Citation Codes

Equivalent Citations

citation codes

Case Number

S.A 573 of 1973

Attorney(S)

For the Appellant: Joseph Augustine

Judges

S.K Kader, J.

Acts

S. 9 of the Specific Relief Act, 1963 and rules 2 and 8 of Order VI of the Code of Civil Procedure].
provisions contained in sub-section (4) of S. 8 of the Hindu Minority and Guardianship Act.
provisions contained in sub-section [4] of S. 20 of the Specific Relief Act, 1963,
Hindu Minority and Guardianship Act, 1956, and the Specific Relief Act, 1963.
sub-section (1) of S. 8 of the Hindu Minority and Guardianship Act.(5) Ex. P3
sub-section (1) of S. 8 of the Hindu Minority and Guardianship Act
sub-section (3) of S. 8 of the Hindu Minority and Guardianship Act,
HINDU MINORITY AND GUARDIANSHIP ACT 1956
Ss. 6, 8 and 11 of the Hindu Minority and Guardianship Act.
Indian Contract Act and Specific Relief Act, Edn. VII
sub-section (4) to S. 20 of the Specific Relief Act,
provisions contained in S. 20(4) of Act 47 of 1963.
S. 8 of the Hindu Minority and Guardianship Act
Sub-section (4) of S. 20 of Act 47 of 1963
Specific Relief Act (Act 47 of 1963)
SPECIFIC RELIEF ACT 1963
Specific Relief Act (Act

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

The plaintiff instituted a suit for specific performance of Exhibit P3, an agreement to sell property of minors executed by the first defendant (the father and natural guardian) on August 4, 1966, in favour of the plaintiff, and for recovery of possession. The first defendant did not appear to execute the sale deed as agreed; the plaintiff sent a notice on August 5, 1966. Meanwhile a sale deed Exhibit D1 was executed by the 9th defendant (the mother), who was not the natural or legal guardian, in favour of defendants 10 to 19. Defendants 10 to 19 contested the suit, denying knowledge of Ex. P3, challenging its execution and genuineness, asserting Ex. P3 was created after Ex. D1 and claiming they were bona fide purchasers; they also claimed the 9th defendant was their natural guardian.

The learned Munsiff found Ex. P3 genuine, that the sale under Ex. P3 was more beneficial to the minors, that defendants 10 to 19 had notice of Ex. P3 and were not bona fide purchasers, that Ex. D1 (executed by the mother) was void, and decreed specific performance and recovery of possession with mesne profits at Rs. 10 per mensem from defendants 10 onwards. The lower appellate court confirmed these findings and dismissed the appeal. The appellants (defendants 10–13, 15–19 and an additional defendant) pursued further appeal raising specified points.

Legal Issues Presented

Whether Exhibit P3 is genuine and properly proved.
Whether the appellants (defendants 10–19) are bona fide purchasers without notice of Exhibit P3.
Whether the agreement Ex. P3 is unenforceable for want of mutuality of contract (i.e., whether a minor can be bound or obtain specific performance of an agreement made by his guardian).
Whether Ex. P3 violates sub-section (1) of Section 8 of the Hindu Minority and Guardianship Act (i.e., whether a guardian can bind the minor by a personal covenant).
Whether Ex. P3 is invalid for lack of previous permission of the court to execute a sale deed, as required by Section 8(2) of the Hindu Minority and Guardianship Act.
Whether under Section 8(3) of the Hindu Minority and Guardianship Act the appellants (who claim under the minors) are entitled to challenge the validity of Ex. P3.

Arguments of the Parties

Appellants' Arguments

Exhibit P3 is not genuine and has not been properly proved (over-writing on the date allegedly shows fabrication after Ex. D1).
The appellants are bona fide purchasers without notice of Ex. P3.
Ex. P3 is unenforceable for want of mutuality of contract; relying upon the doctrine in Mir Sarwarjan and related authorities that a contract entered on behalf of a minor may not be specifically enforceable if mutuality is lacking.
Ex. P3 violates sub-section (1) of Section 8 of the Hindu Minority and Guardianship Act because a guardian "can in no case bind the minor by a personal covenant."
Ex. P3 is invalid in the absence of prior court permission required before alienating minor's immovable property (Section 8(2)).
By virtue of Section 8(3) of the Hindu Minority and Guardianship Act, persons claiming under the minors (the appellants) are entitled to challenge the validity of Ex. P3.

Plaintiff's / Respondent's Case (as presented in the opinion)

Exhibit P3 was executed by the first defendant on 4-8-1966; part consideration (Rs. 200) was paid on 29-7-1966 and Rs. 10 on the date of execution; these facts are recorded in Ex. P3 and corroborated by witnesses (Pw.1 plaintiff, Pw.2 scribe, Pw.3 an attestor).
The apparent over-writing on the date was explained by the scribe (Pw.2) as a contemporaneous correction at execution; the first defendant has not denied execution and, in a related plaint (Ex. P5), admitted execution of Ex. P3 and receipt of part consideration.
Exhibit D1 (sale deed executed by the mother) appears to be collusive; the sale price to appellants (Rs. 400) was substantially less than plaintiff's offer (Rs. 700), and there was necessity for sale and the proposed sale under Ex. P3 was more advantageous to the minors.
Because the mother was not the natural guardian while the father (first defendant) was alive and competent, Ex. D1 is void and the appellants claiming under Ex. D1 have no rights passing from the minors; therefore they cannot be bona fide purchasers claiming under the minors.
Pleadings did not sufficiently raise the statutory objections now relied on by the appellants (e.g., violation of S.8(1) or S.8(2)); mere denial of the contract is inadequate when specific statutory invalidity is asserted later.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (ILR. Cal. Vol. 39 p. 232)	Doctrine of mutuality — held that manager/guardian could not bind minor by purchase contract; lack of mutuality prevents specific performance.	The court observed that this rule is not applicable to the facts of the present case and has lost much of its importance after the Hindu Minority and Guardianship Act, 1956 and the Specific Relief Act, 1963.
Subrahmanyam v. Subba Rao (AIR 1948 P.C. 95)	Privy Council decision discussed the competence of a guardian of a Hindu minor to enter contracts affecting minor's estate; cited for the proposition that contracts within guardian's competence and for the minor's benefit may be enforceable.	The court treated Subrahmanyam as supporting the view that if a guardian acts within competence and for benefit of the minor, specific performance may be allowed; the court considered the decision in reconciling authorities.
Sitarama Rao v. Venkatarama (AIR 1956 Mad. 261)	Full Bench decision holding Subrahmanyam had not the effect of overruling Mir Sarwarjan; dealt with distinction between sale and purchase agreements by guardian.	The court cited Sitarama Rao as part of the conflicting authorities and discussed its reasoning distinguishing agreements to sell from agreements to purchase and noting the rule of Hindu law permitting guardian transactions for necessity/benefit.
Ramachandra v. Manikchand (AIR 1968 Madhya Pradesh 150)	Division Bench view that Subrahmanyam had not overruled Mir Sarwarjan insofar as contracts for purchase were concerned; affirmed test of necessity/benefit for guardian transactions.	The court relied on Ramachandra's discussion to show the existence of conflicting opinions but emphasized that necessity and benefit remain the essential criteria under Hindu law.
Singara v. Ibrahim Baig (AIR 1947 Mad. 94)	Distinction between executed and executory contracts; executory contracts on behalf of a minor may be unenforceable (relying on Mir Sarwarjan doctrine).	The court referenced Singara for the asserted distinction but treated the matter as governed by subsequent statutory changes and by the tests of competence and benefit under Hindu law.
Suryaprakasam v. Gangaraju (AIR 1956 Andhra 33)	Full Bench holding that a contract entered into by a guardian of a Hindu minor for sale or purchase of immovable property is specifically enforceable against the minor.	The court cited this authority among examples supporting the view that under Hindu law necessity and benefit govern enforceability of guardian transactions.
Radheshyam v. Kiran Bala (AIR 1971 Cal. 341)	Decision noting that the doctrine of mutuality will not defeat specific performance in view of the express provisions (S.20(4) of the Specific Relief Act, 1963).	The court relied on Radheshyam to support the proposition that S.20(4) prevents refusal of specific performance merely because the contract is not enforceable at the instance of the other party.
Bhupal v. Man Chand (AIR 1973 All. 543)	Held that the true test of enforceability is not want of mutuality but the competence of the guardian, legal necessity or benefit to the minor; also that a defendant must plead unenforceability to be heard on that ground.	The court relied on Bhupal to reinforce that competence, necessity and benefit are the tests and to stress the requirement of proper pleadings when challenging legality.
Hunoomanpersaud Pandey v. Mt. Babooee Munrai Kunweree ((1856) 6 Moo. Ind App 393)	Older authority discussed within the line of cases about guardian competence and enforceability (cited within Bhupal and related discussions).	Referenced as part of the body of precedents considered in Bhupal and related authorities concerning enforceability and guardian competence.
Kalyanpur Lime Works Ltd. v. State of Bihar (AIR 1954 SC 165)	Authority cited in discussion of principles (context provided in later cases cited).	Referenced by the court as one of several authorities discussed in Bhupal; used as part of the background jurisprudence.
Thomas v. Gopala Pillai (1968 KLT. 388)	Interpreted Ss. 6, 8 and 11 of the Hindu Minority and Guardianship Act — father is the natural guardian and power of disposal of minor's property lies with the natural guardian; mother's alienation is void when father alive and competent.	The court cited Thomas v. Gopala Pillai to support the principle that the father is the natural guardian and that a mother's sale (when father is alive and competent) is void.

Court's Reasoning and Analysis

The court conducted a step-by-step analysis grounded in factual findings and statutory law:

Authenticity and proof of Ex. P3: The court examined the alleged over-writing on the date of Ex. P3. The scribe (Pw.2) explained the correction as contemporaneous at execution. The plaintiff's evidence (Pw.1) and corroborative evidence of Pw.2 and Pw.3 supported the execution. The first defendant did not deny execution in related pleadings (Ex. P5 admitted execution and part consideration). On this basis, the court found no sufficient ground to reject Ex. P3 as fabricated.
Notice and bona fide purchaser issue: Evidence pointed to a collusive nature of Ex. D1 (executed by the mother) — price disparity (sale to appellants for Rs. 400 while plaintiff offered Rs. 700) and other circumstances supported the plaintiff's case. The court found that defendants 10 to 19 had notice of Ex. P3 and therefore could not be treated as bona fide purchasers for value without notice. The lower courts' concurrent factual findings on this point were upheld as not subject to interference.
Mutuality doctrine and statutory law: The court addressed the contention that Ex. P3 was unenforceable for lack of mutuality (relying on Mir Sarwarjan and related authorities). It held that the doctrine of mutuality, as applied in Mir Sarwarjan, is not applicable to the present facts and has been significantly affected by subsequent legislation — namely the Hindu Minority and Guardianship Act, 1956 and the Specific Relief Act, 1963. In particular, sub-section (4) of Section 20 of the Specific Relief Act, 1963 (now quoted in the opinion) provides that the court shall not refuse specific performance merely because the contract is not enforceable at the instance of the other party. The Law Commission's observations supporting this change were noted.
Competence, necessity and benefit under Hindu law: The court surveyed conflicting High Court authorities but emphasized the prevailing thread that under Hindu law a guardian of a minor may enter contracts affecting minor's property if within competence and for the necessity/benefit of the minor or his estate. The court relied on authorities (including Bhupal and others) to conclude that the true test is competence and benefit rather than mere mutuality.
Section 8 (Hindu Minority and Guardianship Act): The court examined S.8(1)–(4). It rejected the submission that Ex. P3 amounted to a personal covenant by the guardian in the sense prohibited by S.8(1). Even assuming (without admitting) a contravention of S.8(1) or S.8(2), S.8(3) makes such transactions voidable (not automatically void) at the instance of the minor or person claiming under him. The court also noted that pleadings did not sufficiently raise statutory invalidity (pleadings must set forth grounds attacking legality/executability).
Status of Ex. D1 and locus of appellants: The court found insufficient evidence that the mother was the natural guardian or that the father was disqualified. Under the statute and precedents (for example Thomas v. Gopala Pillai), the father was the natural guardian while alive and competent, making the mother's alienation (Ex. D1) void; consequently the appellants claiming under Ex. D1 could not be persons claiming under the minors for purposes of S.8(3).
Weight of concurrent findings: The courts below had found Ex. P3 genuine, sale was necessary and more beneficial to minors, and appellants had notice. The present court found no adequate reason to interfere with those concurrent findings of fact.

Holding and Implications

Holding: The second appeal is DISMISSED. The appellate court's confirmation of the trial court's findings stands.

Direct implications and consequences:

The decree for specific performance in favour of the plaintiff (as awarded by the courts below) remains operative. The plaintiff is entitled to specific performance of Ex. P3 and recovery of possession of the suit property, together with mesne profits at the rate found by the courts below (Rs. 10 per mensem from defendants 10 onwards, as per the trial court's decree).
Exhibit D1 (the sale deed executed by the mother) was held void by the courts below and that conclusion is sustained: the appellants claiming under Ex. D1 have no rights deriving from the minors under that document.
The court rejected the appellants' statutory and doctrinal objections (mutuality, S.8(1) and necessity of prior permission under S.8(2)) on the facts and pleadings of the case, emphasizing (i) the tests of competence and benefit under Hindu law, and (ii) the effect of S.20(4) of the Specific Relief Act, 1963 which removes the bar created by mutuality doctrine in the circumstances described.
No new legal principle or precedent was created by this decision; the court applied existing statutes and reconciled prior authorities to the facts before it, affirming earlier factual and legal conclusions reached by the courts below.

Disposition: Appeal dismissed with costs.

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Ayyappan Ezhuthachan & Others v. Antony & Others

1. Defendants 10 to 13, 15 to 19 and additional defendant No. 20, the legal representative of the 14th defendant, are the appellants. The plaintiff instituted the suit for specific performance of Ex. P. 3, an agreement to sell the property of minors, executed by the first defendant, father and natural guardian of the minors, on August 4, 1966 in favour of the plaintiff, and for recovery of possession. The first defendant did not turn up for executing the sale deed as agreed to. Thereupon the plaintiff sent a notice on August S. 1966 to the first defendant; but in the meanwhile, a sale deed Ex. D1 was executed by the 9th defendant, the mother, who is not the natural or legal guardian of the minors, in respect of the suit property in favour of defendants 10 to 19. The suit was contested by defendants 10 to 19 and they mainly contended (hat they are not aware of Ex. P3 agreement, that it is not true that the first defendant executed such an agreement on 4-8-1966, that this agreement was brought into existence after defendants 10 to 19 obtained the sale deed in question and that the 9th defendant is their natural guardian. It was also contended that these defendants are bona fide purchasers.

2. The learned Munsiff found that Ex. P3 is genuine and valid and was executed by the 1st defendant in favour of the plaintiff, that the proposed sale under Ex. P3 is more beneficial to the minors, that the contesting defendants cannot be considered to be bona fide purchasers for value without notice of Ex. P3, that Ex. D1 sale deed executed by the mother is void and that the plaintiff is entitled to a decree for specific performance and recover possession of the suit property with mesne profits at the rate of Rs. 10/- per mensem from defendants 10 onwards.

3. On appeal by defendants 10 to 19, the lower appellate court confirmed the findings of the trial court and dismissed the appeal.

4. Sri V. Sankara Menon, learned advocate appearing for the appellants, urged the following points in support of the appeal:

(1) Ex. P3 is not genuine and has not been properly proved.

(2) The appellants are bona fide purchasers without notice of Ex. P3.

(3) Ex. P3 agreement is unenforceable for want of mutuality of contract.

(4) Ex. P3 agreement is in violation of sub-section (1) of S. 8 of the Hindu Minority and Guardianship Act.

(5) Ex. P3 is invalid in the absence of previous permission of the court to execute a sale deed.

(6) Under sub-section (3) of S. 8 of the Hindu Minority and Guardianship Act, the appellants who claim under the minors are entitled to challenge the validity of Ex. P3.

5. Point Nos. 1 and 2: It was argued that there is over-writing over the date in Ex. P3, indicating that the date was corrected and this circumstance would clearly show that this document was fraudulently created subsequent to the execution of Ex. D1 assignment deed in favour of the appellants. There appears to the some over-writing over the date; but this has been explained by the scribe, Pw. 2. On this ground alone this document cannot be rejected as a false or fabricated one. According to the plaintiffs, this document was executed by the first defendant on August 4, 1966, as natural guardian of the minors agreeing to sell the property for a consideration of Rs. 700/-. An amount of Rs. 200/- was received by the first defendant towards the sale consideration from the plaintiff on July 29, 1966 and another amount of Rs. 10/- was received on the date of execution of Ex. P3. These facts are stated in Ex. P3. It was for discharging the debt of Rs. 200/- charged on the property, as Kuttan Ezhuthassaa was pressing for the same, and also for purchasing a suitable property for the residence of the minors that the first defendant agreed to sell the property to the plaintiff. There was an agreement between the first defendant on the one side and Pw. 3 and his wife on the other to purchase an item of property for the minors with the balance consideration abailable after discharging the debt and this sale deed also was to be executed on 5-8-1966. Pw. 1, the plaintiff, has sworn to all these facts and his evidence is fully corroborated by Pw. 2, who wrote Ex. P3, and Pw. 3, one of the attestors in Ex. P3. As agreed, Pw. 1 as well as Pw. 3 had come to the office of the scribe, Pw. 2, on 5-8-1966; but the first defendant did not turn up. Pw. 2 has stated during cross-examination that the correction of the date was done by him then and there at the time of the execution of Ex. P3. The first defendant has not denied the execution of Ex. P3. He filed a suit as guardian of the minors for setting aside Ex. D1 sals deed against defendants 10 onwards. In Ex. P5, certified copy of the plaint in this suit, he has categorically admitted the execution of Ex. P3 on 4-8-1966 and the receipt of part consideration as alleged. The case of the appellants is also that Ex. D1 was executed for the purpose of discharging the debt charged on the property and for purchasing another property for the residence of the minors-The circumstances disclosed in the evidence of Dw. 1 lend support to the case of the plaintiff that Ex. D1 is a collusive transaction. The suit property having an extent of 13 ¾ cents was sold to the appellants for an amount of Rs. 400/- while the plaintiff offered to purchase the same for Rs. 700/-. There was necessity for the sale of the property and the proposed sale in favour of the plaintiff was more advantageous and beneficial to the minors than the sale under Ex. D1. In the light of the evidence on record, it is difficult to hold that the appellants are bona fide purchasers without notice of Ex. P3 agreement. The courts below duly considered the evidence on all these points and as a fact found that Ex. P3 is genuine and duly executed by the first defendant, that there was necessity for the sale of the property, that the proposed sale under Ex. P3 was more beneficial to the minors and that defendants 10 to 19 had notice of Ex. P3 agreement and are not bona fide purchasers. No adequate reason or compelling ground has been made out to interfere with these concurrent findings of fact. It may also be noted that defendants 1 to 9 did not contest the suit.

6. Point No. 3: Sri Sankara Menon very strenuously contended citing a number of decisions that, before a suit for specific performance can be decreed there should be mutuality of contract between the parties and that a minor can not be bound by the agreement executed by his/her guardian on his/her behalf it was relying upon the doctrine of mutuality laid down by Privy Council in Mir Sarwarjan v. Fakruddin Mahomed Chowdhuri (ILR. Cal. Vol. 39 p. 232) that the counsel stressed that Ex. P3 is unenforcable for want of mutuality of contract. It was found in this case that it was not within the competence either of the Manager of the minor's estate or of the guard an of the minor, to bind the minor or the minor's estate by a contract for the purchase of immovable property; that as the minor was not bound by the contract, there was no mutuality; and that consequently the minor could not obtain specific performance of the contract. In Subrammanyam v. Subba Rao (AIR. 1948 P.C 95). Their Lordships of the Privy Council referred to, with approval, the following passages from Pollock and Mulla's Indian Contract Act and Specific Relief Act, Edn. VII at page 71:

“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 Privy Council, 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 contract cannot be specifically enforced at all.”

7. There is conflict of opinion among the various High Courts on the question whether this decision, viz., Subrabmanyam's case (AIR. 1948 PC. 95) overruled the rule laid down in Mir Sarwarjan's case ILR. Cal. Vol 39 p. 232). Some of the High Courts took the view that the decision in Subrahmanyam's case (AIR. 1948 PC 95) has clearly overruled the principle laid down in Mir Sarwarjan's case (ILR Cal. Vol. 39 p. 232). Some others are of the view that this decision has the effect of overruling the rule laid down in Mir Sarwarjan's case ILR Cal. Vol. 39 p. 232), while few others hold that this has not overruled the doctrine enunciated in Mir Sarwarjan's case (ILR. Cal. Vol 39 p. 232). Relying on the decision reported in Sitarama Rao v. Venkatarama (AIR. 1956 Mad. 261), the learned advocate for the appellants contended that the rule laid down in Mir Sarwirjan's case (ILR. Cal. Vol 39 p. 232) is still good law and that after the passing of the Hindu Minority and Guardianship Act, 1956, this rule has become all the more forceful. I may say, at once, that the rule laid down in Mir Sarwarjan's case (ILR. Cal. Vol. 39 p. 232) is not applicable to the facts of the present case and the same has lost all its the and importance after passing of the Hindu Minority and Guardianship Act, 1956, and the Specific Relief Act, 1963. Anyhow, in fairness to the learned counsel, I shall briefly refer to the decisions cited by him. In Sitarama Rao v. Venkatarama (AIR 1956 Mad. 261), a Full Bench of the Madras High Court held that Subrabmanyam's case (AIR. 1948 PC. 95) has not the effect of overruling the principle laid down in Mir Sarwarjan's case (ILR. Cal. Vol 39 p. 232). In Ramachandra v. Manikchand (AIR 1968 Madhya Pradesh 150) after referring to a number of decisions of various High Courts on the point, a Division Bench of the Madhya Pradesh High Court observed:

“The view expressed by Govinda Menon, J. in AIR. 1956 Mad. 261 (supra), with which Nevaskar, J. concurrred, expresses the correct position and that Subrahmanyam's case, 75 Ind App 115 : AIR. 1948 PC 95 (supra) had not the effect of overruling the decision in Mir Sarwarjan's case, [1912] 39 Ind. Appl 1 : ILR 39 Cal. 232 [PC] [supra] atleast so far as the contracts for purchase entered into by the guardian of the minors are concerned.”

8. The learned counsel also cited the decision reported in Singara v. Ibrahim Baig (AIR. 1947 Mad. 94) and contended that there is difference between an executed contract and executory contract and that an executory contract entered into on behalf of a minor cannot be enforced. This decision was rendered relying upon the doctrine of mutuality laid down in Mir Sarwarjan's case (ILR Cal. Vol. 39 p. 232). In Sitarama Rao's case (AIR. 1956 Mad. 261), the case relied on by the counsel for the appellants, Govinda Menon, J. (as he then was), held that the proper way of looking at the question is that the rules of Hindu law by which the guardian of a Hindu minor, can sell the minor's estate for necessity or benefit have not in any way been abrogated or rendered doubtful by the decision in Mir Sarwarjan's case (ILR. Cal. Vol. 39 p. 232) and that so far as Hindu minors are concerned, there is no difficulty in holding that the guardian of a Hindu minor is competent to enter into a contract of sale of the minor's property if it is for the necessity and benefit of the minor or the minor's estate. In Sitarama Rao's case (AIR. 1956 Mad. 261), Govioda Menon, J. (as he then was), sought to distinguish Subrahmanyam's case (AIR. 1948 PC. 95) from Mir Sarwarjan's case (ILR. Cal Vol. 39 p. 232) on the ground that in the latter case it was an agreement to purchase a property for a minor, whereas in the former it was a case of an agreement to sell the property.

9. In Mir Sarwarjan's case, (ILR. Cal. Vol. 39 p. 232) the parties were Muslims and were governed by Mahomedan Law and admittedly the manager or guardian in that case was incompetent to represent the minor, whereas in Subrahmanyam's case (AIR. 1948 PC. 95) the minor was a Hindu who was governed by Hindu Law. The position of a guardian of a Hindu minor is, to some extent, different from that of a guardian of a Muslim minor. Although the decision in Mir Sarwajan's case (ILR. Cal. Vol. 39 p. 232) was cited in Subrahmanyam's case (AIR. 1948 PC. 95), Their Lordships did not refer to that in the judgment. The reason for this may, perhaps, be that their Lordships of the Privy Council were considering in Subrahmanyam's case (AIR. 1948 PC. 95) the powers of a guardian of a Hindu minor to alienate his properties. In Ramachandra's case (AIR. 1968 Madhya Pradesh 150) the Division Bench observed that the guardian of a Hindu minor could validly transfer his property, if it was for legal necessity or benefit of the estate of the minor. A Full Bench of the Andhra Pradesh High Court in Suryaprakasam v. Gangaraju (AIR. 1956 Andhra 33), held that a contract entered into by a guardian of a Hindu minor for sale or purchase of immovable property is specifically enforceable against the minor. There is a plethora of decisions to the effect that under the Hindu law, necessity and benefit are the essential criteria governing contracts entered into by a guardian for sale of minor's property.

10. The Specific Relief Act (Act I of 1877) has been repealed and a new Specific Relief Act (Act 47 of 1963) has been passed. Sub-section (4) of S. 20 of Act 47 of 1963 clearly states that “the court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party”. The case on hand is governed by the provisions contained in the Specific Relief Act, 1963. In this connection, it is worthwhile to reproduce the following observations made by the Law Commission in recommending insertion of sub-section (4) to S. 20 of the Specific Relief Act, 1963:

“There is still however scope for application of the rule in Sarwarjan's case, [1911-1912] 16 Cal. WN 74 [PC] [supra]] in the case of contracts for purchase of property on behalf of the minor which cannot be said to be for the benefit of the minor. We do not consider it necessary to import the doctrine of mutuality into our codified law of specific performance to cover such cases, on the contrary we could do away with the doctrine in Sarwarjan's case by inserting in S. 22 (of the old Act) a provision embodying the law stated in the American Restatement as follows:

“The fact that the remedy of specific enforcement is not available to one party is not sufficient reason for refusing it to the other party.”

(See Radheshyam v. Kiran Bala : AIR. 1971 Cal. 341). The contention that the contract is vitiated and has become unenforceable for want of doctrine of mutuality has therefore no merit or substance in the light of the express provisions contained in S. 20(4) of Act 47 of 1963. It could also be seen even on the basis of the rulings cued by the counsel for the appellants, that the rule in Mir Sarwarjan's case (ILR. Cal. Vol. 39 p. 232) does not apply to the facts of the present case, which has to be decided on the basis of the provisions in the Hindu Minority and Guardianship Act, 1956.

11. Point Nos. 4, 5 and 6: These points can be conveniently considered and discussed together. S. 8 of the Hindu Minority and Guardianship Act reads thus:

“8. Powers of natural guardian.—

(1) 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 realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.

(2) The natural guardian shall not, without the previous permission of the Court,—

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or

(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2; except in case of necessity or for an evident advantage to the minor.”

12. The learned counsel for the appellants contended that there is prohibition in sub-section (1) of S. 8 of the Hindu Minority and Guardianship Act that a guardian can in no case bind the minor by a personal covenant and that there is personal covenant in every sale of property and therefore Ext. P3 is invalid and unenforceable. I am unable to agree with the counsel that Ex. P3 contains a personal covenant as contemplated in S. 8(1) of the Act. It was then contended that although an agreement in sell property does not come under S. 8(2) of the Act, previous permission of the court is necessary and that Ex. P3 executed without the previous permission of the court is invalid in the eye of law. There is no plea taken by the appellants in their written statement that the execution of Ex. P3 is in violation of S. 8(1) or (2) of the Act on any of the grounds now alleged. It is not enough that the defendant in a suit for specific performance merely denies the execution of the contract, but should set forth all the grounds and circumstances under which he or she attacks the legality and executability of the contract in the pleadings. The defendant must raise by his pleadings all matters which show the suit not to be maintainable, or that the transaction was either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to lake the opposite party by surprise. The provision contained in Sec. 8(1) of the Act that the guardian can in no case bind the minor by a personal covenant is nothing new and it was there in the old Act also. Apart from these, even if it is assumed, without admitting, that the agreement in question has violated the provisions of S. 8(1) or S. 8(2) of the Act, it cannot be held that the transaction is void. Sub-section (3) of S. 8 of the Act clearly states that “any disposal of immovable property by a natural guardian, in contravention of sub-s. (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.” Therefore, a transaction entered into in contravention of the abovementioned sub-sections, viz., sub-sections (1) or (2) of S. 8 of the Act, can be avoided at the instance of the minor or any person claiming under him. It was pointed out on behalf of the counsel for the opposite side that the appellants are not competent and have no right to question the validity of the transaction under Ex. P3, because the sale under Ex. D1 is void Though it was alleged in the written statement that the first defendant was not taking care of the minor children and that the 9th defendant is the natural guardian, there is no acceptable or reliable evidence in support of this contention. The evidence on this point was discussed by the courts below and the contentions in this regard were rightly rejected. Under the Hindu Minority and Guardianship Act, the father of the minor children is the natural guardian of the minors and it is only in the absence of the father or when he is disqualified to become the natural guardian that the mother is the natural guardian. Under S. 11 of the Act, no person shall be entitled to dispose of or deal with the property of a minor and the power of disposal of the minor's property is only with the natural guardian. This Court in Thomas v. Gopala Pillai (1968 KLT. 388), while considering some of the relevant provisions of the Act held that, by virtue of Ss. 6, 8 and 11 of the Hindu Minority and Guardianship Act. The natural guardian of a Hindu minor boy is firstly the father and after him the mother; that the power of disposal of the minor's property is only with the natural guardian and not with a de facto guardian and that the mother's alienation is, therefore, void and that the person who did not get any such right under such a void document has no locus standi to challenge a document executed by the minor's father. Ex. D1 was executed by the mother of the minors, at a time when the father of the minors was alive and was not disqualified and therefore, Ex. D1 is void, and the appellants, who are now claiming rights in the disputed property on the basis of Ex. D1 cannot be said to be persons claiming under the minors, as no rights have been passed over or created in their favour under the said document. It is seen from paragraph 21 of the judgment of the lower appellate court that the first defendant obtained permission of the court for selling the suit properties as guardian of the minors, in accordance with the provisions contained in S. 8(2) of the Act. In Radheshyam's case (AIR. 1971 Cal. 341) it was held that the doctrine of mutuality will not defeat a contract for specific performance in view of the express provisions contained in sub-section (4) of S. 8 of the Hindu Minority and Guardianship Act. In Bhupal v. Man Chand (AIR. 1973 All. 543), after referring to and discussing the decisions in Hunoomanpersaud Pandey v. Mt. Babooee Munrai Kunweree ((1856) 6 Moo. Ind App 393), Mir Sarwarjanv Fakruddin Mohomed Chowdhury (ILR. 39 Cal 232), Subrahmanyam v. Subba Rao (AIR. 1948 PC. 95), Kalyanpur Lime Works Ltd. v. State of Bihar (AIR 1954 SC. 165) and other decisions, it was held that the true test of enforceability of a minor's contract is not the want of mutuality but the competence of the guardian, legal necessity or benefit to the minor or his estate and that a defendant denying merely the factum of contract and not alleging its unenforceability in law must be held bound by the pleadings and be precluded from raising the legality or validity of the contract. [See S. 9 of the Specific Relief Act, 1963 and rules 2 and 8 of Order VI of the Code of Civil Procedure]. on the evidence it has been found that the first defendant, the father, is a competent person to execute Ex. P3. Ex. P3 contract was more advantageous and beneficial to the minor than Ex. D1 and there was necessity for the sale of the property of the minor. In view of the provisions contained in sub-section [4] of S. 20 of the Specific Relief Act, 1963, a court cannot refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party. Nothing has been brought out to show that the provisions contained in sub-sections [I] or [2] of S. 8 of the Hindu Minority and Guardianship Act have been violated. On a consideration of the entire facts and circumstances of the case, I think, the specific performance of the contract involved in this case appears to be for the benefit of the minors. None of the grounds urged on behalf of the appellants is sustainable. This second appeal, therefore, fails and is hereby dismissed with costs.

13. Dismissed.

Ayyappan Ezhuthachan & Others v. Antony & Others

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments

Plaintiff's / Respondent's Case (as presented in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ayyappan Ezhuthachan & Others v. Antony & Others

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