AYISSA Vs. PRABHAKARAN

JUDGEMENT

(1.) The question that arises for decision in this second appeal is whether plaintiffs are entitled to claim the return of an amount of Rs. 1500 paid as earnest money in connection with the purchase of a property on the plea that there was frustration of contract. The defendant and his three minor sisters obtained the suit property under a gift deed. An agreement was entered into by the defendant purporting to be on his behalf and on behalf of his minor sisters as their guardian to sell the suit property to the plaintiffs for Rs. 26,500. An amount of Rs. 1500 was paid on that day towards the consideration to be kept in the hands of the defendant as earnest money. The agreement was executed on 14-11-1961 and it provided that plaintiffs were to take the sale deed within 2 months after payment of the balance consideration. Plaintiffs complained in the suit that the defendant did not obtain a certificate authorising him as guardian to alienate the rights of the minor sisters and therefore execution of the sale deed became impossible. Plaintiffs further allege that when the execution became impossible for this reason, they demanded the return of the amount of Rs. 1500 paid whereupon defendant complained that default had been committed by the plaintiffs and for that reason earnest money paid was liable to be forfeited in terms of the agreement entered into on 14 11 1961. Defendant contended that there was no agreement to obtain any certificate from the District Court authorising alienation of the minors' property and therefore the defendant could not be found to be in default for that reason. It was said that actually the plaintiff was not ready with the money and hence he defaulted the taking of the sale deed. The question which therefore arose was which of the parties defaulted in the performance of the contract.. The Trial Court found that the defendant had defaulted and for that reason plaintiffs were found to be entitled to the decree. The appellate court reversed this, holding that the default was really on the part of the plaintiffs and therefore, they were not entitled to seek recovery of the plaint amount.

(2.) Defendant is a Hindu governed by the Hindu Mitakshara Law. He entered into the agreement, Ext. A1. purporting to act on behalf of his minor sisters and promising to sell the rights of the minor sisters in the suit property. He was not the legal guardian of the minors. Their father was alive and he was the legal guardian. Defendant could not have executed the sale deed in regard to the property of the minors to the plaintiffs. The interests of the minors were separate from that of the defendant as each had a specific share under the gift deed from the father. Defendant .had only 1/4 right in the property agreed to be conveyed. The Hindu Minority and Guardianship Act, 1956 provides that the natural guardian of a minor may seek permission from the court to transfer immovable property of the minor. Such an application can be made only by the natural guardian of the minor and the natural guardian within the meaning of that Act has been defined as any of the guardians as specified in S.6 of that Act. In the case of a Hindu minor, the father, and after him, the mother, are the natural guardians of the properties of such minor. Therefore the defendant could not have sought permission from court to transfer the properties of the minor as he was not the natural guardian. In these circumstances, it was not possible for the defendant to transferee suit property to the plaintiffs as agreed to by him under Ext. A1. It is true, if he wanted he could have sold his share which was only 1/4th. The contract being for the sale of the entire property, the fact that he could sell his portion, will not be an answer to the contention that the contract was not possible of performance in the circumstances. It was a contract which, by its very nature, was incapable of being performed and if so S.56 of the Indian Contract Act, 1872 operated to render such a contract void. S.56 of the Act runs as follows:

(3.) Where a person agrees to transfer a property, which does not belong to him, to another, it is not as if the contract is impossible because of any illegality. It is impossible because one cannot transfer the interest of another in that another's property. It is not a physical impossibility. Possibly one may conceive of a man without authority executing a transfer. The result would be that it would not convey any right. Impossibility conceived in S.56 is not a physical impossibility, but a situation in which such performance, if made, would be useless and will not be operative to achieve the object for which the agreement was entered into.