Narayanan Chetty and Others vs Muthiah Chettiar and Others

Ramesam, J.—Appeal No. 25 of 1917. This appeal arises out of a suit for specific performance of an agreement to sell. The Subordinate

Judge decreed the suit. The Defendants appeal.

Narayana Chetti, father of 4th defendant and his younger brother, Muthiah Chetti father of Defendants Nos. 1 to 3 were carrying on business at

Rangoon under the style of M.P.M. Rm. In the course of business one Veerappa Chettiar of the P.R.M. Firm became indebted to the firm to the

extent of Re. 3,000, but was unable to pay the debt. The 2nd Plaintiff advised the agent (Alagappa) of the Defendants through P.W. 6 of the

connected suit O.S. No. 90 of 1914 (examined on commission at Rangoon) to buy the suit site and that he (the 2nd Plaintiff) would ""take it off him

afterwards,"" so that Defendants'' firm who are not in need of the site need not lose interest (Vide Ex. G 2). The Defendants'' father purchased the

site for Rs. 5,000 the consideration consisting partly of cash and partly of the debt due by Veerappa (Ex. A). Before it could be reconveyed to

Plaintiffs it was found that out of Veerappa''s two brothers, while one attested the sale-deed, the other Murugappa Chetty was disputing the

validity of the sale. The Plaintiffs '' and Defendants'' father discussed the best method of satisfying him and ultimately (vide Ex. G 1), the Plaintiffs

paid Rs. 1,000 to buy him off and obtained a release deed Ex. D at Rangoon. Meanwhile before the payment and execution of Ex. D were known

to the parties, the Defendants'' father executed Ex. G in favour of plaintiffs. The document has been proved to be genuine. All the evidence oral

and documentary supports it. The Plaintiff''s agreed to pay Rs. 4,500 besides the Rs. 1,000 paid to Murugappa for executing Ex. D. They issued a

Hundi (Ex. B) and it was cashed (Exs. F and K). The incorrect date in Ex. Flan account book of the Defendants) cannot affect the Plaintiffs'' case.

Thus, the Plaintiffs have proved the suit agreement, the payment of consideration and that the transaction was beneficial to the defendants'' firm

who were anxious to part with the site to the Plaintiffs who, by offering to purchase, diminished the Defendants'' lose. Assuming that the proper

price of the site at the time was Rs. 5,000 the Defendants if they wanted to keep the site, would have had to pay Rs. 1.000 to Murugappa. The

plaintiffs by intervening and paying Rs. 5,500 (i.e., Rs. 1,000 to Murugappa and Rs. 4,500 to the Defendants'' firm) reduced the defendants'' loss

from Rs. 1,000 to Rs. 500. In this sense, it was beneficial to the family of the defendants who were a trading firm in need of money rather than the

suit property which was not situate in the defendants'' village.

The point strongly pressed by the Vakil for the appellants is that, the defendants Nos. 2 & 3 being minors, there can be no decree for specific

performance against them. There is no general rule that no decree for specific performance can be passed against minors. For instance, in the

simplest and obvious case where a contract is 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 lor specific performance can be made

and tins is conceded by the appellant. The next, Case is where a Hindu, who is a member of a joint family, enters into a contract to sell his own

share and dies and the property descends by survivorship to other members of the family some or all of whom may be minors. In Bhagwan Bhak

Indap v. Krishnaji Ganoji Indap 68 Ind. Cas. 335 : 44 BS 967 it was held that it can be enforced against the undivided sons of the deceased. 1

think this decision is not in conflict with the opinions of Wallis, C.J., and Sadasiva Aiyar, J. in Rangayya Reddy v. Subramama Aiyar 40 Ind. Cas.

429 : 32 M.L.J. 575 : 21 M.L.T. 385 nor with the actually decision in Bappu v. Annamalai Chettiar 72 Ind. Cas. 42 : 44 M.L.A. 226 : (1923)

M.W.N. 218 : AIR (1923) (M.) 313 Which is not a case of a member contracting to sell Ms own share. If the point arises for decision, I would

perhaps hold that the case in Bhgwan Bhak Indap v. Krishnaji Ganoji Indap 22 Bom. L.R. 997 : 44 B. 967 is correctly decided on grounds which

need not be stated. The case when the contract is made on behalf of a minor or minors, is settled by the decision in Mir Sariwarjan v. Fakshruddin

Mohamed Chowdhuri 18 Ind. Cas. 331 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 14 Bom. L.R. 5 : 21 M.L.J. 1156. Mr. Srinivasa Aiyengar

contends that, all that the Judicial Committee decided was that such a contract cannot be specifically enforced only when it was not for purposes of

necessity binding on the minors and the contract in that case which was one for the purchase of Immovable property was not for the benefit of the

minors. I cannot agree with this narrow interpretation of the decision. Their Lordships say at p. 237

They are, however, of opinion that it is not within the competence of a guardian of a minors to bind the minor or the minor''s estate by a contract

for the purchase of Immovable property;

There is no reference here to ''necessity'' nor is any distinction drawn between a contract being merely ''advantageous'' to a minor as opposed to

its being for necessary purposes binding on the minor though, earlier in the judgment, their Lordships accept the assumption ""that the purchase was

an advantageous purchase for the minor."" I think this decision also covers this case where a joint family consists of minors only and therefore has

no manager and a guardian of all the minors who is, ex hypothesi not manager, not being a member of the family but is merely their guardian enters

into a contract on behalf of some or all of the minors, whatever the nature of the contract may be.

The present case is where the contract is entered into by the manager of a family on behalf of the whole family for purposes binding on the

family. The decision in Bappu v. Annamalai Chettiar 72 Ind. Cas. 42 : (1923) M.W.N. 218 : 17 L.W. 304 : AIR (1923) (M.) 313 does not help

the appellant for the contract in that case was not for purposes binding on the family and the remarks at p. 228 are against him. The remarks in

Krishna Aiyar v. Shamanna 17 Ind. Cas. 497 : 23 M.L.J. 610 : (1912) M.W.N. 1188 are against the appellant and in favour of the respondent.

The observations in both these cases are obiter, not being necessary for the decisions. In Narayana Bow v. Venkata-subba Row 65 Ind. Cas. 377

: 38 M.L.J. 77 : (1920) M.W.N. 189, 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. Should the accident of the

death of the manager before completion in such a case make any difference? Where a contract is by a manager on behalf of a family, and for the

benefit of the family and the manager dies, it can be enforced against survivors when they are all majors Venkateswara Aiyar v. Raman Nambudri

38 Ind. Cas. 696. Should it make any difference that some of the survivors are minors, and does the case in Mir Sarwarjan v. Fakhruddin

Mahomad Chowdhuri 18 Ind. Cas. 331 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 21 M.L.J. 1156 support such a distinction? The matter is res

Integra and, I am inclined to answer the above queries in the negative. I agree with Phillips, J''s remarks in Bappu v. Annamalai Chettiar 72 Ind.

Cas. 42 : (1923) M.W.N. 218 : 17 L.W. 304 : 82 M.L.T. 263 : AIR (1923) (M.) 313 (second paragraph) where he refers with approval to

Ramachandra Aiyar v. Sundaramuthu Mudali 4 M.L.J. 9, and the obiter dice in Krishna Aiyar v. Shamanna 17 Ind. Cas. 497 : 23 M.L.J. 610 :

(1912) M.W.N. 1188. The result is, we are of opinion that a decree for specific performance may be passed against the minor defendants Nos. 2

and 3. The pleadings and the allegations in I. S. No. 728 of 1914 (in O.S. No. 90 of 1914) show that 4th defendant is not divided from

defendants Nos. 1 to 3 and no separate argument can be adduced for him.

The suit is not barred by limitation as it does not appear that the specific performance of the contract was refused more than three years prior to

suit Venkanna v. Venkatakrishnayya 41 Ind. Cas. 307 : 33 M.L.J. 35 : 6 L.W. 192. The words on demand'' in Ex. C show, in a case like this, the

cause of action arises only after request (See 19 Halsbury, Section 65, p. 43).

The result is the appeal fails and is dismissed with costs. It is conceded that A.S. No. 26 of 1917 follows. It is also dismissed with costs.

Jackson, J.

I agree.