Agreement whether enforceable against executants.

The plaintiff in O.S. No. 53 of 1965 on the file of the Court of the Subordinate Judge of Thanjavur, who succeeded before the trial Court, but lost before the first appellate Court is the appellant before this Court. She instituted the suit for specific performance of a contract to sell certain immoveable property under Exhibit A-1 dated 10th February, 1965. That agreement was executed by the first defendant on behalf of himself and as guardian of his minor children, defendants 2 to 4, agreeing to sell the property to the appellant for a consideration of Rs. 10,000. The agreement itself recites that out of the consideration of Rs. 10,000, Rs. 4,000 had already been accounted for by payment of Rs. 2,698-10 to the Nicholson Town Bank Ltd., Thanjavur, on behalf of the first defendant, a sum of Rs. 500 to one Chakrapani Iyer on account of the first defendant and the balance of Rs. 801-90 received by the first defendant by then. Exhibit A-1 agreement contemplates the mother of the first defendant Sorna Ammal being a party to that agreement, but she has not actually signed the agreement. This agreement provided a period of three months for execution of the sale deed on receipt of the balance consideration of Rs. 6,000. Twelve days after this agreement came into existence, that is, on 22nd February, 1965, under the original of Exhibit A-4, the first defendant acting on his behalf as well as guardian of his minor children, defendants 2 to 4, sold the property for Rs. 11,000 to the fifth defendant in the suit, the fifth defendant being: the brother’s sambandhi of the first defendant. After the plaintiff-appellant came to know of this sale, she issued a notice to the defendants and afterwards instituted the present suit for specific performance of the agreement, Exhibit A-1. The defence of the first defendant was that the agreement was incomplete and that in any event it was not enforceable for want of mutuality, since the first defendant had no right to bind his minor children by entering into the agreement. The fifth defendant in the suit, in addition to putting forward the contention that the agreement was incomplete, also contended that he was a bona fide purchaser for value without notice of the suit agreement. As a matter of fact, he recorded a finding that the sale in favour of the 5th defendant was a faked up one, in order to help the first defendant to refute the rights of the appellant, who had already parted with a sum of Rs. 4,000. As far as the contention regarding the incompleteness of the agreement is concerned, the learned Subordinate Judge held against the defendants and therefore on 29th September, 1966, he decreed the suit directing the plaintiff to deposit into Court the balance consideration of Rs. 6,000 and giving one month’s time for that purpose. As against this judgment and decree of the learned Subordinate Judge, the fifth defendant alone preferred an appeal. The learned District Judge of West Thanjavur on 16th December, 1968, in A.S. No. 302 of 1966 allowed the appeal. He posed before him the following two points for determination, namely, (1) whether the suit agreement of sale is not valid in law to enable the plaintiff to specifically enforce it and whether as such no decree for specific performance can be passed on the basis of such an agreement, and (2) whether the fifth defendant is not a bona fide purchaser for value. As far as the second point is concerned, he agreed with the conclusion of the learned Subordinate Judge. He also recorded a finding that the collusion between the first defendant and the fifth defendant was quite patent. As far as the first point is concerned, the learned District Judge held that the agreement was incomplete, since the mother of the first defendant had not executed the same and therefore on the basis of such an incomplete agreement, the appellant herein would not be entitled to a decree for specific performance. However, at the same time, he passed a decree in fa