Skip to content


Biswanath Charit Vs. Damodar Patra and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 8 of 1974
Judge
Reported inAIR1982Cal199,86CWN423
ActsHindu Minority and Guardianship Act, 1956 - Section 8, 8(1) and 8(2); ;Transfer of Property Act, 1882 - Section 53A
AppellantBiswanath Charit
RespondentDamodar Patra and ors.
Appellant AdvocateBankim Banerjee and ;Pradipta Roy, Advs.
Respondent AdvocateRobindra Nath Mitra and ;B.K. Pal, Advs.
DispositionAppeal dismissed
Cases ReferredMessrs. Chandnee Widyavati Madden v. Dr. C.L. Katial
Excerpt:
- .....instituted the suit on the allegation thatdefendant no. 1, the mother and as such natural guardian of minor defendant nos. 2 to 7 entered into an agreement with the plaintiff for self and on behalf of the minors to sell the suit property for a consideration of rs. 1,275/- by accepting an advance of rs. 500/- to meet certain antecedent debts during the last illness of her deceased husband, the father of defendant nos. 2 to 7 and executed and registered a bainapatra on dec. 12, 1960; it was stipulated in the agreement that defendant no. 1 having herself appointed the certificated guardian of the minors would execute the deed of sale within six months; that simultaneously the plaintiff was put into possession of the suit land on settlement under a kabuliat dated 1st pous.....
Judgment:

Anil K. Sen, J.

1. This is an appeal under Clause 15 of the Letters Patent directed against a judgment and decree dated July, 13, 1971, passed by a learned single judge of this Court in an appeal from appellate decree No. 38 of 1964. Defendant No. 8 is the appellant before us who lost throughout.

2. This appeal arises out of a suit for specific performance of a contract and injunction. The plaintiff/respondent instituted the suit on the allegation thatdefendant No. 1, the mother and as such natural guardian of minor defendant Nos. 2 to 7 entered into an agreement with the plaintiff for self and on behalf of the minors to sell the suit property for a consideration of Rs. 1,275/- by accepting an advance of Rs. 500/- to meet certain antecedent debts during the last illness of her deceased husband, the father of defendant Nos. 2 to 7 and executed and registered a Bainapatra on Dec. 12, 1960; it was stipulated in the agreement that defendant No. 1 having herself appointed the certificated guardian of the minors would execute the deed of sale within six months; that simultaneously the plaintiff was put into possession of the suit land on settlement under a Kabuliat dated 1st Pous 1367 B. S.; but it subsequently appeared that defendant Nos. 1 to 7 suffered a collusive compromise decree in Title Suit No. 578 of 1960 purporting to surrender possession of the suit land in favour of defendant No. 8 for defeating the plaintiff's right; that the defendants Nos. 1 to 7 thus not only refused to execute the sale deed but defendant No. 8 threatened to disturb plaintiff's possession of the suit land. Hence the plaintiff sued for specific performance of the contract for sale and for injunction restraining the defendant No. 8 from interfering with his possession of the suit property.

3. The defendant Nos. 1 to 7 filed a written statement denying the agreement but did not appear further to. contest.

4. The suit was contested by defendant No. 8 who not only denied the agreement but further pleaded that such an agreement being contingent upon permission of the court and being otherwise invalid and void is not enforceable. He further claimed that in any event such an agreement is not enforceable against him.

5. The two courts on evidence concurrently found that defendants Nos. 1 to 7 did execute and register the agreement for sale which was for legal necessity and for the benefit of the minors and that the plaintiff was put into possession of the suit property on the basis of a settlement. Both the courts overruled the plea that the defendant No. 8 is a bona fide transferee for consideration without notice. The trial Court found the solenamah decree which was entered into a few days after the plaintiff's agreement to be collusive. So far as the contract is concerned, the two courts held that itwas competent for the natural guardian mother to enter into such contract made for the benefit of the minors and though it may be voidable at the instance of the minors, it is not otherwise void or invalid and is specifically enforceable when the minors are not coming forward to avoid it. It was so held on the authority of the decision of Privy Council in the case of Subrahmanyam v. Subba Rao, AIR 1948 PC 95.

6. Defendant No. 8 preferred the above second appeal and other points being concluded by the concurrent findings of the two courts below, the only point that was urged before the learned single Judge was that the law relating to the powers of a natural guardian under Hindu law having been changed on enactment of the Hindu Minority and Guardianship Act, 1956, the decision of the Privy Council relied on by the courts below can no longer apply and such a contract cannot be specifically enforced. It was further contended that on a proper construction of the agreement it should have been held to be contingent and as such not enforceable.

7. Both the points thus raised were overruled by the learned single Judge. On the first point the learned Judge held that by virtue of powers conferred by Sub-section (1) of Section 8 of the Hindu Minority and Guardianship Act, 1956, it was competent for the natural guardian to enter into an agreement on behalf of the minors and for their benefit as done in the present case though subject to Sub-section (3) thereof which entitles the minors to avoid the same if it is not for their benefit and as such is in contravention of Sub-section (1). Hence it was held that the contract is valid and as such specifically enforceable. On the second point, the learned Judge upon construction of the agreement held in agreement with the courts below that the agreement to sell was not contingent upon permission being obtained from court it merely provided how the conveyance was to be executed by the guardian of the minors. The concurrent decree passed by the two courts below was thus affirmed and the second appeal was dismissed by the learned single Judge. Feeling aggrieved the defendant no. 8 has preferred this appeal after having obtained leave under Clause 15 of the Letters Patent from the learned single Judge.

8. Mr. Banerjee appearing in support of this appeal has fairly conceded that onthe terms of the agreement he cannot dispute the finding of the learned single Judge that the agreement in question cannot be said to be a contingent one, Mr. Banerjee has, however, strongly contended that the learned single Judge had failed to take note of the fact that Hindu Minority and Guardianship Act, 1956, having introduced material change by way of restricting the powers of the natural guardian to effect any mortgage or charge or transfer by sale, gift, exchange or otherwise the immovable property of the minor, no court could specifically enforce an agreement for sale said to have been executed by the natural guardian for and on behalf of the minor. Such a decree, according to Mr. Banerjee, would constitute contravention of Section 8(2) of the said Act. Mr. Mitter appearing on behalf of the respondent has strongly contested the point thus raised by Mr. Banerjee and he has further contended that in any event the defendant No. 8 is not entitled to challenge the decree in view of the finding of the courts below that the solenamah decree in his favour was a collusive one.

9. The point raised by Mr. Banerjee appears to us to be of some importance. It must be remembered that the decision of the Privy Council in the case of Mir Sarwarjan v. Fakhruddin, (1912) 39 Ind App 1 stands revised to a great extent by the view expressed by the Privy Council in the later decision in the case of Subrahmanyam v. Subba Rao, 75 Ind App 115 : (AIR 1948 PC 95) where the Privy Council approved the following principle enunciated by Pollock and Mulla, namely, 'It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council that the contract can be specifically enforced by or against the minor, if the contract is one which is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further if it is for the benefit of the minor. But if either of these two conditions is wanting the contract cannot be specifically enforced at all.' One must, however, remember that such was the principle enunciated and approved by the Privy Council at a time when under the Hindu Law the natural guardian of a Hindu minor had power in the management of his estate to mortgage or sell any partthereof in case of necessity or for the benefit of the estate. At that time, the limitations enacted in Section 29 of the Guardians and Wards Act, 1890, were applicable to a guardian appointed or declared by the court and not to a natural guardian. But there has been a material change in the law in this regard introduced by the Hindu Minority and Guardianship Act, 1956. Section 8 of the said Act has rendered the powers of the natural guardian substantially the same and subject to the same limitations as are imposed on the powers of a guardian declared or appointed by a court under the Guardians and Wards Act. Sub-section (2) has taken away the independent power of alienation originally possessed by the natural guardian under the Hindu Law and forbids mortgage or charge or transfer by sale, gift, exchange or otherwise or even lease for a term exceeding 5 years or for a term extending one year beyond the date on which the minor will attain majority, any part of the immovable property of the minor except with the previous permission of the court. Reflex o such a change on a claim of specific performance of a contract for any transfer coming within that Sub-section appears not to have been considered by the courts below. We feel no hesitation in agreeing with and accepting the view that it was competent for the natural guardian to enter into and execute an agreement for sale as in the present case for the benefit of the minors and such an agreement will not be void altogether but only voidable at the instance of the minor if it can be shown to be not for his benefit. But in our view the mere fact that the agreement is not void would not by itself render it straightway specifically enforceable at the instance of the purchaser by the natural guardian. It could have been so enforceable if, as the law stood before, the natural guardian himself could have fulfilled the contract by executing the conveyance. But that power has since been made subject to the previous permission of the court. Complying with a decree for specific performance as made in the present case would constitute contravention on the part of the natural guardian of Sub-section (2) of Section 8 of the Hindu Minority and Guardianship Act, and it is settled principle that no court should compel a person to contravene the law. The matter can belooked at from another angle, namely, that even where the court grants such a decree and the natural guardian, executesthe conveyance in terms of that decree, that transfer can be set at naught at the Instance of the minor merely on the ground that such transfer is in contravention of Sub-section (2). No court is expected to pass such an infructuous decree. But the question still remains what would happen to such an agreement, particularly when as has been found in the present case the agreement is within the competence of the natural guardian and is for the benefit of the minor. Would it remain an agreement not enforceable in law? In our view the legal position is that such an agreement is enforceable but only upon a previous permission being obtained from the court. Where the natural guardian in exercise of his powers under Sub-section (1) of Section 8 of the said Act enters into such an agreement for the benefit of the minor he by necessary implication enjoins himself to take the necessary permission from the court and then execute the conveyance which would not contravene in any manner Sub-section (2) thereof. The decree in such a case, therefore, should be in terms similar to the one as the Supreme Court indicated in the case of Messrs. Chandnee Widyavati Madden v. Dr. C.L. Katial, : [1964]2SCR495 . The decree must direct the natural guardian to seek the necessary permission from the court as contemplated by Sub-section (6) of Section 8 and such permission being obtained to effect the conveyance.

10. Though such is the legal position and though the decree as drawn up is not strictly in the said terms when the court directed straightway the defendants Nos. 1 to 7 to execute and register in favour of the plaintiff the deed conveying the suit property yet we are not inclined to interfere with such a decree due to intervening circumstances. More than 21 years have passed since the agreement for sale was entered into. The minors have all ceased to be minors and though more than 3 years have lapsed since their attainment of majority they have not avoided the contract. As a matter of fact they are themselves parties to this suit and they have not contested. In such a situation it will be futile on our part now to modify the decree and direct the natural guardian to seek for necessary permission of the court under Sub-section (2) of Section 8 of the Hindu Minority and Guardianship Act, 1956. We also find great substance in the objection raised by Mr. Mitter, namely, upon the findings of the two courts of fact, the defendant No. 8has no locus standi to challenge the decree since the decree he obtained on compromise from the other defendants had been adjudged to be collusive.

11. In the result, we dismiss this appeal without, however, any order forcosts.

B.C. Chakrabarti, J.

12. I agree.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //