GUJOBA TULSIRAM Vs. NILKANTH

JUDGEMENT

(1.) THE only point in this appeal is whether the plaintiff is entitled to specific performance of a contract of sale entered into by him with the defendant. At the relevant time, while the defendant No. 1 was a major, the defendant No. 2 was a minor and the contract was entered into on his behalf by his father. It may be mentioned that the property in question solely belonged to the defendants having been gifted to them by their relation and was not their joint family property. The lower appellate Court held on the authority of the decision in Mir Sarwarjan v. Fakruddin, ILR 39 Cal 232 (PC) (A), and several other decisions that the agreement was not binding on the defendant No. 2 because he was a minor at the date of the agreement and that consequently specific performance could not be decreed. It however ordered the defendants to refund Rs. 450/- which were paid by the plaintiff to them as earnest money.

(2.) IT is not disputed that the defendants as well as their father are tailors by profession. The plaintiff has alleged in the plaint that they wanted to purchase a sewing machine and for that purpose they entered into the transaction of sale of khasra No. 334 (60) of mauza Kanhargaon for Rs. 600/ -. The defendants' reply to this statement was that they have been working as servants in the shop of one Gulabchand at Nagpur and that they never needed any sewing machine, nor did they represent that they wanted to sell the land for this purpose.

(3.) THE trial Court however found in favour of the plaintiff on this point. The lower appellate Court did not give any specific finding on the point but from the observations contained in paragraphs 8 and 9 of the judgment it would appear that it accepted the plaintiff's case though in its opinion the defendant No. 2 had not gained or profited by the transaction. In my opinion, the lower appellate Court's view that the defendant No. 2 was not benefited by the transaction is not correct. It is not based upon any evidence and is contrary to the finding of the trial Court that a machine was really required by the family and was actually purchased. As already stated, that finding is implicitly accepted by the lower appellate Court. The trial Court had decreed specific performance but the lower appellate Court reversed its decree on that point on the ground that there was lack of mutuality. In second appeal No. 501 of 1946, D/- 15-2-1951 (Nag) (B), I took the view that where a minor has received a benefit from a transaction entered into by his guardian, specific performance ought to be ordinarily granted. The view I took in that case finds support from the decision of their Lordships in Subrahmanyam v. Subba Rao, 75 Ind App 115: (AIR 1948 PC 95) (C), where at p. 120 (of Ind App) : (at p. 97 of AIR), their Lordships quoted with approval the following passage from Mulla's Indian Contract and Specific Relief Acts: