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Rajubala Dasi Vs. Nidhuram Pandit and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 748 of 1952
Judge
Reported inAIR1960Cal65
ActsSpecific Relief Act, 1877 - Sections 23 and 27; ;Contract Act, 1872 - Section 11; ;Evidence Act, 1872 - Section 115; ;Hindu Law
AppellantRajubala Dasi
RespondentNidhuram Pandit and ors.
Appellant AdvocateApurbadhan Mukherjee and ;Tarun Kumar Banerjee, Advs.
Respondent AdvocateSyamadas Bhattacharjya Sr., Adv.
DispositionAppeal dismissed
Cases ReferredK. Subrahmanyam v. K. Subba Rao
Excerpt:
- .....in the deed of reconveyance after depositing an amount of rs. 250/-. after the institution of that suit, rajubala instituted a counter, suit for ejecting her tenant nidhuram pandit from the disputed properties on the ground that the term of the lease had expired. there was also a prayer for recovery of arrears of rent. 4. in the present appeal i am concerned with the suit for specific performance of the contract of reconveyance in which rajubala figuredas a defendant. her defence in that suit was that the deed of reconveyance was a fraudulent one, and the contract could not be specifically enforced against her, because one of the contracting parties was a minor. that defence was overruled, and the suit for specific performance of the contract of reconveyance was decreed. the counter suit.....
Judgment:

Renupada Mukherjee, J.

1. The only question of law urged on behalf of the appellant in this appeal is whether an agreement for reconveyance of a property executed by a purchaser simultaneously with the purchase of the property can be specifically enforced on behalf of a minor.

2. The above question of law has arisen from the following facts and circumstances about which there is no longer any controversy. Some properties were purchased from the respondents of this appeal by appellant Rajubala Dasi by a kobala on 8th Bhadra, 1354 B. S. (corresponding to 25th August, 1947) for a consideration of Bs. 250/-. Two other documents were executed between the parties on the same day. Nidhuram Pandit, one of the vendors, executed a bharanama on the same date taking lease of the properties sold by himself and his co-sharers at a monthly rent of Rs. 2/-for a period of two years. The third document was a deed of agreement executed by purchaser Rajubala under which she agreed to reconvey the properties to the vendors if the latter returned the consideration money of Rs. 250/- within two years from the date of the sale. A contention was raised in the Courts below on behalf of appellant Rajubala that this document had been fraudulently obtained from her, and she was not aware of its contents. That contention was negatived by the Courts below, and it is no longer raised in this appeal.

3. Rajubala did not execute any deed of reconveyance, and so the vendors instituted Title Suit No. 218 of 1950 which was originally numbered as Title Suit No. 403 of 1949 for specific performance of the contract embodied in the deed of reconveyance after depositing an amount of Rs. 250/-. After the institution of that suit, Rajubala instituted a counter, suit for ejecting her tenant Nidhuram Pandit from the disputed properties on the ground that the term of the lease had expired. There was also a prayer for recovery of arrears of rent.

4. In the present appeal I am concerned with the suit for specific performance of the contract of reconveyance in which Rajubala figuredas a defendant. Her defence in that suit was that the deed of reconveyance was a fraudulent one, and the contract could not be specifically enforced against her, because one of the contracting parties was a minor. That defence was overruled, and the suit for specific performance of the contract of reconveyance was decreed. The counter suit brought by Rajubala was also decreed, but the operation of that decree was made subject to the terms of the other decree.

5. An appeal was preferred by Rajubala from the judgment and decree passed by the Trial Court in Title Suit No. 218 of 1950, but the appeal was dismissed. So Rajubala has come up to this Court in Second Appeal.

6. Various objections were taken on behalf of the appellant Rajubala in the Courts below against the validity of the contract embodied in the agreement for reconveyance executed by her. For example, it was alleged that the parties had intended that this document was to be a potta, but by practising fraud upon the appellant, the document was written as an agreement for reconveyance. It was also alleged by Rajubala that she is an illiterate and purdanashin lady, and the terms and contents of the deed were never explained to her. All these defences were overruled by the Courts below, and Mr. Mukherjee appearing on behalf of the appellant fairly conceded that it is no longer open to the appellant to press the above objections in Second Appeal, because the objections are concluded by findings of fact. He, however, pressed only one point, which is a point of law, for my consideration.

7. Mr. Mukherjee contended that the contract embodied in the agreement for reconveyance is bad for want of mutuality. He submitted that this contract had been entered into on behalf of the minor respondent Tarak Nath Pandit by his guardian mother Panchubala Dasi who was not legally competent to involve the minor in a transaction of repurchase. Mr. Mukherjee contended further that the appellant could not compel the minor to purchase the property, and so there was no mutuality in the contract, and it must be deemed to be a void contract for that reason. In support of this contention Mr. Mukherjee relied on a case reported in Sarwarjan v. Fakhruddin Mohomed, ILR 39 Cal 232 (PC). In particular Mr. Mukherjee relied on the following observations of their Lordships of the Privy Council at page 237 of the report :

'Without some authority their Lordships are unable to accept the view of the learned Judges of the Division Bench that there is no difference between the position and powers of a manager and those of a guardian. 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 or the contract.'

In the above case the contract which was sought to be specifically enforced was entered into by the manager of a Mahomedan minor, and that manager had admittedly no power to bind the estate of the minor by a contract for the purchase of immovable property. In the present case theminor is a Hindu. The position would, however, be different with regard to a contract entered into on behalf of a minor by his guardian or by a manager of his estate, where the guardian or manager, as under Hindu Law, is competent to alienate the property of the minor. In such a case the contract can be specifically enforced by or against the minor if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him, and further, if it is for the benefit of the minor. This has been held in the Privy Council case reported in K. Subrahmanyam v. K. Subba Rao .

8. In the present case the agreement on which the suit is based is not an isolated transaction, but is vitally linked with the kobala executed by the respondents among whom the mother of the minor as representing the minor was one, So far as the minor is concerned, the kobala was executed by the mother on his behalf on the footing that she was competent to transfer the property of the minor. This position was accepted by the appellant who has obtained an advantage by the transaction of sale and has got the entire property, including the share of the minor. Having done so and after having agreed to reconvey the property in its entirety, she cannot now turn round and repudiate the authority of the mother to effect the sale on behalf of the minor, or to repurchase the property of the minor upon refund of the consideration money. The appellant would be estopped by her conduct from doing so, and she must fulfil her part of the obligation by reconveying the property in favour of all the respondents, including the minor. For the purpose of the present litigation it must be held that it was within the competence of the mother to effect the sale and also to accept the agreement for reconveyance which is only an offshoot of the sale on behalf of the minor.

9. The Lower Appellate Court negatived the contention of the appellant on the ground that the agreement for reconveyance was a unilateral document, and it embodied only a conditional contract which could be finalised by the respondents upon agreeing to take back the property. These reasonings of the Lower Appellate Court do not appeal to me to be sound or correct. It cannot be said that the contract was a unilateral one. The agreement to reconvey the property was not a gratuitous or unilateral promise. The vendors had sold the property for valuable consideration. In return for her money the appellant got the property subject to the condition that she would reconvey the property if the vendors refunded the consideration within two years of the date of the sale. All these transactions constituted a single transaction. It would, therefore, be incorrect to say that the contract embodied in lie deed of agreement was a unilateral contract and no question of mutuality was involved in it. I have, however, indicated above that the contention of the appellant must be negatived on the principle of estoppel by conduct.

10. On grounds set forth above I dismiss this appeal with costs to the respondents.


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