Rajendra Kumar vs State

K.L. Pandey, J.—This is a plaintiff''s further appeal against an affirming decree of the lower appeal Court dismissing his suit for a declaration

that he is the Bhumidhari or at any rate an occupancy tenant of certain plots of village Chhaptara, which are more particularly described in

paragraph 2 of the plaint.

It is common ground that Mahant Ramkrishnadas, father of the minor plaintiff, was the sole proprietor of village Chhaptara upto the date of

vesting as indicated in section 3 (1) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950

(hereinafter called the Abolition Act). Claiming title to the disputed plots under two registered lease deeds dated 15 November 1949, which

Ramkrishnadas executed in favour of the plaintiff, he applied u/s 6 (2) of the Abolition Act for a declaration that the leases would not be void after

the date of vesting. Since those leases were made before 16 March 1950, no action was taken on that application. Subsequently, in the year 1955,

the Nistar Officer cum Additional Deputy Commissioner included 47. 11 acres out of the disputed plots (49.24 acres) in the Nistar Patrak

prepared by him and also recorded that the residents of the village had grazing rights over the land. That Nistar Patrak was published in the village

on 20 November 1955. Being aggrieved, the plaintiff served upon the State Government a notice dated 1 October 1956; as required by section

80 of the Code of Civil Procedure.

The plaintiff''s case is that, in virtue of the two lease deeds dated 15 November 1949, he became an occupancy tenant of the disputed plots, he

was placed in possession of those plots and, thereafter, he has been regularly paying rent of those plots to the authorities concerned. According to

the plaintiff, those plots did not vest in the State and the Nistar Officer bad no jurisdiction to include any part of the land forming those plots in the

Nistar Patrak or to grant to the villagers grazing rights over that land.

The defence is that the least deeds were bogus and fraudulent in that they were made in order to avoid the vesting of the disputed plots in the

State. The two leases being thus of no effect, all those plots vested in the State and Nistar Officer rightly treated them as so vested for the purpose

of preparing Nistar Patrak. It is also pleaded that, since the plaintiff did not appeal against the order of the Nistar Office and did not also take any

action for getting the entries made in the Nistar Patrak corrected, it is no longer open to him to challenge the entries and the Civil Court has no

jurisdiction to entertain a suit directed against those entries.

The two Courts below dismissed the suit mainly on the ground that the leases were void because they were made in favour of a minor and

imposed upon him an obligation to pay rent.

Since the lower Courts had not considered or decided the question whether the lease deeds were unreal or fictitious, the case was remitted to

the Court of first instance for determining it. In the absence of any evidence led by the defendant on this point, that Court found upon evidence

adduced by the plaintiff that the leases were not unreal. This conclusion, which has not been challenged before me, should be accepted in this

appeal.

The main question for consideration is whether the two leases dated 15 November 1949 are void because they were made in favour of a minor.

Ex. P-1 is patta granting to the plaintiff, represented by his mother as his guardian, perpetual occupancy right without any premium but with an

obligation to pay Rs. 10 as annual rent for 22.88 acres of land Ex. P-2 is a like patta for 26.36 acres of land for which the plaintiff was required to

pay Rs. 12 as annual rent. For the view that these pattas are void, the lower appeal Court followed a decision of the Board of Revenu, Rajsndra

vs. State of Madhya Pradesh 1958 RN 79. That case is easily distinguishable because there the minor was not represented by his father or any

other legal guardian. Further, the Board relied upon Pramila Balidas vs. Jogesher Mandal AIR 918 Pat. 626 for the proposition that a lease, which

imposes on the minor a liability to pay rent, is void. With all due respect, I am of opinion that this view is not quite correct.

In the Patna case, reliance was placed upon Raghava Chariar Vs. Srinivasa Raghava Chariar, ILR 40 Mad. 308 FB, Mahori Bibee Vs.

Dhurmodas Ghose, 30 IA 114 and Mir Sarwarjan Vs. Fakhruddin Mahomed Chowdhuri, 39 IA 1. The first case related to a mortgage executed

in favour of a minor Overruling its earlier decisions, the Madras High Court held that a minor was competent to enforce a mortgage executed in his

favour. While discussion legal position, Shrinivasa Ayyangar J. stated:

That being the position under the Contract Act, the next question is whether a minor can be a transferee of property, whether such transfer is by

way of sale, mortgage, lease, exchange or gift. The provisions of the Transfer of property Act and the Trusts Act make it clear that an infant can be

a grantee though be cannot ordinarily on a grantor. ''Infants'', it was said, cannot make grants, they accept them. Palmer Vs. Low, (1879) 98 US 1

at p. 16. In the consideration of this question, it is necessary however to remember that certain transaction may necessarily involve both a transfer

of property and contracts; as for example, a lease. In such cases, if a minor makes a promise in consideration of the transfer, or binds himself by

obligations on account of the transfer, the transaction would be void and the transfer may not take effect. But a distinction must be drawn between

cases of contractual liability which a minor agrees to undertake, and obligations attached to the holding of property. Even in cases of pure gifts, it is

clear that there is an obligation on the part of the doner to pay the Government revenue and public taxes. In the case of a gift of a man''s whole

property, there is the obligation to discharge the doner''s debts to the extent of the value of the property. These obligations do not prevent the

vesting of the property in the minor by a transfer inter vivos any more than by inheritance or devise. Those covenants or obligations are attached to

the property and are not really considerations for the transfer. This is the view taken by Sundara Ayyar and Spencer, JJ., in Muniya Konan Vs.

Perumal Konan (1913) 24 MLJ 352: see also the observations of Jessel, M. R., in Martin Vs. Gle, (1876) 4 Ch. D. 428 at p. 43. A transfer to a

minor by way of a lease, he agreeing to pay rent or to perform any particular covenants which form an essential part of the transaction, may

prevent the transfer from taking effect. In a sale, gift or mortgage ordinarily there are no such essential consensual obligations. A mortgage however

is only a condition ii transfer, and when the condition is fulfilled (as when the debt is discharged), the property revests in the transferor.

[Pages 334-5]

The observations of the learned Judge in so far as they relate to a lease in favour of a minor are obtler. Mohari Bibee Vs. Dhurmodas Ghose 30 IA

related to the case of a mortgage executed by a minor himself and not of one executed n his favour. Similarly, Mir Sarwarjan. Vs. Fakhruddin

Mahomed Chowdhuri, 39 IA 1, dealt with a case of specific performance of a contract for purchase of immovable property in favour of a minor.

In Mir Sarwarjan''s case (supfra). the Privy Council applied the doctrine of mutuality, which is thus stated by Fry:

A contract to be specifically enforced by the Court must, as a general rule, be mutual, that is to say, such that it might, at the time it was entered

into, have been enforced by either of the parties against the other of them.

When, therefore whether from personal incapacity to contract, or the nature of the contract or any other cause, the contract is incapable of being

enforced against the party, that party is, generally, incapable of enforcing it against the other, though execution in the latter way may be free from

the difficulty attending its execution in the former.

This principle was no'', however, applied to the case of a Hindu mother, who as guardian contracted to sell her minor son''s property for paying off

her husband''s debts : Srikakulum Subrahmanyam vs. Kurra Subba Rao, 75 IA 115. In that case, this is what the Judicial Committee stated :

The position of a guardian under the Hindu law was considered by their Lordships Board in Hunoomanpersaud Panday vs. Mussumat Babooee

Munraj Koonweree, (1856) 6 MIA 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 on entering into the contract of sale in the present case was an act done on behalf of the minor appellant. The position

of the.minor under such a contract is discussed in the following passage, with which their Lordships agree, in Pollock and Mulla''s Indian Contract

and Specific Relief Act, 7th Ed., p. 70: ''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, folio wing English authorises which were applicable only on the view

now overruled by the Judicial Committee''. The learned authors are here referring to the decision in Mohori Bibee vs. Dhurmodas Ghose, LR 30

IA 114, already cited, they continue : ''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, further, if it is for the benefit of the minor. But if either of these two. conditions is

wanting, the c in tract cannot be specifically enforced at all''.

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.

From these observations, it is quite clear that even an existing contract made be a Hindu, mother as guardian to sell her minor son''s property for

paying off his father''s debts was regarded as binding on the minor and not void. For determining its validity, what was considered was whether the

contract was one which it was within the competence of the guardian to enter into on his. behalf so as to bind him by it and further whether it was

for the; benefit of the minor. If these are the two tests for determining the validity of an executory contract, I do not see on principle any valid

reason for, not applying them to the case of an executed contract or conveyance. It will be readily seen that the doctrine of mutuality has no

application to such completed transactions. D. F. Mulla in his Principles of Hindu Law, 12th Edition, at page 687 states :

It is not within the competence 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 for the minor. As the minor is not bound by the contract, there is no mutuality and the minor

cannot claim specific performance of the contract. This was laid down by the Privy Council in Mir Sarwarjan vs. Fakhruddin, 39 IA 1 (ill. (b) ) and

the principle has been followed in a number of subsequent cases by the different High Courts in India. A distinction has thus been drawn between a

completed transfer of minor''s property by the guardian, on grounds of legal necessity or benefit to the minor, and an executory contract of transfer

entered into by the guardian on behalf of the infant for the same purpose, and specific performance has been held not to be available in the latter

case because of want of mutuality.

Since this is not a case where a contract is sought to be specifically enforced, the principle of Mir Sarwarjan''s case (supra) is not attracted and the

validity of the leases must be judged on the footing that they are completed transferes.

There is no provision in the Transfer of property Act. which disqualifies a minor represented by his guardian from making a transaction by

which he be comes a transferee. In his commentary on the Indian Contract and Specific Relief Acts, Eighth Edition, Mulla states at pages 78-9 as

follows:

Section 7 of the Transfer of property Act, 1882, provides that every person competent to contract and entitled to transferable property is

competent to transfer such property. But is not provided anywhere in the Act that a person not competent to contract is incapable of being a

transferee of property. It has accordingly been held that though a sale or mortgage of his property by a minor is void, a duly executed transfer by

way of sale or mortgage In favour of a minor who has paid the consideration money is not void, and it is enforceable by him or any other person

on his behalf. A minor, therefore, in whose favour a deed of sale is executed is competent to sue for possession of the property conveyed thereby.

The Patna High Court, however, has held that a lease to a minor is void, as it imposes upon him obligations to pay rent and perform covenants.

Similarly where property is conveyed to a minor, and the latter is subsequently ousted on suit by third parties, he is entitled to recover from the

vendor the sum which he had paid as purchase money. And it has been held by a Full Bench of the Madras High Court that a mortgage executed

in favour of a minor who had advanced the mortgage money is enforceable by him or by any other person on his behalf. The High Court of

Madras had held, on the analogy of the above cases, that a promissory note executed in favour of a minor is, not void and can be sued upon by

him.

Leaving out of consideration bases which are compulsorily required u/s 107 of the Transfer of property Act to be executed both by the lessor and

the lessee, there is nothing in that section which implies that a minor can not be a lessee. Actually, in view of section 117 of the Transfer of property

Act, the two leases in question are not governed by the provisions of that Act. It is, however, urged that since a lease implies certain obligations to

be performed by the lessee and it is not permissible to impose such obligations on a minor, a lease executed in favour of a minor must be regarded

as void. I am unable to accept this contention. The privy Council case of Srikakulum Subrahmanyam vs. Kurra Subba Rao 75 1A 115 is an

example of a contract upheld as valid though it imposed an obligation which had to be performed on behalf of a minor.

The Transfer of property Act itself postulates transfers with obligations attached to them in favour of minors. Section 127 provides that an onerous

gift may be made in favour of a minor. Section 128 does not probit a universal gift in favour of a minor. That safeguard, however, is that the

acceptance of a gift burdened by an obligation is not binding on the minor and he may repudiate it on his attaining majority. As pointed out by the

Madras High Court in Subramania Ayyar vs. Sitha Lakshmi JLR 20 Mad. 147 the gift is complete, during the minority and if the donee dies a

minor, his heirs take the property. It follows that such transfers are voidable and not void and that, so long as they are not avoided, they are valid

and good.

The two leases in this case are really in the nature of gifts, the only burden imposed on the lessee being his obligation to pay rent an obligation

attached to the holding of the lands gifted. It does not appear tint the rent payable in these cases was above the settlement rate. If it were so, it

could be reduced under the provisions of the Central provinces Tenancy Act, 1970, to a fair and equable rent. Since even in the case of a pure

gift, there is an obligation resting on the donee to pay Government revenue and public taxes, a gift made in favour of a minor imposing upon him

such ah obligation cannot for that reason alone be regarded as void.

Since, in virtue at the two leases, the plaintiff became an occupancy tenant of the plots in dispute, the Deputy Commissioner had no jurisdiction

to reserve any of those plots for the grazing of cattle Even if he purported to pass such an order in regard to the plaintiff''s occupancy lands, that

order cannot be regarded as one passed u/s 48 of the Abolition Act and go attracted the application of section 49 of that Act. This, in my opinion,

is sufficient to depose of this contention

The result is that this appeal succeeds and is allowed. The decrees passed by the two Courts below are set aside. There will instead tab

decree declaring that, by virtue of the two leases dated 15 November 1949, the plaintiff became an occupancy tenant of the disputed plots and

that those plots shall not be affected by any entry made in the Nistar Patrak of Village Chhaptara which was published on 20 November 1955.

The defendant 1.11 bear its own costs and pay those incurred by the plaintiff throughout. Hearing fee according to schedule.