CHODAVARAPU NARAYANA ROW Vs. CHENNURU VENKATASUBBA ROW

JUDGEMENT

(1.) The facts of this case so far as they are necessary for the disposal of this Second Appeal are as follows:-In 1905 the managers of the defendants undivided family sold certain land to the testamentary guardians of the plaintiff, who was then a minor, the consideration being the discharge of a certain mortgage debt then due by the defendant s family under a mortgage deed executed in favour of the plaintiff s adoptive father. In accordance with the agreement of sale possession was then given of the property and the plaintiff claims to have held possession ever since. A sale deed was also drawn up but not registered on account of some verbal defects. A suit to enforce registration would now be long out of time if brought under Section 77 of the Indian Registration , Act (Act XVI of 1908), This suit was instituted in January 1915; for specific performance, the prayer in the plaint being that the defendants be directed to execute a proper registered sale deed in favour of the plaintiff in respect of the immoveable property mentioned in the schedule and to pay the plaintiff s costs of the suit.

(2.) Before the institution of this suit the plaintiff attained his majority. The defence to the suit inter alia were that specific performance could not be enforced against the defendants for want of mutuality and that the suit was time-barred. The District Munsif found for the defendants on these two points and dismissed the suit. On appeal the Temporary Subordinate Judge reversed the District Munsif s decision and entered judgment for the plaintiff.

(3.) On the first point I think that the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) I.L.R. 39 Cal. 232 (P.C.) is applicable to the facts of this case and decisive. Their Lordships observed, at page 237, that it was not 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 immoveable property and they were further of opinion that as the minor in that case was not bound by the contract, there was no mutuality, and that the minor who had at the time of the suit reached his majority could not obtain specific performance.