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IN THE HIGH COURT OF BOMBAY
Palekar D.G, J.
Appellants: Popat Namdeo Sodanvor
Vs.
Respondent: Jagu Pandu Govekar
A.F.A.D. No. 36 of 1961ecided On: 14.02.1968
Counsels:
For Appellant/Petitioner/Plaintiff: N. Walawalkar, Adv.
For Respondents/Defendant: Y.S. Chitale, Adv.
SPECIFIC PERFORMANCE - CONTRACT TO PURCHASE IMMOVEABLE PROPERTY - COMPETENT GUARDIAN - DE FACTO GUARDIAN - BENEFIT OF THE ESTATE - ENFORCEABILITY - HINDU LAW - TRANSFER OF PROPERTY ACT, 1882, SECTION 53-A - INDIAN CONTRACT ACT, 1872, SECTION 11 - PRIVY COUNCIL DECISIONS - INTERPRETATION - MUTUALITY - DOCTRINE OF MUTUALITY - APPLICABILITY - GUARDIAN'S AUTHORITY - NECESSITY - LEGAL NECESSITY - SALE-DEED - AGREEMENT TO SELL - AGREEMENT TO PURCHASE - DISTINCTION - PERSONAL LIABILITY - LIABILITY OF THE ESTATE - JURISDICTION - COURT'S DISCRETION - EQUITY AND JUSTICE - RELEVANT CONSIDERATIONS - DE JURE GUARDIAN - DE FACTO GUARDIAN - POWERS AND DUTIES - HINDU LAW - MANAGER OF A MINOR'S ESTATE - SALE OF MINOR'S PROPERTY - BENEFIT OF THE ESTATE - PRESERVATION AND PROTECTION OF ANCESTRAL PROPERTY - ENFORCEABILITY OF CONTRACT.
Fact of the Case:
The plaintiff, a minor, filed a suit for specific performance of a contract to purchase immovable property. The defendant, who had entered into the contract with the plaintiff's mother, who was acting as the plaintiff's guardian, contended that the contract was not enforceable against the plaintiff because it was void under Section 11 of the Indian Contract Act, 1872, and because there was no mutuality of obligations. The trial court and the district court dismissed the suit.
Finding of the Court:
The High Court held that the contract was enforceable against the plaintiff. The court held that the plaintiff's mother was a de facto guardian of the plaintiff and that she had the authority to enter into the contract on the plaintiff's behalf. The court also held that the contract was for the benefit of the plaintiff's estate and that it was, therefore, enforceable against him. The court further held that the doctrine of mutuality did not apply to the contract because the plaintiff's mother was a competent guardian who had the authority to enter into the contract on the plaintiff's behalf.
Issues: 1. Whether the plaintiff's mother was a de facto guardian of the plaintiff and whether she had the authority to enter into the contract on the plaintiff's behalf. 2. Whether the contract was for the benefit of the plaintiff's estate. 3. Whether the doctrine of mutuality applied to the contract.
Ratio Decidendi: 1. A de facto guardian of a minor has the same power over the property of her ward as a de jure guardian. 2. A contract for the purchase of immovable property entered into by a competent guardian on behalf of a minor is for the benefit of the minor's estate and is, therefore, enforceable against the minor. 3. The doctrine of mutuality does not apply to a contract entered into by a competent guardian on behalf of a minor.
Final Decision: The High Court set aside the orders of the lower courts and directed the defendant to execute a sale-deed in favor of the plaintiff of the property in suit.
2. The trial Judge held against the plaintiff on the issues of fraud and inadequacy of consideration. He also held relying upon the Privy Council decision in Mir Sarwarjan v. Fakhruddin Mohorned Chowdhuri, (1912) ILR 39 Cal. 232, that the minors contract to purchase the property could not be specifically enforced. Consequently, he dismissed the suit. In appeal to the District Court, the contentions with regard to fraud and inadequacy of consideration were given up and the principal point which survived was with regard to specific performance. The learned District Judge after discussing the various rulings on the point agreed with the view taken by the trial court that the minors contract for purchase of land was not capable of being specifically enforced. The appeal was therefore, dismissed.
3. The plaintiff has now come in second appeal, and, it is contended on behalf of the plaintiff by Mr. Walawalkar that both the courts were in error in holding that the contract could not be enforced. The view of the lower courts was supported by Mr. Chitale on behalf of the respond dent-defendant. He further argued that the plaintiffs guardian-mother could not be deemed to be either the de jure or de facto guardian of the minor since the minors father was living, and hence for that reason also the suit was not competent.
4. I will take the second point first. The minor is about ten years old and he is represented in the suit by his mother who is styled as his guardian and next friend. The contract to sell (Ex. 50) dated 24-12-1954 is between her as the guardian of the minor and the defendant. This agreement is a short one taking the form of a writing passed by the defendant in favour of the guardian-mother. He says therein that he had purchased the land for the sum of Rs. 1500 from Namdev on 20-4-1954 but that he was prepared to reconver the same in favour of the minor plaintiff if he was paid back Rs. 1500. He further stated that it was always his desire that the minor should not suffer, and there was an oral understanding with regard to the reconveyance of the property. The writing is clearly an agreement to sell, and there is no dispute about it before me.
5. Under the Hindu Law, which applied to the present case, the father is the natural guardian of the person and of the separate property of his minor children, and next to him, the mother. The plaintiff-minors father Namdev is living, The contention, therefore, is that as long as Namdev was living and cap-able of entering into a contract on behalf of the minor, the mother was not entitled to take an agreement on behalf of the minor. It Is obvious that the mother cannot be the de jure guardian of the minor when the father is living. But the contention of Mr. Wa
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