Amir Ahmmad and others vs Meer Nizam Ali

M.S. Ali Khan, J.—In this Full Bench case the question referred to us is as follows:

Whether a minor who has agreed to purchase property through his guardian can bring a suit for specific performance of the contract.

This question has been ably argued before us. The learned Advocate for the appellant contended that one of the defences to a suit for specific performance is lack of mutuality; that as no contract can be enforced against a minor promisee, he cannot himself enforce a contract against an adult promisor and that, therefore, having regard to the Privy Council case of ''Mir Saryarjan v. Fakhruddin Mahomed'', 39 Ind App 1 (PC), and to cases of almost all the Indian High Courts in which the Privy Council ruling has been followed, the respondents who are minors, cannot specifically enforce the agreement to sell through their guardian. In reply the learned Advocates for the respondents have referred to the cases cited in the margin '' AIR 1948 95 (Privy Council); AIR 1922 239 (Nagpur) '' Munni Koer Vs. Madan Gopal, ''Raghunath Baksh v. Muhammad Baksh'', AIR 1915 Oudh 155; ''Raghavachari v. O. A. Srinivasa Rachavachariar'', AIR 1917 Mad 630; Gangi Ammal Vs. Govinda Padayachi and Others, ; Subba Reddy Vs. Guruva Reddy, Zafar Ahsan and Others Vs. Zubaida Khatun and Others, Narain Das and Another Vs. Musammat Dhania, Mt. Dhapo and Another Vs. Ram Chandra and Others, Bharat Bhai Vs. Jai Narain, : Rai Satyadeva Narayan Sinha and Others Vs. Tirbeni Prasad, Madhab Koeri Vs. Baikuntha Karmaker and Others, ; ''Pramila Balidas v. Jogesher Mandal'', AIR 1918 Pat 626; ''Ahmed v. Raja''. AIR 1917 Lah 109; ''Thakar Das v. Mt. Putli''. AIR 1924 Lah 611; AIR 1925 37 (Oudh) ''A. T. Rachavachariar v. O. M. Srinivasa Raghavachariar''. 40 Mad 308; ''Sheo Lal v. Khader Baig'', 20 Deccan L R 304; ''Kundan Mal v. Mir Abbas Ali Khan'', 4 Nazaer-e-Deccan 372 and have argued that even though a minor cannot himself make a contract, yet ail dispositions in his favour are not invalid; for he has been held to posses the capacity to become owner and there are many cases in which it has been held that a minor can bring suits to recover possession of property which has been sold to him and he can also sue for redemption of a mortgage and recovery of the mortgage-money.

I have given careful consideration to the above arguments and perused the cases referred to by the learned advocates and a good many other cases also. In my opinion certain points are clear and well established. In the first place, it is quite clear that a minor ''has not the capacity to contract''. This is laid down in the Contract Act itself and is a rule of law as old as the mountains. It was reiterated very lucidly in the Privy Council case of ''Mohori Bibi v. Dharmodas Ghose'', 30 Ind App 114 (PC) and in this Court''s case of ''Ramanna v. Mallappa'', 28 Deccan L R 557. A different view was taken in ''Fateh Chand v. Gulam Dastag1i'', 32 Deccan L R 445 and it was held That if the contract is for the benefit and advantage of the minor and he has completed his part of the contract and nothing further remained for him to do under the contract, he can enforce a contract made by him. Owing to these two divergent views the case was referred to a Full Bench vide ''Bhagwan Das v. Sheik Husain''. 39 Dec LR 110 -where all the five learned Judges of the Full Bench writing separate judgments unanimously preferred "Ramanna v. Mallappa'', 28 Deccan L R 557 and held that a minor cannot make a valid and enforceable contract, irrespective of the fact whether the contrart was a completed and executed contract and was to his advantage and benefit or not. In view of this weight of authority the matter must be taken as precluded by authority.

There remains, however, ''a separate and distinct'' question whether and how far a minor can make a contract through his guardian. Cases have taken the distinction between the various grades of the guardians. The only guardians, who can within certain limits, make disposition of minor''s immovable property are recognized to be the father, his executor, grandfather, his executor or guardian appointed by the Court. Every other guardian like the mother, the uncle, elder brother, etc. are termed DE FACTO guardians and are deemed to be usually without authority to dispose of or bind the minor for the purchase of immoveable property. Question remains how far the dispositions by a father and the other DE JURE guardians are binding on the minor. As explained in ''Imambandi v. Haji Mutasaddi, AIR 1918 PC 11, DE JURE guardian has power to dispose of minor''s immovable property, though this power is subject to stringent conditions, all governed by the basic and fundamental principle that the acts of the guardian should be to the advantage and benefit of the minor and his estate. For fulfilling the actual wants of the minor and for his bringing up and maintenance as well as for the preservation of his property these guardians are empowered to dispose of certain immovable property of the minor. Otherwise, even dispositions by them are not considered valid. Taking the reverse side of the case, namely, acquisition of a property for the minor if the contract for the same is for the benefit of the minor and it is actually completed so as to transfer the ownership of the property to the minor, the transaction has been held to be valid.

With regard to the question referred to us. viz., ''Whether a minor can bring a suit for specific performance'', the learned advocate for the appellant has based his argument largely upon The case of ''Mir Sarwarjan v. Fakruddin Mohd.'', 39 Ind App 1 (PC). There their Lordships of the Privy Council have laid down that:

It is not within the competence of a manager of the minor''s estate or within the competence of the guardian of the minor to bind the minor or the minor''s estate by contract for the purchase of immovable property. The minor is consequently not bound by the contract and there being no mutuality he cannot after attaining majority obtain a specific performance of the contract.

The learned advocate argued that, as in the case under consideration so in ''MIR SARWARJAN''S CASE'', also, the contract was for the purchase of immovable property and was for the benefit of the minor and, in spite of this, their Lordships of the Privy Council declined to decree specific performance on the ground of lack of mutuality and, also on the ground of the incompetence of the guardian to bind the minor by a personal covenant. He has argued further that since 1912 when their Lordships of the Privy Council decided ''MIR SARWARJAN''S CASE'', almost all the Indian High Courts have followed their pronouncement and the law in this regard is not well established. He has cited the case of AIR 1939 265 (Nagpur) and argued that this case contains a review of all the cases on the point and follows the Privy Council''s ruling. I believe it will be useful to summarise the various points made in this Nagpur judgment of Mr. Justice Niyogi. The facts were that the mother of a minor had sold the minor''s house to the defendant and a sale-deed was executed, but, later on the mother refused to get the sale-deed registered; the defendant sued for specific performance and his suit was dismissed by both the lower Courts and on appeal to the Nagpur High Court, Mr. Justice Niyogi, while dismissing the suit observed that:

(a) A contract to be specifically enforced by the Court must be mutual, that is to say, such as that it might, at the time it was entered into, has been enforced by either of the parties against the other of them and hence if for any reason, say minority, a contract cannot be enforced against one party that party cannot enforce it against the other party; that as early as in the case of ''Fatima Bibi v. Debnath Shah'', 20 Cal 508, Norris J. declined the specific performance of a contract of the guardian of a minor for lack of mutuality; that in 1890 in ''Krishnaswami v. Sundarappayyer'', 18 Mad 415 a divergent view was taken and following the opinion of Mr. Whittly Stokes it was held that the doctrine of mutuality is not applicable to India; that in ''Kairunnissa Bibi v. Lokenath'', 27 Cal 276 also. 18 Madras 415 was followed; and that it was followed also in the case of ''Mir Sarwarjan v. Fakruddin Mohd.'', 34 Cal 163; but the case came up in appeal before the Privy Council in ''39 Cal ''232'' where the pronouncement of their Lordships in effect overruled ''18 Mad 415'' and ''27 Cal 276'';

(b) Following the Privy Council''s decision Ramesam J. held in Narayanan Chetty and Others Vs. Muthiah Chettiar and Others, that a contract will not be specifically enforced even though it may be for legal necessity or for the benefit of a minor; that, with the exception of ''18 Mad 415'', in fact all the Madras cases have consistently held the same: and reference may be given to Venkatachalam Pillai Vs. Sethuram Rao alias Lakshmikantha Sastriar and Another, , Kasivasi Chidambara Swamigal Vs. Ramakrishna Reddiar and Others, and ''Nageshwara Rao v. Mandawa'', AIR 1028 Mad 830;

(c) The Allahabad case of '' Swarath Ram Ram Saran Vs. Ram Ballabh and Others, , shows that the fact that the minor is a purchaser or is a vendor is not material; that there is no mutuality in both the cases and the contract cannot be specifically enforced;

(d) In Nripendra Chandra Sarkar and Others Vs. Ekherali Joardar and Others, Mir Sarwarjan''s case was followed and specific performance to the extent of the share of the minor was refused; and that in the Patna cases also for instance in ''Abdul Haq v. Mohd. Yehia Khan'', AIR 1924 Pat 81, Mir Sarwarjan''s case was interpreted to be based on the wide principle that it is impossible to enforce specific performance against a minor;

(e) In Brahamdeo Sao Vs. Haro Singh and others Wort J. decreed the specific performance of the contract of a guardian entered on behalf of a minor on the ground that the pronouncement of their Lordships of the Privy Council did not affect contracts entered into on behalf of minors for legal necessity or for obvious benefit of the minor; that, it may, however, be stated with great respect that Mr. Wort J. did not take the distinction between a contract and a conveyance; that when a conveyance is complete no question of equity does arise but in the case of a contract questions of equity do arise; and such a question is the basis of the Privy Council''s pronouncement in Mir Sarwarjan''s case that it is inequitable to bind the minor and compel him to transfer property because of the contract of his guardian, and also in ''Waghela Raj Singhji v. Masluddin'', 11 Bom 551. where their Lordships of the Privy Council have stated the same principle in other words viz., that "there is not in Indian Law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant that exists in English law. In point of fact the matter must be decided by equity and conscience generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. Their Lordships are not aware of any law in which the guardian has such a power nor do they see why it should be so in India. They conceive that it would be a very improper thing to allow the guardian to make covenants in the name of his ward, so as to impose a personal liability upon the ward";

(f) It is evident from S. 54 of the T. P. Act that by a mere contract of the sale of immovable property no charge or interest is created in the property, and thus as a contract for sale of immovable property is a personal contract and imposes no personal liability upon the minor, evidently the minor cannot also personally enforce it and cannot take advantage of it; that the same point can be considered from another perspective, namely, whether the purchaser can recover compensation from the minor for a breach of contract by the guardian; that in every case when there is refusal to implement the contract of sale by the guardian, the breach is committed by the guardian and never by the minor; that the purchaser, therefore, can only claim compensation against guardian and not against the minor or his property; that, therefore, as the purchaser is not entitled to hold the minor personally liable for the breach of contract of sale made by his guardian he is not entitled to claim compensation from him; that if that is so, S. 24(a), Specific Relief Act debars the purchaser from claiming the relief of specific performance against the minor.

I have summarised the Nagpur case as a]most all the other cases cited by the learned advocate for the appellants and reproduced in the margin ''Mir Sarwarjan v. Fakruddin Mohd.'', 39 IA 1 (PC); '' Venkatachalam Pillai Vs. Sethuram Rao alias Lakshmikantha Sastriar and Another, ; ''Mal-La v. Mohd. Sheriff'', AIR 1927 Lah 355 (1); '' Swarath Ram Ram Saran Vs. Ram Ballabh and Others, ''Abdul Haq v. Yehia Khan'', AIR 1924 Pat 81; ''Imambandi v. Haji Mutasaddi'', AIR 1918 PC 11; Movva Nageswara Rao and Another Vs. Mandava (Kotayya), Fatima Bibi v. Debnath Shah'', 20 Cal 508; ''Krishnaswami v. Sundarappa Iyer'', 18 Mad 415; ''Khairunnissa Bibi v. Lokhnath Pal'', 27 Cal 276; ''Suryanarayan Rao v. Nagnath Sastry''. 37 Deccan L R 975; ''Ramanna v. Malappa''. 28 DLR 557 are dealt with in this case and the grounds for refusing specific performance of a contract entered into by the guardian of a minor are also stated clearly and lucidly. ''Ram Rao v. Sugan Chandra'', AIR 1946 Nag 139, has followed this case and has held that two points are well-established namely, that the guardian of a minor cannot enter into a contract of purchase on behalf of the minor and that no specific performance of such a contract for or against the minor can be granted. I must, however, take note of the fact that there are a large number of cases in which quite opposite views have been expressed and several exceptions have been engrafted upon the pronouncement of their Lordships of the Privy Council in ''MIR SARWAR-JAN''S CASE'', 39 Ind App 1 PC. as also in ''Waghela Rajsinghji v. Masluddin'', 11 Bom 551 (PC). One such case is of:

(1) Babu Ram v. Sayeed-Un-Nissa'', 35 All 499. There the mother was the guardian and she had two sons, one of them was a minor. She wanted to sell the property and got herself appointed a certificated guardian under the Guardians and Wards Act 1890 and took permission of the Court to sell the property to Babu Ram. the defendant, who contracted to purchase the property for Rs. 5000/-. A draft sale-deed was prepared and filed and was approved by the Court. Babu Ram defaulted and the property was sold in a Court''s auction fetching price less than Rs. 5000/- and the suit was to recover the difference in the two prices as damages. It was observed by the Court as follows:

It was then argued on the authority of ''MIR SARWARAJAN''. that the plaintiff could not make a valid contract of sale of this immoveable property on behalf of the minors. It was not shown in that case that the manager was the certificated guardian of the minor, and even if he was that he had obtained the sanction of the Court under S. 29 of the Guardians & Wards Act to enter into a contract on behalf of the minor. A certificated guardian''s powers are regulated and defined by statute namely, the Guardians & Wards Act. In the present case, the contract was entered into by a certificated guardian after receipt of the Court''s sanction and the suit is for damages for breach of contract so entered into. In our opinion the Privy Council''s ruling does not apply to the facts of the present case. ''We do not think that the Privy Council''s ruling applies to guardians appointed by statute such as Guardians & Wards Act or the various Courts of Wards Acts''.

(2) Similarly in ''Narayana Chetty v. Muthiah Chetty'', AIR 1924 Mad 630, cited also by Mr. Justice Niyogi it was held that:

''There is no general rule that no decree for specific performance can be passed against a minor'', for instance in the simplest and obvious case when a contract was entered into by a Hindu in respect of property which'' is not joint family property and the property devolved by inheritance on heirs, some or all of whom are minors, it cannot be contended that no decree for specific performance can be made and this is conceded by the appellant. The next case is where a Hindu who is a member of a joint family enteres into a contract ''to sell his own share'' and dies as the property descends by survivorship to the other members of the family some or all of whom may be minors. In ''Bhaghwan v. Krishnaji, 22 Bom L R-997, it was held that it can be enforced against the undivided sons of the deceased.

And after considering the case of ''MIR SAR-WARJAN'', 39 Ind App 1 P C. it was observed further by Ramesam J. that: "The present is the case where the contract is entered into by the manager of a family on behalf of the whole family for purposes binding on the family. In ''Narayan Rao v. Venkatasubba Rao'', 38 Mad L J 77, Spencer J. conceded that a ''contract made by a manager on behalf of the family may be enforced against the manager and where it is for the benefit of the family, the completed contract will certainly bind the minor members''. Where a contract is by a manager on behalf of a family for the benefit of the family and the manager dies it can be enforced against the survivors when they are all majors, (''Venkateshwara Iyer v. Raman Namboodiripad'', 19 Mad L T 329). Should it make any difference when some of the survivors are minors and does the case of ''Mir Sarwarjan v. Fakir-Uddin Mohd. Choudhary'' support such a distinction. The matter is ''res Integra'' and I am inclined to answer the above queries in the negative. I agree with Philips, J.''s remarks m Bappu alias Venkataramier and Another Vs. V.A. Annamalai Chettiar and Another, where he refers with approval to ''Ramachandra Iyer v. Sundaramurthy Mudali'', 4 Mad L J 9. ''The result is, we are of opinion that a decree for a specific performance may be passed against the minor defendants."

(3) Similarly in Kasivasi Chidambara Swamigal Vs. Ramakrishna Reddiar and Others, cited again by Mr. Justice Niyogi the guardian of a minor Hindu son was his mother. She sold a part of the immoveable property of the son to pay off a debt of his deceased father. A decree of a specific performance was passed although a subsequent purchaser was willing to pay more price and it was observed that:

''Specific performance of a contract by a minor''s guardian for the sale of immoveable property which at the time was for the benefit of the estate can be decreed'' notwithstanding that there is an offer of better price subsequent to the contract.

(4) Similarly in Ramakrishna Reddiar Vs. Kasivasi Chidambara Swamigal (died) and Others, was observed that the Full Bench case of ''Rama Jogayya v. Jagannadham''. 42 Mad 185, shows that so far and only in so far as the contract by the guardian embodies the personal Hindu Law liability of the minor it is enforceable against the minor and in so far as it goes beyond, it comes under the general rule that the guardian cannot bind a ward by a personal covenant.

Again (5) in ''Haricharan Kamar v. Kaula Roy'', AIR 1919 Pat 478, (sic) the managers of a joint Hindu family contracted to sell certain lands to the plaintiffs but had sold them to defendants 14 and 15. In the suit for specific performance of the plaintiff''s it was alleged by the plaintiffs that the defendants 14 and 15 purchased the land with notice of the contract with the plaintiffs. The cases of ''Mohori Bibi v. Dhurmodas'', 30 Ind App 114 (PC) and ''Mir Sarwarjan'', 39 Ind App 1 (PC), were referred to in the argument and notwithstanding these Privy Council cases, the Full Bench of the Patna High Court held that even after them there have been cases in which suits for specific performance have been decreed to the extent of the shares of the major members and on the authority of ''Garibullah v. Khalak Singh'', 40 Ind App 132 (sic) pointed out that there have been cases in which it has been decided ''that the father or the manager within certain limitations can enter into contracts which bind the minors and it was held further that: " ''Contracts made not by minors but by persons who have power to make contract on behalf of a joint family did not appear to come within the Privy Council''s decisions. I am not prepared to dismiss the suit for a specific performance on the ground that the contract lacks mutuality having been made by or on behalf of minors who are not competent to contract."

(8) Similarly, in AIR 1922 193 (Nagpur) , the plaintiff was the manager of a joint Hindu family consisting of himself and two minor brothers; he had contracted with the defendant, Mehtab, to purchase certain immoveable property which Mehtab sold to the other defendants after contract with the plaintiff. The plaintiff''s suit for specific performance was decreed and it was observed by the Court that:

''The principle enunciated by their Lordships of the Privy Council in ''MIR SARWARJAN''S CASE'', is simple enough but is not infrequently misunderstood.'' It is not that a specific performance of a contract cannot be obtained against a minor and, therefore, cannot be obtained by him because there are cases in which it can be obtained against him; one such case is that of ''SAYEEDUNNISSA'', in which ''MIR SARWARJAN''S CASE'', was distinguished. ''The principle is that no person can sue for a specific performance if he could not be sued for it whether because he is a minor or for any other reason.

(7) Similarly in Brahamdeo Sao Vs. Haro Singh and others Mr. Justice Wort held that a contract entered into by a guardian or a manager for legal necessity or for the obvious benefit of a minor can be specifically enforced. He observed that:

To state the proposition broadly, that is to say that a contract on behalf of a minor can in no way be enforced would be stating a proposition which obviously cannot be supported in its entirety. The leading case of ''Hanuman Pershad Pande v. Babuee Munraj Kumari'', 6 Moo Ind App 393, prevents the assertion of such a proposition. ''It is quite clear in one form or another that contract on behalf of an infant for the benefit of the estate or for legal necessity is enforceable.

The learned Judge held that the key to ''MIR SARWARJAN''S CASE'', is found in ''HANUMAN PERSHAD PANDE''S CASE'', and it is that the contract of a guardian or manager for legal necessity binds the minor. He considered the Privy Council case of ''Mohori Bibi v. Dhurmodas'', also and observed that after, conflicting decisions in the Indian High Courts it settled the law that contracts by a minor are void; that in ''MOHORI BIBI''S CASE'', the contract was entered into by the minor himself and there was no guardian or manager. He observed further that if the contracts of minors are void ''and'' the contracts entered into by the guardian or manager of a minor are also void, then the ''MIR SARWARJAN''S CASE'', would have expressed this in a different manner and would not have stated that the guardian or a manager is not competent to bind the minor by a contract of purchase. Lastly the learned Judge held that ''as there is mutuality in a contract entered into by a guardian for legal necessity, the contract under consideration "which was made by a guardian of a minor for legal necessity was enforceable and therefore he decreed the specific performance of it''.

(8) Again, I must also mention the case of ''Ram'' Jogayya v. Jagannadham, A I R 1919 Mad 641 (FB). There the learned Judge, Seshagiri Iyer, after referring to the Privy Council ruling in ''Waghela Rajsanji v. Sheikh Masluddin'', that it would be an improper thing to allow the guardian to make a conveyance in the name of his ward so as to impose a personal liability upon the ward, observed that: "Hence the question before us is what is the principle laid down in ''Waghela Rajas-Anji v. Sheikh Masluddin'', and what are its limits. There are certain accepted propositions that:

(a) A guardian can for a proper purpose by apt words create a charge over the property in his management so as to bind the minor (''Dowse v. Gorton'', 1891 A C 190);

(b) if the guardian acts for the benefit of the minor and borrows and if the creditor obtains a decree for the loan against the guardian the latter can sue the minor for reimbursement. This is based on the principle of subrogation and may be styled the theory of indirect recourse. (Strickland v. Symons'', (1884) 26 Ch D 245);

(c) for necessaries the debts contracted by the minor himself or by his guardian would bind the estate; Section 68 of the Contract Act and ''Maharana Shri Ranmalsinghji v. Vadilal Wakhatchand'', 20 Bom 61:

(d) if the guardian in management gives a bond in renewal of a debt binding on the minor, the estate could be proceeded against, as the act of the guardian may be regarded as keeping alive by acknowledgment a preexisting liability, (per Jenkins C. J. in ''Annapagadu v. Sangadyapa'', 26 Bom 221).

The learned Judge observed further:

I do not wish to take a narrow view of ''Waghela Rajsanji v. Sheikh Masluddin''. Woodrolle, J. in ''Mir Sarwarjan v. Fakruddin Mohd.'', 34 Cal 163, states ''that what the Judicial Committee intended to lay down was that an onerous covenant cannot be imposed by the guardian upon the person or property of the minor''. That is also my view. Although this decision was overruled by the Judicial Committee in ''Mir Sarwarjan v. Fakruddin Mohd.'', 39 Cal 232: 39 I A 1 PC, on another point I do not think this view of the law was taken exception to in the argument before or in the judgment of the Privy Council. The various English decisions dealing with trustees and executors to which our attention was drawn in the course of the argument lay down that a trustee or executor has no power to bind the beneficiary any personal contracts ''Johnson, In Re: Sherman v. Robinson'', (1880) 15 Ch D 548 and ''Evans, In Re: Evans v. Evans'', (1887) 34 Ch D 597; still where an infant''s estate would be liable but for the interposition of the guardian. I fail to see why the latter undertaking that liability should not bind the estate. After examining ''Waghela Hajsanji v. Sheikh Masluddn'', once again, ''I do not think their Lordships intended to lay down that under no circumstances can a minor be held liable for the acts of his guardian''. Almost all the High Courts have since Waghela Rajsanji held that the liability of the minor under Hindu Law is not affected by the fact that the guardian has incurred that obligation. The cases cited in the margin ''Nathuram v. Shoma Chhagan''. 14 Bom 562; ''Maharana Shri Ranmalsinghji v. Vadilal Vakhatchand'', 20 Bom 61; ''Siva Narayan v. Kamakhya Ghose'', AIR 1914 Cal 500: 23 IC 877; ''Sunderraja Ayyangar v. Pattanathusami'', 17 Mad 306; ''Sinaya Pillai v. Muniswami Ayyar'', 22 Mad 289; ''Subramania Ayyar v. Arumuga Chetty'', 26 Mad 330; Srimath Daiva Sikamani Pandara Sannidhi v. Noor Mahomed Routhan'', 31 Mad 47; ''Duraisami Reddi v. Muthial Reddi'', 31 Mad 458; ''Padma Krishna Chettiar v. Nagamani Ammal''. 39 Mad 915; ''Venkitasami Naicker v. Muthusami Pillai'', 45 Ind Cas 949 (Mad) have all taken this view. Sargent C. J.. Telang J., Mukherjea J. and Muthuswami Iyer J. are among the Judges who had enunciated this view. If we examine some of the Privy Council''s decisions before, contemporaneous with and after Waghela Rajsanji it will be seen that the Judicial Committee did not intend to lay down that under no circumstances can the guardian bind the estate of the ward, except it be by creating a charge. In ''Hanuman Pershad v. Mt. Babuee Manraj Kumari'', 6 Moo Ind App 393, the well-known case of Hanuman Pershad their Lordships speak of a guardian borrowing on behalf of a minor and charging his estate in the same sentence. In ''Watson & Co. v. Shamlal Mitter'', 15 Cal 8: 14 IA 178, which is contemporaneous with Waghela Rajsanji an agreement by a guardian to pay enhanced rent was held binding on the minor. In ''Imambandi v. Sheik Haji'', AIR 1918 PC 11: 45 Ind App 73, the Rt. Hon''ble Amir Ali Jays down that a Mohammadan guardian can bind a minor''s estate by contract entered into for the latter''s benefit. So the rule of law in ''Waghela Rajsanji is subject to exceptions.

(9) Lastly. I may refer to the case of AIR 1948 95 (Privy Council) . There the mother of a minor son has contracted as guardian to sell a land for paying oil the debt of the father of the son and had given possession of it to the promisee. The suit tor specific performance by the promisee was dismissed but on appeal to their Lordships of the Privy Council it was held that:

Their Lordships entertained no doubt that it was within the powers of the mother as guardian to enter into the contract of sale on behalf of the respondent for the purpose of discharging his father''s debts, and that, if the sale had been completed by the execution and registration of the sale-deed, the respondent would have been bound under Hindu Law.

They observed further that:

The position of the minor under such a contract is discussed in the following passage with which their Lordships agree, in Pollock and Mulla''s Indian Contract and Specific Relief Acts, 7th Edn., p. 70:

A minor''s agreement being now decided to be void, (by ''Mohori Bibi v. Dhurmodas Ghose'', 30 Ind. App 114 (PC), it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council. ''It is, however, different with regard to contracts entered on behalf of a minor by his guardian or by a manager of his estate''. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council, ''that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it and, further, if it is for the benefit of the minor''. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all.

This, in my opinion, is an important and recent pronouncement of the Privy Council and if the portions underlined (here in single inverted commas) were carefully considered, it would be evident that their Lordships of the Privy Council held with regard to contracts entered on behalf of minors by their guardian that they can be specifically enforced by or against the minor if the guardian is competent to make a contract binding on the minor and the contract is for the benefit of the minor.

It will be seen that the case of ''Mir Sarwarjan v. Fakruddin Mahomed'', 39 Ind App 1'' (PC), is based on two grounds, namely, that no contract by a guardian of a minor can be specifically enforced, as in the first place, it lacks mutuality and, in the second place, a guardian or manager cannot bind a minor by personal covenants. The above review of the cses will show that a contract for the sale or purchase of immoveable property is regarded as a personal covenant for the reason that having regard to S. 54 of the T. P. Act a mere contract does not pass any interest in or create any charge on land; that until it is executed and registered the title to the land does not pass from a vendor to the vendee, and the contract remains a personal covenant. In spite of this, it has been held in the cases cited above that if the contract for sale is entered into by a certificated guardian under the Guardians and Wards Act or the Court of Wards Act it will be specifically enforced. Similarly, a reference to the summary of Mr. Justice Seshagiri Iyer''s judgment given towards the end of para 5 above, will show that a personal covenant of a guardian to create a charge over the property in his management binds the minor; that if the guardian acts for the benefit of the minor and borrows, the creditor can sue the minor upon the decree obtained against the guardian on the principle of subrogation; that personal covenants of the guardian for necessaries bind the minor or his estate and that a personal covenant acknowledging a debt binds the minor by keeping alive a pre-existing debt; all these cases in which personal covenants of guardians bind the minors are so well-established that they are termed as accepted propositions by Mr. Justice Seshagiri Iyer.

Moreover, their Lordships of the Privy Council in the well-known case of ''HANUMAN PERSHAD'', (6 Moo Ind App 393 PC) have themselves spoken of a guardian borrowing on behalf of a minor and charging his estate in the same sentence; this means that they consider that for necessaries a contract or covenant of loan of a guardian binds the minor; similarly in ''Watson and Co. v. Shamlal Mitter'', (15 Cal 8: 14 Ind App 178 PC) an agreement by the guardian to pay enhanced rent, which again is a personal covenant has been held to be binding on the minor by their Lordships of the Privy Council. Again in ''Imambandi v. Sheik Haji Mutasaddi'', (AIR 1918 PC 11 at p. 16 Col 1), their Lordships of the Privy Council have held clearly that a Mohammadan guardian can bind a minor''s estate by a personal covenant entered into for the latter''s benefit. Similarly, in ''Kali Dutt Jha v. Abdul Ali'', 16 Ind App 96 (PC), their Lordships of the Privy Council have upheld a sale by the father for the purpose of putting an end to the pending litigation. All these various instances will show that even a personal covenant whether it be of borrowing money or selling immoveable property by a guardian binds the minor, if it is for the obvious benefit of the minor or for legal necessity. In fact, works of Moslem Law will show that a guardian can sell the immoveable property of his ward in the following among other cases:

(i) Where he can obtain double its value;

(ii) Where the minor has no other property and the sale of it is absolutely necessary for the maintenance;

(iii) Where the late incumbent died in debt which cannot be liquidated but by the sale of such property;

(iv) Where there are some general provisions in the will which cannot be carried into effect without such sale;

(v) Where the produce of the property is not sufficient to defray the expenses of keeping it;

(vi) Where the property may be in danger of being destroyed; and

(vii) Where it has been usurped and the guardian has reason to fear that there is no chance of fair restitution. (Vide Macnaghten''s Principles of Mohammadan Law, Ch. 8, principle 14; Amir Ali''s Mohammadan Law, vol. II 2nd edn. pp. 479-480).

After all this, it is difficult to maintain that in no case personal covenants of guardians bind the minors. It appears to me that all such personal covenants of guardians will bind the minors as are for their obvious benefit or are impelled by necessity. I am fully aware of the fact that in ''MIR SARWARJAN'' their Lordships of the Privy Council spoke of the incompetence of the guardian to bind the minor by a contract of purchase of immoveable property and the cases just cited are cases other than cases of such personal covenants; they are cases of covenants of sale of immovable property or of creating a charge on immovable property or of contracts of purchase of moveables for necessaries. But, if, in spite of this, I mentioned these cases, it was because their Lordships of the Privy Council themselves in AIR 1948 95 (Privy Council) laid down the proposition broadly and in more general terms without reference to a personal covenant for purchase of immoveable property they observed or rather approved of the observation that a contract can be specifically enforced by or against the minor if it is one which is within the competence of the guardian to enter into on his behalf so as to bind him by it and further if it is for the benefit of the minor; and not only in Mr. Justice Niyogi''s judgment in '' AIR 1939 265 (Nagpur) but in most of the cases cited in para 5 above no distinction is made between a contract for sale and a contract for purchase entered into on behalf of a minor, as a reference to these cases will show. The cases cited in this paragraph will thus show that personal covenants of a guardian for (he various purposes explained there including the sale of immoveable property undoubtedly bind the minor.

The position then comes to this that even though a personal covenant may bind the minor in the circumstances defined in the cases, question remains whether a personal covenant or contract of the guardian for the purchase of immoveable property is within the competence of the guardian. I must state at once and clearly that the question of competence of the guardian is determined in the cases cited in paragraph 5 above with reference to the personal law of the parties. This appears not only from the Privy Council cases considered above but it also forms the basis of Mr. Justice Seshagiri Iyer''s judgment in '' AIR 1948 95 (Privy Council) '' the guardian was the mother of the minor. Under Hindu Law though no guardian can be appointed for a co-parcener but one can be appointed for a minor or minors who are the sole surviving male members of a Hindu joint family and among the persons who may be appointed their guardians the mother ranks first. Hence the mother in this case was a competent guardian and her acts were intended to relieve the minor from a liability which Hindu Law imposes on a son for the antecedent debts of his father. Their Lordships of the Privy Council approved this contract in this case and their approval serves to endorse the opinion of Mr. Justice Seshagiri Iyer and other judges of his persuasion that it was not intended in ''MIR SARWARJAN'', or in ''WAGHELA RAJSANJI''. ( 11 Bom 551 PC) to lay down that contracts by a manager or a guardian of a Hindu family do not bind the minor. Question, however, arises whether we are driven to the conclusion that a guardian is competent only when the act he does is sanctioned also by the personal law of the minor and is an obligation on the minor under his personal law, or a guardian is, by virtue of his office of a guardian, competent to do all acts which satisfy the standard of care of the highest order, say that of a trustee and which are also in consonance with the fundamental and basic principle of all guardianship, viz., that the interest of the minor should be served.

As observed by Mr. Seshagiri Iyer J., the remarks of Woodroffe J. in ''MIR SARWARJAN''S CASE'', when it was heard by the Calcutta High Court, that their Lordships of the Privy Council did not intend in ''WAGHELA RAJSANJI''S CASE'', to lay down that contracts by a manager or guardian of a Hindu family do not bind the minor but that it was only intended to lay down that onerous covenants cannot be enforced by the guardian upon the person or property of the minor were not taken exception, to either in argument before their Lordships or in the judgment. Hence, can we draw the inference that a guardian is competent to do all acts which are of advantage and benefit to the minor? In my opinion, such an inference can and should be drawn; for the only standard by which the competency of the acts of the guardian can be judged is the standard of the interest of the minor. However, even assuming that such an inference cannot be drawn and a guardian is.competent to do only such acts as are sanctioned also by the personal law of the minor, the question then comes to an examination of the competency of the guardian under Muslim Law. I will, therefore, consider what contracts are considered by Moslem Law to be within the competence of a guardian of a Muslim minor to enter into on behalf of the minor so as to bind him by them. In principle 6 in Macnaghten''s Principles and Precedents of Mohammadan Law it is laid down about the DE JURE guardian that:

They answer to the term of Curator in the Civil Law having power over the property of the minor for purposes beneficial to him.

and in principle 15 it is said that:

Every contract entered into by a near (De Jure) guardian on behalf of and for the benefit of the minor, and every contract entered into by a minor with the advice and consent of his near guardian as far as regards his personal property is valid and binding upon him provided there be no circumvention of fraud on the face of it.

Similarly in the same book in Chapter 7 on Precedents of Guardian and Minority in case (3) it is stated that:

The principle of the law is, that it is allowable for a guardian, executor, or any one who has the case of the person and property of the minor to enter into a contract on his behalf where the profit must be clear and certain. For instance, they may always accept a gift on his behalf. In the case of a contract where there is a possibility of loss, it has been held that a near guardian (by which is meant a father or grandfather or guardians duly appointed by them) is at liberty to enter into such contract on behalf of the minor. Where, however, nothing but loss can accrue to the minor such as in the case of making a donation or granting a loan, it is not legal for any guardian, near or remote, or for any executor or other person under whose care he is, to act on his behalf.

And turning now to the English rendering of ''Hidaya of Hamilton bk. 35 p. 534 I will quote a passage which will throw much light upon the competence of the guardian of the minor as also upon the capacity of a minor to contract:

The acts of an infant are unlawful because of the defect in his understanding; but the licence or authority of his guardian is mark of his capacity hence it is that in virtue thereof an infant is accounted the same as an adult.

A careful consideration of this passage will show that a Moslem minor has no capacity to contract because of defect in understanding; but that if his acts have the licence and authority of his guardian, then the defect is removed and the minor is accounted the same as an adult. Evidently this means that if a contract on behalf of a minor is approved or entered into by the guardian the minor is equally bound by that contract. In the same work and on the same page in Hamilton''s Hidaya it is also laid down that the acts spoken of in the above passage include:

nil transactions of any kind such as sale, ''purchase'' and so forth.

The inclusion of ''purchase'' in the acts mentioned in the passage is significant and speaks for itself. Similarly, in Fatawai-e-Alamgiri, Vol. I, Edn. 1834 page 82 it is stated that: "That is "the acts of an infant are not valid except when they are done under the licence or authority of his guardian; that Tahtavi has explained this to state that the father, grandfather, their executors, Qazi or his executor can lawfully allow an infant to trade; when an infant who understands sale and purchase, that is, understands that a sale divests the ownership and a purchase vests it and understands also the difference between a small and a substantial loss sells or purchases, his guardian if he considers the sale or the purchase advisable, can assent to it; and when an infant receives such an assent or authority for a transaction and makes it. the transaction is enforced whether it occasions loss or not. The Sirajiah is to the same effect. In transactions which are purely advantageous, an infant is accounted the same as an adult; and that is why an infant can himself accept a gift and need not wait for the authority of the guardian."

Again in Allfatawi-i-Kubra, Vol. Ill p. 38 by Iban Hajar Al Miski in a case where:

A minor was in one town and his property in another town it was held by the Moslem servants that the Qazi of the place where the property was, can purchase lands for the benefit of the minor.

Again on page 48 it is laid down that:

if owing to disturbed conditions no Government has authority over a town, the people of the town should elect a Qazi and the Qazi should appoint a guardian for orphans, that is, for fatherless minors and he can enter into a contract on behalf of a minor for the exchange of one garden for another garden if the transaction is for the benefit of the minor.

It will be seen that in these passages minor transactions of sale as well as of purchase of movables as well as immovables are allowed when they are entered into with the assent and authority of the near or DE JURE guardians. This means sufficiently clearly that a Muslim guardian can bind by personal covenants a Muslim minor even when the covenant is for the purchase of immovable property. Of course, as laid down elsewhere in Hidaya and Fatawai-e-Alamgiri and quoted by Justice Amir Ali in ''Imambandi v. Haji Mutasaddi'', AIR 1018 PC 11 at p. 16, col. 1, contracts by a DE JURE guardian are governed by strict conditions of minors necessity and benefit. So much, with all respect, as to the first ground of decision in the ''Mir Sarwarjan Case'', namely, that a guardian is not competent to bind the minor by a personal covenant for the purchase of immovable property.

The other ground on which ''Mir Sarwarjan''s Case'', (39 Ind App 1 P C) is based, is. as already stated above, lack of mutuality, that is, we cannot grant specific performance of a contract against a minor as he himself cannot enforce the contract against the other party to the contract, as a contract by a minor is void. This is a well-established ground and there is no need to quarrel with it. The question, however, remains whether a contract entered into by the guardian of a minor cannot be enforced against a minor and whether in such a case also the doctrine of mutuality applies. It will be seen that in ''Mir Sarwarjan''s case'', their Lordships of the Privy Council held that it is not in the competence of the manager or guardian of a minor to bind the minor by a personal covenant and it is on this ground that they consider that there is lack of mutuality in the case of a contract by the guardian on behalf of the minor. I hope, I have shown above this pronouncement is against several other pronouncements of their Lordships of the Privy Council themselves inasmuch as they themselves have held in several cases, vide the tour Privy Council cases cited in paragraph 6 above and also the case of '' AIR 1948 95 (Privy Council) , that if the contract is for the benefit of the minor or is impelled by necessity legal or otherwise, it binds the minor. Hence if the contract is of a nature of the two cases of benefit and necessity mentioned above, a personal covenant of a guardian has been held by their Lordships of the Privy Council to bind the minor and, therefore, in such cases as the minor is bound there is no lack of mutuality. A careful study of all these cases will show that it is impossible to hold on one hand that in certain cases personal covenants of guardians bind the minor, and to hold in other cases that a contract cannot be specifically enforced against a minor for lack of mutuality as the promisee cannot proceed against a minor on the ground that the minor is not bound by the personal covenant of the guardian. Consistency impels us to hold that in cases in which the personal covenants of the guardian bind the minor, there is no lack of mutuality and no reason to refuse specific performance against the minor and this is what has been held by Wort, J., and the other Judges in cases in which they have decreed a specific performance against minors. (Vide 9 such cases cited in paragraph 5 above.)

Before I take stock of the position I must advert briefly, with great respect, to the decision of Mr. Justice Niyogi in AIR 1939 265 (Nagpur) . Besides mutuality, the learned Judge has based his judgment on this very ground that a personal covenant of a guardian cannot bind a minor. He has observed that as a contract for sale of immoveable property is a personal contract and imposes no personal liability upon the minor, evidently, the minor cannot also personally enforce it and cannot fake advantage of it. In view of what I have just stated above, it appears to me that this unqualified statement cannot be accepted and I will repeat that there is good authority (vide paragraphs 5 and 6 above) for holding that personal covenants of guardians do bind the minor if they are for obvious benefit of the minor or are impelled by necessity. Hence, in my opinion this ground of his decision for refusing specific performance of the contract made by the guardian against the minor is not supported by sound authority. Similarly, he has examined this same proposition from another perspective, namely whether the purchaser can recover compensation from the minor for a breach of contract by the guardian, and has held that:

in every case where there is refusal to implement the contract of sale by the guardian, the breach is committed by the guardian and never by the minor; that the purchaser therefore can only obtain compensation against guardian and not against the minor or his property; and that, therefore, as the purchaser is not entitled to hold the minor personally liable for the breach of contract of sale made by the guardian, he is not entitled to claim compensation from him; and that if that is so, Section 24(a), Specific Relief Act debars the purchaser from claiming the relief of specific performance against the minor.

This argument from Section 24 (a) of the Specific Relief Act that ''specific performance of a contract cannot be enforced in favour of a person who cannot recover compensation for its breach'' depends upon the question whether a contract or a personal covenant by a guardian binds the minor or not; if a personal covenant binds the minor, then obviously the minor is also responsible for the breach of contract. I hope, I have shown above that in the cases where the contract is for the obvious benefit of the minor or for legal necessity it binds the minor and, therefore, it will not be correct to hold that the remedy of the person complaining a breach of contract by the guardian can never be against the minor. In the case of a guardian borrowing money to save a minor from starvation and refusing to pay, the lender can proceed against the guardian as well as against the minor on the authority of cases cited in Mr. Justice Seshagiri Iyer''s judgment quoted above. It appears to me that if we concede that in certain cases the contracts or personal covenants of a guardian bind the minor, we should not shirk from holding that the party aggrieved can have recourse against the minor. Hence, in my opinion, argument from Section 24 (a) of the Specific Relief Act does not arise and I am supported in my view by the judgment of Wort, J., by that of Mr. Justice Seshagiri Iyer and by the judgments in the rest of the cases cited in paragraphs 5 and 6 above. Here I may mention in passing and with great respect that the learned Judge, Mr. Justice Niyogi, is not correct in stating that with the exception of ''Krishnaswami v. Sundarappayyer'', 18 Mad 415, all Madras cases have consistently held that specific performance against a minor will not be enforced even though it may be for legal necessity or for the benefit of the minor. The two cases referred to by him, Narayanan Chetty and Others Vs. Muthiah Chettiar and Others, and Kasivasi Chidambara Swamigal Vs. Ramakrishna Reddiar and Others, have explicitly held quite the reverse of what he has stated as I have shown in my quotation from these cases in para. 5 of this judgment, and, moreover, I have cited many other Madras cases in the said paragraph especially the case of ''Ram Jogayya v. Jagannadham'', AIR 1919 Mad 641. in which one of the judgments is that of Mr. Justice Seshagiri Iyer. These cases including the two Madras cases referred to above give reference to a large number of Madras cases holding quite the contrary to what Mr. Justice Niyogi has held.

Before I refer to the American Law on this point I may advert to four recent cases. They are: (1) Jatadhari Prasad and Others Vs. Kishun Lal Daruka and Others, (2) ''Harimohan Pal v. Sew Narayan'', AIR 1949 Gau 57: (3) Rambilas Singh and Others Vs. Lokenath Chaudhuri and Others, and (4) ''Ramlingam Reddy v. Babanambal Ammal'', (1950) 2 Mad L J 597.

In the first "mentioned case of AIR 195ft Pat 535 it is held that:

In a suit instituted against the karta of a joint family for specific performance of an agreement entered into by him, a decree for specific performance can be passed and it would be binding on all the other, members of the joint family, including a minor coparcener, if the transaction is found to be warranted by legal necessity or benefit of the estate. The position would not be different if the minor coparcener was substituted for the karta on his death during the pendency of the suit.

And in paragraph 15 it has been observed that:

The fundamental rule of equity is that a contract will not be specifically enforced unless it is obligatory on both parties, nor unless both parties at the time it is executed have the right to resort to equity for specific enforcement of it. Therefore, a contract to be specifically enforced by the Court must, as a general rule, be mutual, that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other

The doctrine of mutuality was judicially recognized so far as India is concerned by their Lordships of the Judicial Committee in the case of ''Mir Sarwarjan v. Fakhruddin Mahomed'', 39 Cal 232 (PC) and since then the following propositions are firmly established:

(1) A contract entered into by a minor being void, an agreement entered into by him either for sale or for purchase of immovable property cannot be specifically enforced either by or against him;

(2) A contract either for sale or for purchase of immovable property entered into by the guardian of a minor or his manager cannot be specifically enforced either on his behalf or against him.

In either case there being lack of mutuality the Court cannot order specific performance of a contract even if the transaction be beneficial to the minor.

In so far as this case deals with the contracts of a Karta it contributes nothing new to what I have already described in paragraph 5 of this judgment. But in so far as it deals with the contracts by a guardian on behalf of the minor the unqualified statement of law therein is, in my opinion, incorrect, for the reasons given in paragraphs 6 and 7 of this judgment. I have repeatedly stated above that specific performance of contracts by the guardian has been enforced in this country and I have given several instances in paragraph 5 of this judgment.

I now pass on to the second case mentioned above namely, ''AIR 1949 gau 57'' where it has been laid down that:

A natural guardian of a Hindu minor is not competent to bind the minor or his estate by a contract for sale even though it may be for necessity or for the benefit of the minor. The contract, therefore, is not specifically enforceable against the minor after attaining majority.

I need hardly point out, with all respect, that this unqualified statement is again, in my opinion, not a true picture of the law. In this Assam case the guardian was the father and he had contracted to sell immovable property but did not complete the contract by a conveyance. Specific performance was refused after a review of the case law. I want to state that in this review of the case law and (?) the learned Judge, Mr. Ram Labhaya, who delivered the judgment of the Division Bench adhered to the view prevalent in cases which refused specific performance of a contract by the guardian of a minor. He also commented upon AIR 1948 95 (Privy Council) , and distinguished it on the ground that:

in that case the point before their Lordships was very different from the one that arose in ''Mir Sarwarjan''s case'', 39 Ind App 1 (PC).

and his remarks about the agreeing of their Lordships of the Privy Council with the statement of law in the passage of Pollock and Mulla''s Indian Contract and Specific Relief Acts, 7th Edn. p. 70, which I have also quoted and relied on in paragraph 5 (9) above are that:

These observations must have been based on decisions given by High Courts in India before ''Mir Sarwarjan v. Fakhruddin Mahomed'', 39 Ind App 1; for the only case that the learned counsel has been able to cite before us in which the contract entered into by the guardian of a minor for the sale of his property was held to be specifically enforceable was Brahamdeo Sao Vs. Haro Singh and others We have dealt with this case and, therefore, we do not think; that the remarks of the learned authors improve the position of the appellants.

In my opinion, though prima facie the point for decision in the ''Subramanyam Case'', was somewhat different still the substantial question for decision nonetheless was that of the specific performance of a contract and their Lordships of the Privy Council after discussing at length the question of a contract of a natural guardian, of a Hindu minor and its specific performance observed that the statement of law in the passage of Pollock and Mulla referred to by them is correct and that they agree with it; that in this passage Pollock and Mulla have taken a distinction between a contract by a minor himself and a contract by a guardian on behalf of a minor and have observed that contracts by a minor are void; but that:

It is, however, different with regard to contracts entered into by a minor or his guardian of his estate; in such case it has been held by the High Courts of India which arose subsequent to the governing decision of the Privy Council that the contract can be specifically enforced by or against the minor if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it and further that it is for the benefit of the minor.

This is a very clear pronouncement and has a direct bearing on the question of specific performance by or against the minor on a contract of his guardian, now under consideration; as in the ''Subramanyam Case'', itself there was an agreement by the guardian and the suit for possession of the land sold involved the specific performance of the agreement; no doubt the question arose in connection with Section 53 (a) of the Indian Transfer of Property Act and their Lordships of the Privy Council had to determine the meaning of the word ''transferor'' in that section but nonetheless the question was whether specific performance of the contract entered into by the guardian of a minor should be allowed or not and the decision was that it should be allowed as it fulfils the two conditions of competency of the guardian and the necessity and benefit of the minor. Hence, with all respect, it is not correct to say that the question was different and that the quotation of the passage by their Lordships of the Privy Council has no bearing whatsoever and that Pollock and Mulla must have stated the law in that passage as it was before the ''Mir Sarwarjan''s Case.'' This latter remark especially cannot be true, for the 7th Edn. of Pollock and Mulla is dated 1944 and their Lordships of the Privy Council quoted it in 1948; hence as ''Mir Sarwarjan''s Case'', arose in 1912 it is evident that Pollock and Mulla''s quotation cannot refer to the position of law before ''Mir Sawarjan''s Case'' of 1912.

I now pass on the third case referred to above, namely Rambilas Singh and Others Vs. Lokenath Chaudhuri and Others, . In my opinion, the learned Judge Mr. Justice Shearer, who delivered the judgment in this case was very much influenced by ''Moori Bibi''s Case'', 30 Ind App 114 PC inasmuch as, he has remarked that contracts by the guardians of minors cannot be different from the contracts of the minor himself; for,

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.

This, with all respect, is quite an incorrect view of the relation between a guardian and a minor. A guardian is not an agent of the minor nor is he appointed by him but is appointed by agencies different from minor; he is appointed to protect the minor & his interest & is an incident of the minor''s law of status. Similarly, the learned Judge, Shearer, has criticised the judgment of Devadas J. sitting singly in '' Kasivasi Chidambara Swamigal Vs. Ramakrishna Reddiar and Others, by remarking that the learned Judge has "greatly extended this doctrine of ''Ram Jogayya v. Jagannadham'', AIR 1919 Mad 641, (reproduced in detail in para 5(1) of this judgment) & decreed specific performance of a contract into which the mother of a minor Hindu had entered to sell certain of his immovable property". He has further remarked that this case of Kasivasi Chidambara Swamigal Vs. Ramakrishna Reddiar and Others, has been reversed on Letters Patent appeal by the case of '' Ramakrishna Reddiar Vs. Kasivasi Chidambara Swamigal (died) and Others, where Wallace J. 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 Seshagiri Iyer, J. in the earlier decision (AIR 1919 Mad 641) had no application.

I say with all respect that the doctrine laid down by Seshagiri Iyer J. with the concurrence of another Judge and the decision of Devadas J. that the mother of a Hindu minor acting as his guardian can sell immovable property of her minor child to discharge his father''s debt is in effect upheld by their Lordships of the Privy Council in AIR 1948 95 (Privy Council) for, as already stated, in that case also a Hindu mother had agreed to sell land of her minor son and her contract was upheld and enforced. Hence my review of these three cases which are the latest as far as I can ascertain, does not shake my opinion that in ''SUBRAMANYAM''S CASE'', their'' Lordships of the Privy Council have in effect qualified the opinion they expressed in ''MIR SARWARJAN''S CASE'', inasmuch as, they have approved the statement of law in the passage of Pollock and Mulla which I have quoted more than once above and which states the law to be that a contract by a guardian of a minor can be specifically enforced provided it is within the competence of the guardian to bind the minor by such a contract and provided also that the contract is for the benefit of the minor.

My abovementioned views find support from the fourth recent case cited above namely, '' (1950) 2 Mad LJ597''. There the learned Judge, Viswanatha Sastri J. has taken the distinction between a contract by a minor and a contract by the guardian and has observed that:

When, however, the guardian of a minor enters into a contract on his behalf there is no want of capacity at all. If the law were otherwise, no sale or mortgage of a minor''s property could be effected by a guardian however necessary or beneficial to the minor the transaction might be. The decisions in '' Ramakrishna Reddiar Vs. Kasivasi Chidambara Swamigal (died) and Others, : Venkatachalam Pillai Vs. Sethuram Rao alias Lakshmikantha Sastriar and Another, and Ragunathan by his mother and next friend Andalammal Vs. P.N. Ravuthakanni (died) and Others, , in so far as they proceed on the basis that an executory contract entered into by the guardian of a Hindu minor is void, are, with all deference, unsupportable.

Then referring to the Privy Council case of ''MIR SARWARJAN'', the learned Judge has remarked that:

This decision was relied upon in the arguments before the Board in AIR 1948 95 (Privy Council) . In the judgment of this Court in ''Subramanyam v. Subba Rao'', 1944 1 Mad L J 147, reversed on appeal by the Judicial Committee, reference had been made to the decisions of this Court where specific performance had been refused of a guardian''s contract for sale of ward''s property on the grounds of want of mutuality in suits by or against the minor. Yet their Lordships in ''Subaramanyam v. Subbarao'', upheld the contention that a guardian''s contract for sale of the immovable property of the ward was specifically enforceable, if the contract was beneficial to the minor. Principles laid down for the protection or benefit of minors had been applied in this country to their prejudice by invoking this artificial doctrine of mutuality. If the guardian has made an advantageous contract for the sale or lease of the property of the ward there is no reason why the ward should be disabled from enforcing it against the other party to the contract. I submit that the doctrine of "mutuality", illogical in form and in substance unjust, has now been discarded by the very tribunal which was responsible for its introduction in India and it need no longer cast its spell on Indian Courts and sterilise contracts of sale entered into by a guardian on behalf of his ward for the latter''s interest or benefit. The statement in Mayne''s Hindu Law, 1950 edn., para 236, which does not take account of ''Subbramanyam v. Subbarao'', decided early in 1948, cannot therefore be accepted as an authoritative statement of the law. I need not refer to the decisions of the other High Courts beyond noticing that in ''Malla v. Muhammad Shariff'', AIR 1927 Lah 355; '' Srinath Bhattacharjee and Others Vs. Jotindra Mohon Chatterjee, and '' Sohan Lal and Others Vs. Atal Nath , those Courts took the same view of the effect of ''Mir Sarwarjan v. Fakhruddin Mahomed'', as this Court did in the decisions already cited.

About the AIR 1948 95 (Privy Council) the learned Judge has remarked further that:

The recent decision of the Judicial Committee in ''Subramanyam v. Subbarao'', clarifies the whole position and declares the law to be that a contract for the sale of the property of a minor entered into by his mother and guardian for the purposes considered necessary and proper in Hindu Law would be binding on the minor from the time when the contract is entered into and is capable of being enforced against him.

And about the fear that if specific performance of a contract entered into by the guardian of a minor is enforced it will result in great detriment to the minor, the learned Judge has remarked, (and his remarks are in consonance with the American Law on the point, as I will show in the succeeding paragraph 10 of this judgment,) that:

The argument in terrorem that the minor''s interest would be seriously prejudiced if contracts entered into by a guardian for the sale of his property were specifically enforced has no effect upon me, for, whether it is an executory contract or an executed transfer by way of sale or mortgage, the enforceability of the contract or the transfer against the estate of the minor would depend upon whether the tranasction is justified by necessity or benefit of the minor. If the guardian''s contract is unsupported by necessity or benefit to the minor, it would be in excess of his powers as guardian and the contract would be unenforceable against the estate of the minor on that ground.

In America as will be seen from the monumental work of Prof. Williston on Contracts, Section 1438:

An infant is not allowed to enforce a contract specifically because it is said that the contract lacks mutuality. This is often thought to mean merely that since the adult cannot have enforced the contract against the infant, the infant is similarly deprived of equitable relief but the difficulty is not simply that the adult could not have enforced the contract against the infant but that even though the adult performed the contract, the infant might subsequently exercise his privilege to rescind the transaction. The decree of the Court should not be used to deprive him of his privilege; and unless he is deprived of it, the adult is subjected to injustice if compelled to perform. ''This difficulty does not arise where the infant has come of the age before seeking to enforce the contract. In such a case specific performance should be granted, and also where the infant has irrevocably performed his side of the contract''.

If procedure existed or was created by statute, whereby the adult could be protected, there would seem little objection to grant him specific performance where the infant is willing to perform and the Court is persuaded that the contract is fair. The Court exercises a similar jurisdiction when it allows an infant to enforce specifically a binding contract made by a guardian on his behalf. The infant''s interest is safeguarded, for the Court may dismiss the action if the contract is not fair to him - vide ''Ashbery v. Mitchell'', 121 Va. 276; ''Guy v. Hansow, 86 Kan 933.

It would appear from the above that in America specific performance of a contract entered into by a guardian on behalf of the minor is allowed as there is mutuality in a contract made by a guardian; and the objection of mutuality is confined to contracts entered into by the minor himself; and even in this case if the minor wants to enforce a contract specifically on attaining of majority, he is allowed to do so on the ground that because of attainment of majority the objection of lack of mutuality is removed and as the adult can specifically enforce the contract against the minor he will not be subjected to injustice if compelled to perform. I may note in passing that in ''MIR SARWARJAN''S CASE'', 39 Ind App 1 PC, their Lordships of the Privy Council refused specific performance even though the minor had attained majority and was suing for specific performance after attaining majority.

The '' AIR 1948 95 (Privy Council) as well as almost all the cases in which specific performance has been decreed, are cases of sale of minor''s property by the guardian; the question is, whether in view of the fact that ''MIR SARWARJAN''S. CASE'', 39 Ind App IPC was a case of purchase of immovable property by the guardian, there should be any difference between the two categories of cases. I am of opinion that there should not be any difference; for, as pointed out by the learned Judge, Mr. Viswanatha Sastri, in the arguments before the Board in ''SUBRAMANAYAM CASE'', reference had been made to the Indian decisions where specific performance had been refused of a guardian''s contract on the ground of want of mutuality in suits by or against the minor; yet, their Lordships upheld the contention that a guardian''s contract was specifically enforceable if the contract was beneficial to the minor. Mr. Justice Viswanatha Sastri, though he utterly dislikes ''MIR SARWARJAN''S CASE'', yet has remarked that as the ''SUBRAMANYAM CASE'', as well as the case before him, were cases of sale of immovable property of minor by a guardian and, as ''MIR SARWARJAN''S CASE'', was a case of purchase of immovable property, the doctrine of the latter case ''need not'' be extended to the former class of cases. I understand that this remark of his Lordship was due to the fact that as the case before him was not that of purchase of immovable property it would be mere ''Obiter Dicta'' if he extended the principle to a case of purchase as well, otherwise, when he has taken the distinction between contracts by a minor and contracts by a guardian and when he has expressed his strong disapproval of the doctrine of mutuality as understood in many an Indian decision, it cannot be said that he was not prepared to extend the principle to the case of purchase of immovable property by a guardian. However this may be, the point that I want to make is that in the ''SUBRAMANYAM CASE'', their Lordships of the Privy Council have approved the passage of Pollock and Mulla quoted in para 5(9) of this judgment, in which the law has been laid down in broad terms without any limitation to contracts of sale; for the sake of lucidity I will quote one or two lines from this passage.

The contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it and further if it is for the benefit of the minor.

As already stated, it is evident that there is no limitation here to contracts of sale. Therefore,

I am of opinion that, all contracts whether of sale or of purchase of immovable property by the guardian come within the purview of this general statement of law which has received the express approval of their Lordships of the Privy Council. In principle also, there can be no such distinction as has been observed by Das and other Judges in many a case cited in this judgment, the principle being that the interest of the minor should be paramount. There is also this further consideration that here we are dealing with specific performance and the granting of a specific performance can always be through the Court and it is a matter of discretion with the Court. If a given contract off the purchase of immovable property is not for the benefit of the minor, the Court can always refuse specific performance and, therefore, there is no fear of injustice to the minor. For all these reasons, I am of opinion that there cannot be any distinction between the contract for sale and purchase of immoveable property by the guardian. The two conditions laid down by their Lordships of the Privy Council are of the competence of the guardian and the benefit of the minor. I have shown in paragraph 6 that the question of personal covenants of a guardian not binding the minor cannot be too strongly stressed as their Lordships of the Privy Council themselves have held that personal covenants of a guardian bind the minor, for instance, in accepting the payment of an enhanced rent or the acknowledgment of a debt or for putting an end to a prolonged litigation and so on. I repeat, therefore, that in principle there cannot be any distinction between the contracts of sale of immovable property and of purchase of immovable property regarding the enforcement of specific performance of a contract of a guardian for a minor.

The position then comes to this. A Muslim ''De Jure'' guardian, according to my reading of the Muslim Law, is empowered not only to dispose of minor''s property in case of necessity and to advance the interest of the minor, but is competent also to acquire property on his behalf if it is to the obvious advantage of the minor (vide the references to original texts in paragraph 6 above). Hence, in my opinion, there seems to be no bar in Muslim Law to uphold contracts for purchase of immovable property made by the guardian on behalf of a minor if they are to the obvious advantage of the minor. As a Muslim guardian is thus competent to contract on behalf of the minor, it is evident that, if in any given case both the conditions of competence of the guardian and the benefit of the minor stated in the passage from Pollock and Mulla quoted by their Lordships of the Privy Council with approval are fulfilled, then there is no bar to decreeing specific performance of a contract for the purchase of an immovable property by a Muslim guardian. It appears to me also that the first and foremost principle of guardianship is that the interest of the minor is paramount and should be attended to and it is hard to hold that if a contract for the purchase of immovable property is for the benefit of the minor, the minor cannot take advantage of the contract entered into on his behalf by his guardian. I have shown above also that in America the objection of mutuality does not apply to the contracts entered into by the guardians but is confined only to the contracts entered into by the minor himself. All these considerations impel me to hold that in a contract for sale or purchase of immovable property entered into by a ''De Jure'' guardian of a minor should be specifically enforced if they fulfil the two tests of the competency of the guardian and the benefit of the minor. It should be noted also that, as held in America, in a suit for specific performance by or against a minor on a contract of a guardian of a minor, the minor''s interest is safe-guarded, for the Court can always refuse specific performance if the contract is not fair to him. But I must also state that whatever the state of law might appear to be from a study of original Arabic books on Fikh, still there is the very clear pronouncement of their Lordships of the Privy Council in ''Mir Sarwarjan''s case'', 39 Ind App 1 PC, that it is not within the competence of a guardian of a Muslim minor to bind him by a personal covenant of the purchase of immovable property. As to this I am of opinion that we will have to read the case along with the AIR 1948 95 (Privy Council) also decided by their Lordships of the Privy Council; and as in that case their Lordships have stated the law on this question in broad terms and have upheld the contract in respect of immovable property entered into by a guardian on its fulfilling the two tests of competency of the guardian and the benefit of the minor, we should also follow these tests only. Hence I will answer the question referred to us which is as follows:

Whether a minor who has agreed to purchase property through his guardian can bring a suit for the specific performance of the contract?

in the following manner, that the answer to the question will be in general ''No.''; but if the guardian is a ''De Jure'' guardian and competent to bind the minor by his contract, and the contract is for the obvious benefit of the minor, then ''Yes.'' The file may be sent back to the Division Bench with the above answer.

Siddiqi, J.: I agree.

Deshpande, J.: I had had the advantage of reading the judgment prepared by my learned brother Mir Siadatali Khan, J. He has collected all the cases on this point and has decided that if the guardian is a ''De jure'' and competent to bind the minor by his contract and the contract is for the obvious benefit of the minor then the minor can bring a suit for the specific performance of the contract for the purchase of the property. He has mainly relied upon the Privy Council ruling in AIR 1948 95 (Privy Council) .

The question that is referred to us is as follows:

Whether the minor who has agreed to purchase the property through his guardian can bring a suit for the specific performance of the contract.

It has been conclusively proved by their Lordships of the Privy Council in the leading case of ''Mohori Bibi v. Dharmodas Ghose'', 30 Ind App 114 PC, that a minor has not the capacity to contract, no matter whether the contract is for the benefit of the minor or not. In our High Court, there being a difference of opinion between two Full Bench decisions as regards this matter, the question was referred to the Special Bench of 5 Judges in the case of ''Bhagwan v. Shaik Hussain'', 39 Deccan L R 110, and it was held that a minor cannot make a valid enforceable contract irrespective of the fact whether the contract was completed or executed and was to the advantage or the benefit of the minor or not.

16a. In view of these decisions the next question that is to be decided is whether a contract entered into by a guardian of the minor is enforceable by a suit for specific performance of the contract. The leading case on this question is the case of ''Mir Sarwarjan v. Fakhruddin Mohammad'', 39 Cal 232 PC. In this case their Lordships of the Privy Council held that:

It is not within the competence of a manager of the 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 & 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 specific performance of the contract.

Before the pronouncement of the Privy Council in this case, as there was no express reference to the rule of mutuality in the provisions of the Specific Relief Act, it was supposed that the rule had no application to India. (See ''Sri Krishnaswamy v. Sundaramayyar'', 18 Mad 415 and ''Kairunnissa Bibi v. Lokenath Pal'', 27 Cal 276.) But since the decision of the Privy Council mentioned above it was settled law that the doctrine of mutuality applies to India. This case was followed in several cases viz., ''Narayan Rao v. Venkatsubba Rao'', 38 Mad L J 77; ''Ramakrishna Reddiar v. Chidambara Swamigal'', 54 Mad L J 412; ''Venkatachalam Pillay v. Sethu Rama Rao'', 56 Mad 433; ''Singari Mudali v. Ibrahim Beg'', (1946) 2 Mad L J 103. The results of these and the other decisions are stated in Mayne''s Hindu Law (eleventh edition) paragraph 236 as follows:

It is not within the competence of a manager of a minor''s estate or of a guardian of a minor to bind the minor or the minor''s estate by a contract for the purchase or for the sale of immovable property; and as the minor is not bound by the contract, there is no mutuality and the minor cannot obtain specific performance of the contract. Nor is he liable to return a sum of money paid to his guardian as earnest money in respect of a contract of sale of immovable property since the amount can only be treated as having been paid as security for the performance of a contract which in law is no contract at all.

There are cases in which different view has also been taken, which have been discussed in the judgment of my learned brother Dr. Siadatali Khan, J. I need not refer and discuss them again.

The last case to which reference can be made is the case of AIR 1948 95 (Privy Council) In this Privy Council case mother, as the guardian of the minor son, entered into an agreement for the sale of minor''s land. The intended transferee was put in possession in pursuance to the contract. The minor, however, sued by his next friend for the recovery of the possession of the property. The defendant, vendee, relied upon the doctrine of Part Performance embodied in Section 53A of the Transfer of Property Act. The Madras High Court held that Section 53A cannot be invoked by the defendant as the minor plaintiff was not the transferor as contemplated by that section. This decision was reversed by the Privy Council referring to the power of the guardian to enter into the contract of sale. Their Lordships of the Privy Council observed:

Their Lordships entertained no doubt that it was within the powers of the mother as guardian to enter into the contract of sale of 29th November, 1935, on behalf of the respondent for the purpose of discharging his father''s debt, and that, if the sale had been completed by the execution and registration of a deed of sale, the respondent would have been bound under the Hindu Law.

The conclusion of their Lordships is thus formulated:

It would appear, therefore, that the contract in the present case was binding upon the respondent from the time when it was executed. If the sale had been completed by transfer, the transfer would have been a transfer of property of which the respondent, and not his mother was the owner. If an action had been brought for specific performance of the contract, it would have been brought by or against the respondent and not by or against his mother.

It may also be noticed that their Lordships expressly referred to and approved the passage in Pollock and Mulla''s ''Commentary on the Indian Contract and Specific Relief Acts'', 7th Edn., page 70, where the learned authors observed that in the case of a contract entered into on behalf of a minor by his guardian,

the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it and, further, it is for the benefit of the minor. But if either of these two conditions is wanting the contract cannot be specifically enforced at all.

That the first of these conditions is wanting in the case of a contract by the guardian for the purchase of immovable property on behalf of the minor is perfectly clear from ''MIR SARWARJAN''S CASE'', 39 Cal 232 PC. That neither of the two conditions need be wanting when the contract is for the sale of the minor''s immovable property is equally clear from the above decision of the Privy Council, viz., AIR 1948 95 (Privy Council) A contract for the purchase of immovable property can rarely be demonstrably for the benefit of the minor''s estate or for legal necessity. The same cannot be said for the sale of the minor''s property. This is a basis for drawing a distinction between the contract for the purchase of property and the contract for sale entered into on behalf of the minor.

This view has been supported by Vishwanath Shastry, J., in the case of ''Ramlingam Reddy v. Babanambal Ammal'', (1950) 2 Mad L J 597. At page 600 his Lordship observed that:

The present case is not however a case'' of contract for the purchase of immoveable property on behalf of the minor by his guardian. It was with reference to such a contract that Judicial Committee held that a guardian had no power to bind the minor and minor was not entitled to specific performance of the contract in ''Sarwarjan v. Fakhruddin Mohammad'', 39 Cal 232 P. C. Assuming that this decision survives to-day in full force, there is no necessity to extend the principle of this decision to contracts for sale of ward''s property by his guardian. It is obvious that the question which is vital to sales by a guardian, namely, necessity, cannot arise in a contract for the purchase, not for the sale of immoveable property.

I fully agree with the opinion of my learned brother Dr. Siadatali Khan, J., that in view of the judgment of their Lordships of the Privy Council in AIR 1948 95 (Privy Council) and to all other cases referred to by him in his judgment, the suit for the specific performance can be instituted in case the contract is for the sale of the property of the minor by a guardian, if it is within the competence of the manager of a minor''s estate or within the competence of the guardian of a minor to bind the minor or a minor''s estate by the contract. But so far as the purchase of the immoveable property is concerned the same rule cannot apply as it cannot be held that it is within the competence of the manager of the minor''s estate or within the competence of a guardian of a minor to bind a minor or minor''s estate by a contract. Therefore, in my opinion, so far as the question of purchase is concerned, which is the specific question referred to us, the law as laid down by their Lordships of the Privy Council in ''Sarwarjan v. Fakhruddin Mohammad'', 39 Cal 232 PC stands and there cannot be a suit for specific performance of the contract when the contract is for the purchase of immoveable property by a guardian of a minor. Therefore, I differ in this respect with the learned opinion of my brother and I hold that the question referred to the Full Bench should be answered in the negative.