Brahamdeo Sao vs Haro Singh and others

Wort, J.—This is an appeal from the decision of the Subordinate Judge of Gaya who decreed an action for specific performance against the original vendor and the subsequent purchaser who were defendants in the action. Those are the only facts which it is necessary to mention in order to appreciate the points which have been argued in this appeal. There were live points raised, but three of them are not seriously pressed and, indeed if they were, it would be sufficient for me to say that there was no substance in them. But the first two points argued are both interesting and of some difficulty.

The first question is whether specific performance can in any event be got against the first defendant as he was a minor at the time the contract was entered into in his behalf by his natural guardian. It is not seriously disputed in the first instance that the contract was for legal necessity, and it is on that ground that Mr. Baldeo Sahay on behalf of the appellants desired to some extent to distinguish the case from the leading authorities ON the point. It is necessary to mention this point as regards defendant 1, because at one time during the course of the argument it was contended that whether the contract was enforceable against the minor or not it is now enforceable against the subsequent purchaser with notice, who is now in possession. But I do not think that that argument can he supported. The same point was raised and in the same ''form and in the case of Abdul Haq v. Mohammad Yehia Khan 1924 Pat 81 = 78 IC 483 where Das, J., as he then was, deals with the question in these words:

The operation of S. 27 (b). Specific Relief Act, is confined to cases where the contracts are in the first instance enforceable as against the parties to the contract.

With that view of the law I agree. In other words, it is by statute that you can bring in the subsequent purchaser, land that his liability depends in the first instance upon the validity of the contract of which it is alleged he had notice, and which notice it is necessary to prove in order to establish his liability. But although I am in favour of that branch of the argument, there still remains the question of whether a contract for sale of land is enforceable against a minor. 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 ease of Hunooman persaud Panday v. Mt. (sic) Munraj Koonweres, (1854-57) 6 M I A 393 = 18 W R 81n = 2 Suther 29 = 1 Sar 552 (P C) 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 his estate or for legal necessity is enforceable.

Now the leading case with regard to the matter is that of Mir Sarwarjan v. Fakhruddin Mahomed, 1912) 39 Cal 232 = 13 I C 331 = 39 I A 1 (P C). This was a case of purchase of a certain immovable property by a guardian on behalf of the minor, and Lord Macnaghten delivering the opinion of their Lordships of the Judicial Committee dealt with the matter in one broad statement. He said referring to their Lordships of the Privy Council:

They are however of opinion that it is not within the competence of a manager of a minor''s estate or within the competence of a guardian of a minor to bind the minor or the minor''s estate by a contract for the prophase of immovable property.

It is said on the one hand that their Lordships'' opinion thus expressed must be confined to those cases to which it particularly refers that is to say, to a contract for the purchase of property. If I may say so with respect, the proposition as laid down by Lord Macnaghten can be readily understood, if for no other reason, for the reason that it would be difficult to show that a contract for the purchase of property would he for the benefit of the estate or for legal necessity. But in Shaikh Abdul Haq''s case reported in Abdul Haq v. Mohammad Yehia Khan 1924 Pat 81 = 78 IC 483 Das, J., held that there was no distinction between a contract for sale and a contract for purchase. Had Foster, J., who was a party to that case decided the case on the same grounds and for the same reasons as those expressed by Das, J., this point so far as I am concerned would be concluded. But the fact is that Faster, j., expressed his own views with regard to the case in general and came to his own conclusion as regards the fate of the appeal then before them, on entirely different grounds. Therefore the Expression of the opinion of Das, J., although it must be given great weight, is not binding on me and I am left to decide the question without the assistance of authority.

It comes to this. What is the distinction that is to be drawn and where there is the line of difference ? It cannot be said that all contracts by infants through guardians on their behalf were unenforceable for the reasons which I have just stated. In the Calcutta High Court in the case of Srinath Bhattacharyya v. Jotindra Mohan Chatterji, 1926 Cal 445 = 89 I C 892 Greaves, J., appears to hold the view that although a contract may in some instances be a valid contract, yet specific performance cannot be obtained where the defendant is a minor. I have therefore to decide incidentally the question of whether it is a more matter of the relief which determines the point or whether it is the validity of the contract using the word "validity" in the widest sense. On behalf of the appellants one of the cases relied upon was the case of Swarath Ram Ram Saran v. Ram Ballabh, 1925 All 595 = 89 I C 27 = 47 All 784 where it was decided that a guardian cannot enter into a contract creating a personal liability on the part of the infant. But that again does not support the appellants nor does it decide the point that comes up for consideration in this case for the reason that in that case there was no suggestion that the contract was in any sense binding upon the minor as being a contract for legal necessity. Now to state the position in the form of questions: Does the decision of their Lordships of the Privy Council in the leading case decide that no contract is enforceable against a minor, that is to say, a contract entered into by his guardian or by his manager; secondly, is there a distinction between contracts for sale or purchase of land and that of a conveyance? Answering the question it seems to me quite clear that there can be no distinction between a contract for sale or purchase of land and a conveyance. That cannot be a point of difference. A contract was not enforceable on the grounds stated by their Lordships of the Judicial Committee in the leading case, that is to say, on the ground of mutuality or the lack of mutuality. The mere fact that a conveyance had been given and the transaction completed would in my judgment make no difference. If mutuality did not exist at the time of the negotiation it must be said that it never existed. It leads me therefore to the conclusion that we cannot distinguish the case on the ground that it was a case of a contract for sale of property in contradistinction to a conveyance.

That being so, it is clear that we must look for an explanation of the leading case in some other direction. I have already said, and perhaps it is unnecessary for me to repeat the general proposition that a contract entered into by the guardian or manager under such circumstances as stated in Hunoomanpersaud Panday''s case is bindidg and that seems to me to give the key to the solution or the matter. 1 cannot agree that the contract is not enforceable solely because the form of relief that is to say, specific performance cannot be had as against the minor. It seems to me that the distinction is between a contract which is for legal necessity and one that is not. In this connection I should have referred to the leading case on the question of contracts of minors, Mohori Bibee v. Dharmodas Ghose, (1903) 30 Cal 539 = 30 I A 114 = 8 Sar 374 (P C), where the question of whether a minor''s contracts were merely void or voidable was, after a great conflict of decisions in India, finally set at rest in favour of the proposition that the contract of a minor is void. Now I mention that proposition in order to indicate what appears to lie at the root of the decision of the Privy Council and it cannot be the question, whether the contract of a minor was void or voidable merely. Mohori Bibee v. Dharmodas Ghose, (1903) 30 Cal 539 = 30 I A 114 = 8 Sar 374 (P C) was a case where there was no question of a manager or a guardian entering into a contract for sale or purchase of land for legal necessity; it was the minor purporting to act though his attorney. It was decided that by reason of the Contract Act�S. 11; and having regard to the provisions of S. 7, T.P. Act such a contract was void. If the contract of an infant was void and the contract entered into by a guardian or manager in his behalf was also void, it seems to mo the decision in Mir Sarwarjan v. Fakhruddin Mahomed, 1912) 39 Cal 232 = 13 I C 331 = 39 I A 1 (P C) would have been expressed differently. But I wish again to repeat what I said in the earlier part of my judgment that Lord Macnaghten confined himself to the observation that it was not within the competence of the manager or guardian of a minor to enter into a contract for purchase of immovable property, thus indicating that it was not a question of whether the contract was void or voidable and in that sense there was question of mutuality or of whether the contract lacked mutuality on some other ground.

There has been, as it will appear from the observation which I have already made, a very wide conflict of authority in India with regard to the matter, and one of the latest cases is that of Ram Chandra v. Mt. Dla_o, 1934 All 68 where the learned Judge points out that in his view some of the Courts in India misunderstood the leading case to which 1 have made repeated reference and comes to the conclusion that a contract for legal necessary can be enforced. Having regard to the various considerations in this case, the question that I have to determine is whether this being a contract for sale of immovable property which was for legal necessity could be specifically performed. As I have already pointed out, the first question to be determined is whether, to quote Lord Macnaghten, there was mutuality. It is a matter as I say of considerable difficulty; but I hold the view that the real question that lies at the root of the matter, is whether the contract has been entered into by the guardian or manager in the circumstances which would establish legal necessity, and, as in this case it is not denied, the fact being quite clear from the record of the case that legal necessity existed, it seems to me that the only conclusion which I can arrive at is that on the first point the appellants fail and that the answer to the question whether the contract could he specifically performed must be in the affirmative.

But there remains another question, and that is the question whether the contract could he used in evidence by reason of nonregistration. This matter again is not without difficulty and arises by reason of some of the decisions relating to the point, the Substance of the point being whether the explanation to S. 17 salves this document from the operation of the Registration Act, that is to say, whether the document can be used in evidence by the plaintiffs. The explanation to S. 17 is as follows:

A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.

In 1926 their Lordships of the Judicial Committee decided the case of Dayal Singh v. Indar Singh, 1926 P C 94 = 98 I C 508 = 53 I A 214 (PC). The contract there contained a receipt clause. Their Lordships pointed out that there was an Act other than the Registration Act to be reckoned which the Courts in India had forgotten. It is somewhat irrelevant to point out that their Lordships of the Privy Council made the mistake in that case in thinking that the Transfer of Property Act of 1882 applied to the particular province whence the case came. But that does not materially affect the matter, because whether the provisions of the Transfer of Property Act were rightly applied to the particular case before them or not, their decision with regard to a case from this province would certainly affect the matter They pointed out that under S. 56 (6) (b), T.P. Act, the fact that a receipt clause was included gave the purchaser a charge over the property and where there was a document from which a charge arose was registrable under the Registration Act and therefore came within the mischief of the Act, the document could not be used in evidence and therefore the case of the plaintiff had failed. Then came the explanation added by the legislature which I have read; then after that came the decision of their Lordships of the Privy Council in Skinner v. Skinner, 1929 P C 269 = 119 I C 633 = 56 I A 363 = 51 All 771 (PC) in which the explanation in S. 17, Registration Act, was entirely ignored and it was held that a document which upon a true construction is a sale deed purporting to transfer an interest in immovable property, is precluded by S. 49, Registration Act, 1908 from being admitted in evidence in a suit for specific performance. The explanation of that case seems to me to be one which has been accepted in some instances in the Indian High Courts. The document there was an out and out transfer or conveyance and therefore came within the mischief of S. 49. The view taken by some of the Courts is that the explanation added by the legislature has been ineffective and for this reason.

It is admitted in the first instance that that which creates a charge is registrable. Under the Transfer of Property Act, a charge may be created either by the document itself or by the operation of law; and under sub S. (6) of S. 55 a person who has not improperly declined to accept delivery of the property has a charge for the amount of any purchase money properly paid by him. Now in the events which have happened it is said in this case that as the purchase price or a part of it (this is a matter of indifference) has been paid by the purchaser, he has a charge by operation of law, that is to say, by S. 55 (6) (b). And whether there is any provision in the document itself to that effect or not, an interest in the property was created, although it might be a mere contract for sale and not a conveyance, and therefore came within S. 49, Registration Act, and the plaintiffs were not entitled to adduce the document in evidence. That seems to me to disregard the explanation of S. 17, and indeed I am asked to disregard it on the ground that the enactment of the legislature in this respect has no effect. Now one canon of construction of statutes is that an act or part of an act cannot be ignored or treated as being meaningless; it must be construed as having some operative result.

It is perfectly clear that the explanation was enacted for the purpose of disposing of the questions involved in Dayal Singh v. Indar Singh, 1926 P C 94 = 98 I C 508 = 53 I A 214 (PC), and, that being so, whatever may be my views as to the language used by the legislature, the only conclusion I can come to is that the explanation deals specifically with those cases before Dayal Singh v. Indar Singh, 1926 P C 94 = 98 I C 508 = 53 I A 214 (PC), which held that contracts did not come within S. 49. To put it in a sentence, prior to Dayal Singh v. Indar Singh, 1926 P C 94 = 98 I C 508 = 53 I A 214 (PC) contracts as distinguished from conveyances were held to create interest in land but not to come within S. 49. Dayal Singh v. Indar Singh, 1926 P C 94 = 98 I C 508 = 53 I A 214 (PC) has effectively disposed of those decisions by bringing in the operation of S. 55, T.P. Act. The legislature has now by the explanation placed the law in the position it was before the decision of their Lordships of the Judicial Committee and as the effect of providing that a receipt clause does not of itself bring the case within the statute. It is impossible sitting here as a Judged to hold that the explanation of S. 17 is; ineffective. The only conclusion therefore I can come to in the circumstances'' of the case is that the document being a contract for sale merely and not a conveyance, does not come within the mischief of S. 49, Registration Act, by reason of the fact that there is a receipt clause contained in the document. For these reasons it seems to me that the appeal succeeds and must be decreed with costs. As the point is a difficult one, I give the respondents leave to appeal under the Letters Patent.