KONA ADINARAYANA Vs. DRONAVALLI VENKATA SUBBAYYA

JUDGEMENT

(1.) This second appeal arises out of a suit for specific performance of a contract of sale of immovable property. The contract is dated 4 August, 1930, and the property agreed to be sold thereunder was an extent of 75 cents by seri dry bapat wet land bearing Re-survey No. 276/3 with the paddy crop thereon in the village of Krishnapuram, Kistna District. The sale price was Rs. 1,500. The contract was executed in favour of the first defendant by the plaintiffs 1 and 2 and the 3 plaintiff represented by the first plaintiff as elder brother and guardian as he was then a minor. The plaintiffs 1 to 3 are members of an undivided Hindu family of which the first plaintiff is admittedly the manager. The purpose recited in the contract of sale was to discharge a debt alleged to be due by the family. In pursuance of this contract an advance of Rs. 25 was paid by the first defendant and possession of the property was given over to him on the said date and ever since the first defendant has continued in possession. This suit has been instituted on the 4 August, 1933, by the three plaintiffs after the third plaintiff attained majority for specific performance of the said contract and for recovery of the balance of purchase money with interest thereon alleging that they were ever ready and willing to perform the contract. They have also impleaded defendants 2 to 4 along with the first defendant as they are the sons of the first defendant. The main defence was that the purpose recited in the document was untrue; the contract was not binding on the minor plaintiff; there was thus want of mutality and hence the contract was unenforceable. Two issues were raised in the case, namely: (1) Whether the suit contract is binding on the minor third plaintiff? (2) Whether the contract is unenforceable for want of mutuality?

(2.) It was found that the purpose recited in the document was not true; there was no legal necessity such as would justify the sale of the joint family property. The first Court nevertheless gave a decree in favour of the plaintiff on the ground that that question was immaterial as the third plaintiff also sued Adinarayana for specific performance. The learned Subordinate Judge on Vcnkata appeal was of the opinion that on the date of the contract it Subbayya, could not be enforced against the minor; there was a lack of mutuality; his subsequent affirmation was immaterial and the contract could not be enforced against him following the decision in Mir Sarwarjan V/s. Fakhruddin Mahomed Chow-dhuri (1911) 21 M.L.J. 1156:I.L.R. 39 Cal. 232 (P.C.). He nevertheless gave a decree by directing specific performance in respect of two-third share in the plaint schedule property. Both parties have preferred appeals against this decision, the plaintiffs on the ground that specific performance prayed for by them should have been decreed and the defendants on the ground that the decree as given is unsustainable in view of the fact that what was decreed was nofwhat was bargained for and the contract was an indivisible contract and could not be split up in the manner directed by the learned Subordinate Judge.

(3.) The question, therefore, is, is the principle of the decision in Mir Sarwarjan V/s. Fakhruddin Mahomed Chowdhuri (1911) 21 M.L.J. 1156: L.R. 39 I.A. 1: I.L.R. 39 Cal. 232 (P.C.) applicable to this case? In the said case, a minor after attaining majority sued to enforce a contract of sale of immovable property entered into by the guardian during the minority. It was held he could not sue. Their Lordships of the Judicial Committee expressed themselves thus: 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 a specific performance of the contract.