Movva Nageswara Rao and Another vs Mandava (Kotayya)

Srinivasa Ayyangar, J.—These two second appeals have arisen from a suit and a cross-suit relating to the same piece of land. Second

appeal No. 446 of 1925 is from a suit which was instituted for possession by the purchaser of property from a person who had become a major

after his majority. Second appeal No. 445 of 1925 is from a suit for specific performance of a contract for execution of a conveyance in respect of

the suit property on the ground that the contract for the sale thereof had been entered into on behalf of defendant 1 by defendant 2 as his guardian.

No question has been raised before us as regards the power of defendant 2 to act as guardian of the minor. The question has been considerably

narrowed down before us by the very fair manner in which both the learned gentlemen have stated the case and the point that arises for decision. It

is simply this: whether the guardian of a Hindu minor can enter into a contract on his behalf so as to bind the minor in such a manner as to be

capable of being specifically enforced against the minor. Having regard to the decisions in Waghela Rajsangi v. Sheikh Masludin [1887] 11 Bom.

551, and Mir Sarwarjan Fakhruddin v. Mahomed Chanduri [1912] 39 Cal. 232, it would appear that no such contract is capable of being

specifically enforced. The point, however, has been carefully considered in a decision of this Court in Ramkrishna v. Chidambara Swamigal AIR

1928 Mad. 407, to which decision one of us was a party and the correctness of that decision has not been canvassed before us. It follows from

this that the lower Courts were clearly wrong in granting specific performance against the minor and in the other case in refusing to the plaintiff a

decree for delivery of possession.

The only possible question that might have been raised and argued in the case is whether the matter could be regarded as different if, as in the

present case, there was not only a contract by the guardian to convey the property but, pursuant to the contract the guardian, by way of partly

performing the contract, had placed the other party in actual possession, But we believe that a satisfactory answer to this has been furnished by

Mr. S. Varadachariar, the learned vakil for the appellant. The doctrine of part- performance being an equitable doctrine could be held to apply

only to the person concerned, and if, as in this case the contract was not a contract of the plaintiff who is suing, it follows that the equitable

principle cannot be invoked as against him. In fact having regard to the decision above referred to in the1 letters patent appeal, Mr. Varadachariar,

the learned Counsel for the respondents, did not see his way to address us at any length except as to the question of costs. As regards this: having

regard to the circumstances of the case, and the comparative uncertainty of the law, we think the proper order to make is that the appellant shall

have his costs throughout in S. A. 445 of 1925 and the appeal and the original suit pertaining ''to it. There will be no order as to costs of either

party in S. A. 446 of 1925.

In the result both the appeals will be allowed and the suit from which S.A. 445 of 1925 has arisen will be dismissed with costs as aforesaid. As

regards O.S. 338 of 1919, on the file of the District Munsif''s Court of Avanigadda, there will be a decree for possession in favour of the plaintiff

as prayed for and for mesne profits to be determined later on by the Court of first instance. For the purpose of such ascertainment the case is

remanded to the said Court of first instance.