Salil Kumar Datta, J.
1. This is an appeal by the defendant against the judgment and decree of affirmance granting specific performance of a contract of purchase in favour of two minors entered into through their guardian.
2. The admitted facts are that the plaintiffs are heirs of one Kudiram Das who died on July 1, 1961. To meet the expenses of his Sradh, the plaintiffs sold the suit property to the defendant by a deed executed on July 9. 1961 on receipt of Rs. 1699/- as consideration. The deed was registered on July 11, 1961. on which day the defendant agreed by another deed to reconvey in favour of the plaintiffs the property on receipt of the said amount of Rs. 1699/- within July, 1965. The defendant was thereafter repeatedly asked to convey the property to the plaintiffs but the defendant failed and neglected to reconvey the property in breach of the contract although the plaintiffs were always ready and willing to perform their part of the contract. The plaintiffs in the circumstances instituted the suit on April 9, 1963, praying for decree for specific performance of the said contract. It may be mentioned that the plaintiffs Nos. 4 and 5, minor daughters of late Kudiram Das were represented by their guardian mother in the said sale and the contract was executed by the defendant in favour of the plaintiffs including the said minors represented by their guardian mother as aforesaid. The defence in so far as it is material in this appeal, was that the plaintiffs were not entitled to enfroce performance of the contract as some of the plaintiffs, being parties to the agreement, were minors. The contract for purchase, it was contended was not enforceable in law by the minors as there was no mutuality in such contract. Further, the contract was not warranted by Section 8(1) of the Hindu Minority and Guardianship Act, 1956.
3. The suit was tried on evidence before the learned Munsif, who on a consideration of the judicial decisions, held that the doctrine of mutuality of contract has since lost its importance as such contracts are enforceable if it is one within the competence of the guardian and is for the benefit of the minor. The learned Munsif also found that property admittedly worth about Rs. 3500/- wag sold to the defendant to meet an emergency at a low price. The contract for Retting back the property was for the benefit of the minors and there was no evidence that the purchase of the property would bind the estate of the minors. The court further found that the contract under consideration is authorised by Section 8(1) of the Hindu Minority and Guardianship Act, 1956. On merits the court also found that the plaintiffs were entitled to the specific performance of contract as prayed for. The suit was accordingly decreed.
4. An appeal was taken by the defendant therefrom and the appellate court found that the contract was a joint one and could not be split between major and minor promisees; further, the defendant having purchased the minors' shares also and taken the benefit of the sale could not be allowed to resite by repudiating the contract on ground of lack of mutuality; and Section 8(1) of the Hindu Minority and Guardianship Act was no bar to the enforceabillty of the contract and the later judicial decisions recognised partial exception of the doctrine of mutuality covering the agreement in suit. On merits also it was found that, the plaintiffs were entitled to enforce the contract. The appeal accordingly was dismissed and the present appeal is by the defendant against the said appellate decision.
5. The reliefs under the Specific Relief Act are discretionary and may be refused in appropriate cases. In the present case, the defendant acquired the suit property admittedly at much lesser value than the market price. With the motive to retain the unfair advantage, he has been trying to wriggle out of the agreement for reconveyance by taking his stand on technical and legal objections. In equity therefore he has no case and no court, in my view, will refuse to grant the specific performance if it is lawful so to do.
6. There is no dispute that the specific performance of contract to be enforceable must be mutual. The defendant in a suit for specific performance must also be in a position to enforce the obligations under the contract upon the plaintiff. If it is not possible to do so, if the defendant is not in a position to obtain the performance of contract by the plaintiff, there will be absence of mutuality which as a general rule will render the contract unenforceable in law. On ground of absence of mutuality Mr. Saktinath Mukherjee the learned counsel for appellant contended that the contract before us is not enforceable in law.
7. The question of enforceability of a contract for transfer of immoveable property in favour of minor came up for consideration before the Privy Council in Mir Sarwarjan v. Fakruddin Mahomed, (1911-12) 16 Cal WN 74 (PC). It was held 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 purchase of immoveable property' and '...... as the minor in the present case was not bound by the contract there was no mutuality and ...... the minor who has now reached his majority cannot obtain specific performance of the contract.'
On the authority of the above decision, it practically became settled law that the doctrine of mutuality applies to India though there is no express reference to the rule of mutuality in the provisions of the Specific Relief Act, 1877. It also became the settled law that an executory contract for the transfer of immoveable property in favour of the minor is not capable of performance and this doctrine was extended to contracts of sale also and even the question of necessity or benefit was not considered relevant in Nripendra v. Ekherali, 34 Cal WN 272 = (AIR 1930 Cal 457). The principle in Mir Sarwarian's case was applied in a long catena of decisions in different High Courts and suits for specific performance of contract of minors through their guardians for sale or purchase or reconveyance filed at the instance of either party were dismissed by the courts on ground of want of mutuality,
8. In Sri Kakulam Subrahmanyam v. Kurra Subba Rao, AIR 1948 PC 95, the Privy Council was concerned with a contract for sale by the minor through her mother guardian. The contract was within the competence of such guardian and was also for the benefit of the minor. It was held that the minor aptly answered the description of 'the transferor' in the sense it was used in Section 53-A of the Transfer of Property Act. The minor was accordingly held debarred by the section from obtaining relief by way of possession against the transferee who was put into possession in pursuance of the contract and had performed Ms part of the contract. It was so held in clear recognition of the right of the guardian to enter into a contract to sell for a purpose binding on the estate and the only conditions being that the contract is one which it is within the competence of the guardian to enter into on the minor's behalf so as to bind him by it and further that it, is for the benefit of the minor, and, if either of them is wanting the contract cannot be specifically enforced at all. Subba Rao J. (as his Lordship then was) in Suryaprakasam v. Gangaraju, AIR 1956 Andh Pra 33 (FB), speaking for the Full Bench of that court, was of the opinion that the judgment in AIR 1948 PC 95 (supra) overruled all the previous decisions based on Mir Sarwarjan's case. (1911-12) 16 Cal WN 74 (PC). Though other High Courts have taken conflicting views of the above two cases decided by the Privy Council I have no hesitation for reasons therein stated in accepting the conclusion in the above case.
9. Mr. Saktinath Mukherjee in fairness drew my attention to the above decisions and contended that the view in Mir Sarwarjan's case, (1911-12) 16 Cal WN 74 (PC) was still good law, apart from the provisions of the Hindu Minority and Guardianship Act, 1956 on which his contentions are being dealt with later. Mr. Syama Charan Mitter the learned counsel for the respondents has in addition to the decisions cited above, drew my attention to a new Sub-section (4) to Section 20 of the Specific Relief Act (Act 47 of 1963) which came into force on December 13, 1963, repealing the earlier Specific Relief Act (Act 1 of 1877). The Specific Relief Act, according to Mr. Mitter is an adjective law and in view of the repeal of the earlier Act without any reservation, the provisions of the current Act are applicable to the facts of this case which was pending even when the case was before the trial court.
10. As observed by Pollock and Mulla in 'the Specific Relief Act', the law of specific relief is in its essence part of the law of procedure, for specific relief is a form of judicial process. Such right is discretionary for a court to grant and interest in land to be recognised cannot be at the discretion of the court nor be taken away by it. Accordingly it was held that the Specific Relief Act embodies adjective law and the substantive law must be elsewhere as was also observed in Ali Hossain v. Raj Kumar, AIR 1943 Cal 417 (FB). It is also the settled law that enactments dealing with procedure are exception to the general rule that statutes which take away or affect vested rights or impose new liability or confer a new right must be presumed not to have a retrospective operation. Procedural laws are however always retrospective in the sense that these provisions will apply to proceedings already commenced at the time of their coming into force as no person can have anv vested right in any form of procedure, unless otherwise provided. Accordingly it appears that Mr. Mitter's contention on this point which has not and possibly could not be disputed by Mr. Mukherjee, the present case is to be considered in the light of provisions of the Specific Relief Act. 1963 in view of repeal of the earlier Act without any reservation.
11. The sub-section which was inserted as Sub-section (4) to Section 20 as a new piece of legislation, reads as follows:--
(4) 'The Court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.'
The Law Commission in recommending insertion of a clause in the codified law of specific performance observed as follows:--
'There Is still however scope for application of the rule in Sarwarian's case, (1911-12) 16 Cal WN 74 (PC) (supra) in the case of contracts for purchase of property on behalf of the minor which cannot be said to be for the benefit of the minor. We do not consider it necessary to import the doctrine of mutuality into our codified law of specific performance to cover such cases. On the contrary we could do away with the doctrine in Sarwarjan's case by inserting in Section 22 (of the old Act) a provision embodying the law stated in the American Restatement as follows:--
'The fact that the remedy of specific enforcement is not available to one party is not sufficient reason for refusing it to the other party'.'
As a result the Sub-section (4) as stated above was inserted to Section 20 embodying the above provision. In view of the express provisions of law there is thus no further scope for contending that the doctrine of mutuality will defeat a contract of specific performance, as contended by the appellant.
12. Mr. Mukherjee lastly relied on the decision in Ram Chandra v. Manik Chand, : AIR1968MP150 where it was observed that Subrahmanyam's case, AIR 1945 PC 95 had not the effect of overruling the decision in Mir Sarwarjan's case, (1911-12) 16 Cal WN 74 (PC) at least so far as the contracts for purchase entered into by the guardian of the minors are concerned. It was further observed in that case after passing of the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956) which came into force on August 25, 1956, that the authority of the natural guardian even to transfer the minor's property for legal necessity has been taken away. Such transfer can now be effected only after obtaining the sanction of the court. It was accordingly observed that Subrahmanya's case has lost its authority and the dictum laid down in Sarwarjan's case has become applicable in full force to all contracts of the natural guardians, whether sale or purchase of the property, if no permission of court Is obtained. On the above authority Mr. Mukherjee submitted that it is not possible for the court in the circumstances to grant specific relief in the instant case These contentions have been disputed by Mr. Mitter who contends that no sanction of court is necessary for purchase by a minor and by claiming specific performance, the minor is not being bound by any personal covenant.
13. Section 8(2) of the Hindu Minority and Guardianship Act provides that the natural guardian shall not, without the previous permission of the court, mortgage, charge or transfer by sale gift or exchange or otherwise any part of the immoveable property of the minor or lease any part of such property beyond certain term. A natural guardian of a Hindu minor under Sub-section (1) to Section 8, shall have the power to do all acts, subject to the restrictions in Sub-section (2) referred to above, which are necessary or reasonable or proper for the benefit of the minor or for realisation, protection or benefit of the minor's estate, but the guardian can in no case, bind the minor by personal covenant. For purchase of a property for the minor, no permission of the court is necessary and there seems to be no restrictions in the power of guardian, except about transfers as provided in Sub-section (2), if such acts of the guardian are necessary, reasonable or proper for his benefit unless such acts bind the minor personally or impose a personal liability on him.
14. There is no dispute that the property sought to be acquired by the present proceeding is for the benefit of the minors. In view of the property being admittedly sold at lower than market price, it is also necessary, reasonable or proper to reacquire the ancestral property which was sold to meet an emergency. The plaintiffs purchasers including the minors would also be paying the same price they received from the defendant for the purchase. It is also obvious that in enforcing the contract of purchase of a property by the minors through their guardian, there is no question of imposing a personal obligation or liability on the minors. If the consideration is not paid for the purchase, the contract or action for specific performance will fail and the decree would be infructuous. There is again ample and sufficient evidence that the plaintiffs had the amount with P.W. 1 for obtaining the conveyance, and there is no case or evidence that by reason of the proposed enforcement of the contract, the minors are being made personally liable for the amount required in their shares. Upon a consideration of the relevant facts, it appears that Section 8(1) of the Act has no application.
15. In the above view, the appeal fails and is dismissed, without any order as to costs.