( 1 ) THIS appeal is by the defendant. The trial Court has passed a decree for specific performance.

( 2 ) THE suit was filed by the plaintiffs (respondents 1 and 2), when they were minors, through their guardian. Smt. Phuli-bai, their mother Smt. Phulibai had entered into an agreement dated 30-9-1961 on behalf of the minors for purchasing house property from the defendant (appellant) for a consideration of rs. 11,000. Bs. 1,000 were paid towards earnest and the rest of the amount was to be paid at the time of the registration of the sale-deed. The sale-deed was to be executed by the defendant by Kar-tik Sudi Poonam. Samvat 2018 (22nd Nov-mber 1961' ). The relevant terms of the agreement were: " (a) The purchaser shall construct a partition wall at his own cost and in the presence and help of the vendor. (b) The door towards the portion of Mangal Chand will be closed by the purchaser on his own cost and in presence of the vendor. (c) The vendor would see that his tenant Hardikar vacates the house by 3-10-1961 and inform the purchser. (d) The vendor shall pay Rs. 200 towards the expenses of the registration and the balance shall be borne by the purchaser. "

The plaintiffs' case was that they were ready and willing to perform their part of the contract. The defendant, however, did not obtain permission from the Municipal Corporation and hence the construction envisaged under the agreement could not be completed. The defendant did not perform his part of the contract and did not offer to execute the sale-deed. Hence, the suit for specific performance was filed.

( 3 ) THE defence was that the breach was committed by the plaintiffs themselves and that they were not entitled to the specific performance. It was urged on behalf of the plaintiffs that they had collected certain material to construct the partition wall as per the agreement, but the construction was stopped as the permission of the Corporation was not obtained by the defendant. The defendant, on the other hand, urged that the wall was constructed by him at his own expenses and that the work was stopped by the Corporation because the permission was not obtained. The defendant, therefore claimed that he was entitled to the expenses incurred by them; and as the plaintiffs' guardian was not prepared to pay the amount, the sale-deed was not executed. Thus, the breach was committed by the plaintiffs.

( 4 ) THE trial Court found that the responsibility of constructing the partition wall was that of the purchaser, even if the defendant spent any amount, he did it at Ms own risk. The defendant's story that he spent any amount in constructing the wall was also disbelieved. The trial Court found that the plaintiffs were always willing to purchase the property and hence decreed their suit for specific performance.

( 5 ) IT may by noted at this stage that no plea was raised by the defendant that the contract being a contract on behalf of the minors by their guardian was not specifically enforceable for want of mutuality. That plea being a plea of law, we have allowed the appellant to raise it before us. To enable the respondents to meet this plea, we had adjourned the case for a day. On the next day, full arguments on both the sides were heard on merits as well as on the question of law raised in this case.

( 6 ) ON merits, after going through the evidence on record, we are satisfied that the trial Court was right in holding that the plaintiffs were not guilty of committing any breach of the contract and that the defendant was not willing to execute the sale-deed as per the agreement. We are, however, of the view that the plaintiffs' suit cannot be decreed for want of mutuality. ( 7 ) IN Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1912) 39 Ind. App. 1 (PC), their Lordships of the Privy Council held: "they are, however, of opinion that it is not within the competence of a manager of a minor's estate or within the competence of a guardian of a minor to bind the minor or the