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High Court Of Madhya Pradesh
V. R. Newaskar and T. C. Shrivastava, JJ.
ABDULSATTAR - Appellant
Versus
ISMAIL - Respondents
First Appeal 68 Of 1954
Decided On : 03/24/1958
SPECIFIC PERFORMANCE - AGREEMENT TO SELL - MINOR - GUARDIAN - MUTUALITY - BENEFIT TO MINOR - READINESS AND WILLINGNESS TO PERFORM - DISCRETIONARY POWER OF COURT - COMPENSATION.
Fact of the Case:
Plaintiff Abdul Sattar brought a suit against his brother Abdul Rehman and the latter's son Ismail for specific performance of an agreement dated 23-11-1931 entered into between Abdul Sattar and Abdul rehman the latter acting as' she guardian of his minor son Ismail. The suit was dismissed by the trial Court and plaintiff now appeals.
Finding of the Court:
1. The agreement to sell was not binding upon defendant No. 2 on various grounds including want of mutuality, delay in suing for specific performance, unreasonable character of the term entitling the plaintiff or his 'sons to sue the defendant or his sons at any time on offering the initial price although the prices might have soared to any height in the meanwhile and the constant restraint put on defendant No. 2's power of alienation. 2. Defendant No. 2 could not be hold personally liable for the breach as he was minor at the time of the agreement nor was Abdul rehman liable.
Issues: 1. Is the contract for sale not specifically enforceable on the ground that it relates to the property of a minor and had been entered into by his father? will the principle of mutuality apply in- this case? 2. Are the transactions of sale and agreement to, reconvey part of the same transaction and if so can the defendant who was minor at the time of the transaction accept sale and repudiate the agreement to reconvey? 3. What is the effect of absence of averment in the plaint regarding plaintiff's readiness and willingness to perform his part of the contract? 4. Assuming that the defendant Ismail, who was minor at the time of the transaction having accepted sale cannot repudiate the agreement to reconvey, arc there reasons why specific performance ought not to be granted in this case? 5. Can the plaintiff ask for compensation under Section 19 of the specific Relief Act in ease the relief of specific performance ought not to be granted in this case?
Ratio Decidendi: 1. The doctrine of mutuality applies to an agreement of sale of immovable property of a minor and such a contract cannot be specifically enforced by or against the minor, if the contract is one which it is not within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further, if it is not for the benefit of the minor. 2. The transactions of sale and agreement to reconvey are part of the same transaction and the minor cannot accept the sale and repudiate the agreement to reconvey. 3. The absence of averment in the plaint regarding plaintiff's readiness and willingness to perform his part of the contract is fatal to the suit. 4. Specific performance cannot be granted in this case as the agreement to resell contains terms whereby the exercise of privilege could be indefinitely delayed and it would be inequitable for the minor defendant to sell for a price prevailing in 1931 a property several years later. 5. The plaintiff cannot claim compensation under Section 19 of the Specific Relief Act as he has not averred and proved his readiness and willingness to perform his part of the contract.
Final Decision: The appeal is dismissed with costs.
( 1 ) THIS appeal arises out of a suit brought by plaintiff Abdul Sattar against his brother Abdul Rehman and the latter's son Ismail for specific performance of agreement dated 23-11-1931 entered into between Abdul Sattar and Abdul rehman the latter acting as' she guardian of his minor son Ismail. The suit was dismissed by the trial Court and plaintiff now appeals,
( 2 ) PLAINTIFF came to Court with the allegations that he owned a house in Moholla rangrcjoki Sadak in the town of Ratlam. Some time in 1931, the plaintiff got into financial difficulties. He became indebted to the people in the Bazar and was placed in a situation which compelled him to sell his house. With a view to save the house for the family the plaintiff decided to effect a sale of the house in the name of his minor nephew Ismail at the suggestion of his brother Abdul Rchman who induced him to believe in case the house were sold in the name of Is-mail for a consideration of Rs. 2. 051/- by executing a duly registered deed of sale the house would be resold back to the plaintiff at any time subsequently on his repaying the amount of consideration received that relying upon this representation the plaintiff effected a registered deed of sale in the name of Ismail and obtained consideration for the sale. At the same time another agreement wasexecuted by Abdul Rehman acting as the guardian of his minor son agreeing to re-sell the house whenever either the plaintiff or his children would pay the price received by him and would desire the house to be re-sold. The plaintiff thereafter went away from Ratlam. He returned to Ratlam in 1947 and after securing the original agreement from the Registration office required the defendants to re-sell the house to him on payment of Rs. 2,051/- and to deliver back possession of the: same; that the defendants first evaded and ultimately refused to comply. Notices were given to both the defendants through counsel and ultimately the present suit is brought. Plaintiff stated that the present value of the house was Rs. 8,000/- and that the defendants were bound to restore the house to him under the agreement but that in ease for any reason that relief were not granted the plaintiff ought to be paid damages measured by the difference between the present value of the house and the price at which it was sold on 23-11-1931. The suit was brought in forma pauperis. There is no specific averment in the plaint showing plaintiff's readiness and willingness to perform his part of the contract under the agreement sued upon. Nor is it made clear therein what, under the agreement, the plaintiff was liable to do, besides paying back the price. 2a. Both the defendants filed separate written statements. Defendant 1. Abdul rchman contended that the plaintiff had sold the house to Ismail by his own free will and obtained consideration. Subsequent agreement entered into by him for and on behalf of his minor son for its re-sale was neither for the benefit of the minor nor with proper authority and was therefore void. It was also contended that the deed suffered from want of mutuality, The claim for damages was also not admitted. The defence put up by Ismail was practically similar although he disclaimed knowledge on his part regarding the execution of the agreement. The agreement was said to be unilateral and conferred no corresponding obligation of purchase at any point of time. It was also contended that defendant No. 2 after its purchase had spent Rs. 1,000/-for its repairs and that the plaintiff cannot claim specific performance unless he is prepared to pay the aforesaid sum with interest at I per cent per month.
( 3 ) ISSUES, bearing on the questions of execution of the suit agreement, its binding character so far as defendant No. 2 was concerned, the liability of defendant No. 1 under that agreement, the market value of the house in suit being Rs. 8. 000/-, right of the plaintiff to obtain re-sale or damage and limitation, were
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