Madras High Court
E. Venkatakrishna Reddy And Ors. vs Minor Amarababu And Ors. on 18 December, 1970
Equivalent citations: (1971)2MLJ466
JUDGMENT G. Ramanujam, J.
1. This is an appeal against the decision of the learned Subordinate Judge, Chingleput in O.S.No. 118 of 1961 dismissing the suit filed by the plaintiffs-appellants for specific performance of a contract of sale dated 9th October, 1959 for a sum of Rs. 25,300 entered into by the fourth defendent-fourth respondent for herself and on behalf of her two minor sons and a daughter, respondents 1 to 3 herein or for recovery of the amounts paid to the fourth defendant and damages.
2. The plaintiff's case was as follows : The fourth defendant, the mother of defendants 1 to 3 for herself and as guardian of her children agreed to sell items 1 to 55 of the suit properties for a consideration of Rs. 25,000 on 9th October, 1959. The terms of that agreement, Exhibit A-1 were that the plaintiffs should discharge the defendants' debts both secured and unsecured, out of the sale consideration that on payment of the balance of the consideration the fourth defendant will execute a sale as agreed, and that the fourth defendant had to obtain the sanction of the District Court for the sale of the suit properties on behalf of her minor children. The fourth defendant applied for sanction to the District Court for the sale of the suit properties under Section 8 of the Hindu Minority and Guardianship Act, 1956 and the District Court, Chingleput, after examining the fourth defendant granted the sanction sought for by its order dated 7th September, 1960 in O.P. No. 20 of 1960. While granting the sanction the Court discussed the evidence of the fourth defendant and held that the alienation sought to be made was beneficial to the minors, as the fourth defendant had to discharge certain antecedent family debts and also others incurred for the maintenance of the minors. The Court, however, imposed a condition that the balance of the consideration after discharging the debts should be, deposited in Court to be drawn out by the fourth defendant for purchasing a house at Madras for the minors, by filing a separate application. In pursuance of the agreement for sale wherein the plaintiffs had been asked to discharge the two secured debts due by the defendants to two creditors, the plaintiff had paid Rs. 9,875 to discharge the total liability by way of secured debts, besides paying a sum of Rs. 3,590 to the fourth defendant on various dates from and out of the sale consideration for the maintenance of the defendants and also for discharging certain sundry debts borrowed by the fourth defendant by way of pledge of jewels etc. Subsequent to the original agreement dated 9th October, 1959, it was found that some of the items were omitted to be included in the agreement of sale as originally agreed, and these items, that is, items 56 to 60 of the plaint schedule were also subsequently included as part of the property to be sold under Exhibit A-1 for a consideration of Rs. 300, making the total consideration as Rs. 25,300. Possession of the suit items was also handed over to the plaintiffs in pursuance of the contract of sale. They expected that the fourth defendant will execute the sale deed after the order of the District Court sanctioning the sale. But the fourth defendant with ulterior motives not only omitted to intimate them the fact of sanction by the District Court but also caused the removal of the casurina trees stealthily on 7th February, 1960, and 22nd February, 1960 from the suit properties, which trees also formed part of the sale agreement. As soon as the plaintiffs came to know en 22nd February, 1961, about the sanction of the District Court for sale of the suit properties, they called upon the fourth defendant to execute the sale deed as agreed. But she, after evading the issue for some time, ultimately refused to execute the sale-deed. In view of the refusal of the fourth defendant to execute the sale deed and in view of the fact that the plaintiffs had paid large amounts to the defendants and their creditors aggregating to Rs. 13,465 and had spent large amounts for improving the lands and raising casuarina therein, they moved the District Court in I.A. No. 112 of 1961 seeking permission to deposit the balance of the consideration in O.P. No. 20 of 1960, But the District Court, on the objections raised by the fourth defendant, held that the said application was not maintainable and that the remedy of the plaintiffs was only to file a regular suit. The plaintiffs were, therefore, constrained to file the present suit for specific performance of the contract or in the alternative for the recovery of the amount paid to the defendants and their creditors and for damages.
3. The suit was resisted by the defendants 1 to 3 on the ground that the property agreed to be sold were worth not less Rs. 50,000 and that there was no necessity for nor was there any benefit by the proposed alienation, that the two mortgage deeds directed to be discharged were not pressing debts, and that the agreement of sale entered into by the fourth defendant is invalid and not binding on them under the Hindu Law. They also urged that the contract to sell was brought about by false representation and undue influence, that the sanction of the District Court, Chingleput had been obtained by false representations and that in any event the plaintiffs were unable to perform their part of the contract within the time stipulated in the agreement of sale. They also denied that possession of the suit properties was given to the plaintiffs in pursuance of the agreement of sale but stated that the plaintiffs had trespassed into the suit properties after the disputes arose.
4. The defence of the fourth defendant was that there was no pressure for payment the mortgage debts, that there were no sundry debts borrowed by her by the pledge of jewels etc., which had to be discharged, that she received only Rs. 3,165 in small amounts, that the possession of the properties was never delivered to the plaintiffs, that the plaintiffs were not willing to perform their part of the contract, that there has been no valid compliance of the order of the District Court sanctioning the sale and that in any event the plaintiffs were not entitled to the discretionary relief of specific performance.
5. One of the issues, (issue 6) at the trial was as to whether the plaintiffs are entitled to specific performance in respect of items Nos. 56 to 60 of the plaint schedule which were not included in the original agreement but is said to have been included subsequently by agreement of parties. On that issue the lower Court found that the sanction of the District Court related only to the properties referred to in the original agreement, Exhibit A-1 that that the subsequent inclusion of the said items in Exhibit A-3 by making en endorsement on the agreement of sale Exhibit A-1 on the ground of mistake would not bind the minors, that the application for sanction Exhibit A-11 and the order of sanction, Exhibit A-12 did not refer to the said items, and that the agreement Exhibit A-3 to include other properties in the original agreement which was not valid and binding on defendants 1 to 3, cannot be enforced. This finding of the lower Court has not been seriously challenged before us and the learned Counsel for the appellants fairly conceded that the appellants cannot successfully attack the said finding.
6. On the issue (issue 1) as to whether the agreement Exhibit A-1 relied on by the plaintiffs was obtained by misrepresentation and coercion as alleged in the written statement the lower Court found that the defendants have not shown that the agreement, Exhibit A-1 was obtained by misrepresentation etc., and that the same was not vitiated for that reason. The learned Counsel for the respondents did not contest that finding. Even otherwise, the conduct of the fourth defendant in applying for and getting the sanction from the District Court for the sale showed that she was a willing party to the agreement. Hence we are accepting the finding of the lower Court on that issue.
7. On the issues (issues 2 and 3) whether the suit agreement Exhibit A-1 was bind-in on the minor defendants, and whether it could be specifically endorsed as against them, the lower Court held that the agreement of sale was not valid and binding on the minor defendants, and that the plaintiffs were not entitled to enforce the same and obtain a decree for specific performance. The lower Court also held that the plaintiffs have not strictly complied with the order of sanction of the District Court, as the first plaintiff had paid amounts to the tune of Rs. 3,590 to the fourth defendant, and taken possession of the suit properties even before sanction, of the District Court to deposit the balance of the sale proceeds into Court. In this view there was no compelling necessity to sell the entire suit items and the agreement to sell the entire suit properties was not beneficial to the minor defendants. In taking that view it had taken note of the following facts: the value of the lands as gathered from Exhibit A-1 is too low compared with the market value of the lands, in that locality at that time, the suit properties would yield substantial income, and for discharging the two mortgages aggregating to Rs. 9,875 it was not necessary to sell the entirety of the suit items. The lower Court therefore dismissed the plaintiffs' suit for specific performance based on its finding on the issues 2 and 5 as to the validity and binding character of Exhibit A-1 on defendants 1 to 3, and as to the right of the plaintiffs to have the specific performance as against them.
8. In this appeal the learned Counsel for the appellants attacks the finding of the lower Court that the agreement Exhibit A-1 executed by the fourth defendant is not valid and binding on defendants 1 to 3, that the plaintiffs are not entitled to get specific performance of the said agreement of sale and that the plaintiffs are not entitled to any damages as claimed. It is contended by the learned Counsel that the suit lands were situate in an out of the way place without a proper access in an uninhabited village, that the paternal uncle of the minor defendants 1 to 3 was giving endless trouble to the minors and interfering with their enjoyment of the properties, that there were two antecedent mortgage debts binding on the minors which had to be discharged, that funds also were required for maintaining and educating the minor children that it is in these circumstances the fourth defendant entered into the agreement of sale Exhibit A-1 considering the transaction to be beneficial to the minors, and that the evidence of the fourth defendant before the District Court, Chingleput, in O.P. No. 20 of 1960, clearly established that the agreement of sale under Exhibit A-1 came to be executed out of necessity and for the benefit of the minor defendants 1 to 3. It is also contended that the plaintiffs who had agreed to purchase the lands from the fourth defendant under Exhibit A-1 had entered into the transaction bona fide that they discharged the two antecedent mortgage debts on the suit property by paying a sum of Rs. 9,875 besides paying a sum of Rs. 3,590 for the maintenance of the minor defendants and for discharging sundry debts, and that they had deposited the balance of the consideration into Court. It was further contended that the finding of the lower Court that the plaintiffs have not acted in accordance with the directions given in the order of sanction of the District Court cannot be upheld for the reason that the plaintiffs have been paying the said amounts in the hands of the fourth defendant for discharging the sundry debts due by the family and such payments cannot be ignored, and that in the facts and circumstances of this case the lower Court should have granted a decree for specific performance especially when the sale has been sanctioned by the Court.
9. The learned Counsel for the respondents, however, raised a new point before us that the agreement of sale under Exhibit A-1 is invalid in law as the fourth defendant had no authority to sell even for necessity, the undivided interest of defendants 1 and 2 in the joint family property left by their deceased father, that even the sanction obtained from the District Court under Exhibit A-12 cannot clothe her with the power to alienate the minors' interests and that as such the suit for specific performance of such an invalid agreement for sale cannot be maintained. Though before the lower Court the defendant-respondents successfully contended that the sanction granted by the District Court is without jurisdiction, they did not raise the specific plea now raised before us that the fourth defendant had no authority to sell the minors' interest in the suit properties as a mother and natural guardian either under the Hindu Law or under the Hindu Minority and Guardianship Act, 1956, even for necessity or for binding purposes.
10. Therefore, the two substantial points that are to be considered in this appeal are: (1) Whether the fourth defendant was competent to execute the agreement of sale under Exhibit A-1 either under the general Hindu Law or under the provisions of the Hindu Minority and Guardianship Act, 1956, in her capacity as the mother of defendants 1 to 3 and (2) whether the proposed alienation is for necessity and binding purposes of the family or for the benefit of the minors so as to bind them, if the fourth defendant is held empowered to alienate the suit properties on behalf of the minor defendants 1 to 3.
11. Before dealing with the said two points in controversy, we would like to set out a few facts which are relevant. The suit properties and some others were originally owned by the joint family consisting of one Govindaswami and his brothers. In a partition suit, O.S. No. 70 of 1943, on the file of this Court, the suit properties were allotted to the said Govindaswami. After the said partition, the property was being managed by Govindaswami on behalf of the joint family. Govindaswami died sometime in or about 1947, leaving behind him children defendants 1 to 3, and his widow, the fourth defendant. Even during his lifetime he had, as a kartha of the family borrowed on a simple mortgage, Exhibit A-51, dated 10th January, 1945, from one Govindaraja Chetty a sum of Rs. 3.500 for the purpose of discharging certain pre-partition debts. For non-payment of the said mortgage debt, the said Govindaraja Chetty attempted to sell the mortgaged property through Messrs. Murray and Company on 17th December, 1947, and with a view to avert the said sale the fourth defendant, for herself and on behalf of her minor sons, defendants 1 and 2 borrowed a sum of Rs. 1,000 from one K.N. Ramaswamy Chetty by executing a deed of simple mortgage, Exhibit A-52, dated 17th December, 1947, and another sum of Rs. 5,500 from one Lakshmi Ammal for the same purpose on a simple mortgage Exhibit A-15, dated 27th January, 1948. With the amount borrowed under Exhibit A-15 the debts due under the mortgages Exhibits A-51 and A-52 had been discharged. Under Exhibit A-13, dated 20th December, 1954 the fourth defendant for herself and on behalf of her minor sons had usufructuarily mortgaged some of the items of the suit property of a total extent of four acres and 50 cents for Rs. 400 for purpose of meeting the family expenses and for discharging certain sundry debts. As the mortgagee, Lakshmi Ammal was pressing for the discharge of the mortgage under Exhibit A-15 and as she was not able to realise the mortgage amount from the defendants she assigned the said mortgage in favour of one Balarama Reddiar for a consideration of Rs. 4,000 by assignment deed Exhibit A-31, dated 6th November, 1956. By a notice Exhibit A-27, dated 26th January, 1959 the said Lakshmi Ammal informed the defendants about the said assignment in favour of Balaram Reddiar and directing them to pay the mortgage amount with interest to the assignee. The assignee, Balarama Reddiar issued a notice Exhibit A-28, dated 19th January, 1959 calling upon the defendants to pay the mortgage amount under Exhibit A-15 with accrued interest under threat of filing a suit to recover the mortgage debt. The fourth defendant as mother and guardian of defendants 1 to 3 had also incurred debts to the tune of Rs. 4,000 for the purpose of maintaining and educating the minors, and also for meeting the expenses of litigation which has been going on since the death of their father between them and their uncle Parasuram Naicker. Parasurama Naicker taking advantage of his residence near the suit properties was causing considerable harassment to the defendants and was actually cutting, carrying away the crops from some of the suit lands. For preserving the suit properties from the constant interference from the uncle, Parasuram Reddiar, proceedings had to be initiated against him involving considerable expenses. This necessitated the borrowing by the fourth defendant. Further, the suit lands were situate are Puzhudhivakkam village of Ponneri Taluk and the access to the said lands from Ennore backwaters in only by boat. The village wherein the properties are situated is practically uninhabited and there were no sources of irrigation for the cultivation of the lands, and even the wet lands have to mainly depend upon rain for proper cultivation. The other lands which are dry are such only casuarina could be grown. Even the casuarina crops which were raised by the defendants in some years were cut and carried away by the uncle who was residing near the suit lands, while the defendants were living in Madras, far away from the suit lands. It is in these circumstances the fourth defendant negotiated for the sale of the property and entered into the agreement of sale Exhibit A-1 with the plaintiffs in the suit. The fourth defendant, who is the widow of Govindaswami, is entitled to certain rights under the Hindu Women's Right to Property Act, 1937. The third defendant who is the daughter of Govidaswami is not entitled to any share in the suit properties but is entitled to be maintained out of the joint family properties. Defendants 1 and 2 are the only two surviving coparceners of the joint family after the death of their father. Defendants 1 to 3 and the properties of the joint family were being maintained by their mother and guardian, the fourth-defendant. It is in the light of these facts the two points set out above have to be considered.
12. On the question as to the authority of the fourth defendant to sell the suit properties, the learned Counsel for the appellants contends that the fourth defendant as the mother of defendants 1 and 2 is entitled to sell the properties on behalf of the minors for necessary and binding purposes or for benefit and that she had also obtained the requisite permission from the Court under Section 8 of the Hindu Minority and Guardianship Act, 1956. The learned Counsel referred to the decision of the Privy Council in Subrahmanyam v. Subba Rao (1948) 2 M.L.J. 22 : 75 LA. 115 : I.L.R. (1949) Mad. 141, in support of his plea that the powers of the mother as a guardian to enter into a contract on behalf of her minor son for purposes binding on the minor cannot be disputed. The question for consideration in that case was with respect of a contract for sale entered into by the mother of a minor son as his guardian, who should be considered as the "transferor" within the meaning of Section 53-A of the Transfer of Property Act and the Judicial Committee held that the minor on whose behalf the contract was entered into by the guardian should be deemed to be the " transferor" within the meaning of that section and as such when the transferee was put into possession, the minor on attaining majority in debarred from obtaining possession of the property. Their Lordships observed:
Their Lordships entertain no doubt that it was within the powers of the mother as guardian to enter into the contract of sale of 29th November, 1935, on behalf of the respondent for the purpose of discharging his father's debts, and that if the sale had been completed by the execution and registration of a deed of sale, the respondent would have been bound under Hindu Law. As the sale was not so completed it is conceded by Counsel for the appellants that the present appeal must fail unless the appellants are entitled to the protection afforded by Section 53-A of the Transfer of Property Act. They are entitled to that protection, if, but only if the respondent comes within the words "the transfeor or any other person claiming under him". If he does, the section bars him from obtaining the relief claimed by him in the present suit and the appeal must succeed. If he does not, the order for possession made in his favour was right and the appeal must be dismissed."
13. As pointed out in that decision, there can be no doubt about the powers of, the mother in the absence of the father, to enter into a contract for the sale of the minor's separate properties for necessary and binding purposes under the Hindu Law. It is well established that in respect of separate property of the miner his father and in his absence his mother will be the natural guardian and it is permissible for the father and in his absence the mother to alienate such properties of the minor for a necessary and binding purpose. But an alienation by the father or mother for no necessity and without any enquiry by the alienee as to the existence of the alleged necessity will not bind the minor, such an alienation, however, is not void but voidable. The position of a guardian under the Hindu Law was considered by their Lordships of the Judicial Committee in the well known case in Hunoomanpersad Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 M.I.A. 393. That decision recognised the power of a manager or a guardian of a minor to charge the ancestral estate by loan on mortgage provided the power had been exercised by the manager or guardian in a case of need or for the benefit of the estate.
14. However, in respect of the undivided interest of the minor in a joint family the position is different. Neither the father nor the mother can, as the minor's natural guardian, alienate such an undivided interest of the minor. The members of a joint family governed by the Mitakshara held the joint property as joint tenants and not as tenant-in-common, the Mitakshara theory being that each coparcener's right in the joint property extends to the holder whereas the Dayabhaga doctrine is that each member's right extends to the share to which he is entitled on partition and not to the whole. From these two different theoretical concepts about the nature of the joint right held by a. coparcener flow differing legal consequences. According to the Mitakshara One member cannot alienate his undivided interest in the joint family for he has no definite share in it and when he dies his interest passes by survivorship as he has no specifically definite share as such as might be claimed by the heirs of his separate property. But according to Dayabhaga a coparcener is competent to deal with his undivided share and such share will not pass by survivorship but will devolve on the heirs succeeding to his separate property. But this prohibition against private alienation of the coparcener's interest was held not to apply to involuntary sales in execution of decrees obtained by creditors. Though the strict anti-alienation rule of the Mitakshara has been slowly departed from and it has now been held inaseries of decisions that a coparcener for valuable consideration can sell, encumber or otherwise alienate his undivided interest in a joint family property, it has been consistently held that in respect of such undivided interest of a coparcener neither the natural guardian nor the guardian appointed under the Guardians and Wards Act had any power to sell that interest even for necessity or for benefit. The distinction that obtained under the general Hindu Law between the separate property of a minor and his undivided coparcenary interest is kept up also under the provisions of the Hindu Minority and Guardianship Act of 1956. Section 6 of that Act which defines a natural guardian excludes minor's undivided interest in a joint family property from the operation of that section and Section 12 imposed a prohibition against the appointment of a guardian by a Court other than the High Court in respect of an undivided interest of a minor in a joint family property, when such joint family property is in the management of an adult member of the family. Therefore, it is not possible to hold that the fourth defendant as the natural guardian of the minor sons is authorised to sell the undivided interest of the minors as such in the joint family properties either under the general Hindu Law or under the provisions of this Act. But in this case the fourth defendant has purported to sell not the undivided interest of the minors as such in the joint family property but the entirety of the properties acting as guardian of both the minors and the question is whether the agreement for sale of the entire joint family property of the minors is valid.
15. It is well settled that no guardian can be appointed under the Guardians and Wards Act of the undivided interest of a minor member of a joint family governed by the Mitakshara, the reason being that the Court's interference by the appointment of a guardian would force the disruption of the joint family against the will of members thereof and that the undivided coparcenary interest is not property of which a guardian, appointed by the Court can take care.
16. Though normally a Court will not appoint a guardian for the undivided interest of a minor member of a joint family, if there be no adult male member in the joint family and all the coparcener are minors it can undoubtedly appoint a guardian for their joint estate until one of them attains majority, when the entire estate is to be handed over to him as the kartha of the joint family. (Vide Bindaji v. Mathurabai (1906) I.L.R. 30 Bom. 152, Ramachandra v. Krishna Rao (1908) I.L.R. 32 Bom. 259 and Seetha Bai v. Narasimha A.I.R. 1945 Mad. 306 : I.L.R. (1945) Mad. 568 : (1945) 1 M.L.J. 60.
17. In Suryanarayanamurthy v. Venkayya Panthulu , Govinda Menon and Basheer Ahmed Sayeed, JJ., held that where all the members of a joint family are minors, the Court has power under the Guardians and Wards Act to appoint a guardian for the whole of the joint family property in case there arc no adult male members, but that when once one of the minors becomes a major he is ipso facto entitled to the resumption of the entire property in his favour as he could act as the guardian of the other minors. The question that was debated before them was as to whether the Court had the power to appoint a guardian in respect of two minors who alone constituted a joint family. The learned Judges, after referring to the relevant earlier decisions on the point expressed that it is well established that a guardian cannot be appointed for the property of a minor member of a joint family but that if all the sons are minors the Court may appoint a guardian for the whole of the joint family properties until one of them attains majority. At page 299 of Mayne's Hindu Law (10th edition), the learned author has stated as follows:
When all the coparceners of a Mitakshara joint family are minors, the Court can appoint a guardian of the property of the minors, though in such a case as soon as the eldest member of the family attains majority, the guardianship ipso facto is determined as regards all the members.
18. In Commissioner of Income-tax v. Nandlal , it has been observed:
It is not necessary to decide the question whether under the Guardianship Act a guardian could have been appointed in respect of the undivided interest of the minors. There is authority for the proposition that when all the coparceners are minors a guardian can be appointed for the whole number.
19. In Trimbak Raoji v. Lonkaran A.I.R. 1948 Nag. 324, it has been observed that there is nothing in the Hindu Law which absolutely forbids a minor, though a senior member of a joint Hindu family, from occupying the status of a managing member and that family, particularly when such a senior member has a capable guardian to represent him. Section 21 of the Guardians and Wards Act has been relied on in support of the said observation. According to that decision Section 21 of the Guardians and Wards Act positively contemplates that a minor member can be a managing member of an undivided Hindu family and that the minor in order to be a managing member of the family need not be of an age capable of having a wife and a son. The learned author, D.F. Mulla in his book on the principles of Hindu Law at page 590 (10th edition has observed):
There is no rule of Hindu Law that the managing member of an undivided family should be an adult. He may be a minor. On this aspect some light is thrown by the wording in Section 12 of the Hindu Minority and Guardianship Act. That Section says that where a minor has an undivided interest in joint family property and the property is under the management of an adult member of the family, no guardian shall be appointed for the minor in respect of such undivided interest. The adult member of the family may be either male or female. If there is no adult member of the family in management then the prohibition contained in Section 12 will not apply. But if there is an adult member in management of the joint family property then the Court is prohibited from appointing a guardian for the minor's undivided interest in the joint family property. The section does not say that the adult member could only be a male member. If in case where there is no adult male member and all the members of the family are minors, a guardian can be appointed by the Court with reference to the entire joint family property as has been held in Sitarama Rao v. Venkatarama Reddiar and Ors. I.L.R. (1956) Mad, 99 : (1956) 1 M.L.J. 5 but the guardian so appointed will have to relinquish the guardianship when anyone of the minor members of the family attains majority. Cases have also held that the management of the joint family and its affairs can be taken up not only by an adult male member of the family but also by a female member of the family like the mother. When this adult mother is in actual management of the joint family properties including the undivided interest of its minor members, Section 12 prohibits a guardian being appointed in such a case as there is an adult member in management of the property. It is true a mother cannot be a coparcener in a joint family but it cannot be denied that she is a member of the joint family. Tile question therefore is whether the fourth defendant as a natural guardian can dispose of the property of the minors including their undivided interest for legal necessity, acting as a member in management of the joint family.
20. In Radha Ammal v. Commissioner of Income-tax, Madras (1950) 1 M.L.J. 399, Satyanarayana Rau and Viswanatha Sastri, JJ., held that a partnership entered into with a stranger by a Hindu mother on behalf of her minor sons acting as a kartha of the joint family is not a valid one on the reasoning that the rights conferred by the Hindu Women's Rights to Property Act on a Hindu widow cannot have the effect of converting her status into that of a coparcener to enable her to acquire a representative capacity as a kartha or managing member of the family and bind the minor members by entering into a partnership, that the right to become a manager of a joint Hindu family depended upon the fundamental fact that the person on whom the right devolved was a coparcener of the joint family and the rights conferred by the Hindu Women's Right to Property Act on a widow either individually or cumulatively do not have the effect of conferring on her the status of a coparcener in the family nor do they clothe her with a right to represent the other members of the family and that coparcenership is a necessary qualification for the managership of a joint Hindu family. The learned Judge in that case disagreed with the view taken by the Nagpur High Court in Commissioner of Income-tax, C.P. & Berar v. Lakshminarayan Raghunath I.L.R. (1948) Nag. 775, where it was held that the widow could validly represent the minors as kartha of the family having regard to her rights under the Hindu Women's Rights to Property Art, 1937. Viswanatha Sastri, J., had however said referring to the decision of the Nagpur High Court:
The learned Judges of the Nagpur High Court state that the widow would be the manager of the joint Hindu family if her sons happened to be minors at the time of the death of her husband. She would be the guardian of her minor sons till the eldest of them attains majority but she could not be the manager of the joint family for she is not a coparcener. If she were the manager then she should continue to be the manager for her life notwithstanding her sons' attainment of majority".
The said observations seem to suggest that though the mother cannot act as the kartha or managing member of the family, she can take up the management of the joint family properties as the guardian of the two minors who constituted a joint family till the eldest of them attains majority. The position therefore seems to be that though the fourth defendant cannot represent the joint family constituted by defendants 1 and 2 as its kartha, she can act as natural guardian on behalf of the minors till the eldest of them attains majority. It seems to us that as the first defendant who is the eldest son who would naturally be the kartha of the manager of the family is incapacitated by minority from acting as the manager and the other member, the second defendant is incapacitated by still greater minority, the fourth defendant who is the natural guardian of the eldest minor who would naturally be the manager can take the place of that manager as regards the other minors and fully represent them. In this case the fourth defendant was the natural guardian of her minor sons, defendants 1 and 2 and in the ordinary course, the first defendant would have become the manager and the second defendant, his brother would have been adequately represented by that manager. In the circumstances we think that the fourth defendant as the natural guardian of the first defendant is entitled to act as the manager of the joint family on his behalf and take up the management of the joint family properties even though she cannot be a coparcener.
21. In Ghariboul - Lah v. Khalak Singh (1903) L.R. 30 I.A, 165 : 25 All. 407 (P.C.) while dealing with the validity of certain mortgages executed by the mother of two minor sons with the consent of her adult son the Privy Council stated:
It has been well settled by a long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of infant's interest in the property of an undivided Mitakshara family. And in their Lordships' opinion those decisions are clearly right, on the plain ground that the interest of a member of such a family is not individual property at all and that therefore a guardian, if appointed, would have nothing to do with the joint family property. And applying these observations to the present case. Their Lordships think that the mortgages under consideration were not mortgages by the guardian assuming the mother to have been a guardian, but mortgages by the family entered into by the kartha of the family with the concurrence of Jangil, the only other adult member of the family if indeed he was an adult.
22. Venkataramanamurthy v. Suhbayyamma (1966) 1 An.W.R. 368 went to the extent of holding that:
It is not in dispute that in the absence of father, mother is the natural guardian under the traditional Hindu Law. She can therefore enter into an agreement to sell the undivided interest in the joint family property of her minor son provided of course she acts in the interest of the minor and for his benefit. Subject to that overriding consideration it cannot be argued that the mother who is the natural guardian cannot enter into the agreement to sell or deal with the minor's undivided interest in the joint family property.
With respect, we are not, however, inclined to take that extreme view. As already said,, even a natural guardian cannot deal with the undivided interest of a minor coparcener except when such natural guardian is the kartha of the manager of the joint family. This is the view taken by this Court in Radha Ammal v. Commissioner of Income-tax, Madras (1950) 1 M.L.J. 399. The Supreme Court in Commissioner of Income-tax, M.P. v. Seth Govindram Sugar Mills , had also affirmed the view that under the Hindu Law, coparcenership is a necessary qualification for the managership of a joint Hindu family and the widow not being admittedly a coparcener, she has no legal qualification to become the manager of a joint Hindu; family, after expressing that the view of the Madras High Court in Radha Ammal v. Commissioner of Income-tax,. Madras, is in accordance with well-settled principles of Hindu Law while that expressed by the Nagpur High Court in Commissioner of Income-tax, C.P. & Berer v. Lakshminarayan Raghunath I.L.R. (1948) Nag. 775 : 16 I.T.R. 51.3, is in direct conflict with them.
23. In the light of the legal position set out above we are inclined to take the view, on the special facts of this case, that the fourth defendant acting as the mother and natural guardian of the eldest son who is the kartha of the joint family, or as the natural guardian of all the minor coparceners as one group and of the property of that group as a whole did have authority to enter into the contract of sale in question provided it was for the benefit or for the necessity of the minor coparceners.
24. The further question that remains to be considered is whether the transaction has been entered into by the fourth defendant out of necessity and for the benefit of the minor sons. It has already been noted that there has been an antecedent debt to be discharged by the joint family to the extent of Rs. 9.875. The lands though large in extent cannot be said to have yielded sufficient income as the substantial portion of the same is dry, fit for raising casurina plantation. The fact that a debt of about Rs. 3,1300 incurred by the father in 194.3 was not discharged till i960 shows that the family was not in receipt of any substantial income from the properties. The fourth defendant had to maintain her minor children, defendants 1 to 3 and educate them. The view taken by the lower Court that the properties are capable of fetching a large income seems to have been based on its inference only from the extent of the lands involved and not with reference to any relevant data as to the actual income from the properties during the years past. The lower Court's view that there is no necessity for the alienation of all the properties by the fourth defendant cannot be accepted. It is true that the antecedent debt was only to the extent of about Rs. 10,000 and that the proposed alienation of the entirety of the properties may not normally be justified. But having regard to the situation of the lands which is in a far off village quite uninhabited, and having access only by boat through Ennore backwaters, practically without any irrigation facilities, it cannot definitely be stated as to whether the fourth defendant will be able to succeed in selling a portion of the property just to discharge the antecedent debt. In this case there is no evidence that apart from the suit properties the family had any other property. The fourth defendant has to maintain the minor children and to provide them with the necessities of life till they are settled in life. In such circumstances it is but natural the fourth defendant might have thought of disposing of the property which is not capable of fetching any substantial income to the family for discharging the antecedent debt as well to purchase a house in Madras where they were living, with the balance of the sale proceeds. In this case it cannot also be said that the plaintiffs as purchasers have not made sufficient enquiry as to the necessity. The evidence disclosed that they made sufficient enquiry before entering into that transaction under Exhibit A-1 for the purchase of the suit properties. We therefore disagree with the view of the lower Court and hold that the transaction under Exhibit A-1 is for necessity and for the benefit of the minors. The evidence of the fourth defendant before the District Court while obtaining sanction and the petition filed in support of that application clearly establish that it was not possible to sell the suit properties piecemeal. Hence the lower Court's view that there has been an attempt at excessive alienation cannot be accepted.
25. Though we have held that the contract to sell entered into by the fourth defendant is valid, the question still is as to whether specific performance of such a contract entered into be the guardian for the sale of the minor's properties can be had by the plaintiffs in this case. In Mir Sarwarjan v. Fakhruddin Mohammed Chowdhuri (1912) 21 M.LJ. 1156 : I.L.R. 39 Cal. 232 (P.C.), the Privy Council bad to consider the question whether a contract to purchase land entered into by the infant's mother was capable of being specifically enforced. It was held by the Judicial Committee that it was not within the competence of either of the manager of the minor's estate or of the guardian of the minor, to bind the minor or the minor's estate by a contract for the purchase of immoveable property, that as the minor was not bound by the contract as there was no mutuality and that consequently the minor could not obtain specific performance of the contract. This decision held the field for many years. But later the Judicial Committee in Subramanyam v. Subba Rao I.L.R. (1949) Mad. 141 : L.R. 75 LA. 115 : (1948) 2 M.L.J. 22 : A.I.R. 1948 P.C. 95, upheld the contention that a guardian's contract for the sale of the minor's immoveable property was specifically enforceable if the contract was beneficial to the minor. The apparent conflict between the said two decisions of the Privy Council was considered by Viswanatha Sastri, J., in Ramalingam v. Babanambal Ammal . That was a case where a guardian-mother of a Hindu minor had entered into a contract for the sale of the minor's immoveable property for purposes considered under the Hindu Law as necessary. Relying on the decision in Subrahmanyam v. Subba Rao, it was held that the minor was bound by the contract and such a contract is enforceable against him, and that the artificial doctrine of mutuality which was invoked in Mir Sarwarjan v. Fakhruddin Mohommed Chowdhuri, could no longer apply. According to the learned Judge the artificial doctrine of mutuality as evolved in English decisions was not applicable to cases of Hindu minors properly to presented by their guardians and that the doctrine of mutuality, "Illogical in form and in substance unjust" had been discarded by the Judicial Committee itself which was responsible for its introduction in India in its decision in Mir Sarwarjan v. Fakhruddin Mohammed Chowdhuri (1912) I.L.R. 39 Cal. 232 (P.C). The learned Judge concluded by saying that "the doctrine of mutuality need no longer cast its spell on Indian Courts and sterlise contracts of sale entered into by a guardian on behalf of his ward for the latter's interest or benefit." Though the case before the learned Judge was in respect of a contract for sale on behalf of the minors, it appears that the decision will equally apply to a contract for purchase on behalf of the minors. A similar view was taken by Mudholkar, J., in Gujoba Tulsiram v. Nilkanth , where the learned Judge opined that the true test for the validity and enforceability of a guardian's contract of sale on behalf of a minor was not the existence of mutuality in the contract but whether it was by a competent guardian and for legal necessity or benefit of the minor's estate.
26. The point was again considered by a Full Bench of this Court in Sitarama v. Venkatarama (1956) 1 M.L.J. 5 : I.L.R. (1956) Mad. 99. In that case two Hindu brothers of whom one was minor and the other acting for him, though not his legal guardian, purchased properties on 29th November, 1933, agreeing to reconvey the same to the vendors after attainment of majority by the minor. On a suit filed to enforce the agreement for reconveyance against both the brothers the minor who had attained majority pleaded that the reconveyance agreement would not bind him as his brother was neither his de jure guardian nor the manager of the joint family, that the agreement imposed an onerous obligation on him, and that for want of mutuality it was not enforceable against him. The Full Bench by a majority held that contracts entered into on behalf of a minor by his guardian or manager of his estate can be specifically enforced against the minor if the contract is one which is within the competence of the guardian or manager who had entered into it on behalf of the minor so as to bind him by it and if it is also for the benefit of the minor. Before the Fuh Bench reference was made to Mi Sarwarjan v. Fakhruddin Mohammed Chowdhuri (1912) I.L.R. 39 Cal. 232 (P.C) and the observations of Viswanatha Sastri, J., in Ramalingam v. Babanambal . 431thereon. But the Full Bench was not inclined to accept the view of Viswanatha Sastri, J., and expressed that Mir Sarwarjan v. Fakhruddin Mohammed Chowdhuri, was still good law in its applicability to contracts for the purchase of a property on behalf of a minor.
27. However, a Full Bench of the Andhra Pradesh High Court in Suryaprakasam v. Gangaraju (1955) An.W.R. 818: A.I.R. 1956 A.P. 33, while construing a similar question on similar facts expressed that the limit and extent of the guardian's capacity (authority) are conditioned by Hindu law, that they can only function within the doctrine of legal necessity or benefit that the validity of a transaction entered into by the guardian has to be judged with reference to the scope of his power to enter into a contract on behalf of the minor, that as either party to such a transaction can enforce the contract, the test of mutuality is satisfied and that since the guardian under the Hindu law has the legal competency to enter into a contract on behalf of the minor for necessity or for the benefit, the contract is valid and enforceable from the time of its inception. They opined that there cannot be any essential distinction between a contract of sale and contract of purchase, the difference being one of degree, and that the contract to sell or purchase property was transaction connected with dealings in immovable property by a guardian giving rise to obligations annexed to that property and that they cannot be equated with contracts of loans imposing personal obligations on the minor. The Full Bench held that the view expressed in Mir Sarwarjan v. Fakhruddin Mohammed Chowdhuri (1912) I.L.R. 39 Cal. 232, was no longer sound in view of the later Privy Council decision in Subramanyam v. Subba Rao (1948) 2 M.L.J. 22 : A.I.R. 1948 P.C. 95. Whether there was any difference between a guardians' contract to purchase and one for sale with reference to its enforceability or not, as regards the enforceability of a contract of sale entered into by a minor's guardian has been upheld by both the above Full Bench decisions. (Vide Ramalingam v. Babanambal . 431and Suryaprakasam v. Gangaraju (1955) An.W.R. 818 : A.I.R. 1956 A.P. 33. We have to therefore hold that the contract of sale entered into by the fourth defendant on behalf of the minor children for necessity and for their benefit can be specifically enforced against the minors.
28. In this case the plaintiffs claimed that possession of the property was also handed over to them by the fourth defendant, in pursuance of the contract of sale. But the defendants disputed that fact and stated that the plaintiffs had trespassed on the suit property taking advantage of the fourth defendant being a helpless lady. The evidence adduced also does not disclose at what point of time possession of the property was taken by the plaintiffs. The contract of sale, Exhibit A-1 does not refer to the fact that possession is to pass immediately from the defendants to the plaintiffs. On the other hand the document specifically shows that the plaintiffs have to complete the sale transaction, within two months after the date of the sanction by the District Court. Having regard to the fact that the contract of sale has been entered into subject to the sanction being obtained from the District Court, it can be taken that there was no agreement between the parties at the time of the execution of Exhibit A-1 to transfer possession from the defendants to the plaintiffs. As found by the lower Court it might be that the plaintiffs should have got possession from the fourth defendant after giving inducement to the fourth defendant by offering to pay small amounts whenever she required. It is not possible for the parties to anticipate the sanction of the District Court and at the same time transfer possession of the property in pursuance of Exhibit A-1. From the evidence available, the conclusion is inescapable that possession of the property should have been taken by the plaintiffs subsequent to the execution of Exhibit A-1. In such a case it is doubtful whether the plaintiffs can claim that the contract Exhibit A-1 has been partly performed under Section 53-A of the Transfer of Property Act. Section 53-A of the Transfer of Property Act provides that " if the transferee has, in part performance of the contract, taken possession of the property or any part thereof, and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract, the transferor or any other person claiming under him shall be debarred from enforcing against the transferee and persons claming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract. As already stated possession alleged to have been taken by the plaintiff's could not have been in part performance of the contract. The parties under Exhibit A-1 proceed on the basis that the contract has to be performed within two months after the sanction by the District Court is obtained and they could not have partly performed the contract on the date of Exhibit A-1 when they intended the performance of the contract only on a future date after obtaining the sanction by the District Court. Hence the fact that the plaintiffs came to be in possession of the suit properties will not give them any advantage over the defendants.
29. Though we have held that the transaction entered into by the fourth defendant under Exhibit A-1 is valid and that it binds her minor children, defendants 1 to 3, as the transaction has been entered into for necessary and binding purposes, we have yet to consider the question whether the plaintiffs should be given the discretionary relief of specific performance. It is well established that the existence of a valid and enforceable contract cannot in itself deprive the Court of its discretionary power to refuse to enforce the contract, if the supervening circumstances obviously affect the interest of the minors. In all transactions affecting a minor, there is a paramount duty resting on the Court not to put its seal on transactions affecting his interest. Therefore, though the contract might be valid and otherwise enforceable, if at the time the Court is asked to enforce it, it transpires that the circumstances have so changed that it would obviously be unjust and detrimental to the interests of the minor to enforce it, the Court may well in the exercise of its discretion refuse to give a decree for specific performance. This has been so held in Suryaprakasam v. Gangaraju (1955) An.W.R. 818 : A.I.R. 1956 A.P. 33. In this case the property sought to be alienated had increased considerably in value and there is evidence to show that it will easily fetch Rs. 400 to Rs. 500 per acre as against the average rate of Rs. 240 per acre fixed under Exhibit A-1. There is also a suggestion by the fourth defendant that apart from the sum of Rs. 25,000 mentioned under Exhibit A-1, the plaintiffs agreed to pay a sum of Rs. 10,000 outside the document. There is also the further fact that while entering into the transaction under Exhibit A-1, the fourth defendant was faced with certain pressing necessities and was anxious to sell and such anxiety might have forced her to sell the property at somewhat lower rate than the market rate. On the whole we get an impression that the proposed sale is a distress one. All these things can be taken into account by the Court while deciding the question of equitable relief. Even the plaintiffs in the suit have asked for the alternative relief by way of return of the amount advanced by them. In this case the agreement is validly entered into by the fourth defendant so as to bind her minor children and she has received in all Rs. 13,465 and that amount has gone towards the benefit of the minors. Hence if the specified performance is refused the minors are liable to pay back the amounts received by the fourth defendant. The amount had been utilised partly for the discharge of an antecedent debt and partly for the maintenance and education of the minors. On a consideration of the entire facts and circumstances in this case we feel that a decree for specific performance of the contract of the sale under Exhibit A-1 will be oppressive to the. minors' interest. We therefore decline to grant a decree for specific performance but instead we giant a decree for a sum of Rs. 13,465 paid by the plaintiffs to discharge the antecedent debt and for discharging the sundry debts and for the maintenance of the minor children, with interest at 6 per cent. per annum from the respective dates of payment until repayment with a charge on the suit properties for payment of the same. The plaintiffs can, of course, withdraw the sums deposited by them in this suit.
30. The other question whether the plaintiffs had complied with the direction of the District Court while granting the sanction for the sale does not arise as we have held that the sanction obtained by the fourth defendant for the sale of the property under b 8 of the Hindu Minority and Guardianship Act is invalid as the provisions of the Act will not apply to the undivided interest of a minor coparcener.
31. In the result the appeal is allowed, the decree and judgment of the lower Court are set aside and a decree is passed as indicated above. The appellant will be entitled to have his proportionate costs in the suit as well as the appeal.
32. This case having been set down this day for being mentioned in pursuance of the Advocate for the appellant's letter dated 20th November, 1970, the Court made the following ORDER (Order of the Court was delivered by Ramaprasada Rao, J.) The only direction, after hearing the parties, that could be given in this case at this stage is this:
34. The sum of Rs. 11,535 which has been invested in a Fixed Deposit Account by the Receiver, will be paid over by the Receiver on maturity to the plaintiffs. The parties are at liberty to apply for such further directions in a regular application filed for the purpose for the disbursement of the other monies with the Receiver and in Court.