ORDER OF REFERENCE

BHIMASANKARAM, J. :- This appeal raises the question as to whether an agreement to sell by the guardian of a Hindu minor is specifically enforceable against the minor. Two decisions of the Privy Council have been referred to by the learned counsel as bearing on the point; viz., - Mir Sarwarajan v. Fakhruddin Mohammad, 39 Cal 232 (PC) (A) and - Subrahmanyam v. Subbarao, AIR 1948 PC 95 (B). The earlier case laid down that it was not within the competence of the guardian of a minor to bind the minor or his estate by a contract to purchase immovable property and that such a contract was not enforceable by either party for want of mutuality.

The principle of this case was applied by a Full Bench of the Madras High Court in - Venkatachalam Pillai v. Sethuram Rao, AIR 1933 Mad 322 (C) in the case of a Hindu minor seeking to - enforce an agreement in his favour for the resale of a property which had been alienated by his guardian and it has been uniformly held in that Court that no decree for specific performance could be passed in favour of or against a minor on the basis of a contract either for sale or purchase of immoveable property entered into on his behalf by his guardian.

The other decision of the Privy Council related to the effect of S. 53-A, T. P. Act. There, the guardian of a minor had executed a contract for sale of the minors property and had put the contractee in possession. The question arose as to whether in a suit filed by the minor for possession of the property on the ground that the contract was not binding on him the purchaser could invoke the doctrine of part performance under the section.

Their Lordships held that in the case of a contract entered into on behalf of a minor, it would be the minor who would be the transferor within the meaning of S. 53-A though the contract was entered into by his guardian and the vendee could resist the action. Subsequent to the Privy Council decision, Viswanatha Sastry, J. has decided in the Madras High Court in - Ramalingam Reddi v. Babanambal Ammal, AIR 1951 Mad 431 (D) that so far as an agreement by a guardian to sell a minors properties is concerned, it would be enforceable specifically against the minor.

In - Hari Mohan v. Sew Narayan, AIR 1949 Assam 51 (E) a Bench of the Assam High Court took the opposite view. In a Full Bench of the Hyderabad High Court however in Amid Ahmmad v. Meer Nizam Ali, AIR 1952 Hyd 120 (FB) (F) two learned Judges of the High Court held that a contract to purchase immoveable property entered into on behalf of a minor by a de jure guardian was enforceable against the minor provided it is for his benefit, while the other Judge took the view that though a contract for sale in such circumstances might be enforceable against the minor a contract for purchase would not be.

My Lord the Chief Justice sitting as a Judge of the Madras High Court referred this question for determination by a Full Bench of the Madras High Court but it does not appear that the Madras High Court has dealt with the matter yet. Though as has been recently held by a Full Bench of this Court decisions of the Madras High Court rendered before 5-7-1954 may be binding upon this Court, subsequent decisions will only have a persuasive force.

Thus, there is no decision of the Madras High Court subsequent to the Privy Council decision in AIR 1948 PC 95 (B) which is binding on us, the decision of Viswanatha Sastry, J. being only that of a single Judge. We therefore propose to refer the following question to a Full Bench of this Court.

"Whether a contract entered into by a guardian of a Hindu minor for sale or for purchase of immovable property is specifically enforceable against a minor ?"

OPINION OF THE FULL BENCH

SUBBA RAO, C.J. :-

2. The following question has been referred to the Full Bench by a Division Bench of this Court :

"Whether a contract entered into by a guardian of a Hindu minor for sale or for purchase of immoveable property is specifically enforceable ag