exhibit B-1 does not disclose that apart from this sum of Rs. 32,000 there was any further consideration for the sale of the properties by the vendors in favour of defendants 1 and 2.

23. Another point is that Exhibit B-1 does not make any reference either directly or by implication, that the sale was being entered into under Exhibit B-1 in consideration of any agreement between the vendors and the vendees that the vendees should re-transfer the properties in favour of the vendors at any time or under any given circumstance. Exhibit B-1 stands out as an outright sale for which the entire amount of the sale consideration has been received by the vendors in the manner mentioned in the recitals contained in the said document and in consideration of such payment the properties mentioned in Schedules A, B, C and D were transferred without any reservation whatsoever, and possession was also delivered.

24. A further point worth noting is that the purchase under Exhibit B-1 is not on behalf of the joint family, which at the time consisted of the two sons and the father, According to the evidence the funds, which formed the consideration for the sale deed, Exhibit B-1, were no doubt furnished by the father as a gift for the two sons to enable them to purchase the properties. In consequence of the gift of funds by the father in favour of the two sons, the purchase is made for the benefit of the two sons as two joint owners and by no means as members of any joint family. There is nothing on record in this case to show that the funds given by the father became the joint family funds, or that the property itself was purchased out of the funds that were deemed to be joint family funds. A gift of a certain sum of money having been made in favour of the two sons, it is reasonable to assume that each of the two brothers became entitled to one half of the amount gifted and when property was purchased out of such a gift, the only inference is that each of the brothers became entitled to one-half of the property. It is only after the property had been purchased in the joint names of the two brothers that the two brothers became tenants-in-common in relation to the property purchased. They were not tenants-in-common prior to or at the time the property was being purchased, but became so only later in consequence of the property having been purchased in their joint names, which they came to own as two co-owners in their individual right, each entitled to half.

25. It is in this background that Exhibit A-1 happened to be executed by the appellant and his brother, the latter acting on behalf of himself and his minor brother, the appellant. Exhibit A-1 refers to the sale-deed executed and registered on the same day in favour of the appellant and his brother, and states that since the vendors requested the vendees to effect a resale of the properties mentioned in the said sale-deed, Exhibit B-1, after the lapse of some time, the appellant and his brother, the vendees consented to do so. The document further recites that this resale would be done only if there was no claim concerning the minor's interest, or any encumbrance in respect of the property, after the minor had attained majority provided the amount of consideration was paid between the 1st and 30th of June, 1947, together with any amount that has been spent for improvements of the said property, during the interval. Otherwise, the agreement was not to be binding against the vendees. This document, it is to be noted, does not refer by any means to the fact that the agreement to reconvey was part and parcel of the consideration for the sale in favour of the appellant and his brothers; nor does it throw the slightest light on the fact that the sum of Rs. 32,000 paid by the vendors was not full consideration for the property transferred. To my mind, it is clear that the vendors received full consideration for the property they sold to the vendees and since there was a prospect of the vendors' financial condition improving in the future years, it was agreed to be resold under the condition stipulated in the said Exhibit A-1. It is not the case that by the purchase of the property the minor-appellant got any extra benefit over and above the money's worth paid by way of consideration for the sale of the properties. In so far as this document is completely silent on the point that it was a condition of the sale that the property should be reconveyed to the vendors, as and when they paid the consideration originally received, together with the value of the improvements, and also in so far as Exhibit A-1 makes a reference only to a request from the vendors, and a willingness on the part of the vendees to reconvey the property, it will be too much to import into the recitals of this document that Exhibit A-1 also formed part of the consideration for the sale covered by Exhibit B-1. In my view such an inference is not warranted by the facts.

26. In this context the question arises as to whether Exhibits B-1 and A-1 constitute parts of one and the same transaction, or whether they are both distinct and separate transactions. The learned Subordinate Judge took the view that the sale-deed, and the agreement to resell were parts of one and the same transaction and my learned brother has agreed with that view. Except for the fact that the two documents were executed at the same time, I do not think that there is anything intrinsic in the documents themselves, nor in the surrounding circumstances, to show that the one depended upon the other, or that the sale and the agreement formed part and parcel of the same transaction; nor is the evidence satisfactory to show that for he sale-deed, the agreement to reconvey formed the basis. As it happens most often, parties try to raise a loan on the security of their properties and when they fail in that attempt, they negotiate for an outright sale and when they negotiate for such a sale, the negotiations take place usually for the payment of the full consideration, and after the sale has been agreed to, a request is made to the vendees that if and when the vendors are in a position to repay the full consideration or the then value of the property, if it becomes appreciated, the vendees, as a matter of consideration and obligation to the vendors often agree to do so. This by itself cannot be presumed to make the two documents inter-dependent so as to lead to the conclusion, that but for the agreement to reconvey, the sale would not have taken place or that such an agreement was also the consideration for the contract of sale. With all respect I am unable to agree with the view taken by my learned brother, that in this case the two documents could be deemed to be part and parcel of one and the same transaction. I am inclined to the view that they are two distinct and separate transactions, the one not being dependent on the other. The sale was a complete transaction by itself. It may also be mentioned in passing that the transaction is not a mortgage by conditional sale, because obviously the requirements of the section of the Transfer of Property Act in this regard are not complied with by any means in this case. It, therefore, turns out to be the case that the agreement, Exhibit A-1, is a mere personal covenant by the first defendant, brother of the minor-appellant to reconvey the property purchased for himself and on behalf of his minor brother. In other words, it gives an option to the vendors to purchase the property from the vendees after satisfying certain conditions stipulated.

27. If that be the case, the question that arises for consideration is as to how far the covenant by the major brother, who is not a guardian, could bind the minor-appellant in the matter of the resale of the property purchased out of the funds belonging to the minor. So far as the major brother is concerned, it is open to him to enter into any such covenant. In so far as he is not the lawful guardian of the minor his position in law being nothing better than that of a stranger, he cannot enter into any obligations on behalf of the minor so as to bind him and impose upon him onerous responsibilities which may not be to his advantage. The Hindu Law does not recognise the brother as being entitled to act on behalf of his minor brother in any transaction, which imposes obligations on the minor. It is only the father and in the absence of the father, the mother that would be the proper guardian for acting on behalf of the minor in respect of any property that belongs to the minor in a Hindu joint family and even such authority of the father and the mother are circumscribed by other facts such as benefit to the minor, or legal necessity, if the father and the minor son belong to a Hindu joint family. If once the joint Hindu family is broken up and the father and son become divided, it is doubtful whether the authority of the father or mother still subsists over the minor's property, so as to mulct the minor or his property with any obligations which may turn out to be onerous or at any rate not to the interest of the minor. In the absence of the father and the mother, it is only the legal guardian, that is, one appointed by the Court, that is entitled to act on behalf of the minor, and there also if he is to involve the minor into any onerous liabilities, he can do so only with the authority of the Court. The decision in Chennappa v. Onkarappa (1939) 2 M.L.J. 884 : I.L.R. (1940) Mad. 358. (F.B.), has made the position very clear in regard to the guardian of the minor, and the powers of the guardian to act in the case of a Hindu joint family. So also the decision in Chinna Alagum perumal Karayalar v. Vinayagathammal (1928) 55 M.L.J. 861, is authority for the proposition that no one other than the father and the mother could be the natural guardian of a Hindu minor, and that a major brother cannot by any means be the guardian of his minor brother. In Ramakrishna Reddiar v. Kasi vasi Chidambara Swamigal (1927) 54 M.L.J. 412, also the position of a guardian vis-a-vis a Hindu minor has been made clear, and in the light of these decisions, I do not think it necessary for me to canvass the position further that a self-styled and unauthorised guardian of a minor cannot bind him by a personal covenant, which casts onerous liabilities on the minor. It must, therefore, be held that the transaction entered into by the major brother on behalf of his minor brother, the appellant herein, to reconvey the property purchased for his benefit out of the consideration, which belonged to the minor, which had been gifted to him by his father cannot be a valid transaction binding on the minor. In my view, such a transaction is one, which is void and devoid of any legality and cannot be enforced as against the minor. Therefore, so far as the minor is concerned, the agreement contained in Exhibit A-1 is one, which is incapable of being enforced against him, though it may, be that it binds the major brother, who was a party to the agreement.

28. In this connection, a further point has been raised, that Exhibit A-1 being a composite document, it should be capable of being enforced both against the major and the minor brothers. This argument does not appeal to me. The document, which is void against one, can certainly be enforced as against a person against whom it is valid and binding. From the mere fact that a person, who is sui juris and who could enter into contracts by himself, chooses also to involve a minor on whose behalf he is not authorised to act, it cannot be claimed that the agreement so brought about by such a person, should be capable of being enforced, not merely against himself but also against a person, who happened to be a minor. At this rate, any amount of mischief could be perpetrated against minors, and their properties by major brothers or other relations, and the protection afforded to the minors and their interests by law will be absolutely defeated on the mere ground that a document is a composite one and therefore it is capable of being enforced against the major and the minor brothers, at the same time. Surely it cannot be the case that, what a person is not authorised to do on behalf of a minor acting solely for the minor, could be effectively done by entering into what is called a composite contract, both for himself and for the minor. Such a position seems to me to be inconceivable and cannot be supported in law.

29. Similarly, if it is held that the agreement contained in Exhibit A-1 is one, which is not valid, and that it is void ab initio as against the minor, having been entered into by a person, who is not authorised to do so on behalf of the minor, it cannot be enforceable on another ground also, viz., that of absence of mutuality. The agreement in Exhibit A-1 seeks to give up the benefit that the minor has derived for his having paid half of the consideration for the sale of the properties in question, and also any increase in value of the properties due to lapse of time or improvements effected thereto. It will be seen that the minor does not get any benefit in this transaction except the return of the consideration, and what accrued thereto for improvements effected or for other reasons. As observed already, the first defendant cannot make the minor do this for want of authority, he being neither the legal guardian, nor the certified guardian. When that is so, the vendors in this case cannot also seek to enforce the agreement, because there is no mutuality between them and the minor, so far as the agreement is concerned. Exhibit A-1 is a one-sided contract if at all, and any enforcement of the same can take place only against a major party and not against a minor. It will be open to the vendors to proceed against the major brother for damages, but no suit for specific performance of the contract could lie against the minor, so far as his interests in the properties are concerned. The position as to the enforceability of a contract by or against the minor, when there is no mutuality between the parties, has been very well settled by the decision in the well-known case, Mir Sarwarjan v. Fakhruddin Mohomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 I.A. I: I.L.R. 39 Cal. 232 (P.C.) and notwithstanding the fact that subsequent to this decision, there have been several decisions of the High Courts in India, following and interpreting the decision of the Judicial Committee in the case just mentioned, it is clear beyond any doubt that a contract which suffers from want of mutuality, can never be enforced against the minor. While such benefits can be conferred upon him by any person so inclined, a minor will be entitled to retain the benefits conferred upon him, and especially when such benefits are conferred in consideration of moneys belonging to the minor, the converse cannot be true namely, that obligations and liabilities could be also imposed upon the minor, especially when there is no legal guardian, and when there is no necessity, nor benefit arising out of such obligations and responsibilities. This proposition has been very well laid down in Raghavacharia v. Srinivasa Raghavachariar (1916) 31 M.L.J. 575 : I.L.R. 40 Mad. 308 (F.B.). The Supreme Court has also dealt with elaborately the powers of a major or a de facto guardian dealing with the minor's interests in the case of Sriramulu v. Pundarikakshayya (1950) 1 M.L.J. 586 : (1949) F.L.J. (F.C.), and my reading of this judgment leads to the conclusion that no person who is not a legal or a certified guardian, could ever mulct the minor's estate with any obligations or liabilities by any agreement entered into on behalf of the minor whether such agreements are composite or otherwise. The position of the minor becomes stronger in the case of what are known as executory contracts. Neither the minor could claim any benefit under such contracts; nor could such contracts be enforced against the minor on the principle of want of mutuality. In my view the decision in Venkatachalam Pillai v. Sethuram Rao (1932) 64 M.L.J. 354 : I.L.R. 56 Mad. 433 (F.B.), is also an authority for this position, and in the present case, which is an executory contract, I am of the view that no contract for specific performance against the minor could be enforced. The decision in Singara Mudali v. Ibrahim Baig Saheb (1946) 2 M.L.J. 103, also deals with an agreement to sell on behalf of a minor, and Section 53-A of the Transfer of Property Act has come in for interpretation in this decision. I do not think that the question that arise under Section 53-A of the Transfer of Property Act are relevant so far as the facts in the present case are concerned. The circumstances referred to in that decision are not in existence in the present case. When the major brother is not the de jure guardian of the appellant, we cannot proceed On the basis that he is the guardian of the minor appellant, and apply to the present case the rulings in cases in which the guardian of the minor or the manager of a joint family estate appears to have acted on behalf of the minors and therefore the transferor should be considered to be the minor and not the guardian. The minor being a member of a joint Hindu family, or the guardian of the minor or manager of the estate acting for necessity or benefit of the minor, are factors which do not arise in the present case. The moment the property was purchased for the minor out of his moneys under Exhibit B-1, the property became his separate property, and the major brother becomes a tenant-in-common with the appellant only after such purchase and the action of the major in respect of this separate property of the minor is of no legal effect or validity. He could only be deemed to be a trespasser who has encroached upon the rights of the minor without any warrant therefor.

30. The reference by the Bench in this case is on the basis of the opinion that the latest decision of the Privy Council in Subramaniam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.), ran counter to the trend of authority, beginning with Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 L.A. 1 : I.L.R. 39 Cal. 232 (P.C.) and the decision of Viswanatha Sastri, J., in Ramalingam Reddi v. Babanambal Ammal (1950) 2 M.L.J. 597, that the principle of mutuality laid down in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 L.A. 1 : I.L.R. 39 Cal. 232 (P.C.), was no longer in force. My learned brother, Govinda Menon, J., has discussed elaborately this aspect of the case, and has come to the conclusion, that the principle laid down in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 L.A. 1 : I.L.R. 39 Cal. 232 (P.C.), has not been departed from in the latest decision of the Privy Council in Subramaniam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.). I entirely agree with his reasoning and conclusions in the main. I am also of the opinion that the principles laid down in the Privy Council case of Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 L.A. 1 : I.L.R. 39 Cal. 232 (P.C.), have in no way been departed from by the decision in Subramaniam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.). I do not think that Viswanatha Sastri, J., was right in his inference that the decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 L.A. 1 : I.L.R. 39 Cal. 232 (P.C.), has been overruled by the latest decision of the Privy Council in Subramaniam v. Subba Rao (1948) 2 M.L.J. 22 : L.R. 75 I.A. 115 : I.L.R. (1949) Mad. 141 (P.C.). Nor could I find myself in accord with the general points raised by him. I am of the opinion, with all due respect, that there is no warrant for the views held by him. But at the same time I do not think that it will be right for us to take the view that the decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 L.A. 1 : I.L.R. 39 Cal. 232 (P.C.), and those that followed the same, should be confined to cases of purchase of property and not to cases in respect of agreements to sell. On the other hand, I am inclined to think that the principle of mutuality holds good in respect of both such transactions, whether they be purchase of property on behalf of the minor or agreements to sell property on behalf of the minor. Both such agreements would always suffer from want of mutuality and will not therefore be enforceable either against the minor or by the minor. I am also unable to agree with the view, that simply because a transaction is entered into by a major on his own behalf, and on behalf of his minor brother, and because the transaction becomes an indivisible one, the doctrine of mutuality cannot apply. In this case, as I have already held, the agreement and the sale being separable, they being distinct and different transactions, and obligation on the minor having been imposed only by reason of the agreement to sell, I do not agree that the doctrine of mutuality cannot be invoked in such a case. It is not necessary for me, in the view I have taken, to traverse the numerous authorities referred to by my learned brother in the course of his elaborate discussion on these points, nor to consider each one of them. Suffice it for me to say that in this case, there being neither necessity nor benefit arising under the agreement to sell, covered by Exhibit A-1, and the person who has acted on behalf of the minor-appellant, being one who is devoid of any authority to so act, and the transaction itself being distinct and different from the sale covered by Exhibit B-1, and the doctrine of absence of mutuality being applicable to the facts of this case, the contract to resell is one, which is unenforceable against the minor brother. I am, therefore, unable to agree with the view of the learned Subordinate Judge, and I consider that this is a case in which the appeal should be allowed with costs.

31. I would accordingly allow the appeal with costs.

32. Ramaswami, J.-I agree with my learned brother, Govinda Menon, J. and concur on the order proposed by him, namely, that the appeal should be dismissed with costs.

33. By Court.-The appeal is dismissed with costs of Respondents 1, 3 to 5, 9, 12 and 14.

34. The Court made the following

ORDER

35. The costs will be divided equally between Respondents 1, 3, 5 and 14 as one group and Respondents 9 and 12 as another group.


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