The court upheld the validity of the sale of immovable property based on a contract made by the father, and the application of the doctrine of part-performance.

Prideaux, A J C—This case was last before me as Second Appeal No. 18-B of 1924 when I remanded it to the lower appellate Court. That Court has again decreed the plaintiffs claim. The plaintiffs sued for joint possession of their 7/8ths share in survey No. 5/1 of Dawalpur in the Balapur Taluq. This field has been sold by their mother to defendant after their father's death in 1911 when they were minors. The First Court had dismissed the plaintiffs' suit but in appeal it was successful. The defence was that Umraokhan the father entered into an agreement to the sale and was paid Rs. 200, and after his death his widow took another Rs. 300 and executed the sale-deed. There was a further plea that by an oral will Umraokhan had directed his widow to dispose of the field to the defendant. The findings as they now stand are that the contract for sale was made by the plaintiffs' father and part of the consideration was received and the property was sold by the plaintiffs' mother in pursuance of the contract of the father. The lower appellate Court finds that even so, the sale is not binding on the plaintiffs, and quotes cases to show that a de facto guardian of a Mahomedan minor cannot convey to another any interest in the minor's property. The Court finds that the mother was not appointed an executrix and that the mother is an heir and cannot validly sell the property in discharge of the debts of her deceased husband. The Judge finds that the plaintiffs' claim cannot therefore be resisted. On the finding that Umraokhan himself entered into a contract for sale, it seems to me, that the conclusion come to by the lower appellate Court is wrong. The defendant is in possession under a valid contract made by the father in his favour and inheritance would be subject to the contract. Illustration to Section 27(b), Specific Relief Act says: A contracts to convey certain land to B by a particular date, A dies intestate before that date, without having conveyed the land, B may compel A's heir or other representative in interest to perform the contract specifically.

2. Bansi Seth v. Pandoba,1899 12 CLR 154, is a similar case, in which it was held the sale was complete by the transfer of possession and payment of consideration.

In Bapu Apaji v. Kashinath Sadoba, 1917 41 ILR(Bom) 438 it was held that where the plaintiff being the owner of certain immovable property seeks to recover possession of that property and there are no facts operating to his prejudice it is a valid defence to the suit that the plaintiff has agreed to sell the property to the defendant, the agreement being at the date of suit still capable of specific enforcement, but there being no registered conveyance passing the property to the defendant, who has taken possession under the agreement for sale,

and in Venhatesh Damodar v. Mallappa Bhimappa, 1922 AIR(Bom) 9, a similar case, it was held that even if defendant's right to obtain specific performance had become time barred, the defendant was entitled to remain in possession against the plaintiffs.

3. Under Article 113, Lim. Act, the elate for commencement of limitation against the defendant would be when he learnt that performance of the contract was refused and therefore there is no question here of defendant's right of specific performance being barred by time. The doctrine of part-performance also seems to me applicable to the present case : see Mahomed Musa v. Aghore Kumar Ganguli, 1914 AIR(PC) 27, Venkayyamma Mao v. Appa Rao, 1916 AIR(PC) 9 and Kunti v. Gajraj Tiwari, 1924 AIR(All) 826 and to these cases may be added Sandu Walji v. Bhikchand Surajmal, 1923 AIR(Bom) 473.

4. In the present case, the mother gave the defendant possession under the contract entered into by her husband and though the deed of sale does not mention that she executed that document also on behalf of her minor sons, the present plaintiffs, it is clear, that she did so in pursuance of her husband's agreement. The alienation is made not on the woman's