Macpherson and Banerjee, JJ.
1. In this case a decree has been made against the infant defendant Jugul Kishori Chowdhurani, who is the appellant before us, for the specific performance of a contract made on her behalf, and with the sanction of the District Judge, by Peary Sarkar, her father and guardian duly appointed under the provisions of act XL of 1858.
2. The main point taken is that the suit for specific performance is not maintainable against the infant. No relief is asked for against her guardian, who is not in his own person a party to the suit.
3. The contract sought to be enforced is for a putni lease of certain properties belonging to the infant, at an annual rent of Rs. 487-4-8, on the payment of a bonus of Rs. 1,400. The facts found are these: The estate, which the infant inherited from her husband, being involved in debt, the defendant Enayatoolia agreed with the guardian to pay a bonus of Rs. 2,200, and to take a putni lease of the properties at an annual rent of Rs. 498-6-11. This arrangement was sanctioned by the District Judge on the 2nd June 1891, but Enayatoolla afterwards refused to take the lease, on the ground, as the Judge finds, that the title of the infant was threatened. The contract, now in question, was then made as between the plaintiffs and the guardian; and on the 25th July 1891, the District Judge made an order, in modification of his order of the 2nd June, sanctioning the arrangement. In August the plaintiffs paid Rs. 143 in satisfaction of two bonds executed by the infant's husband, and also paid the guardian a sum of Rs. 150 out of the bonus money. The guardian refused, however, to carry out the contract, and reverted to the old arrangement with Enayatoolla, which was carried into effect by two registered instruments on the 10th of August. The Judge finds that no part of the bonus of Rs. 2,200 was paid, and considers that the payment, which is sworn to by Enayatoolla and admitted by Peary Sarkar, was only set up to make it appear that the terms of the sanction bad been complied with, and that the arrangement with Enayatoolla was more to the infant's benefit than the arrangements with the plaintiffs.
4. We know of no case in which a decree for specific performance has been made against an infant. In Flight v. Holland 4 Russ. 298 it was held that an infant could not maintain a suit for specific performance of a contract, the reined y not being mutual, and it being a general principle of Courts of Equity to interfere only where the remedy is mutual.
5. It is unnecessary to consider whether, under the Contract Act, the contract of an infant is void, or only voidable at his instance. A contract, so long as it is voidable, cannot be specifically enforced, and an infant cannot ratify, so as to be bound by the ratification.
6. Here, however, the contract was made, not by the infant, but by the guardian on the infant's behalf. A guardian has, under the Hindu law, a qualified power of dealing with the property of an infant under his charge. He can, in case of necessity, sell, charge, or let it for a long term. But the infant is not absolutely bound by the act of the guardian; he could, on attaining majority, recover the property, if it had been disposed of without legal necessity : and in the case of an uncertificated guardian, the burden of proving legal necessity would, generally speaking, be on the person asserting it.
7. It is said that, as in this case, the guardian was appointed, and the contract sanctioned, by the District Judge, acting under statutory powers, there was a complete contract enforceable against the infant. A guardian appointed under Act XL of 1858, or Act VIII of 1890, cannot, without the sanction of the Court, give a lease for a period exceeding five years. If he does give it, the transaction is voidable at the instance of any other person affected by it. Section;31 of the Act ('VIII of 1890) enacts that sanction shall not be granted, except in case of necessity, or for an evident advantage to the ward,' and prescribes the procedure to be followed. The effect of the sanction was considered in the case of Sikher Chund v. Dulputty Singh I.L.R. 5 Cal. 363. There the infant, on attaining majority, sued to recover the property, which had been sold by her guardian with the sanction of the District Judge. The case is an authority for this, that such a suit would lie; but that the sanction is prima facie proof that the transaction was good and binding, and that it was for the plaintiff to show that there was no legal necessity for it, or that it was fraudulent or illegal.
8. In our opinion, if it is open to the infant on attaining majority to question the transaction, a decree for specific performance cannot, or at all events should not, be made against him while an infant.
9. More than this. The jurisdiction to decree specific performance is discretionary, although the discretion must be judicially exercised. No Court would, even if it could, make a decree for the specific performance of a contract affecting an infant, unless the contract was shown to be for the infant's benefit. It is not the case of any one that this contract should be enforced for the infant's benefit. The plaintiffs wish to enforce it against the infant for their own benefit, and the guardian says it is against the interest of the infant. The Judge thinks that, if the bonus of Rs. 2,200 was paid, the contract would not be for the infant's benefit; but he finds that it was not paid. The defendants, however, assert payment, and the guardian, acting for the infant, admits receipt of the money. The decision that it was not paid will not bind the guardian, or any of the defendants, as between themselves. It will not prevent the alleged payers from suing to recover the money, or the infant from charging her guardian with the receipt of it. The issue in the first Court was whether the contract was prejudicial to the infant, and this appears to have been more considered than the question whether it was for the infant's benefit that the contract should be enforced. We think it is not a case in which a decree for specific performance should have been made under any circumstances. It is unnecessary to consider whether the plaintiffs could get any relief against the guardian. It is enough to say that they are not entitled to the relief claimed as against the infant.
10. The appeal is decreed with costs in all the Courts. Decrees of the lower Courts set aside.