Biswanath Charit vs Damodar Patra

Chittatosh Mookerjee, J.—The Plaintiff Respondents brought a suit, inter alia, for specific performance of an agreement to convey the suit properties and for permanent injunction. The trial Court decreed the said suit. The present Appellant, who was the Defendant No. 8, being aggrieved by the said decision preferred an appeal in the lower appellate Court. The learned Subordinate Judge, Third Court, Howrah, dismissed the said appeal and affirmed the decision of the learned Munsif. The suit property originally and admittedly belonged to late Sital Chandra Roy, the predecessor-in-interest of the Defendants Nos. 1 to 7.

On December 1, 1960, the Defendant No. 1 for self and as natural guardian of the Defendants Nos. 2 to 7 entered into an agreement with the Plaintiff for sale of the suit properties for a total consideration of Rs. 1,275. A part payment of Rs. 500 was made along with the execution of the said agreement. It was stipulated in the said agreement that the Defendant No. 1 would obtain a certificate from the Court for permission to sell the properties on behalf of the minor vendors (vide Ex. 1). On December 30, 1960; the Plaintiff executed a Kabuliyat taking settlement of the suit properties from Paush 1, 1367 B.S. to Paush 1, 1370 B.S. (Ex. 2). In the meantime, the Defendant No. 8 (the present Appellant) filed T.S. No. 578 of 1960 against the Defendants Nos. 1 to 7 for recovery of the possession of the suit properties alleging that they were bharatias under him and that such settlement had been lawfully determined. On February 15, 1961, a solenama was filed in T.S. No. 578 of 1960. It was provided that the suit brought by the present Appellant should be decreed and the Defendants Nos. 1 to 7, was giving up all their interest and possession in his favour. It was also stated that the Appellant had paid ex gratia payment of Rs. 800 to the Defendants Nos. 1 to 7 (vide Ex. A). On March 6, 1961, the said T.S. No. 578 of 1960 was decreed in terms of the said solenama. On April 5, 1961, the Plaintiff brought the aforesaid suit, inter alia, for specific performance of the agreement dated December 1, 1960, (Ex. 1) the present Appellant was joined as Defendant No. 3.

Both the trial Court and the lower appellate Court have concurrently found that the Defendant No. 1 had entered into the said agreement for sale (Ex. 1) with the Plaintiff. The Defendants Nos. 1 to 7 had filed a written statement. But they did not thereafter contest the suit. Therefore, the evidence adduced by the Plaintiff that the said agreement was for legal necessity of the minors and for their benefit remained un-controverted. Both the trial Court and the lower appellate Court have believed the said evidence and have found that the transaction was valid as it was for the benefit of the minors. Although the lower appellate Court had observed that it was not necessary to consider whether the Defendants Nos. 1 to 7 had entered into a valid contract with the Plaintiff for selling the disputed property still it went into the matter and upon consideration of the evidence agreed with the finding of the learned Munsif that the contract was valid. Therefore, the Appellant before me cannot take any exception to the observation of the learned Subordinate Judge that the Defendant No. 8 cannot argue that the bainapatrawzs not valid or that it was not executed by the Defendant No. 1.

The trial Court and the lower appellate Court have found that since the execution of the kabuliyat (Ex. ''2) the Plaintiff remained in possession of the suit property. Mr. Banerjee, the learned Advocate for the Appellant, has not challenged the said concurrent finding about the possession of the suit property. According to, the trial Court, the solenama (Ex. A) in T.S. No. 578 of 1960 was a suspicious one. It has been also concurrently found that the Defendant No. 8 was not a bona fide transferee for value without notice of the rights of the Plaintiffs. There is also force in the contention of Mr. Mukherjee, the learned Advocate for the Respondents, that the Defendant No. 8 cannot be considered at all as a transferee. By the solenama decree the suit brought by the Defendant No. 8 was decreed on the footing that the Defendants Nos. 1 to 7 were his bharalias and that they purported to give up the suit property in favour of the Defendant No. 8.

Mr. Banerjee has, however, submitted that the Plaintiff Respondents cannot get any decree for specific performance as the said agreement for sale (Ex. 1) so far as the Defendants Nos. 2 to 7 were concerned as they were minors. Mr. Banerjee has submitted that the learned Subordinate Judge has not properly considered the effect of Section 8 of the Hindu Minority and Guardianship Act, 1956. According to Mr. Banerjee, the law relating to the powers of natural guardian under Hindu law has been changed and the decision of the Judicial Committee of the Privy Council in AIR 1948 95 (Privy Council) can no longer apply.

In AIR 1948 95 (Privy Council) the facts were shortly as follows. Prior to his death the Respondent''s father had incurred certain debts owing to the Appellants secured by two promissory notes and also a mortgage debt in favour of one Ramayya. By an agreement the mother of the Respondent, who was a minor, as his guardian contracted to sell the lands in suit to the Appellants. The purchase price was to be applied in discharging the said promissory notes and the mortgage debt. The Appellants having paid of the mortgage were let into possession of the lands contracted to be sold. But no sale deed was executed. The Respondent had brought a suit through his mother claiming possession of the lands contracted to be sold. The Privy Council observed that as the sale was not completed the appeal was bound to fail unless the vendees who were Appellants were entitled to protection u/s 53A of the Transfer of Property Act. The Judicial Committee was of the opinion that the Plaintiff Respondents although he was a minor aptly answered the description of the ''transferor'' in the sense in which these words are used u/s 53A. Therefore, he was debarred from obtaining the relief claimed by him in the present action. The Judicial Committee quoted with approval a passage from Pollock and Mulla''s Indian Contract and Specific Relief Acts (7th ed., p. 70). The Privy Council was of. the opinion that the contract was binding upon the Respondent.

In view of the aforesaid pronouncement of the Privy Council in Subamanyam v. Subba Rao L.R. (1948) 75 I.A. 115 : AIR 1948 PC 95 it can no longer be. argued that under'' the law as it stood prior under enactment of the Hindu Minority and Guardianship Act, the contract entered into by the Defendant No. 1 on behalf of her minor children would not be within her'' competence and binding also upon the said minors.

The Hindu Minority and Guardianship Act, 1956, was enacted for amending and codifying certain parts of the law relating to minority and guardianship among the Hindus. u/s 5 the said Act has been given overriding effect so far as any matter for which the provisions have been made in the Act. Section 8 of the Hindu Minority and Guardianship Act which defines the power of a natural guardian is in pari materia with Sections 27 and 29 of the Guardians and Wards Act, 1890. Under Sub-section (1) of Section 8 of the Hindu Minority and Guardianship Act the natural guardian of a Hindu minor has the power subject to the provisions of the section to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation and protection or benefit of the minor''s estate, but the guardian can in no case bind the minor by a personal covenant. u/s 8(2) of the Act a natural guardian cannot without previous permission of the Court mortgage or charge or transfer by sale, gift, exchange or otherwise any part of the immovable property of the minor. The natural guardian also without the previous permission of the Court cannot lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority. Sub-section (3) of Section 8 lays down that any disposal of immovable property by a natural guardian in contravention of Sub-section (1) or Sub-section (2) is voidable at the instance of the minor or any person claiming under him.

Mr. Mukherjee, the learned Advocate for the Respondents, has drawn my attention to the recent decision of Salil Kumar Datta J. in Radheshyam Kamila Vs. Sm. Kiran Bala Dasi and Others, . His Lordships held that a suit brought by minors for specific performance of an agreement to recovery an immovable property was enforceable in law. It was held that the previous decision of the Privy Council in Mir Sarwarjan v. Fakruddin (1911) 16 C.W.N. 74 (P.C.) had been over-ruled by the subsequent Privy Council decision in Subramanyam v. Subba Rao L.R. (1948) 75 I.A. 115 : AIR 1948 PC 95 . In para 14 of his judgment S. K. Datta J. has stated that u/s 8(2) of the Hindu Minority and Guardianship Act no permission of the Court is necessary for the purchase of the property for the minor and there seems to be no restriction in the power of guardian except about the transfers as provided in Sub-section (2) if such acts of the guardian is necessary, reasonable or proper for his benefit unless such acts bind the minor personally or imposes a personal liability on him.

I may mention that possibly due to a typographical error it has been stated in Radhashyam Kamila v. Khan Bala (Supra) that the Specific Relief Act, 1963, came into force on December. 18, 1963 (47 of 1963), was published in the Official Gazette of India, extra-ordinary pt. II, dated December 16, 1963. But under Sub-section (3) of Section 1 the Act was to come into force on such date as the Central Government may by notification in the Official Gazette appoint. The Act came into force on March 1, 1964, (vide notification No. S.O. 189, dated January 13, 1964, published in the Gazette of India dated January 8, 1964, pt. II, Section 3(2) p. 214).

The aforesaid decision in Radhashyam v. Khan Bala (Supra) is binding upon me and, therefore, I hold that the Defendant No. 1 had power to enter into the agreement for sale (Ex. 1).

In the instant case, the Defendant No. 1 enforced into the agreement (Ex. 1) for self and on behalf of her minor children for conveying the said property to the Plaintiff. The said agreement for sale did not create in favour of the Plaintiff any interest in the property agreed to be conveyed to him. But at the same time the said agreement cannot be called a purely personal covenant in the sense of an agreement of warranty or indemnity or personal undertaking to repay money. Because the said agreement (Ex. 1) was for transfer of an immoveable property.

In my opinion, such an agreement was within the scope of Sub-section (3) of Section 8. The term ''disposal'' in Sub-section (3) has been used in a very wide sense. In ''words and phrases legally delined'' (2nd ed., vol. II, pp. 86-87), inter alia, the following meaning of the term disposal has been given under certain statutes, the word ''disposal'' in relation to goods includes the disposal of ownership of the goods or out any proprietory interest in them or of the right to possession of the goods. The disposal of the possession of the goods whether or not accompanied by any disposal of the ownership of the goods or of any proprietory interest in them, or of the right to possession of them.

When Sub-section (3) of Section 8 mentions that disposal of immoveable property by a natural guardian in contravention of Sub-section (1) or (2) is voidable at the instance of the minor or any person claiming under him it covers not only the transactions enumerated in Sub-section (2) but also an agreement to sell the minor''s property. Accordingly, the agreement for sale (Ex. 1) was not totally void but it was merely voidable at the instance of the minors concerned or any person claiming under them. The Courts below have found that the said agreement was valid. Therefore, the suit has been rightly decreed in favour of the Plaintiffs Respondents.

Mr. Banerjee, the learned Advocate for the Appellant, has lastly argued that the contract of sale between the Plaintiff and the Defendants Nos. 1 to 7 was a contingent one. The bainapatra (Ex. 1) mentioned that the transaction would be completed after obtaining the certificate from the Court for sale of the property on behalf of the minor vendors* The said consent was not obtained. Therefore, the Court ought not to pass a decree of specific performance of the said contract of sale which Mr. Banerjee described as a contingent one. Mr. Banerjee has also argued that the Court ought not to grant a discretionary relief of specific performance of an agreement to sale which would be in any event a voidable one u/s 8(3) of the Hindu Minority and Guardianship Act.

Upon a perusal of the bainapatra (Ex. 1) I am unable to accept the contention that the stipulation regarding obtaining the guardianship certificate in respect of the minor vendors was a condition precedent to the proposed sale. The term was as follows:

No doubt the guardian on behalf of the minors had stated that she would execute and register the sale deed after obtaining the guardianship certificate for the minors. But the same did not mean that the agreement for sale was subject to the approval of the Court. In case no permission was obtained prior to the execution of the sale deed then the position would be that Section 8(3) of the Hindu Minority and Guardianship Act would be attracted.

In the instant case, the Defendant No. 1 in fact made an application before the learned District Judge, Howrah, for appointing her as the guardian to the minors u/s 7 of the Guardians and Wards Act, 1890, (vide Ex. 12). In the said application it was, inter alia, stated that Kamala Bala was the natural guardian of the minors and the certificate was necessary for selling some properties of the minors in order to defray the minor''s maintenance and education. Presumably the said application was not proceeded with and Kamala Bala was not appointed as a guardian u/s 7 of the Guardians and Wards Act. But Kamala Bala, who was the mother of the minors, was admittedly the natural guardian of the said minors (vide Section 6 of the Hindu Minority and Guardianship Act). Therefore, her power of alienation of the property of the minors would be governed by Section 8 of the Hindu Minority and Guardianship Act. In the instant case, the Defendants Nos. 1 to 7 alter filing a written statement did not contest the suit and they did not raise the point that the said agreement for sale was not for legal necessity or that the agreement was not binding upon them.

I have already stated that the Defendant No. 8 entered into a solenama with Kamala Bala and other Defendants in T.S. No. 78 of 1960 (vide Ex. A) under first para, of the said solenama the title of the present Defendant No. 8 was admitted and it was agreed that the suit brought by him should be decreed against the present Defendants Nos. 1 to 7. The Defendants Nos. 1 to 7 purported to deliver khas possession in favour of the present Defendant No. 8. But it cannot be said that thereby there was any surrender of the tenancy of the, Defendants Nos. 1 to 7 because the effect of the said solenama was that the present Defendants Nos. 1 to 7 consented to the passing of a decree in the said suit in favour of the present Defendant No. 8 and they also delivered possession of the said suit property. Therefore, Mr. Mukherjee, the learned Advocate for the Respondent, has rightly submitted that the Defendant No. 8 cannot be described as a person claiming under the Defendants Nos. 1 to 7 and the disposal of the immovable property by the Defendant No. 1 on behalf of her minor children cannot be declared void at his instance.

The decision of this Court in Narain Paltro v. Amkhoy Narain Manna ILR (1885) Cal. 152 is clearly distinguishable. In the said case the mother had been appointed as the guardian under Act XL of 1858 and, therefore, she had no power to sell the property of the minors without the consent of the Court being obtained. It appears that from the judgment in Narain Patlro v. Aiikhoy Narain the said fact was recognised in the agreement and the contract to sell was made subject to the consent of the Court being obtained. The Court had in fact sanctioned the sale of the property in question but at a price higher than mentioned in the Shullanamah. The guardian of the minors had sold the property to another person. A. Division Bench of this Court held upon a construction of the terms of the agreement in the said case that the contract was not a completed contract at any time and that it was contingent upon the permission of the Court. Accordingly, the Shuttanamah could not be enforced as it is stood. Thus'' the said case of Narain v. Aukhoy I.L.R.(1885) Cal. 152 is clearly distinguishable on facts.

The decision of the Privy Council in Dalsukh M. Pancholi v. The Guarantee Life and Employment Insurance Company (1947) 52 C.W.N. 472 (P.C.) is also distinguishable on facts. In the said case the vendee had accepted an offer for sale of certain properties which were already under attachment in the following terms: "I-accept this offer and confirm the bargain subject to Court''s approval." Ultimately the Court had refused to grant permission under Order XXI, Rule 83, Code of Civil Procedure. In these circumstances, the Privy Council held that the contract was contingent upon the Court''s approval and the application for approval having been rejected the contract failed.

Mr. Mukherjee the learned Advocate for the Respondent, has placed the decision of the Supreme Court in Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and Others, . In the said case the agreement for sale of a house property situated at New Delhi provided that the vendors should obtain permission of the Chief Commissioner to the transaction of sale within the two months of the agreement and if the said permission was not forthcoming within'' that time it would be open to the purchasers to -extend the date or to treat the agreement as cancelled. The Supreme Court dismissed an appeal preferred by the Defendant in a suit for specific performance of the said contract holding, inter alia, that so far as the parties were concerned they had found themselves by the terms of the document executed between them. The Defendant vendor under the terms was to make the necessary application for permission to the Chief Commissioner. She had as a matter of fact made such an application but for reasons of her own decided to withdraw the same. Therefore, the Court must enforce the terms of the contract which enjoined upon the Defendants to make necessary application to the Chief Commissioner. The Supreme Court, further, observed that the High Court should have further directed the Defendant to make necessary application for permission to the Chief Commissioner which was implied in the contract between the parties. In the event the sanction being refused the Plaintiffs shall be entitled to damage.

Therefore, the question whether a particular clause for obtaining permission from Court or any other authority is a condition precedent or not is essentially one of fact depending on the terms of a particular contract. In the instant case, I have held that the provision in the bainapatra to the effect that Kamala Bala would apply for guardianship certificate was not a condition precedent and the agreement was not a contingent one.

Both the trial Court and the lower appellate Court have exercised their discretion by decreeing the suit for specific performance in favour of the Plaintiffs Respondents. The Courts of fact have given cogent, reasons for the exercise of the said discretion. Therefore, sitting in the second appeal I am not prepared to say that the discretion exercised by the Courts of fact by directing the Defendants Nos. 1 and 7 to specifically perform the agreement for sale was arbitrary or capricious, and I cannot interfere with the decree made in favour of the Plaintiff Respondent.

The application for additional evidence has not been pressed and, accordingly, it is dismissed without costs.

I, accordingly, dismiss this appeal with costs.

Leave under Clause 15 of the Letters Patent is prayed for and it is granted.