Popat Namdeo Sodanvar vs Jagu Pandu Govekar

D.G. Palekar, J.—This is an appeal on behalf of a minor whose suit for specific performance of a contract to purchase immovable property has been dismissed by both the Courts. Survey No. 40 /A in village Koregaon belonged to one Namdev. On April 20, 1954, Namdev sold six acres out of this survey number to the defendant Jagu Pandu Govekar for a consideration of Rs. 1,500. The plaintiff is the minor son of Namdev and he filed the present suit against the defendant for a declaration that the sale-deed in respect of the six acres in favour of the defendant was obtained by the defendant by fraud and without adequate consideration. It was also alleged that advantage was taken of Namdev as he was vicious and given to drink. When the guardian-mother came to know of the transaction, she gathered panchas in whose presence the defendant expressed regrets about the transaction and agreed to return the land. Accordingly on December 24, 1954, the defendant gave a writing to the plaintiff represented by his mother agreeing to recovery the land on payment of Rs. 1,500. That document is Exh. 50. On these allegations, the plaintiff wanted the sale-deed to be set aside, or, in the alternative, specific performance of the contract dated December 24, 1954.

The trial Judge held against the plaintiff on the issues of fraud and inadequacy of consideration. He also held relying upon the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911)ILR 39 Cal 232 = H Bom- ILR (PC), that the minor''s contract to purchase the property could not be specifically enforced. Consequently, he dismissed the suit. In appeal to the District Court, the contentions with regard to fraud and inadequacy of consideration were given up and the principal point which survived was with regard to specific performance, The learned District Judge after discussing the various rulings on the point agreed with the view taken by the trial Court that the minor''s contract for purchase of land was not capable of being specifically enforced. The appeal was, therefore, dismissed.

The plaintiff has now come in second appeal, and, it is contended or behalf of the plaintiff by Mr. Walawalkar that both the Courts were in error in holding that the contract could not be enforced. The view of the lower Courts was supported by Mr. Chitale on behalf of the respondent-defendant. Heir further argued that the plaintiff''s guardian-mother could not be deemed to be either the de jure or de facto guardian of the minor since the minor''s father wan living, and hence for that reason also the suit was not competent. [His Lordship after holding that the plaintiff''s guardian-mother was the de facto guardian of the plaintiff and in that capacity she was competent to act on her son''s behalf as if she was the infant''s de jure guardian, proceeded].

That brings us to the more important question as to whether the contract to purchase the Jand with the infant''s guardian-mother was capable of being specifically enforced. The law governing this question for many years was the decision of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911)ILR 39 Cal 232 = H Bom- ILR (PC). It was a suit for the specific performance by a minor of an agreement for the purchase by him of certain immovable property entered into by the manager of the minor''s estate and his guardian on his behalf. It was held by the Judicial Committee that it was not within the competence, either of the manager of the minor''s estate or of the guardian of the minor, to bind the minor or the minor''s estate by a contract for the purchase of immovable property; that as the minor was not bound by the contract, there was no mutuality; and that consequently the minor could not obtain specific performance of the contract. This decision held the field for many years. But, according to Mr. Walawalkar, its principle, so far as it applies to a Hindu minor must now be regarded as discarded by the Privy Council in Shhakulam Svbrahmanyan v. Kurra Subba Rao AIR 1918 P C 96 =(1948) LR75IA 116 : 60 Bom. L R 646, (P C). He further argued that the doctrine of mutuality was not applicable in a case where a competent guardian on behalf of the minor enters into a contract to sell or purchase immovable property. It was true that under the Contract Act, a minor has no capacity to enter into a contract, but in his submission, once that capacity is supplied by the minor being represented by his guardian under the Hindu law the contract on behalf of the minor for the sale or purchase of immovable property for legal necessity or the benefit of the estate was a contract capable of specific performance.

The law on the subject has been summarised by Pullock and Mulla in their Indian Contract and Specific Relief Acts, Eighth Edn., at p. 81. It is as follows:

Specific performance.-A minor''s agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council. The guardian of a minor unlearn competent to do so had no power to bind the minor by a contract for the purchase or sale of immovable property, and the minor therefore is not entitled to specific performance of the contract: so held by the Privy Council in Mir Sarwarjan v. Fahhruddin Mahomed (1611) I L R 39 Cal. 232 : l4 Bom. L R 6 (P C). In the course of the judgment their Lordships said; ''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 guardian of a minor to bind the minor or the minor''s estate by a contract for the purchase of immovable property, and they are further of opinion that the minor in the present case was not bound by the contract, there was no mutuality and that the minor who has now reached his majority cannot obtain specific performance of the contract''. It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate, where the guardian or manager, as under Hindu Law, is competent to alienate property. (Mulla''s Hindu Law 11th Ed. p. 617). In such a case it has been held by the Privy Council that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and further, if it is for the benefit of the minor-Subramtnyam v, Subba Rao (1). But if either of these two conditions is wanting, the contract cannot be specifically enforced at all- Venkatchalam Pillai v. Sethuram Rao (1832) I L R 66 Mad. 433.

With respect, I am in substantial agreement with this statement of the law. There is a plethora of reported decisions on this point all of which are not uniform. There is, therefore, no need to consider them all. I would, however, like to give a brief outline with a view to explain the various propositions made in the paragraph quoted above.

Four landmarks were provided by four decisions of the Privy Council in the development of the law bearing upon specific performance of a minor''s contract entered into by his guardian for the sale or purchase of immovable property. The first case in point of time was the well-known case of Hunoomanpersaud Pandey v. Mussumat Babooee, M. Koonweree (V). The case is important as it shows what were the powers of a guardian of an infant heir under the Hindu law to alienate ancestral property. That decision recognized the power of a manager or a guardian of an infant heir to charge ancestral estate by loan or mortgage, provided the power was exercised rightly by the manager or the guardian in a case of need or for the benefit of the estate. That decision could not relate to the specific performance of any contract. But it must be noted that it had become such an important part of Hindu law that even without referring to it, the Madras High Court observed in Krishnasami v. Sundarappayyar (1894) I L R 18 Mad, 415, that a guardian of a minor had the power to represent him aid enter into contracts on his behalf either beneficial or necessary to the minor. On that basis, it was held that a contract for the sale of land entered into by the mother and guardian of a Hindu minor was binding on the minor and was liable to be specifically enforced against him.

The next Privy Council decision in point of time is the case of Moliori Bibee v. Dharmodas Ghose (1103) ILR30 Cal. 530 = 30 I A 114 = 5 Bom. L R 421 (P C). It was finally decided for the first time by the Privy Council that a minor''s contract is void u/s 11 of the Contract Act. Before that decision, the Indian High Courts used to follow English authorities, and there was no uniformity of decisions with regard to the minor''s contract being capable of specific performance. Since the minor''s agreement was void, there was no agreement to be specifically enforced. The only question which thereafter remained was how far a contract entered into by Ids guardian was capable of specific performance.

That point was decided by the Pripy Council in Mir Sarwarjan v. Fakkruddin (4) referred to above in 1911. Reference was made to the case of Mohori Bibee v. Dharmodas (1103) ILR30 Cal. 530 = 30 I A 114 = 5 Bom. L R 421 (P C), and their Lordships stated as follows (p. 237)

Without some authority their Lordships are unable to accept the view of the learned Judges of the Division Bench that there is no difference between the position End powers of a manager and those of a guardian. 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 purchase of immovable property, and they are further of opinion that as the minor in the present case was not bound by the contract, there was no mutuality, and that the minor who has now reached his majority cannot obtain specific performance of the contract.

It will be clear from this decision that their Lordships of the Judicial Committee made a general proposition that a guardian of a minor was not competent to bind the minor or the minor''s estate by a contract for the purchase of immovable property. It is to be noted that no reference was made either in the arguments or the judgment to Hanoomanpersaud''s case (1856) 6MIA 393 which had dealt with the competence of a manager or a guardian to alienate immovable property within certain limits. After 1911, Mir Sarwarjan''s case (1911) ILR 31 Cal 232,= 14 Bom. L R5 (P C) became the law for the whole of India and was applied without question to all contracts for purchase or sale in which the minor was interested, irrespective of whether the minor was governed by Hindu law or not. The case specifically dealt with the guardian''s power to bind the minor by a contract for the purchase of immovable property. But the principle was extended even to contracts where the guardian of the Hindu infant agreed to alienate or sell the minor''s property. See for example Abdul Haq v. Yehia Khan AIR 1924 Pat. 81, where it was observed that no distinction could be drawn between an agreement to purchase and an agreement to sell and that the latter agreement could not be enforced against the minor. That was also the view of the calcutta High Court in Shrinath v, Jotindra AIR 1923 Cal 7 445. That Court held that no distinction could be drawn between the case of a covenant binding a minor to purchase a property and a covenant binding him to sell his property, and the latter covenant should be held not binding on the minor on the principle declared in Mir Sarwarjan''s case (1911) ILB39 Cal. 232 = 14 Bom. L R 5 (P C). It must, however, be pointed out that sometimes a different view was all taken. [See Brahmadeo v. Horo Singh AIR 1935 Pat. 237]. In that case, Wort J. held that a contract for sale of immovable property entered into by the guardian or manager on behalf of a minor and the legal necessity of which has been proved, can be specifically en-forced. It is necessary to note here that the learned Judge having noted Mir Sarrvarjan''s case (3) harked back to Hanoomanpersaud''s case (1856) 8 M I A 393 and observed as follows (p. 238):

1.To state the proposition broadly, that is to say, that a contraire 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 case of Hvnoomanpersaud Pandey v. Muaaumat Babooee M. Koonweree (1856) 8 M I A 393 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.

The learned Judge accordingly held that the decision in Mir Sarwarjan''s case (3) must be limited to only those cases where the contract was for the purchase of the property on behalf of the minor.

The state of law was not very uniform though most of the High Courts applied the principle in Mir Sarwarjan''s case (1911) ILB39 Cal. 232 : 14 Bom. L R 5 (P C) to contracts both of sales and purchases on behalf of the Hindu minor by his guardian. and then the Judicial Committee of the Privy Council delivered the weighty judgment in. Snfcokutam Subrahmanyam v. Kurra Subbarao AIR 1948 PC 96 : (1948) LR 75 1 A 115 : 00 Bom. L R 646 (P C). This is the fourth and the last landmark so far as the Privy Council is concerned. That was a case in which a minor brought a suit represented by his mother guardian claiming possession of land contracted to be sold by his guardian mother by an agreement in writing. The purchase price was agreed to be applied in discharge of debts owing to the defendant and another by the plaintiff-minor''s deceased father. The agreement to sell was, therefore, justified by necessity. Under the Indian law an agreement to sell does not create any interest in the property in favour of the purchaser and hence the plaintiff-minor could say that in the absence of a registered sale-deed in favour of the defendant, the title to the property still vested in the plaintiff, and, therefore, he was entitled to sue for possession on his title. The defence was based on section 53-A of the Transfer of Property Act which dealt with part performance. It reads as under:

Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the term necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part-performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in footed, though transferor, or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall effect the rights of a transferee for consideration who has no notice of the contract or of the part-performance thereof.

The defendant who was the appellant before the Privy Council alleged that the plaintiff-minor was the transferor under the contract in writing and was, therefore, debarred from enforcing any right with respect to the property of which the defendant-transferee had taken possession. The question, therefore, amuse whether the plaintiff was the transferor within the meaning of section 53-A. A simple reading of the section would go to show that the word "transferor" for the purposes of that section refers to "the person contracting to transfer for consideration any immovable property by writing signed by him or on his behalf". The point before the Privy Council was whether the plaintiff-minor came under the description of "any person contracting to transfer by writer''s signed by him or on his behalf". It was contended, as is clear from the arguments of Sir Herbert Cunliffe summarised at page 118 of the Report, (i) the minor-plaintiff had transferred nothing because in actual fact his guardian had entered into the contract, nor was the transfer "on his behalf," because section 53-A was framed on the hypothesis that the person was acting for somebody who is competent to act for himself; and (ii) the minor could not transfer the property since the statute postulated the existence of a valid contract, and therefore, to say that the minor could enter into a valid contract would be a contradiction in terms as the minor''s contract was void in view of Mohori Bibse v. Dhurmodas (1903) I L B 30 Cal 539 = 30 I A 114 = 5 Bom. L R 421 (P C) already referred to. It was on these two grounds that the Learned Counsel in that case argued that the defendant was not protected by section 53-A.

Both these objections have been directly met in the judgment of their Lordships. The first objection was met by the following observations:

Their Lordships entertain no doubt that it was within the powers of the mother as guardian to enter into the contract of sale of November 29, 1935, on behalf of the respondent for the purpose of discharging his father''s debts, and that, if the sale had been completed by the execution and registration of a deed of sale, the respondent would have been bound under Hindu law.

Reverting again to the subject after a few line a, their Lordships observed (p. 120):

The position of a guardian under the Hindu law was considered by their Lordships'' board in Hunoomanpcreaud Panday v, Mus''itmat Babooee M. Koonweree (1856) 6 MI A 393, where the following passage is to be found:

They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever description she gave to herself, or others gave to her. Thus the act of the mother and guardian in entering into the contract of sale in the present case was an act done on behalf of the minor appellant.

Dealing with the second objection, their Lordships approved of the statement of the law in this respect by Pollock and Mulla in their Indian Contract and Specific Relief Acts, 7th Edn., p. 70, which was to the following effect:

A minors agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the ''Judicial Committee''. It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Judicial Committee, that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and farther, if it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all.

Then their Lordships proceeded to state (p. 120):

In the present case neither of the two conditions mentioned is wanting, having regard to the findings in the Courts in India. It would appear, therefore, that the contract in the present case was binding on the respondent from the time when it was executed. If the sale had been completed by a transfer, the transfer would have been a transfer of property of which the respondent, and not his mother, was the owner. If an action had been brought for specific performance of the contract, it would have been brought by or against the respondent and not by or against his mother.

Having come to that conclusion, their Lordships held that the respondent-infant-plaintiff was the person who most aptly answered the description of the words "the transferor" in the sense in which those words are used in section 53A. In view of this Privy Council decision, the old paragraph with regard to specifics performance which appeared at page 70 in Pollock and Mulla''s Indian Contract and Specific Relief Act, 7th Edn., was suitably roast in the later edition, viz., the 8th Edn., published in 1957 and has now taken the form in which it has been quoted earlier in the judgment. The learned authors have pointed out that the guardian of a minor, unless competent to do so, has no power to bind the minor by a contract for the purchase or sale of immovable property and the minor is, therefore, not entitled to the specific performance of the contract. For this proposition, reliance was placed on the Privy Council ruling in Mir Sarwarjan v. Fakhruddin (1911) ILR 39 Cal. 232 = 14 Bom. L R 5 (P C). After quoting the pronouncement of their Lordships, the learned authors added:

It is however, different with regard to contracts entered into on behalf of a minor by him guardian or by a manager of his estate, where the guardian or manager, as under Hindu Law, is competent to alienate property. In such a case it has been held by the Privy Council that the contract can be specifically enforced by or against the minor if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and further, if it is for the benefit of the minor.

It will be seen that this statement of the law is based on the Privy Council decision in AIR 1948 95 (Privy Council) quoted above. The case directly involved the determination of the validity of the guardian''s contract to sell in case of necessity and is, therefore, authority for the proposition as stated by Pollock and Mulla in their Indian Contract and Specific Relief Acts, 8th Edn., page 81. In such a case, it is obvious, the doctrine of mutuality is irrelevant because the contract to sell was by one competent to contract on behalf of the minor, and, therefore, though Mir Sarwarjan''s case (1911) I L R 39 Cal. 232 = 14 Bom. L R 5 (P C), was cited in the arguments, their Lordships did not refer to it in their judgment.

After the above Privy Council decision in AIR 1948 95 (Privy Council) the point arose before Vishwanatha Sastri J. in Ramalingam Reddi by next friend Vanajakshi Ammal and Another Vs. Babanambal Ammal, That was a case where a guardian-mother of a Hindu minor had entered into a contract for the sale of the minor''s immovable property for purposes considered under Hindu law as necessary. Principally relying on the Privy Council decision in AIR 1948 95 (Privy Council) , it was held that the minor was bound by the contract and such a contract could be enforced against him. When reference was made to Mir Sarwarjan''s case (1911) I L R 39 Cal. 232 = 14 Bom. L R 5 (P C), the learned Judge doubted whether Mir Sarwarjan''s case (1911) I L R 39 Cal. 232 = 14 Bom. L R 5 (P C) was still applicable after their Lordships had decided AIR 1948 95 (Privy Council) He observed that the artificial doctrine of mutuality as developed in English decisions was not applicable to cases of Hindu minors properly represented by their guardians, and then stated as follows (p. 433):

...Yet their Lordships in AIR 1948 95 (Privy Council) . upheld the contention that a guardian''s contract for sale of the immovable property of the ward was specifically enforceable, if the contract was beneficial to the minor. Principles laid down for the protection or benefit of minors bad been applied in this country to their prejudice be invoking this artificial doctrine of mutuality. If the guardian has made an advantageous contract for the sale or lease of the property of the ward there is no reason why the ward should be disabled from enforcing it against the other party to the contract. I submit that the doctrine of ''mutuality'', illogical in form and in substance unjust, has now beet, discarded by the very tribunal which was responsible for its introduction in India and it need no longer cast its spell on Indian Courts and sterilize contracts of sale entered into by a guardian on behalf of his ward for the latter''s interest or benefit.

The case before the learned Judge was not in respect of a contract for purchase on behalf of the minor. But it appears from the judgment that it would really make no difference once the doctrine of mutuality is discarded.

We have then a case of our own High Court in Gujoba Tulsiram v, Nilhanth Kesheo (1957) 59 Bora. L R 1123. There again, it was a suit for the specific performance of a contract to sell minor''s property. This Court relying upon the Privy Council decision in AIR 1948 95 (Privy Council) held that the contract to sell could be. enforced specifically against a minor. In the course of the judgment, Mudholkar J., as he then was, referred to a passage at page 101 in the 4th Edn., of Iyer and Anand''s Law of Specific Relief, which referred to the view of Vishwanatha Sastri J. in Ramalingam Reddi by next friend Vanajakshi Ammal and Another Vs. Babanambal Ammal, and opined that the true test for validity and enforceability of a guardian''s contract of sale on behalf of a minor was not the existence of mutuality in the contract but whether it was by a competent guardian and for legal necessity or benefit of the minor''s estate. This view of the learned authors was approved by Mudholkar J. I have not been referred to any other judgment of this Court which takes a contrary view.

The point once again came before the Madras High Court before a Full Bench in Sitarama v. Venkatarama ILR 1966 Mad. 99 (F B) = A I R 1951 Mad. 261. In that case two Hindu brothers of whom one was a minor and the other acting for him, though not his legal guardian, purchased properties on November 29, 1933. Contemporaneously, they entered into an agreement to recovery the properties to the vendors after attainment of majority by the minor on any day between June 1 and 30, 1947. This agreement to recovery was also entered into by the elder brother acting for himself and on behalf of the minor. The benefit of the recoveyance agreement was transferred to the plaintiffs and the plaintiffs brought a suit for the performance of the recoveyance against the brothers. The minor brother, who had attained majority, pleaded that the recoveyance agreement would not be binding upon him as his guardian elder brother was neither his de jure guardian nor the manager of the joint family, and secondly that the agreement imposed onerous obligation on him and for want of mutuality was not enforceable against him. The Court by a majority held that contracts entered into on behalf of a minor by his guardian or manager of his estate can be specifically enforced by or against the minor, if the contract is one which is within the competence of the guardian or manager who had entered into it on behalf of the minor so as to bind him by it and if it is also for the benefit of the minor. This presupposed specific performance of a contract against the minor also. The ground of decision, however, was that the minor could not repudiate the liability to recovery at the same time retaining to himself the advantage gained by the purchase. The sale deed and the agreement to recovery formed part of one transaction and should be read and interpreted together. Since the minor had accepted the title and ratified the sale-deed, he could not be allowed to repudiate the essential prerequisite of the sale in his favour, viz., the agreement to recovery. Incidentally, however, in the majority judgment delivered by Govinda Meson J., reference was made to Mir Sarwatjari''s case. (1911) ILR 39 Cal.232 = 14Bom. LR5 (PC) and to the comments thereon by Vishwanatha Sastri J. in Ramalingam''s case A I R 1951 Mad . 715. Since Ramalingam''s case A I R 1951 Mad . 715 was decided principally on the Privy Council decision in Subrahmanyam v. Subba Rao AIR 1848 P C 96 = (1948) L R 75 I A 16 = 60 Bom L R 615 P C the learned Judge considered the Privy Council case also and attempted to show that Mir Sarwarjan''s case (1911) ILR 39 Cal.232 = 14Bom. LR5 (PC) was still good law in its application to contracts for the purchase of immovable property on behalf of a minor. The learned Judge sought to put an interpretation on the decision of Subrahmanyan v. Subba Sao AIR 1848 P C 96 = (1948) L R 75 I A 16 = 60 Bom L R 615 P C which, with respect to the learned Judge, I am unable to accept. Certain assumptions were made which to me appear to be unwarranted. The first assumption was that a concession was made before the Privy Council that the agreement to sell without part performance of it under the provisions of section 53-A of the Transfer of Property Act could not be valid. With respect, there is no such concession. What was conceded by counsel for the appellants was that their appeal would fail unless the appellants were entitled to the protection afforded by section 53-A. That was an elementary concession, because it does not require much of an argument to now that if the appellant-purchaser to whom the title in the property had not been transferred was not able to get the protection of Section 53-A by reason of the part performance of the contract, he had no answer to the suit of the respondent-plaintiff who had sued on his title. From the assumption above made, the learned Judge proceeded to observe that there was no observation of the Privy Council which laid down that an executory contract entered into by a guardian on behalf of a minor can be specifically enforced against the minor on his attaining majority. I have already shown that the decision of the Privy Council directly involved the consideration of the question whether a contract in writing was a valid and enforceable contract. If it was not a valid and enforceable contract, the purchaser''s part performance u/s 53-A of the contract by taking possession of the property would not protect him. There is also no warrant for the observation, viz., "What is stated is that part-performance u/s 53-A of the Transfer of Property Act is on the same footing as the completed sale by the guardian which would be binding on the minor if it is for necessity or benefit; of the minor''s estate". I do not think, as the learned Judge has again emphasised, that the Privy Council decision could be understood in the sense that a contract of sale of the property by the guardian of a minor which it partly performed should be put on the same footing as a completed sale. I am, therefore, unable to agree with the observations made by the learned Judge with is view to salvage the principle of mutuality as laid down in Mir sarwarjan it case (1911) I L R 39 Cal. 232 = 14 Bom. L R 5 (P C).

The correct view, with great respect, has been taken by a Full Bench of the Andhra Pradesh High Court presided over by Subba Rao C. J., as ho then was, in Suryaprakasam v. Qangaraju AIR 1056 AP 33 (F B), which I will have occasion to discuss at a later stage in greater detail.

It was contended by Mr. Chitale on behalf of the respondent that the Privy Council decision in AIR 1948 85 (Privy Council) may at the very best support the view that a minor''s contract for sale for legal necessity is enforceable against him, but there was no reason to extend the principle of that decision to the case of a minor''s contract to purchase, though for necessity or the benefit of the estate, as the point is directly governed by the Privy Council as in Mir Sarwarjan''s case (1911) I L R 39 Cal. 232 = 14 Bom. L R 5 (P C). In that case it was pointed out that the agreement to purchase was made by a manager or guardian and it was also held that the contract was beneficial to the minor. Even so, the Privy Council held that the contract was not enforceable. Since that decision is neither considered no;: overruled, counsel submitted, by the later decision of the Privy Council in AIR 1948 85 (Privy Council) it would be binding on this Court on the footing that it still continues to be good law. When dealing with this question, a few considerations may be relevant. In the first place, Mir Sarwarjan''s case (1911) I L R 39 Cal. 232 = 14 Bom. L R 5 (P C), was principally based on the doctrine of mutuality. It must be seen that that doctrine has now been considerably shaken by the decision in AIR 1948 85 (Privy Council) because the case clearly establishes that a contract by a guardian on behalf of a minor to sell immovable property for necessity or for the benefit of the state is a valid contract which does not attract the objection of want of mutuality. The doctrine of mutuality was invoked because the minor''s octroi; under the Indian Contract Act was a void contract, but when it is clear that the minor''s contract entered into by a guardian for legal necessity or for the benefit; of the estate is a valid contract, the doctrine of mutuality has no place. The reason is that the want of capacity of the minor has been supplied by the guardian, and, therefore, the contract which would have been otherwise void has now become valid, provided of course the guardian acts within his authority permitted by Hindu law. This proposition would as much apply to a contract for purchase as to a contract for sale. Therefore, on principle, if Mir Sarwarjon''s case (1911) ILR31 Cal. 232 = 14 Bom. L R 6 (P C), cannot be invoked in order to defeat a contract of sale of the property of a minor, it cannot be invoked to defeat a contract for purchase on behalf of the minor, provided the guardian is acting within his authority. Secondly, I have already pointed out that the principle of Mir Sarwarjan''s case (1911) ILR31 Cal. 232 = 14 Bom. L R 6 (P C) was extended by our High Courts to contracts of sales on behalf of minors by their guardian, because on principle, there was no distinction between the two. Conversely, therefore, if the law now is that the minor''s contract for sale entered into by his guardian is enforceable by or against him, the contract for purchase on behalf of the minor is equally enforceable. Thirdly, there is no principle of law which prevents a Hindu minor from being a transferee of property. It has been held that if a deed of sale has been executed in favour of a minor and no part of the consideration remains to be executed by him, he can sue for possession of the property on the basis of his valid title under the deed of sale. [See for example Ulfat Bai v. Gauri Shankar (1911) I L R 33 All. 957 ]. If the transaction is bonafides and for the benefit of the minor, one finds it difficult to hold that a contract to purchase is incapable of specific performance. Cases are conceivable where purchase of immovable property would become necessary or beneficial to the estate of the minor. A concrete case may be where the minor''s house is destroyed by fire and the guardian contracts to purchase a new house for the residence of the minor. If the minor possesses a large estate and is in possession of cash requiring investment I do not see why the guardian may not enter into a contract to purchase a house subject to a good title being made out by the vendor. The purchase being for necessity, a completed transfer would give the minor absolute title. I do not see on what principle a contract to purchase or sell under the circumstances is not enforceable. The paramount consideration in Mir Sarwarjan''s case (1), for refusing to enforce the contract for purchase on behalf of the minor was that the contract would impose a personal obligation on the minor and this the guardian should not be permitted to do. But that solicitude can no longer avail the Hindu minor whose guardian can not only contract to sell but even sell the minor''s property and create obligations binding on the minor u/s 55 of the Transfer of Property Act. u/s 66 of the Transfer of Property Act, the seller is bound, (a) to disclose to the buyer any material defeat in the property; (b) to produce to the buyer his documents of title for examination; (c) to answer to the best of his information all relevant questions relating to the property or the title thereto; (d) to execute a proper conveyance when the price is tendered; (e) to take care of the property between the date of the contract of sale and the delivery of the property; (f) to give to the buyer possession of the property; (g) he is also deemed to contract with the buyer that he has title to the property; and so on and so forth. As these obligations are undertaken in a sale of minor''s immovable property, and if such obligations really do not come in the way of the guardian alienating the property of the minor for reasons of necessity, I do not pee how a contract for the purchase on behalf of the minor, which imposes much less onerous liabilities on him, can be regarded as a bar to specific enforcement. As pointed out by Ayyangar J. delivering the judgment of the Bench in P.E.R.M. Annamalai Chetty Vs. Satyavadivel Muthuswami Maniagaran and Others, , the personal liability arising out of the contract of the guardian is the liability of the minor''s estate only. The learned Judge observed:

... It is scarcely necessary to add that the liability of the estate though personal, is the English law sense of the word, is not personal in the sons(c) that the person of the minor even after majority can be arrested in execution. A personal liability arising out of the contract of the guardian is a liability of the minor''s estate only....

If for the breach of the statutory covenants involved in a sale a minor''s estate is made liable, there is no principle on which his estate may not be made liable for a breach of the contract to purchase immovable property. However, when considering this question, one must never lose sight of the fact that the guardian is a competent guardian, that the transaction is justified on the ground of necessity or benefit to the estate, and lastly, that it is for the benefit of the minor. Besides when a party comes to the Court for specific performance of the contract, the Court is bound to consider whether it would be equitable and just from that minor''s point of view that the contract should be enforced against him.

I now turn to the Full Bench decision in Suryaprakaaam v. Gangaraju A I R 1956 AP 33 (F B), referred to above. In that case, there was one contract entered into by a guardian of a Hindu minor which embodied both an agreement to sell the minor''s property and to purchase it after the minor had attained majority. The other parties to the agreement brought a suit for the specific performance of this contract as in the meantime the guardian had sold the property to somebody else subsequent to the above agreement. So the question arose whether a contract entered into by a guardian of a Hindu minor for sale or for purchase of immovable property was specifically enforceable against the minor, and, that question was referred to the Full Bench in view of the observations made by Viswanatha Sastri J. in Ramalingam Reddi by next friend Vanajakshi Ammal and Another Vs. Babanambal Ammal, already referred to the opinion of the Full Bench was delivered by the learned Chief Justice. The whole question was reviewed in detail, and they have deduced principles with which, with real respect, I find entirely in agreement. The principles and points made out may be stated as follows:

(1) A minor has no legal competency to enter into a contract or authorise another to do so on his behalf. A guardian, therefore, steps in to supplement the minor''s defective capacity;

(2) Capacity is the creation of law, whereas authority is derived from the act of parties;

(3) The limit and extent of the guardian''s capacity are conditioned by Hindu law. They can only function within the doctrine of legal necessity or benefit. The validity of the transaction is judged with reference to the scope of his power to enter into a contract on behalf of the minor;

(4) Even the personal liability arising out of the guardian''s contract is a liability of the minor''s estate only;

(5) Since the guardian under the Hindu law has the legal competency to enter into a contract on behalf of the minor for necessity or for the benefit of the estate, the contract is valid from the time of its inception, and since either party can enforce the contract, the test of mutuality is satisfied;

(6) There cannot be any essential distinction between a contract of sale and contract of purchase. The difference is only one of degree. There is no difference in principle between the case of purchase by a guardian and that of a case of a sale by a guardian, because both depend for their validity on the competency of the guardian acting within the scope of his power under Hindu law;

(7) An agreement to convey or purchase is only a preliminary step in completing a transaction of sale or purchase as the case may be. Without negotiations and without any agreement, oral or in writing, rarely is a sale-deed executed and registered. To hold that a guardian can execute a sale-deed in respect of a specific property but he cannot legally enter into an agreement to convey or purchase the same is incongruous and illogical;

(8) Contracts to sell or purchase property are transactions closely connected with dealings in immovable property by a guardian giving rise to obligations annexed to that property. They cannot be equated with contracts of loans imposing personal obligations on the minor;

(9) The Courts following the decision in Mir Sarwarjan''s case (1911) ILR 39 Cal. 232 = 14 Bom. L R 5 (P C) has held that a contract of sale or purchase entered into by a guardian on behalf of a minor could not be enforced against the minor on the ground of mutuality. That view is no longer sound in view of the later Privy Council decision in Subrakmanyam v. Subba Rao AIR 1948 P C 85 = (1948) L R, 75 I A 116 = 50 Bom. L R 646 (P C), which, in clear and unambiguous terms, rules otherwise.

The last conclusion seems to be inevitable on the authority. I have not been referred to any judgment of the Supreme Court or of this Court subsequent to the Privy Council decision in Subrakmanyam v. Subba Rao (2) taking a contrary view or even doubting it. I would, therefore, hold that a contract to purchase Immovable property by a competent guardian acting within his authority on behalf of a minor is specifically enforceable by or against the minor.

[The rest of the judgment is not material to this report].