1. This is an appeal by the defendants and arises in a suit for specific performance of a contract. The plaintiff, now respondent, alleges that the defendants got an ex parte mortgage degree against the plaintiff for a sum of Ks. 2,500 and the plaintiff intended to apply to have the ex parte decree set aside. At this stage the parties came to an arrangement and the arrangement was arrived at between plaintiff on the one hand and defendant 1 on the other purporting to act on behalf of the joint family of which defendants 2, 3 and 4 were also members. It was agreed that two plots covered by the mortgage, viz., plots which were mentioned in Schedule Ka and Kha to the plaint would be sold by defendant 3 as representing the family to the plaintiff and the defendants would refrain from executing their mortgage decree on payment by the plaintiff of the sum of Rs. 1,654 in certain instalments. Of the numerous defences which had been taken in this case it is necessary to notice only one which is to the effect that as defendant 3 was a minor at the time of the plaintiff's alleged contract no specific performance of the contract could be enforced in this case as the contract was entered into by the manager of the family of which defendant 3 was a member. Both the Courts below have not given effect to this defence and the Court of first instance decreed the suit for specific performance after holding that the agreement with the plaintiff for retransfer of the two properties in dispute on payment of Rs. 654 and the payment of the said money and the breach of that agreement by the defendants must be taken to be established and the Court of first instance directed that the defendants do execute a kabala for the said properties in favour of the plaintiff within 15 days from the date of the judgment failing which the kabala would be executed by the Court.
2. Against this decree an appeal was taken to the Court of the Subordinate Judge of Nadia which affirmed the decision of the Munsif. It is to be mentioned in this case that defendant 5 is a subsequent purchaser of the two properties now in suit and the finding was that she was not a bona fide purchaser for value although the lower appellate Court came to the conclusion upon the circumstance that there was no bona fides in the vendor. It is unnecessary, however, to consider this part of the case as I shall show presently.
3. A second appeal has been taken to this Court against the decision of the Subordinate Judge affirming that of the Munsif and two points have been taken before us by the learned advocate for the appellants. It is argued in the first place that no specific performance of the contract could be ordered as defendant 3 was a minor at the time of the contract and on the principle of want of mutuality which is available in this case as a good defence, this suit must fail. It is argued in the second place that even if the defendants do not succeed on this point as there is no finding that defendant 5 is not a bona fide purchaser for value and as the plaintiff did neither allege in his plaint that she was not a bonafide purchaser for value nor adduce any evidence on that point, the decree of the Court of first instance which was affirmed by the lower appellate Court cannot possibly be sustained.
4. With regard to the first point taken, we think that the contention of the appellant is well founded and must prevail although not to the extent contended for by the learned advocate for the appellants. In view of the decision of their Lordships of the Judicial Committee of the Privy Council in the case of Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri  39 Cal. 232, it cannot now be seriously contended that the contract which was entered into by defendant 1 on behalf of the joint family at a time when defendant 3 was a minor could be enforcible as against defendant 3. It is argued on behalf of the respondent that the decision of the Judicial Committee of the Privy Council must be limited to a case where the contract on behalf of the minor is a contract for the purchase of immovable property. We can find no such limitation in the decision of their Lordships. It is also said that this principle has no application to a lease when there is a contract to sell for the purpose of necessity by a manager of a joint Hindu family and reliance is placed in support of that contention on a decision of the Full Bench of the Patna High Court in the case of Hari Charan Kuar v. Kaula Rai  2 Pat. L.J. 523. As we read the decision of their Lordships of the Judicial Committee it seems to us that it is impossible to draw the distinction which has been drawn by the learned Judges of the Patna High Court. In the case of Mir Sarwarjan v. Fakhruddin Mahomed Choudhuri  39 Cal. 232 which has already been cited their Lordships say this:
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 of the contract.
5. Chamier, C.J., who delivered judgment of the Pull Bench of the Patna High Court said this
I apprehend that the decision of their Lordships in the case of Mir Sarioarjan v. Fakhrudin Mahomed Chowdhuri  39 Cal. 232 does not apply to contracts made by the managing member of a joint Hindu family for family necessities or for the benefit of the family i.e., contracts made by the managing members which bind the minor members of the family. Such contracts can be enforced on behalf of the family by the persons who make them and I find nothing in the decision of their Lordships which requires us to hold that such contracts cannot be enforced against the family.
6. In the observations of their Lordships of the Judicial Committee of the Privy Council in the case of Mir Sartuarjan v. Fakhruddin Mahomed Chowdhuri  39 Cal. 232 we can find no such limitation as is suggested in the Patna Full Bench decision. This Court in a recent decision has held that the principle can be applied to cases where a contract is entered into by a member of a Hindu joint family under that Bengal School. It is sufficient to refer to the decision of Greaves, J. and Mukerji, J., in the case of Srinath Bhattacharya v. Jatindra Mohan Chatterji A.I.R. 1926 Cal. 445. It has been argued, however, on behalf of the respondent that even if it be assumed that the contract in so far as it affects the infant's share could not be enforced the contract could be enforced with variation except with reference to the share of the infant in the property contracted to be sold. I think this contention of the respondent must be given effect to. On an examination of the evidence it appears that the share of defendant 3 in the property contracted to be sold is one-sixth and we do not think that the contract is of such an indivisible character that no specific performance could be ordered with variation.
7. In these circumstances the proper decree to make in this case is to vary the decrees of the Courts below by allowing a decree to the plaintiff not in respect of the entire disputed properties but in respect of five-sixths of the said properties. Decrees of the Courts below will be varied accordingly.
8. With regard to the second point taken, viz., that there being no evidence and no allegation that defendant 5 was not a bona fide purchaser for value without notice the suit for specific performance must fail. It is sufficient to state that defendant 5 died a year before the date when ah application was heard by this Court at the instance of the appellants as to whether the heirs of defendant 5 should or should not be brought on the record of this case as respondent. The application by the heirs themselves which was put before this Court was never served on the respondent and he had no opportunity of meeting the allegations made in that application that the heirs of defendant 5 did not know that their mother defendant 5 had filed this appeal to this Court. There is ho order of this Court by which the hairs of defendant 5 had been substituted as appellants in the present appeal. It must, therefore, be taken that so far as defendant 5 is concerned the appeal has abated. It is not, therefore, necessary to consider the second point taken by the learned advocate for the appellants.
9. The result is that the decrees of the Courts below are varied in the way which we have indicated being limited to five-sixths of the disputed property. Parties will have costs of this appeal in proportion to their success.
10. I agree.