MT DHAPO Vs. RAM CHANDRA

JUDGEMENT

(1.) This is a Letters Patent appeal against the decision of a learned Judge of this Court under which a suit instituted by the respondents against the appellants was decreed. Reoti and Khawani who is a minor, are brothers and are joint in estate. They owned one-half share in a house. Mt. Dhapo owns the other half. Reoti acting for himself and for his minor brother Khawani entered into a contract with. Ram Chandra Lal, Munshi Lal and Ranjit Lal, plaintiffs, under which he contracted to sell to them the aforesaid half share in the house for a sum of Rs. 950, and he was paid Rs. 50 as earnest money. He however did not abide by this agreement and later on sold the above mentioned property to one Bulaki Dass for a sum of Rs. 850. The plaintiffs filed a suit for the specific performance of the contract for sale made by Reoti. Bulaki Dass the purchaser was also impleaded as a defendant in that suit. The suit was decreed. It was ordered that Reoti and Khawani should obtain partition of their one-half share in the house and then to execute a sale deed in favour of the plaintiffs. The decree further ordered that in case Reoti and Khawani failed to do so, then it was open to the plaintiffs to sue for partition themselves : Reoti and Khawani did not file a partition suit to have their one-half share separated by partition. So the plaintiffs sued for partition of one-half share in respect of which Reoti had entered into a contract for sale with them. The trial Court gave plaintiffs decree for partition of one-fourth share. The Court of first appeal dismissed the suit in toto. The principal ground taken in defence and which was accepted by the first appellate Court was that the Court could not order specific performance of a contract against a minor. The learned Single Judge of this Court who heard the second appeal came to a different conclusion and held that in this a decree for the specific performance of a contract could be passed against the minor. He accordingly decreed the appeal of the plaintiffs and granted them a decree for the partition of one-half share in the suit. Now, Khawani, minor and Mt. Dhapo, the owners of the remaining one-half share, have preferred this Letters Patent appeal. It may be pointed out that on the question as to whether or not the contract of sale was entered into by Reoti for family necessity the finding is against the appellants. It has been held that the contract was made for the purpose of satisfying a family necessity.

(2.) The sole question for the determination in this appeal is whether specific performance of a contract for the sale of ancestral property entered into between a manager of a joint family for himself and on behalf of a minor member of the joint family can be decreed against the minor or the manager. The case for the appellants has been argued with great ability before us by Mr.Chandra Bhan Agarwala. On behalf of the appellants reliance is placed on a ruling of their Lordships of the Privy Council in Mir Sarwar Jan V/s. Fakharuddin Mohammad (1912) 39 Cal 232 reported in 9 A.L.J. 33. That was a case in which a minor, after attaining majority, sued to enforce the specific performance of a contract made by his guardian daring his minority. Two points were decided by their Lordships in that case. The first was that they were unable to accept the view of the learned Judges of the Divisional Bench of the Calcutta High Court, Mir Sarwar Jan v. Fakharuddin Mohammad (1907) 34 Cal. 163, that there was no difference between the position and power of a manager and those of a guardian. The other was that it was 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 minor's estate by a contract for the purchase of immovable property. They also held that in the case before them a minor on attaining majority could not enforce the contract for want of mutuality. The contention raised by the learned Counsel appearing for the appellants is that the above rule laid down by their Lordships was a rule of universal application and governed all cases were a minor was a party to the contract and that it governed contracts entered into by the manager of a joint family also. That is the principal question for consideration before us.

(3.) The learned Single Judge of this Court held that the rule Laid down in Mir Sarwar Jan V/s. Fakharuddin Mohammad (1921) 39 Cal 232, is not applicable to contracts made by the head of a Hindu joint family consisting of himself and minor coparceners. After a consideration of the question lam of opinion that the view taken by him is correct and must therefore be affirmed. The point under consideration came up for decision in Haricharan Kuar V/s. Kaula Rae 1917 Pat. 478, before a Full Bench. Chamier, C.J., who delivered the judgment of the Full Bench in that case made the following remarks: ...I apprehend that the decisions of their Lordships in Mohri Bibi V/s. Dharam Das (1903) 30 Cal. 539 do not apply to contracts made by the managing members of a joint Hindu family for family necessities or for : the benefit of the joint 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 persons who made them and I find nothing in the decisions of their Lordships which require us to hold that such contracts cannot be enforced against the family. Contracts made not by minors but by persons who have power to make contracts on behalf of the joint family do not appear to come within those decisions. I am not prepared to dismiss the suit on the ground that the contract lacks mutuality having been made by or on behalf of minors who are not competent to contract.