Hari Mohan Pal And Another v. Sew Narayan Kurmi And Others

Ram Labhaya, J.:— This is an appeal from the order of the District Judge, A.V.D, dated and April 1945, by which the order of the Additional Sub-ordinate Judge, A.V.D, dated 21st December 1944, granting plaintiffs a decree for specific performance of an agreement for sale against the defendants and for Rs. 300 against defendant 3, was modified, and plaintiff 2 alone was granted a decree for as. 350 against defendant 2 and a decree for Rs. 15 against defendant 1.

2. The plaintiffs have appealed. On 20th April 1942, defendant 2, father of defendant 1 (then a minor), executed an agreement in favour of the plaintiffs. The arrangement embodied in the agreement was that a sals deed of the property in suit would be executed by defendant on his attaining majority which he was to attain on 31st August 1942. This agreement was executed by defendant 2 as the natural guardian of his minor son. At the time of the agreement, he received a sum of Rs. 150 by way of earnest. The sale price was fixed at Rs. 1150 and the balance was payable to the minor at the time of the conveyance which he was to execute on attaining majority. A further sum of Rs. 50 was received by defendant 2 on 23th April 1942. The plaintiffs also allege that on 12th September 1942, defendant 1 himself received Rs. 15 after attaining majority. On 25th April 1943, he sold the property in suit to defendant 3 who is the mother's sister's husband of defendant 1.

3. The plaintiffs' case is that the contract for the sale of the property entered into by defendant 2 as the natural guardian of the minor, was for his benefit and necessity and, therefore, it was specifically enforceable against him and his estate. He himself ratified it on attaining majority when he received a sum of Rs. 15 out of the sale consideration. Defendant 3 was a transferee with notice of the plaintiffs' claim and, therefore, could not resist the plaintiffs' claim for specific performance.

4. The suit was resisted on several grounds. The Additional Sub-ordinate Judge found that the contract for sale was for the benefit of defendant 1 and, therefore, could be specifically enforced against him, even though he was a minor on the date of the contract. He further found that defendant 1 had ratified the contrast after attaining majority. Defendant 3 was held to be a transferee with knowledge of the plaintiffs' rights. On these findings, a decree for specific performance of the contract for sale was passed.

5. On appeal, the learned District Judge, following Mir Sarwarjan v. Fakhruddin Mahomed, 39 Cal. 232 : (39 I.A 1 (P.C) held that the contract for sale was not specifically enforceable against defendant 1 by reason of his minority on the date of the contract. He did not agree with the Court below that the contract for sale was either for the benefit of the minor or that it was capable of ratification. He was not prepared to hold that it had been ratified in point of fact by the minor after attaining majority. He, therefore, disallowed the relief for specific performance to the plaintiffs.

6. The first contention raised by learned counsel for the appellants is that a contract for sale of immovable property made by a natural guardian of a minor stands on the same footing as a completed conveyance, and if there was necessity or benefit justifying the contract, it would be valid and enforceable against the minor and his estate. Mir Sarwarjan v. Fakhruddin Mahomed, 39 Cal. 232 : (39 I.A 1 P.C), it is argued, is distinguishable and does not lay down any proposition to the contrary. In that case, the manager of the estate of a minor entered into a contract for the purchase of immovable property. The minor instituted a suit for specific performance of the contract. The Courts in India found that the contract was for his benefit. When the case was pending in the High Court, the minor attained majority and ratified the contract. The suit was decreed by the High Court of Calcutta. Their Lordships reversed the decision of the Calcutta High Court and declined to order specific performance of the contract on the ground that it lacked mutuality. In other words, the basis for the decision was that as the contract was not enforceable against the minor, he also could not enforce it, in spite of the fact that it was for his benefit and there was ratification from him after attaining majority. The learned counsel distinguishes this case on the ground that this was a contract for the purchase of immovable property and, therefore, cannot govern a case where the agreement is for the sale of the property by a natural guardian and is sought to be enforced against the minor. We do not find any force in this argument. The proposition laid down by their Lordships of the Privy Council was that there was no difference between the position and powers of a manager and those of a guardian, and that:

“it was 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.”

7. They were of the opinion that the minor in that case was not bound by the contract. There was, therefore, no mutuality and the minor who had attained majority could not obtain specifics perfomance. The operation of the pronouncement of their Lordships of the Privy Council cannot be limited to contract for the purchase of the property. If it is not within the competence of the guardian of a minor to bind the minor or his estate by a contract for the purchase of immovable property even though it may be for the benefit of the estate, it would not be within his competence to contract for the sale of the property. If mutuality is lacking in a contract for the purchase of a property, it would certainly be lacking even in a contract for its sale. This was the view taken in Srinath Bhattacharjee v. Jatindra Mohan, A.I.R (13) 1926 Cal. 445 : (89 I.C 892). In that case, the contract was for the sale of immovable property. It was for paying of the debts of the minor's father. Following Mir Sarwarjan v. Fakhruddin Mahomed, 39 Cal. 232 : (39 I.A 1 P.C), their Lordships of the Calcutta High Court held that conveyance stood on a different footing from a contract for sale, and that the guardian of a minor could not bind the minor by such a contract, and that it was not specifically enforceable against him. They refused to distinguish the case before them from the Privy Council case on the ground that the Privy Council decision was limited in its application to an agreement for the purchase of property on behalf of a minor. They found no basis for making such a distinction. We are in full agreement with the view taken by their Lordships of the Calcutta High Court.

8. The learned counsel has tried to distinguish the Privy Council case on another ground also. He has urged that a contract for the sale of immovable property entered into by a guardian or manager on behalf of a minor, if for legal necessity, ought to be specifically enforceable, and in support of this contention, he has relied upon Brahamdeo v. Haro Singh, A.I.R (22) 1936 Pat. 237 : (167 I.C 327). In this case, the learned Judge expressed the view that there could, be no distinction between a contract foe sale or for purchase of land, and a conveyance. He was of the view that the mere fact that a transaction had been completed, should make no difference on the question as to whether mutuality was lacking or not. Having taken that view, he tried to find out some other explanation for the decision of their Lordships of the Privy Council, and he found it in Hunoomanpersaud Panday v. Mt. Babooee Munraj Koonweree, 6 M.I.A 393 : (1 Sar. 552 P.C). This he thought afforded the key to the solution of the difficulty, and on this he made a distinction between a contract which is for legal necessity and a contract that is not, and finally came to the conclusion that a contract for the Bale of immovable property entered into by the guardian or manager on behalf of a minor, the legal necessity for which has been proved, can be specifically enforced. With great respect to the learned Judge, we are unable to adopt this view. We think it is in apparent conflict with the decision of their Lordships of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed, 39 Cal. 232 : (39 I.A 1 P.C) and cannot possibly be reconciled with it. The Courts in India in that case had assumed that the contract was for the benefit of the minor. Their Lordships distinctly observed that, for the purposes of their judgment their Lordships would, accept this assumption. The case, therefore, was decided on the assumption that the agreement was for the benefit of the minor. Benefit and necessity both justify the alienation of a minor's property, and, in spite of benefit to the minor, their Lordships of the Privy Council declined to enforce the contract specifically. If, therefore, it is held that a contract for the sale of a minor's property would bind the minor or his estate and would be specifically enforceable, if for his necessity or benefit, the decision would be contrary to the view enunciated by their Lordships of the Privy Council.

9. The learned Judge of the Patna High Court also referred to a decision of the Allahabad High Court reported in Ramchandra v. Mt. Dhapo, A.I.R (21) 1934 ALL. 68. This case is distinguishable. In this case it was held that the manager of a joint Hindu family was fully competent to bind a minor's property by a contract for the sale of immovable property belonging to the family provided the contract was for legal necessity. While considering the position of the manager of a joint Hindu family the learned Judge held that the Privy Council case Mir Sarwarjan v. Fakhruddin Mahomed, 39 Cal. 232 : (39 I.A 1 P.C) was no authority for the proposition that the properties of a minor member of joint Hindu family were not bound by a contract for the sale of the property entered into by the manager even though the contract was for family necessity. In this view, the learned Judge was perfectly correct. Their Lordships of the Privy Council were dealing merely with the position of a manager or guardian of a minor's estate, and not with that of the manager of a joint Hindu family. This case is of no assistance to the appellants. Similarly the case of Hunoomanpersaud Panday v. Mt. Babooee Munraj Koonweree, 6 M.I.A 393 : (1 Sar. 552 P.C) is not helpful as besides holding that a completed mortgage by the mother acting as a curator of her son, being beneficial to the estate, was binding on him, it deals with the powers of a manager of a joint Hindu family. We are not concerned in this case with either of the two questions decided in this case.

10. Innatunnessa Bibi v. Janki Nath Sircar, 22 C.W.N 477 : (A.I.R (5) 1918 Cal. 827) has also been relied upon by the learned counsel. This was a case in which a guardian appointed by the Court agreed to sell the minor's property, and it was held that the agreement was specifically enforceable. This case does not deal with the powers of a natural guardian. A guardian appointed by a Court under the provisions of the Guardians and Wards Act can sell the property of his ward with the permission of the Court. The agreement in this case was entered into with the necessary permission from the Court. This case is obviously no authority for the proposition that a natural guardian can bind a minor or his estate by an agreement for sale of his property.

11. The last case relied upon by the learned counsel was, Subrahmanyam v. Subba Rao, 52 C.W.N 706 : (A.I.R (35) 1948 P.C 95).

12. In this case, the mother, as the guardian of a Hindu minor, entered into a contract for sale. The minor's father had left certain debts. It was for payment of these debts that the guardian entered into a contract for the sale of the property. The sale consideration was paid. The purchasers were put in possession of the property, contracted to be sold, but no sale deed, as required by law, was executed. The minor sued for possession of the property. It was held by their Lordships of the Privy Council that the minor was the ‘transferor’ within the meaning of that expression as used in Section 53-A of the Transfer of Property Act, and the purchasers, therefore, could rely on the doctrine of part performance. No reference was made in this case to the decision reported in Mir Sarwarjan v. Fakhruddin Mahomed, 39 Cal. 232 : (39 I.A 1 P.C). The point before their Lordships was very different from the one that arose in Mir Sarwarjan v. Fakhruddin Mahomed, 39 Cal. 232 : (39 I.A 1 P.C). The authority, therefore, has got no bearing on the case before us. The learned counsel has, however, invited our attention to a passage quoted in the judgment by their Lordships from Pollock and Mulla's ‘Indian Contract and Specific Relief Acts’ 7th Edn., p. 70. In that passage the learned authors of the Contract Act observed

“that with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate, it had been held by the High Courts in India in cases which arose subsequent to the governing decision of the Privy Council, Mohori Bibee v. Dhurmodas Gose, 30 I.A 114 : (30 Cal 539 P.C), that a 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.”

13. These observations must have been based on decisions given by High Courts in India before Mir Sarwarjan v. Fakhruddin Mahomed (39 Cal. 232 : (39 I.A 1 P.C) for the only case that the learned counsel has been able to cite before us in which the contract entered into by the guardian of a minor for the sale of his property was held to be specifically enforceable, was Brahamdeo v. Haro Singh, A.I.R (22) 1935 Pat. 237 : (157 I.C 327). We have dealt with that case and, therefore, we do not think that the remarks of the learned authors improve the position of the appellants. The authorities cited by the learned counsel have all been considered. We find no justification for the view that the natural guardian of a Hindu minor is competent to bind the minor or his estate by a contract for sale even though it may be for necessity or for the benefit of the minor. The contract, therefore, was not specifically enforceable against defendant 1. In this view of the matter, it is not necessary to consider whether the contract was for the benefit of the minor or not.

14. The second contention raised on behalf of the appellants is that the contract was capable of ratification and had actually been ratified by the minor on 12th September 1942 when lie received Rs. 15 and agreed to the deduction of this amount from the sale consideration which was payable to him by the plaintiffs under the contract for sale. In support of the proposition that a guardian's acts are capable of ratification, the learned counsel referred us to page 198 of Travelyan's ‘Law Relating to Minors’, 6th edition. The learned author observes as follows in the passage to which our attention has been invited:

“On coming of age, a minor must consider whether he will ratify or avoid the acts of his guardian. However much a guardian may have exceeded his powers, or otherwise acted improperly in his trusts, his acts will be rendered binding on the ward by being ratified, or acquiesced in, by him, after he has attained majority, and has full knowledge of his rights, and of all the material facts connected with the transaction so ratified.”

15. The learned author has relied on Gulab Das Jugjivandas v. Collector of Surat, 6 I.A 54 : (3 Bom. 186 P.C) for the proposition stated in the above words. A reference to Gulab Das Jugjivandas v. Collector of Surat, 6 I.A 54 : (3 Bom. 186 P.C), shows that it was laid down by their Lordships of the Privy Council that the question of ratification was in a great measure a question of fact. The High Court had come to the conclusion that Fatima, the party concerned, had not ratified the execution of the mortgage by her brother with knowledge of her rights and that, therefore, she could not be bound thereby. Their Lordships did not differ from the view of the High Court so expressed. Ratification according to the view taken in this case, should, therefore, be with full knowledge of the rights. We are not persuaded to hold that defendant 1 who attained the age of majority on 31st August 1942, ??? full knowledge of his rights on 12th September 1942 when, it is alleged, he received a small sum of Rs. 15 only and agreed that this may be deducted from the sale consideration of the property agreed to be sold by his father. He may have accepted this amount, he may have agreed to the arrangement disclosed in the receipt with, out knowing that he could successfully resist specific performance of the contract for sale. There is nothing on the record to show that he had knowledge of his rights. The receipt was executed when his father was not present. There is no evidence on the record to show that the minor had the benefit of any independent advice. He was dealing with an advocate and had attained majority only about 12 days before. We are also not convinced that the receipt for Rs. 15 was executed on the date it purports to bear. The trial Judge noticed that the date appeared to be in different ink from the rest of the writing on top of it. He was of the view that this was probably due to the fact that the portion of the piece of paper on which the date was written was damp and this made the date to appear in a different shade. The learned District Judge does not seem to have agreed with this view of the trial Court. He could not help observing as follows:

“If anything was made to turn on this point, I might have to construe this gloss in favour of the appellant (defendants).”

16. These remarks are very significant. We have examined the receipt ourselves and we find ourselves unable to find positively that the receipt was executed on 12th September 1942, as alleged. Defendant 1 has denied that he received any money on 12th September 1942. In these circumstances, the alleged ratification is extremely doubtful, and in any case, we do not feel justified in giving a positive finding that defendant 1 ratified ratification of the contract with full knowledge of his rights after attaining majority.

17. In the view of the case that we have taken, it is not necessary to decide any other point. For the reasons given above, the appeal fails and is hereby dismissed. The parties shall bear their own costs in this Court.

Lodge, C.J:— I agree.

18. Appeal dismissed.