Subba Rao, J.-This is an appeal against the decree and judgment of the Court of the Subordinate Judge of Chingleput in O.S. No. 39 of 1947, a suit filed by respondents 1 to 5 (Plaintiffs) for specific performance of an agreement, dated 29th November, 1933, to reconvey the suit property which is a village. Defendants 1 and 2 are brothers, and they are sons of Bheemasena Rao by the second wife. Bheemasena Rao and the said defendants along with others constituted members of a joint Hindu family. On 29th November, 1933, defendants 3, 4, 6, 7 and the father of the 8th defendant who together may, for convenience, be called “the Naidus” sold the suit village to defendants 1 and 2 for a sum of Rs. 32,000. In that sale-deed, the 1st defendant acted as the guardian of his brother who was then a minor. On the same date an agreement was executed by defendants 1 and 2 in favour of the vendors agreeing to reconvey the property purchased under the sale-deed, after the Second defendant attained majority, if the sum of Rs. 32,000 and any amount that the vendees might have spent to improve the said village, was paid and if they complied with certain conditions laid down. On 17th February, 1943, the Naidus sold to the plaintiffs, who for convenience may be called the Reddis, certain properties of their own along with the right, title and interest under the aforesaid agreement. The suit was filed for the specific performance of the agreement, dated 29th November, 1933. Defendants 1 and 2 filed written statement contending that the agreement, dated 29th November, 1933, was not binding on the 2nd defendant, as the 1st defendant had no right to act on behalf of the 2nd defendant. I was also contended that the said agreement was bad for want of mutuality. They further alleged that the Naidus did not comply with the conditions laid down in the agreement and therefore it became unenforceable. The learned Subordinate Judge held that the agreement was binding on the minor and therefore enforceable in law. In the result, he gave a decree as prayed for. The 2nd defendant has preferred the appeal.

The argument of the learned counsel for the appellant, Mr. T.M. Krishnaswami Ayyar, may be briefly stated thus. The sale deed executed by the Naidus in favour of defendants 1 and 2 and the agreement to reconvey were two distinct transactions. The 1st defendant was neither a de jure nor a de facto guardian of the 2nd defendant but at the best was only an ad hoc guardian and as such he had no legal competency to represent the minor in agreeing to reconvey the property to the Naidus. The 2nd defendant being a minor at the time of the agreement to reconvey, the agreement was bad for want of mutuality. In any view, the Naidus did not comply with the conditions laid in the agreement and on that ground also the agreement became unenforceable. Learned counsel for the respondents countered this argument by stating that the sale-deed and the agreement to reconvey constituted an indivisible transaction, that the law in respect of competency of the contracts entered into by guardians on behalf of minors has undergone a change in view of the judgment of the Judicial Committee in Subrahmanyam v. Subba Rao1, and that under the present law the agreement to reconvey entered into by the guardian on behalf of the 2nd defendant was valid. He further argued that the 1st defendant was a de facto guardian of the 2nd defendant at the time when the said agreement was executed and that the Naidus complied with the conditions laid down under the agreement. He also pressed on us to hold that, in any view, the minor, having taken the benefit of the contract and having adopted it after attaining majority, could not enjoy the benefit and deny his liability.

After hearing the arguments at the Bar, we, constituting as Divisional Bench, found it difficult to steer clear of conflicting decisions placed before us particularly with reference to the validity of an executory contract entered into by a gu

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