1. This appeal arises out of a suit for specific performance of a contract for sale and is directed against an order, by which, on the 25th November 1919, the Judge of the trial Court refused the plaintiff's prayer for a temporary injunction restraining the defendants from selling the property in question during the pendency of the suit.
The defendants are four widows, three minors and two comparatively young men. They are co-sharers in the property and the contract in question was entered into with them on the 28th of February 1919. In this contract the mother of the 3 minors, one of the four widows, purported to act on behalf of her minor sons. She had not then been appointed guardian of the person or property of her minor children under the provisions of the Guardians and Wards Act and one of the terms of the contract, therefore, was that she should apply to the District Judge to be so appointed, should next apply for his permission to sell the shares of the minors, and within one month from the date of the permission so obtained, should complete the contract on their behalf.
2. On the 13th of June the mother applied and was appointed guardian, and thereafter on the 11th of August obtained the sanction of the District Judge to the completion of the contract.
3. The property in question measures some 2 1/2 bighas and the price at which the defendants were to sell to the plaintiff, Monoranjan Sadhu Khan, works out at Rs. 850 per cottah, On the 14th of March the plaintiff contracted to sell to one Ganapat at the rate of Rs. 1,050 a cottah, and on the 28th July he next contracted to re-sell to one Jagarnath Dhunduria at Rs. 1,075 per cottah.
4. On the 20th August Jagarnath brought a criminal complaint against the plaintiff charging him inter alia with fraudulent concealment of the prior contract with Ganapat. These criminal proceedings did not terminate until the 10th November, when the complaint was withdrawn.
5. The suit, it may be noted, was instituted on the 20th of September on an application trade by the mother on the 19th September; the District Judge on the 22nd September revoked his permission to sell to the plaintiff and granted her permission to sell to Ganapat at the figure arranged bewteen Ganapat and the plaintiff.
6. The plaintiff's suit is avowedly for the purpose of enabling him to complete the contract with Jagarnath. He makes no mention in his plaint of his contract with Ganapat or of the Criminal Court proceedings In the mother's application which led to the District Judge's order of the 11th of August, no mention was made of the plaintiff's contract with Ganapat or of his subsequent contract with Jagarnath. Possibly she was not aware of those contracts, but the plaintiff was, doubtless, aware of her applications and if the facts had been disclosed to the District Judge, we cannot conceive that he would have granted permission to the mother to sell her children's property at what was obviously then an inadequate figure.
7. On these facts and without going into the question of an alleged tender said to have been made during the pendency of the criminal proceedings, we are of opinion that we should affirm the order of the Subordinate Judge.
8. We should further observe that it was not till the close of the hearing in this Court that it was brought to our notice that no guardian ad litem had been appointed for the minor defendants either in the Court of first instance or in this Court, although in the Court of first instance an application for time to file a written statement on behalf of the minors had been made on the 24th November.
9. This might by itself have been a reason for dismissing this appeal but as the matter had been heard, and as the defect in this Court could have been cured, we have thought it right to discuss the facts.
10. In the result the appeal is dismissed with costs. We assess the hearing fee at three gold mohurs.
11. The connected appeal having been disposed of, the Rule No. 646 of 1919 is discharged.