S.C. Ghose, J.
1. This is a vendor-purchaser's summons taken out by the plaintiff Mrs. Eishu Chugani. The purchaser under an agreement dated the 24th January, 1967 agreed to purchase the premises No. 3, Hunger Ford Street, situated in Calcutta within the Original Jurisdiction of this Court. The defendants are the partners of the partnership firm M/s. Arun & Co. carrying on business at No. 38, Indian Exchange Place. The defendants are the vendors under the said agreement dated the 24th January, 1967. The facts leading to the filing of this O. S. suit are stated hereunder.
2. By an agreement in writing dated the 24th January, 1967 the defendants agreed to sell to the plaintiff and the plaintiff agreed to purchase from the defendants the premises No. 3, Hunger Ford Street, at and for the sum of Rs. 9,74,000/- besides a sum not exceeding Rs. 47,000/- for the building material, free from all encumbrances subject to the defendants making out a marketable title to the said premises. The terms and conditions of the agreement for sale would appear from the copy of the said agreement annexed to the plaint herein and marked with the letter 'A'.
3. The said agreement provided inter alia that 'subject to the defendants
(Contd. on Col. 2)
The vendors have produced a conveyance dated 25th March, 1961, executed by Mohammed Nazrul Haq Chowdhury & others in favour of Arun & Co.
(i) Please explain how the minor's share in the said premises could be validly sold by their partner without an order of the Court?
(ii) The vendors shall obtain proper order authorising sale.
9. The said answers did not explain nor justify the transfer of the minors' interest in the property. The said answers, therefore, failed to make out a marketable title to the said property. The said fact was pointed out by the plaintiff's solicitor's letter dated April 1, 1967, which is the plaintiff's document No. 14 and defendant's document No. 7 disclosed in these proceedings. By the said letter the said solicitor demanded refund of the earnest money of Rs. 1,00,000/-deposited with the defendants by the plaintiffs in terms of the agreement for sale. By his letter dated April 10, 1967, the vendor's solicitor wrote to the plaintiff's solicitor informing him that at the time of sale of the making out a good marketable title the sale and purchase would be completed within a period of three months from the date of making over the documents of title provided that the defendants produce the Corporation sanction with minor alterations, if any, as provided in the Calcutta Municipal Act of the latest plan submitted in respect of the premises now being construed before the date of the sale and a Certificate of the Master Sathe & Kothari, Architects that the foundation work has been executed according to the specification plan and design submitted to the Corporation and allowed by the Corporation.'
4. Time under the said contract was of essence of the contract.
5. The defendants' solicitor sent to the plaintiff's solicitor certain documents of title relating to the premises on January 30, 1967.
6. From searches made as well as the documents of title the plaintiff's solicitor came to learn that the property in suit was purchased by the vendors by a conveyance dated the 25th March, 1961 executed by Md. Nazmul Haq. Chaudhury and others whereby and whereunder right, title and interest of two minors in the said property were purported to have been conveyed by their father and natural guardian.
7. In view of the aforesaid in the requisition on title made by the plaintiff's solicitor inter alia the following questions were put which together with the answers thereto given by the defendants' solicitor are set out hereunder:
In view of the two Indemnity Bonds both dated 24-3-1961 executed by the Central Bank of India Ltd. in favour of the Vendor for the, shares of the minors and also the Indemnity Bond dated 25--3-1961 executed by Md. Nazrul Huq. Choudhury & Another in favour of the Vendor the interest of the purchaser in respect thereof it apply safe-guarded.
In view of the above, the question does not arise. Further none of the partners of the vendor is minor and so order cannot be obtained.said property to the vendors, the said property was in a bad state of decay and money was required by the guardians of the minors for the education of the minors and that the price paid by the vendors was much more than the market, value of the premises. 9. It appears from the records that the area of the land comprised of the premises was little over 18 cottahs. There was a two storied building on the said premises. The vendors purchased the said property from their vendors at and for the price of Rs. 1,30,000/-. It appears, that portions of the property had been let out to M/s. Balmer Lawrie & Co. Ltd. at a monthly rent of Rs. 453/-. The plaintiff's solicitor in their letter dated April 13, 1967, which is P. D. No. 16 and D.D. No. 9 asked for further evidence to justify the sale by the father of the minor vendors of the share of the minors in the property and reiterated that their client was ready and willing to complete the sale provided the vendors made out a marketable title and subject to their producing the necessary certificate of income-tax clearance and Wealth Tax Clearance. In answer to the said letter the defendants' solicitor by their letter dated April 22, 1967, which is P. D. No. 17 and D. D. No. 10 said inter alia as follows:
'Our client deny that the answers given are not sufficient to justify the sale by the father of the minor vendors ... ... ... ourclient have made out a marketable title ... ...The question of adducing further evidence does not arise ... ... ... ...'
10. By their letter dated April 29, 1967, M/s. Nahar & Dutta informed the defendant's solicitor that they had presented an application for originating summons for determining the question as to whether the defendants made out a marketable title. By letter dated March 2/10, 1967, which is P. D. No. 19 and D. D. No. 11 the defendants purported to cancel the said contract and forfeited the earnest money of Rs. 1 lakh as liquidated damages.
11. It appears from the documents disclosed that the minors were, besides the premises in suit also owners of other premises being premises No. 214/1/5, Lower Circular Road, Calcutta. It also appears that at least a part of this property was rented and was fetching a decent sum as and by way of rent. The father of a mohammedan minor is his legal guardian, but such legal guardian has no power to sell the immovable property of the minor except in the following cases:
A. Where such sale fetches double the value of the property,
B. Where the minor has no other property and the sale is necessary for his maintenance,
C. Where there are debts of the deceased and there are no other means of paying them,
D. Where there are legacies to be paid and there are no other means of paying them,
E. Where the expenses exceed the income of the property,
F. Where the property is falling into decay, and
G. Where the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution. (See Imambandi v. Mutsaddi, (1918) 45 Ind App 73 = (AIR 1918 PC 11), Kali Dutt v. Abdul AM, (1888) 16 Ind App 96 (PC); Yeajuddin Pramanick v. Rup Manjari, AIR 1936 Cal 326.
12. Admittedly in the instant case [the minor had other properties. There is noevidence on record to show that the property was in a bad state of decay. Therefore, in the absence of further evidence it could not be said that the guardian was within his power to sell the property and that the sale was valid. There is also no circumstantial evidence on record to show that the guardian was entitled to sell the minor's share in the property. Therefore, it is evident that the vendors failed to justify the sale of the minors' share in the property by their vendors and so failed to make out a marketable title to the said property.
13. From the correspondence and in particular their refusal to adduce further evidence to justify the sale of the minors' share, it is clear that the defendants were not ready and willing to perform their part of the contract.
14. Mr. Bhabra appearing on behalf of the defendants submitted that the questions framed in this proceeding for answer by Court show that the plaintiffs had not accepted the repudiation, if any, made by the defendants of the said contract, but has kept the contract alive and the questions as posed before the Court entitles the defendants to make out a title to the property on the date of hearing. According to Mr. Bhabra the defendants have done so by producing deeds of confirmation of the sale of the minors' share in the property executed by the minors on attainment of majority. Thus, according to Mr. Bhabra there is no doubt that the defendants have now made out a marketable title to the property.
15. In my view, however, the date which is material for our purpose in coming to a finding as to whether the defendants have made out a marketable title to the property is the date, when the Originating Suit was filed i.e. 29th April, 1967. On that date both the minors were still minors and the documents confirming the sale were not executed.
16. For all the reasons stated above I answer the questions posed to the Court in this O. S. Suit as under:
Q. 1. Have the defendants made out a marketable title in accordance with the said agreement for sale dated 24th January, 1967?
Q. 2. Is the plaintiff entitled to rescind the agreement and to receive the said sum of Rs. 1,00,000/-?
17. In the premises I direct the defendants to refund to the plaintiffs the said sum of Rs. 1,00,000/- deposited with them as and by way of earnest money and in part payment of consideration of the said property together with interest on the said sum at 6 per cent per annum from 24th January, 1967, until re-payment.
18. The defendants shall also pay costs of this suit.