Sh. Daya Ram vs Smt. Raksha kumari and Another

Pritpal Singh, J.—Gobind Ram, respondent No. 2, on his own behalf and on behalf of his minor son Daya Ram appellant entered into an agreement to sell the land in dispute with Smt. Raksha Kumari, respondent No. 1, on November 25, 1964 for Rs. 10,000/-. Gobind Ram received Rs. 2734/- as earnest money at the time of the execution of the agreement deed. It was agreed that the sale deed would be executed upto December 15, 1965. As the sale deed was not executed within the prescribed time, Smt. Raksha Kumari filed a suit for possession of the land by specific performance of the contract. In the alternative she claimed a decree for possession by specific performance of contract in respect of the share of Gobind Ram alone in terms of section 12 of the Specific Relief Act (for short ''the Act''). It was further prayed that in case decree for specific performance of the contract is not granted, then a decree for Rs. 10,000/- as damages be passed in her favour.

The suit was contested by Gobind Ram and Daya Ram defendants. The trial Court held that the agreement of sale (Exhibit P.1) can be specifically enforced only against Gobind Ram. It was further held that Daya Ram, being minor at the time of the execution of the agreement deed, was entitled to refuse specific performance of contract regarding his share. On these findings the plaintiff''s suit for specific performance was decreed only in respect of the share of Gobind Ram on payment of the balance amount of consideration of Rs. 7266/-. The suit against Daya Ram was dismissed.

The plaintiff filed an appeal which was decided by the Additional District Judge, Hoshiarpur. The lower appellate Court accepted the appeal on the ground that Daya Ram had not repudiated the contract even after attaining majority and he was, therefore, bound by the same. Consequent upon this finding the plaintiff was granted decree for specific performance of contract in respect of the share of Daya Ram also. Against this judgment and decree of the lower appellate Court Daya Ram has come up in second appeal.

The view taken by the lower appellate Court was that it was essential for Daya Ram to have avoided the contract on attaining majority which was made by his father on his behalf during his minority. Since Daya Ram did not file a suit to avoid the contract he was bound by it. This view suffers from legal infirmity. A minor after attaining majority can repudiate the contract even without filing a suit and there is no law forcing him to file a suit to avoid the contract. I am supported in this view by Sivanmalai Goundan Vs. Arunachala Goundan and Others, wherein it was clearly held that "it is far from correct to say that a minor who has attained majority cannot repudiate transfer made by guardian without filing a suit under Art. 44, Limitation Act." Similar view was taken in Iruppakkatt Veettil Viswanathan''s wife Santha Vs. Deceased Kandan''s L.Rs. Wife Cherukutty and Others, , and it was held that the transfer of a minor''s property by his natural guardian without sanction of the Court is voidable at the instance of the minor and the minor can avoid it by his conduct without a suit. The Calcutta High Court took the same view in Panchu Vs. Hrishikesh Ghose and Others, . It was held in this judgment that a sale by a guardian of a minor which is not made for legal necessity or for the benefit of the minor is not binding on him and in order to avoid such a sale it is not necessary for the minor to do so by a suit. It may be done by an expression of the minor''s intention not to honour, respect or abide by the transfer made by the guardian. Thus, the lower appellate Court erred in law by holding that Daya Ram appellant was bound by the agreement of sale simply because he did not file a suit to avoid the same on attaining majority.

Reliance was placed by the learned respondents'' counsel on Shri Manik Chand and Another Vs. Shri Ramchandra, wherein it has been laid down that a minor has no legal competence to enter into a contract or authorise someone else on his behalf to do so. But under the Hindu Law the natural guardian is empowered to enter into a contract on behalf of the minors and the contract would be binding and enforceable if it is for the benefit of the minor. This judgment is of no help to the plaintiff-respondent. No doubt, in the light of this judgment Gobind Ram respondent was empowered to enter into a contract on behalf of the appellant during the latter''s minority, but such a contract would be binding and enforceable if it is proved that it was for the minor''s benefit. In the instant case it is not even alleged the plaintiff-respondent in the suit that agreement of sale was for the benefit of the minor. The plaintiff, in order to succeed in the suit, regarding the share of the minor also, necessarily had to establish two facts; firstly, that the natural guardian had entered into the contract on behalf of the minor and secondly, that the contract was for the benefit of the minor. It is evident that the first ingredient has been established but the second is neither alleged nor proved. In these circumstances, the plaintiff respondent cannot be held to be entitled to specifically enforce the imugned agreement of sale regarding the share of the appellant also.

In this context it also deserves to be noticed that before the trial Court the plaintiff''s counsel relinquished the claim regarding the share of the appellant. The learned counsel contended before the trial Court that the plaintiff was willing to purchase the share of Gobind Ram on payment of the entire sale price in terms of section 12 of the Act.

For the reasons stated above, this appeal is allowed, the judgment and decree of the lower appellate Court are set aside and those of the trial Court are restored. The appellant will be entitled to receive the costs of the appeal from the plaintiff-respondent.