A contract to purchase immovable property by a competent guardian acting within his authority on behalf of a minor is specifically enforceable by or against the minor.

Judgement Key Points

JUDGMENT-This is an appeal on behalf of a minor whose suit for specific performance of a contract to purchase immovable property has been dismissed by both the Courts. Survey No. 40/A in village Koregaon belonged to one Namdev. On April 20, 1954, Namdev sold six acres out of this survey number to the defendant Jagu Pandu Govekar for a consideration of Rs. 1,500. The plaintiff is the minor son of Namdev and he filed the present suit against the defendant for a declaration that the sale-deed in respect of the six acres in favour of the defendant was obtained by the defendant by fraud and without adequate consideration. It was also alleged that advantage was taken of Namdev as he was vicious and given to drink. When the guardian mother came to know of the transaction, she gathered panchas in whose presence the defendant expressed regrets about the transaction and agreed to return the land. Accordingly on December 24, 1954, the defendant gave a writing to the plaintiff represented by his mother agreeing to reconvey the land on payment of Rs. 1,500. That document is Exh. 50. On these allegations, the plaintiff wanted the sale deed to be set aside, or, in the alternative, specific performance of the contract dated December 24, 1954.

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 Mahomed Chowdhuri (1), 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 respondent 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.

[His Lordship after holding that the plaintiffs guardian-mother was the de facto guardian of the plaintiff and in that capacity she was competent to act on her sons behalf as if she was the infants de jure guardian, proceeded].

4. That brings us to the more important question as to whether the contract to purchase the land with the infants guardian-mother was capable of being specifically enforced. The law governing this question for many years was the decision of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1). It was a suit for the specific performance by a minor of an agreement for the purchase by him of certain immovable property entered into by the manager of the minors estate and his guardian on his behalf. It was held by the Judicial Committee that it was not within the competence, either of the manager of the minors estate or of the guardian of the minor, to bind the minor or the minors 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. This decision held the field for many years. But, according to Mr. Walawalkar, its principle, so far as it applies to a Hindu minor must now be regarded as discarded by the Privy Council in Srikakulam Subrahmanyan v. Kurra Subba Rao (1). He further argued that the doctrine of mutuality was n

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