RAMBILAS SINGH Vs. LOKENATH CHAUDHURI

JUDGEMENT

(1.) This second appeal, which is by defendant 1, arises out of a suit to obtain specific performance of an agreement to sell 9.70 acres of land. The agreement was entered into on 8 January 1942, by defendant 3 as mother and guardian of her minor son, defendant 2. On 20 January 1942, defendant 8 executed a sale deed conveying the land to defendant 1. The defence set up was that, while the agreement purports on the face of it to have been entered into by defendant 3 on 8 January 1942, it did not in fact come into existence until some time after 20th January 1942, when she had already executed and registered the deed of sale. This contention was accepted by the trial Court, which accordingly dismissed the suit. On appeal, however, the learned Subordinate Judge came to the conclusion that the agreement was really entered into on 8 January 1942, and further that, when defendant 1 took his conveyance, he was aware of it. The lower appellate Court therefore gave the plaintiff the decree for which he asked. The point taken by Mr. L.K. Jha, on behalf of the appellant, was not taken in either of the Courts below, but it is a pure point of law and Mr. Jha is entitled to raise it in second appeal. What is now contended is that, as there was an absence of mutuality in the contract for sale, specific performance ought, on well accepted equitable principles, to have been refused. The learned advocate for the appellant relies mainly on the decision of their Lordships of the Judicial Committee in Mir Sarwarjan V/s. Fakhruddin Mohamad Chowdhuri 39 Cal. 232. Sir Iqbal Ahmad, for the respondent, has pointed out that, in that case the agreement was an agreement to purchase, and not to sell, land and that the minor was a Muhammadan and not a Hindu. While the mother of a minor Muhammadan has no power to alienate any part of the property of her minor son, a Hindu mother may, it is said, alienate it for purposes of legal necessity, or for the benefit of the minor's estate. In view of this, it is suggested, the decision of their Lordships of the Judicial Committee is not directly in point. Under the Contract Act, however, it is immaterial whether the contract is a contract to purchase land or to sell land and also whether the minor is a Mahammadan or a Hindu. In either case, a contract entered into by a minor is void, and in consequence, although the contract may be binding on the other party to it, and that other party, if he fails to perform it, may be liable to pay damages to the minor, it is not binding on the minor and cannot, on a well-settled principle of equity, be enforced either against him or in his favour. It is true that in this particular case, the contract was not entered into by the minor personally but was entered into by his mother as his guardian and on his behalf. This, however, can make no difference because a person who is himself under a legal disability and incapable of making a valid contract cannot bind himself by getting an agent to make the contract for him.

(2.) As I have just indicated, the sum and substance of the argument which has been addressed to us by Sir Iqbal Ahmad for the respondents, is that a contract entered into by the guardian of a Hindu minor may be binding on the minor by reason of the personal law to which he is subject, although a similar contract entered into by the guardian of a minor who is subject to another personal law may be void. I am inclined myself to take the view that the validity of a contract must be determined by the provisions contained in the Contract Act; and that, if the personal law to which the contracting parties or either of them are subject, enters into the matter at all, it does so only very indirectly, as, for instance, in determining whether goods or money supplied to a minor are necessaries and the minor is liable to the party who supplied them. That was, substantially, the view taken by Wallis C.J. in Patchu Ramajogayya V/s. Vajjula Jagannadham A.I.R. 1919 Mad. 641 .. The other two learned Judges who were parties to that decision, however, laid down a somewhat broader proposition which is really the foundation of the argument which has been addressed to us on behalf of the respondents. Seshagiri Ayyar J. there said: No decree should be passed against the minor or his estate on a contract entered into on his behalf by a guardian, under which covenant no charge is created on the estate except in cases in which the minor's estate would have been liable for the obligation incurred by the guardian under the personal law to which he is subject, Devadoss J. sitting singly, in Kasivasi Chidambara Swamigal V/s. Ramakrishna Reddiar A.I.R.1924 Mad. 863, greatly extended this doctrine and decreed specific performance of a contract into which the mother of a minor Hindu had entered to sell certain of his immovable property. The ground on which Devadoss J. did so was that the money which was to be paid for the conveyance was to be used to pay off debts which had been contracted by, the father of the minor and which, under the personal law to which he was subject, the minor was bound to liquidate. An appeal under the Letters Patent was, however, preferred against this decision and was successful: Ramakrishna Reddiar V/s. Kasivasi Chidambara Swamigal A.I.R. 1928 Mad. 407. Wallace J. there pointed out that, although the minor had been under an obligation to pay the debts of his father he had not been under an obligation to do so by selling or mortgaging any of his immovable property and that the proposition laid down by Sashagiri Ayyar J. in the earlier decision had no application, The only other recent decision, which is directly in point and on which reliance has been placed by the learned advocate for the respondents, is a decision of Wort J., sitting singly, in Brahamdeo Sao V/s. Haro Singh A.I.R. 1935 Pat. 237, There also specific performance was decreed of a contract entered into on behalf of a minor Hindu by his guardian. Wort J., after referring to the well known case of Hunooman Persaud Pandey 6 M.I.A. 393 observed: I cannot agree that the contract is not enforceable solely because the form of relief, that is to say, specific performance, cannot be had as against the minor. It seems to me that the distinction is between a contract which is for legal necessity and one that is not. The doctrine of legal necessity is, however, part of the law relating to the transfer of immovable property and not part of the law relating to contracts. That this is so will, I think, clearly appear, when it is remembered that under the Hindu law, as it was originally and before it was developed by judicial exposition, a person, who had taken a conveyance of immovable property from the guardian or manager of an infant or from a qualified owner, had, when the alienation was impugned, not merely to show the existence of legal necessity but had also to show that the money which he had given for his conveyance had been duly applied to the purpose for which it had been taken. Sir Iqbal Ahmad for the respondents, while pursuing much the same line of reasoning as Wort J,, put the matter somewhat differently by saying that, if an executed contract for sale was valid, the executory contract for sale which may be presumed to have preceded it, must necessarily also be valid, and that if it was valid, specific performance of it could not, or ought not to be refused. When movables are bought and sold, the price being paid at once and the goods being handed over, it is no doubt correct to say that there has been an executed contract of sale. A conveyance of land cannot, however, properly be described as an executed contract of sale and the argument put forward by the learned advocate for the respondents is not, in my opinion, as logical as it would, at first sight, appear to be. Sir Iqbal Ahmad pointed out that specific performance has been decreed of contracts entered into by the karta of a joint Hindu family. The argument from analogy is, however, always dangerous, and there is in any case, no very real or close analogy between the position of the karta of a joint Hindu family and the guardian of a Hindu minor. In this connection I may refer to the observations of Sulaiman, C.J. in Mt. Dhapo V/s. Ramchandra . The ground on which specific performance of a contract entered into by the karta of a joint family is decreed is that the joint family is in a sense or resembles a corporation, and the karta is its chief officer and is competent to enter into contracts on its behalf. Prior to the decision of their Lordships of the Judicial Committee in Mir Sarwarjan V/s. Fakhruddtn Mohamad Chawdhuri 39 Cal. 232, there had been a number of instances in which the Courts in this country had been asked to decree specific performance of contracts entered into on behalf of minors by their guardians. These cases are to be found collected in Trevelyan on the Law relating to Minora, 6 edition, page 167. When however, the decisions are examined, it will be found that in the majority of cases the Court declined to grant specific performance on the ground that the contract was not for the benefit of the minor. One of the very few oases in which specific performance was decreed is Khairunnessa Bibi V/s. Loke Nath Pal 27 Cal. 276 which was referred to by Sir Iqbal Ahmad in the course of his argument. This decision, however, merely followed Krishnasami V. Sundarappayyar 18 Mad. 415. The learned Judges who were parties to the latter decision assumed that a contract entered into by a minor was not void but merely voidable, and also that the doctrine of mutuality did not apply in this country. Since then it has, however, been settled that a contract entered into by or on behalf of a minor is void, and since the decision of their Lordships of the judicial Committee in Mir Sarvarjan's case 39 Cal. 232, it must also be taken as settled that the doctrine of mutuality applies in India. Mr. L.K, Jha for the appellants, relied mainly on Abdul Huq V/s. Mohammed Yehia Khan A.I.R. 1924 Pat. 81, Srinath Bhattacharjee V/s. Jotindra Mohan Chatterjee A.I.R.1926 Cal. 445. and Pandit Krishna Chandra Sharma V/s. Seth Rishabha Kumar A.I.R. 1939 Nag. 265. The Calcutta and Nagpur decisions are directly in point and it is not in my opinion, and for the reasons already given, possible to distinguish the decision in Abdul Haq V/s. Mohammad Yehia Khan A.I.R.1924 Pat. 81, on the ground that the minor in that case was a Muhammadan and rot a Hindu. I respectfully agree with the decision of Das J. and in general with the line of reasoning by which it was supported. Das J. in the course of his argument remarked that to direct the contract to be carried into effect as against the minors is to sanction a plain breach of trust on the part of the de facto guardian and this I apprehend, this Court will not do. There is I think, force in this observation and it may be pointed out that in England the Court of Chancery has, on occasions, declined to permit the immoveable property of a minor to be sold even where it was shown that prima facie the sale was for the benefit of the infant: (see Simpson on the Law of Infants, 4 edition, pages 223-4).

(3.) Sir Iqbal Ahmad said that in consequence of the enactment of the Hindu Women's Eights to Property Act defendant 3 bad a life interest in this property and contended that there was no reason why she should not be compelled to convey at least that life interest to his client. There are however, two difficulties in the way of granting the plaintiff this relief. One is that it is the general rule that where a person is jointly interested in an estate with another person and purports to deal with the entirety specific performance will not be granted against him as to his share. The plaintiff's only remedy is by way of damages. See Lumley V/s. Revens Croft (1895) 1 Q.B. 683. a decision which was cited with approval and followed by Das. J in Abdul Haq V/s. Mohammad Yehia Khan A.I.R. 1924 Pat. 81. The other is that the Hindu Women's Rights to Property Act is not retrospective and there is no evidence to show whether the husband of defendant 3 died before or after the Act came into operation.