Singara Mudali vs Ibrahim Baig Sahib

Chndrasekhara Aiyar, J.—The defendant purchased the properties under Ex. P-2 from three minors and their mother Govindammal,

subject, no doubt, to an agreement to convey the properties in favour of the plaintiff and his two brothers, Ex. P-1. The plaintiff seeks to enforce

sepecific performance of the agreement, evidenced by Ex. P-1 and referred to in Ex. P-2, and is met by the answer that so far as the minors who

sold to the defendant are concerned, there could be no decree for such specific performance and therefore the defendant who claims under a

purchase from them, is not liable either. The District Munsiff dismissed the suit altogether but, on appeal, the Subordinate Judge granted to the

plaintiff a decree for specific performance in so far as the share of Govindammal was concerned, that is, the mother and one of the four vendors.

The plaintiff has filed this second appeal, urging that he should have been granted a decree for specific performance of the agreement to convey, or

reconvey not only as regards the share of Govindammal, but also as. regards the shares of the three minors.

I do not think the plaintiff is entitled to get any more relief than has been awarded to him by the learned Subordinate Judge. The Privy Council

held in Mir Sarwarjan v. Fakkruddin Mahommed Chowdhuri (1911) 21 M.L.J. 1156 : L.R. 39 IndAp 1: ILR 39 Cal. 232 that a contract entered

into by the guardian of a minor for the purchase of Immovable property cannot be specifically enforced by him, as he was not bound by the

contract and there was no mutuality. In Ramakrishna Reddiar v. Kasivasi Chidambara Swamigal (1928) M.W.N. 185, a Bench of this Court

dealing with a case exactly on alL fours with the present, held that an agreement to sell the Immovable property of a Hindu minor entered into on

his behalf by his natural guardian could not be specifically enforced against him or a subsequent transferee of the properties with notice of the

agreement. This decision is binding on me.

But it is urged by Mr. V. T. Rangaswami Aiyangar, the learned advocate for the appellant that a later decision in zebunniza Begum v. Mrs.

Danaghar (1935) 70 M.L.J. 477 :1.L.R. 59 Mad. 942, by Cornish and Varadachariar JJ., has somewhat shaken its authority because it was there

pointed out that a contract entered into on behalf of a minor by a guardian cannot be said to be void but is only voidable. This distinction between

void "" and ""voidable"" as regards minors'' contracts, is not of much importance when we are dealing with a suit for specific performance of an

executory contract entered into on behalf of a minor by his guardian. The distinction between the non-availability of the remedy by way of specific

peformance and the voidability only of the contract so far as the minor is concerned is pointed out in the same decision. In that very case, dealing

with the covenants not to construct buildings, to repair the premises and to grant renewals of leases, the learned Judges hold that specific

performance could not be enforced because they are contracts entered into on behalf of a minor on whom personal covenants of the kind cannot

be imposed by the guardian. The question whether specific performance should be decreed or not depends not so much on the void or voidable

nature of the contract but on its being executory or executed so far as the minor is concerned, and this is apparent from the Full Bench decision in

Venkatachalam Pillai v. Sethurama Rao (1932) 64 M.L.J. 354 : ILR 56Mad. 433, where it was held that a contract of resale in favour of a minor

could not be enforced by him after he attained majority inasmuch as it was an executory contract and for want of mutuality cannot be enforced by

either party even though on the date of the suit, just as in the Privy Council decision, the plaintiff had become a major and had elected to ratify or

affirm the transaction that was entered into on his behalf or for his benefit.

Is the defendant affected by this principle of the lack of mutuality when he took his purchase subject to this obligation of reconveyance ? What is

now sought to be enforced against him is not any contract entered into by him but a contract entered into by or on behalf of the minors, and

standing in their shoes the defences open to them would be available to him generally speaking. It may be that as between his minor vendors on the

one hand and himself on the other, other questions might possibly arise but they are not relevant for the purposes of this second appeal, which is

hence dismissed with costs.

No leave.