Pillay, J.:— Appellants 1 to 4 are defendants 3 to 6 in O.S 84 of 1979 of the Additional Sub Court, Alleppey, 5th appellant is the 1st defendant in the suit. The 1st respondent (plaintiff) filed the suit for specific performance of a contract for sale. The suit has been decreed by the trial Court and defendants 1 and 2 on their own behalf and on behalf of minor defendants 3 to 6 are directed to execute the sale deed in respect of the plaint property infavour of the plaintiff on receiving the balance sale consideration recited in Ext. A3 within three months. Plaintiff is allowed to execute the decree in case defendants do not comply with the direction of the court. Defendants 1 and 2 were also restrained by injunction from executing the sale deed in respect of the property in favour of the 7th defendant or in favour of any other person.
2. The ranking of the parties as it stood before the trial Court is followed in this judgment.
3. Plaintiff filed the suit for specific performance of Ext. A3 agreement dated 5-3-1979 ex ecuted by defendants 1 and 2 on their behalf and representing minor defendants 3 to 6 in favour of the plaintiff for sale of the plaint schedule property for a consideration of Rs. 14,500/-. It is the case of the plaintiff that he issued a notice through his lawyer expressing his willingness to purchase the property tendering the balance consideration and requesting defendants 1 and 2 to appear before the Sub-Registry Office, Vennikulam at 10 a.m on 26-3-1979 to execute the sale deed in accordance with the agreement and that the 1st defendant replied the notice admitting the execution of the agreement, but contending that the property is in the possession of a stranger under an oral lease. Plaintiff stated that he has been and is still ready and willing to perform his part of the agreement. It is also alleged in the plaint that defendants 1 and 2 had made preparations to alienate the property to the 7th defendant.
4. Second defendant remained ex parte. First defendant filed written statement questioning the genuineness of the agreement and refuting the allegation that he received Rs. 2500/- as stated in the plaint. For defendants 3 to 6 the Court guardian filed written statement contending that the suit is not maintainable against the minor defendants, that the agreement relied on by the plaintiff is not genuine and that it cannot affect the minors' right in their property. It is also contended that the 1st defendant was not competent to execute such an agreement and the agreement was highly detrimental to the interest of the minors.
5. Learned counsel for defendants 3 to 6 submitted that specific performance of the agreement is not possible against the minor defendants, that the agreement is vitiated for non-compliance of the mandatory provisions of the Hindu Minority and Guardianship Act relating to the alienation of minors' property, that there is nothing to show that the proposed alienation of the minors' property was to their benefit and that the Court failed to consider whether the sale of the minors' property was with the due sanction of the District Court.
6. In Ext. A3 agreement there is no mention at all that any portion of the property belongs to the minors and the sale is intended for their benefit. Ext. A4 sale deed whereby defendants got title to the property specifically shows that 18 cents of land was purchased in the name of the minors. But the plaint proceeds on the basis that the property belonged to defendants 1 to 6 jointly. One of the cardinal contentions of defendants 3 to 6 is that the guardian (1st defendant) has not obtained sanction from the court under S. 8 of the Hindu Minority and Guardianship Act, 1956 to alienate the property belonging to minors. In Ext. A3 defendants 1 and 2 cleverly avoided to state the right and title of the minors over a portion of the property which they obtained as per Ext. A4 sale deed.
7. S. 8 of the Hindu Minority and Guardianship Act enumerates the powers of a natural guardian. S. 8(1) reads:
“The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realisation, protection or benefit of the minor's estate, but the guardian can in no case bind the minor by a personal covenant”.
S. 8(2) of the Act prohibits the natural guardian from mortgaging, charging or transferring the minor's property without permission of the Court. S. 8(3) stipulates that any disposal of immovable property by a natural guardian, in contravention of sub-sec. (1) or sub-sec. (2), is voidable at the instance of the minor or any person claiming under him. S. 8(4) mandates the court not to grant permission to the natural guardian to do any of the acts mentioned in sub-s. (2) except in case of necessity or for an evident advantage to the minor. Thus it is manfestly clear that under S. 8 of the Act property of the minor can be alienated, mortgaged or leased or gifted only for his evident advantage or necessity and the court's permission is a condition precedent. Any transaction by a natural guardian of the immovable property of the minors without permission of the court will not have any legal force and would not be binding on the minors.
8. In the case in hand there is no pleading or evidence at all that the 1st defendant as natural guardian entered into the agreement to alienate the property belonging to the minors with permission obtained from the Court under S. 8 of the Act. As there is no evidence that the agreement was entered into by the 1st defendant for the manifest advantage of the minors and with the permission of the Court their right will not be adversely affected. Defendants 3 to 6 are perfectly entitled to avoid the agreement entered into by the 1st defendant in favour of the plaintiff without permission of the Court. Even if it is held that the transaction was beneficial to the minors and to their manifest advantage, still it cannot improve the position, as the Court's prior permission was not obtained. As permission of the Court was not taken by the guardian for the sale of the property the minor defendants can very well avoid the agreement.
9. It has next to be considered whether the plaintiff can obtain decree for specific performance of the agreement so far as the property belonging to defendants 1 and 2 is concerned. S. 12(1) of the Specific Relief Act, 1963 postulates that except in cases falling in sub-sees. (2) to (4), the Court shall not direct specific performance of a part of contract so far as they can be performed, and for compensation so far as it is not possible to perform them. Sub-sec. (2) deals with the case, when the part which must be left unperformed be are only a small proportion to the whole in value, and admits of compensation in money. In such a situation the court may direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency. In the case in hand defendants 1 and 2 are in a position to convey substantially what the plaintiff has contracted to get. Out of the total extent of 94 cents, the extent of property belonging to the minors is only 18 cents. With respect to the property belonging to defendants 1 and 2 they cannot raise any controversy so far as the plaint claim is concerned. As defendants 1 and 2 are in a position to convey substantially what the plaintiff as a purchaser had contracted to get, the court can definitely decree the suit for specific performance as against their property. As it is found that defendants 1 and 2 have no title with regard to 18 cents of property belonging to the minor defendants and as they did not obtain sanction of the Court as provided under S. 8 of the Hindu Minority and Guardianship Act specific performance cannot be granted with regard to that item of property. In such a case the Court has to see whether the part of the contract which cannot be performed bears only a small proportion to the whole in value. Where it is found that the promisor had no title in regard to one item out of several, he had agreed to convey, the court has to see whether the part of the contract which cannot be performed bears only a small proportion to the whole in value and admits of compensation in money, or that such part does not bear only a small proportion to the whole in value or does not admit of compensation in money. In a case where the part of the contract which cannot be performed is the conveyance of an item which is only a small portion of the whole in value and admits of compensation in money, the provisions of S. 12(2) of the Specific Relief Act became applicable. In Rutherford v. Acton Admas, AIR 1915 PC 113 it is stated as follows:
“If a vendor sues and is in a position to convey substantially what the purchaser has contracted to get, the court will decree specific performance with compensation for any small and immaterial deficiency, provided that the vendor has not, by misrepresentation or otherwise, disentitled himself to his remedy”.
Defendants 1 and 2 cannot perform the whole of the agreement and they can perform only that part of the agreement which relates to their own property. As the property belonging to the minor defendants is only a small proportion to the whole of the agreement, it has to be held that specific performance of so much of the contract as can be performed can be granted in favour of the plaintiff.
10. In view of the formidable legal position specific performance cannot be granted so far as the property belonging to the minor defendants is concerned. For 94 cents of land the total consideration was Rs. 14,500/- and Rs. 2,500/- was paid as advance. This would work out Rs. 155/- per cent. For 18 cents of property the consideration amounts to Rs. 2790/-. The consideration for the property of defendants 1 and 2 works out to Rs. 11,710/-. Out of the said amount Rs. 2500/- has already been paid as per Ext. A3 agreement. Plaintiff has therefore to pay Rs. 9,210/- to defendants 1 and 2 as balance sale consideration. With regard to the property belonging to the minors (18 cents) we find that the plaintiff is not entitled to get a decree for specific performance of the agreement as it was obtained without permission from the Court and as the sale was not for the manifest advantage of the minors.
11. Judgment and decree of the court below are hereby modified and defendants 1 and 2 are directed to execute the sale deed in respect of the plaint property minus the property belonging to the minors on receipt of the balance consideration of Rs. 9,210/- within three months from the date of the judgment. In case they do not execute the sale deed, the plaintiff may apply for execution of the decree to have the sale deed executed through Court on depositing in court the balance sale consideration and the cost for registering the sale deed. Upon execution of the sale deed through court, the plaintiff will be entitled to take delivery of the plaint schedule property less 18 cents belonging to minors from the possession of defendants 1 and 2. The trial Court's injunction restraining defendants 1 and 2 from executing the sale deed in favour of the 7th defendant is hereby confirmed.
The appeal is allowed with regard to the property of the minors, defendants 3 to 6. In all other respects the judgment and decree of the trial Court are confirmed, we make no order as to costs.
Order accordingly.