Gangi Ammal vs Govinda Padayachi and Others

Venkatasubba Rao, J.—This suit was instituted for the purpose of recovering certain property after setting aside a sale deed. One Muruga

Padayachi executed a deed of sale on the 28th October, 1905 in favour of his sister''s grandson Boorasamy. Eleven years after this transaction

Muruga Padayachi''s widow seeks to set aside the sale on the ground that it was conditional upon the vendee fulfilling certain terms, that there was

default on his part and that consequently the sale was inoperative. It is said that one of the conditions was that the vendee should marry an infant

daughter of Murugan. Another condition is said to be that the vendee''s father should discharge certain debts binding upon the property. In regard

to the first condition, the District Judge has held that the marrying by Boorasamy of the daughter of Murugan was not a condition precedent, and

with this finding of fact I cannot interfere in Second Appeal. In regard to the second condition, the debts referred to are those covered by Exs. II

and A. So far as Ex. II is concerned, the lower appellate Court has arrived at the finding that it was fully discharged. Ex. II is a deed of mortgage,

and on it there is an endorsement by Govinda Padayachi the father of Booraswami, which shows that Rs. 392 were paid by him on the 9th April,

1906 towards the deed in question. The balance of the amount due under Ex. II was discharged by the execution of a hypothecation bond on the

1st August, 1913 by Booraswami himself, but it is argued that the discharge of the debt by the vendee is no compliance with the condition. I do not

sec how it can be said that, when there is payment of the debt and discharge of the mortgage, there has been no compliance. It was intended by

the vendor that the debts should be paid, and it would be strange to hold that it was not his desire that, if the debt was paid by the vendee himself,

the property should not become his absolute property. As regards the second debt, the District Judge has also held that the plaintiff has failed to

prove that the first defendant Govinda Padayachi had not paid Rs. 100 which was the amount which he was directed to pay by the sale deed.

Apart from these findings of fact, I think the conclusion of the District Judge is correct, namely that the term that the debts should be paid is not

a condition precedent to the vesting of the property in the vendee. The translation before me of the material portion seems to be inaccurate. The

correct rendering of the concluding part of Ex. I, the sale deed is; ''''The debts shall be discharged and the minor Booraswami may hold and enjoy

the undermentioned lands exclusively with power to alienate by way of gift, exchange, sale, etc. "" It is perfectly clear that the discharge of the debt

is not a condition precedent to the vesting of the property in Booraswami.

The last argument advanced by Mr. P. R. Ganapthay Iyer, the learned Vakil for the appellant, is that the sale deed was taken in the name of a

minor and that the transaction is therefore void. I must say in this connection that this contention was given up when the appeal was argued before

the learned Subordinate Judge who made the order of remand, and I do not think it is open to the appellant now to raise the point. No doubt this is

merely a question of law, and if for the purpose of advancing justice, it would be necessary to allow the appellant to raise afresh a question of law

in Second Appeal, I shall not have the slightest hesitation to permit him to do so, but, in this particular case, the object of the contention is to defeat

a just claim by a technicality, and I do not think I would be justified in allowing a contention of this kind to be put forward for the first time here

when it was expressly given up at .an earlier stage. However, in view of the long argument that was advanced by Mr, Ganapathi Iyer, I may state

what my view on this matter is.

In Navakoti Narayana Chetty v. Logalinga Chetty (1), it was held that a sale in favour of a minor was void, but the ground of the decision is

very clearly stated to be that it is impossible to conceive of a sale without there being a contract on the part of the minor. It is said that, if there is a

promise to pay a price, it would be invalid as the minor cannot make a contract in regard to the payment of price. If, on the other hand, money was

already due to the minor, the transaction is equally void as the minor''s consent to make it a price is essential to convert the mere transfer of

ownership into a sale. But the Judgment makes the mistake of assuming that these are the only two possible alternatives and a later case that came

up for decision, Munia v. Perumal ILR (1911) M 390 made clear this mistake. There the minor was not a contracting party and no contractual

obligations were undertaken by him; and the learned Judges, who decided that case, held that the sale in favour of the minor was not void. The

minor became the beneficial owner under the deed of purchase but he was not a party to the contract of sale. On that ground, the sale was upheld.

The observations in Navakoti Narayana Chetty v. Logalinga Chetty ILR (1909) M 312 : 1909 19 MLJ 752, as I pointed out, are too general, and

this is the view taken in a later Full Bench case, A.T. Raghava Chariar Vs. O.A. Srinivasa Raghava Chariar, . In the case before me, there is a

transfer in favour of the minor. He is not, however, a contracting party. On the other hand, it is his father who undertakes to discharge the

encumbrances and in these circumstances it is obvious that the sale cannot be treated as void. But Mr. Ganapathi Iyer seeks to distinguish the Full

Bench case on the ground that there the whole of the purchase money had been previously advanced but that in the present case the price was to

be paid on a future date. There is no force in this argument. The principle underlying Munia v. Perumal ILR (1911) M 390 is equally applicable to

the facts of this case. I therefore am of opinion that the sale in the present case is not invalid.

But then it is said that u/s 55 (5) (d) of the Transfer of Property Act, the buyer would be under an obligation to pay off monies due under

previous encumbrance that there should be deemed to exist an implied contract to pay the monies due under Exs. II and A and the minor being

incompetent to contract the sale is void. The stout answer is that, as a matter of fact, there is an express contract between the minor''s father and

the vendor to discharge the encumbrances and the question of implied contract does not arise.

Even apart from that, I do not think it can be said that the duty that is incumbent upon the buyer u/s 55 (5) (d) is a duty that arises from an

implied contract; it is a statutory obligation imposed on the vendee. A mere perusal of the various clauses and sub-clauses of Section 55 will reveal

the utter unsoundness of the argument that the section deals with implied contracts and both Sir John Wallis C. J. and Srinivasa lyengar, J., in A.T.

Raghava Chariar Vs. O.A. Srinivasa Raghava Chariar, expressed the opinion that the duties specified in the section are in the nature of statutory

obligations and with respect that seems to be the right view.

The appeal therefore fails and is dismissed with costs.