Patna High Court
Bhageran Rai And Ors. vs Bhagwan Singh And Ors. on 1 March, 1962
Equivalent citations: AIR1962PAT319, AIR 1962 PATNA 319
JUDGMENT Kanhaiya Singh, J.
1. This is an appeal by the plaintiffs from the judgment and decree of the Additional District Judge, Patna, dated 22nd July, 1958, reversing the Judgment of the Additional Subordinate Judge of the same place, dated 9th September, 1937, by which their suit for specific performance of contract had been decreed.
2. The plaintiffs, seven in number of whom plaintiffs 5, 6 and 7 are minors, represented by their next friend and natura1 guardian, constitute a Hindu joint family with plaintiff No. 1. as the karta and manager. Similarly, defendants 1 to 4, of whom defendants 3 and 4 are minors, represented by their natural guardian, constitute another Hindu joint family, of which defendant No. 1 is the karta. Defendants 5 and 6 are purchasers from defendants 1 to 4. The plaintiffs' family and defendants 7 and 8 are partners, holding equal shares in Patna Brick Manufacturing Company, which is defendant No. 9 (hereinafter referred to as the Company).
3. Defendants 1 to 4 Owned and possessed 3 bighas 1 1/4 kathas of land comprised in Survey plot No. 4734 under khata No. 1365 situate in village Makdumpur Digha. They gave in lease 2 Bighas, out of the said land, to the company on 30-10-1945 for a period of five years, but it is still in possession thereof though no registered deed of lease has yet been executed. The case of the plaintiffs, in brief, is that on 24-11-1953 defendants 1 and 2 agreed orally, on behalf of their joint family, to sell to them the said land of 5 bighas 1 1/4 kathas for a consideration of Rs. 4000 and, three days after executed a sale deed on 27-11-1953, in favour of the minor plaintiffs 5 to 7 who are the grandsons of plaintiff No. 1 and put them in possession, and promised to register the sale deed a few days after. The plffs, further alleged that two or three days after the execution of the sale deed defendant No. 1 approached plaintiff No. 1 and took from him Rs. 200 for purchasing potato, and in token of this payment he handed over to him the sale deed with a promise to register it next day. It is common ground that the plaintiff did not pay the balance of the consideration money i.e. Rs. 3800, nor did they get the sale deed registered for about ten months. Their case is that defendants 1 and 2 evaded registration of the deed and went on putting off the matter.
On 4-10-1954 defendants 1 and 2 executed a registered sale deed (Ext. C) in favour of Bhagwan Singh (defendant No. 5) and Sohan Lal defendant No. 6) in respect of the same property for a consideration of Rs. 4500. On 8-9-1954 the subsequent purchasers served on the Company a notice to quit, vide Ext. 3b. The company by a letter dated 21-9-1954, declined to vacates the land on the ground that it had already been sold to the plaintiffs on 27-11-1953 and possession also had been delivered. a second notice to quit was served on the company on 17-4-1955 (Ext. C 3), which also met with the same fate. Thereafter, on 17-12-1955, the said purchasers instituted Title suit No. 122 of 1955 in the court of the 3rd Munsif, Patna for eviction of the company from the land leased to it, impleading as defendants, besides the company its partners and the minor plaintiffs vendees. The suit, which has given rise to this appeal, was brought by the plaintiffs on 23-5-1956 for specific performance of the contract of sale. Their case is that the subsequent sale deed was deliberately bought into existence by defendants 1 and 2 in collusion with defendants 5 and 6 with a view to depriving the plaintiffs of the benefit of the contract of sale and further that the subsequent sale deed will not prevail over their contract as defendants 5 and 6 took the sale deed (Ext. C) with full knowledge of the contract of sale entered into by defendant 1 and 2 in favour of the plaintiffs.
4. Defendants 1 and 2, the Kartas and managers of the family and executors of the alleged sale deed of date 27-11-1953 in favour of the plaintiff did not enter appearance though served. The suit was resisted by the minor members of the family, viz., defendants 3 and 4 and the subsequent purchasers, defendants 5 and 6. On, behalf of the minor defendants a written statement was filed by their guardian ad litems controverting the allegations made in the plaint and putting the plaintiffs to the strict proof thereof. Defendants 5 and 6 challenged the validity and genuineness of the sale deed dated 27-11-1953. In favour of the plaintiffs. They pleaded further that the said contract of sale even if genuine, was not enforceable, as there was no legal necessity for the same. They urged that in any event the said contract of sale did not affect their title, as they were subsequent purchasers for value without notice. They further contended that the contract of sale was void for lack of mutuality.
5. The learned Additional Subordinate Judge held that the sale deed dated 27-11-1953 which for want of registration, was now being propounded as a contract of sale was genuine, valid and for consideration and was for legal necessity. He further found that defendants 5 and 6 were not bona fide purchasers for value without notice of the contract of sale in favour of the plaintiffs. He accordingly granted the plaintiffs a decree.
6. From that decree, defendants 5 and 6 and the minor defendants 3 and 4 preferred an appeal to the District Judge which was disposed of by the Additional District Judge. Defendants 1 and 2 were impleaded as the respondents second party. The learned Judge reversed the finding of the trial court and held that the sale deed (Ext, 8c), dated 27-11-1953 in favour of the plaintiffs was not genuine and! valid; and was further vitiated for want of legal necessity. He also observed that when there was no contract of sale the question of the knowledge of the subsequent purchasers of the said contract of sale did not arise, but proceeded to point out that on the assumption that there was a contract of sale, the subsequent purchasers could not have escaped knowledge thereof. He was further of the view that the contract of sale. even if genuine, could not be specifically enforced in the circumstances of the case, since the plaintiffs slept over their rights and took no steps for registration, either voluntarily or compulsorily, for nearly one year and did not institute the present suit for nearly twenty months utter they knew of the sale in favour of defendants 5 and 6 and still never offered to pay the balance of the consideration and thereby perform their part of the contract. He accordingly dismissed the suit. Now, the plaintiffs have come up in Second Appeal.
7. The learned Advocate General appearing for the appellants contended that the finding of the lower appellate court about the genuineness of the contract of sale (Ext. 8c) was not sustainable in law. as it overlooked that its execution was not denied by the authors thereof. He pointed out that defendants 1 and 2, who had entered into the contract of sale with the plaintiffs did not contest the suit, though duly served and did not come forward to deny Us execution, and accordingly, by application of the principle of admission by non-traverse, the contract of sale must be taken to have been executed by them. In support of his contention he referred to a passage in the commentary on Section 70 of the Evidence Act relating to admission by rule of pleading in Sarkar's Law of Evidence Ninth Edition, page 584. Under Section 70 it is not necessary to call an attesting witness to prove a document required by law to be attested, if its execution is admitted by the executant.
8. Commenting on this section the learned author has observed, that the section does not say that the admission should be express and so if any rule of pleading requires that the execution alleged by the opponent must be specifically denied, failure to plead denial must be construed as equivalent to an admission of execution by the doctrine of admission by non-traverse, and further that without the denial the execution is not put in issue. This observation of the learned commentator was manifestly found on the provisions of Rule 5 of Order 8 of the Code of Civil Procedure. This rule provides as follows :
''Every allegation of fact in the plaint if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.
Provided that the court may in its discretion require any fact so admitted to be proved otherwise than by such admission."
In order to appreciate the significance of this rule it will be necessary to refer to Rule 3 which lays down that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
This rule thus requires a clear and explicit denial of each allegation of fact and does not countenance a mere general traversal of fact. Now, what is the consequence of the failure to conform to the provisions of Rule 3? The consequence is not laid down therein. This is embodied in Rule 5. Rule 5 states the effect of the failure to comply with the provisions of Rule 3. It provides that if any allegation of fact in the plaint is not denied specifically or by necessary implication or is not stated to be not admitted in the written statement, it shall be token to be admitted. In other words every allegation of fact in the plaint will be deemed to be admitted, if in the written statement it is neither specifically denied nor specifically stated to be not admitted. The mention of the words, 'plaint' and "pleading of the defendant" sufficiently indicates that the principle of admission by non-traverse applies only to cases where the defendant has put in a written statement. This is also what has been laid down by the authorities. See J.B. Ross v. C.R. Seriven, AIR 1917 Cal 269 (2).
In Gobind Gorhi v. Baldeo Ram, AIR 1930 Pat 293 a similar argument was advanced, namely, the non-filing of a written statement should be held to amount to an admission. But it was not entertained, and their Lordships, relying upon the aforesaid Calcutta decision, have laid down that the purpose of order 8, Rule 5 is clearly that a defendant when he does make a written defence shall be compelled to make his defence specific and the rule does not apply to a case when a defendant has not put in a written statement. It follows that the defendants who do not file a written statement are, therefore not debarred from giving evidence which traverses the allegations made in the plaint, if it were not so, in cases where the defendants do not appear to contest, a judgment may be founded on the plaint alone without further evidence. But, this is not what the Civil procedure Cods enjoins. Therefore, even in uncontested cases evidence will have to be adduced to prove the allegations in the plaint, though the evidence will be recorded ex parte, before the plaintiff is entitled to a judgment in his favour unless it is excepted by any law.
The same principle was reiterated in Rameshwar Rai v. Harakh Lal, AIR 1942 Pat 226. I is thus well settled, that a mere omission to file a written statement does not amount to an admission of the facts stated in the plaint. In the instant case, defendants 1 and 2 who executed the deed of sale did not file any written statement. There is therefore, no basis for the contention of the learned Advocate General.
9. Again, even in cases where a written statement has been filed, the admission by non-traverse is not a conclusive proof of the facts averred in the plaint. As will appear from the proviso to Rule 5 the court has been invested with the discretion to require any fact so admitted to be proved otherwise than by such admission. Therefore, the failure of the defendant to deny specifically or by necessary implication any allegation of fact in the plaint does not necessarily constitute proof of the said fact, and despite the omission to traverse, the court may in its discretion require proof of such an allegation.
In this case, minor defendants 3 and 4 have generally denied the allegations in the plaint, and the subsequent purchasers have specifically denied that the contract of sale in favour of the plaintiffs is genuine and alleged that that it was a forged and fabricated document. After defendants 1 and 2 had parted with their interest in favour of defendants 5 and 6, their denial or admission was of little consequence. It is always open to the subsequent purchasers to deny the genuineness of any prior transaction propounded to defeat their title. In this case the court permitted both the parties to adduce evidence on the question whether or not the contract of sale in favour of the plaintiffs was genuine and valid and when, on a consideration of the entire evidence, the court of appeal below reached the conclusion that the contract of sale was spurious and was not entered into by defendants 1 and 2, it cannot be impugned on the ground of non-traverse by defendants 1 and 2.
The learned Advocate General submitted that he relied not so much on admission by non_ traverse, but on the general conduct of defendants 1 and 2 in keeping silent when the question was agitated in court. I do not think, any adverse inference can be drawn from the absence of contest by defendants 1 and 2. The sons of defendant No. 1 namely defendants 3 and, 4, are strenuously contesting the suit and have also preferred this appeal. In the circumstances, defendants 1 and 2 may not have considered it necessary to contest the suit separately. Even if they deliberately withdrew from contest, it would not amount to legal evidence of the genuineness of the transaction, when it has been challenged by the persons having interest in the suit property. Therefore, no exception to the finding can be taken on that score. I am, therefore, not inclined to accede to this argument.
10. The learned Advocate General challenged the correctness of the said finding also on the ground that undue importance was attached to the opinion of the handwriting expert and the fact of the plaintiffs' producing from their custody the sale deed (Ext. 8e) was entirely disregarded I do not consider that these two circumstances are sufficient to vitiate the finding. Even if the opinion of the expert is ignored and due allowance is made for the production of the sale deed by the plaintiff the evidence on the record is adequate and convincing to support the conclusion reached by the court of appeal below. It will be observed that the learned Additional District Judge, on a careful examination of the evidence coupled with the conduct of the plaintiffs, found that the sale deed had not been signed by defendants 1 and 2 and was not a genuine document. I see no valid reason why the opinion of the handwriting expert will be excluded from consideration. He has given reason for his opinion and the strong probabilities of the case rather point to the spurious character of the entire transaction. One will not be surprised that the plaintiffs resorted, as rightly apprehended by the appellants, to this device as a counter-biast to defeat their title and also the suit in ejectment. From this point of view, the document must not but be in the custody of the plaintiffs themselves. Prima facie, the document is not absolutely free from suspicion. The word "Rehan" had originally occurred in this document, and the word "Bailakalami" has been superimposed thereon which gives the impression that a document which was originally conceived to be a mortgage was converted into a sale deed.
The conduct of plaintiff No. 1 deepens the suspicion. It will be noticed that there was an interval of nearly ten months between the alleged deed of sale (Ext. 8e) and the registered sale deed (Ext. C) in favour of defendants 5 and 6.
Under the Indian Registration Act, a document has to be registered within, four months, and after the expiry of four months a fresh deed will have to be executed. Despite this well-known provision of law, the plaintiffs took no step for obtaining registration within the period allowed by law. It is remarkable that they were willing to pay the balance of the consideration of Rs. 3800, but the defendants who were in need of money expressed no desire for immediate acceptance, and wanted the plaintiffs to wait and the plaintiffs want us to take plaintiff No. 1 so gullible as to take on face value the alleged assurance of defendants 1 and 2 to execute a fresh deed of sale on the expiration of the statutory period of four months. Even so, the plaintiffs never evinced any earnestness for completion of the transaction and woke up only after the registered deed of sale had been executed, in favour of defendants 5 and 6. Even then, they waited for nearly twenty months thereafter to institute the suit. All this is wholly inconsistent with the natural conduct of a man of ordinary prudence and intelligence. It is manifest that the contract of sale (Ext. 8e) does not fit in with the broad probabilities of the case and is prima facie wholly unnatural. The learned Additional District Judge, therefore, was not wrong in taking these circumstances into consideration, and his finding of fact, assuming it is erroneous, cannot be successfully assailed on these grounds, and it is binding on this Court in Second Appeal. This contention also has no merit and must be overruled.
11. Next, it was urged that the finding of the learned Additional District Judge about the non-existence of legal necessity was equally bad in law. There is no dispute that like other transfers, a contract of sale of immoveable property belonging to the Hindu joint family can be specifically enforced, if it has been entered into by the manager or karta of the family for a legal necessity. Thus, no specific performance of the agreement to sell by defendants 1 and 2 can be decreed unless it is established that it is in the interest of the minor members of the family and is beneficial to them. It is further indisputable that the onus was on the plaintiffs to establish the legal necessity. The contract of sale (Ext. 80) shows that defendants 1 and 2 required Rs. 4000/- for (1) payment of miscellaneous debts, (2) household expenses. (3), cultivation of Potato and (4) repair of house. Even, according to the plaintiffs, only Rs. 200/-, out of the consideration had been paid to defendants 1 and 2, and Rs. 3800/- still remained unpaid. The plaintiffs led evidence to prove legal necessity for the sum of Rs. 200/- only. Two of their witnesses namely, P. Ws. 2 and 8, deposed that defendants 1 and 2 took this amount for purchasing potato seeds. As regards the balance of Rs. 3800/-, there is absolutely no evidence to establish the purposes for which the money was required. No witness has spoken to the necessity of the balance of Rs. 3800. In this state of evidence, the learned Additional District Judge held that there was no legal necessity for entering into an agreement of sale. The Court of first instance did not consider the evidence at a1l and interred the existence of legal necessity from the fact that similar necessities had been mentioned in the sale deed (Exit. C) and also from the fact that Bhagwan Singh, defendant No. 5 (D. W. 8) had admitted in evidence that defendants 1 and 2 needed money for their business of potato and onion, repair of house and cultivation, when they executed the sale deed (Ext. C). The lower appellate Court held that no such inference was deducible from those facts. The learned Advocate General urged that the approach of the trial Court to this question was correct. In my opinion, no such inference is legally permissible. The legal necessity for the sale deed (Ext. C) executed on 4-9-1954 is not an evidence of lega1 necessity for the contract of sale made nearly one year earlier, on 27-11-1953. In the aid of proof, the legal necessity for Ext. C cannot be substituted for that of the contract of sale (Ext. 8e). If any inference is at all permissible it is just to the contrary. It will be recalled that three of the necessities namely, household expenses, cultivation of potato and repair of house were obviously most urgent and could hardly brook delay. If such imperative necessities could wait for their satisfaction for nearly a year, the conclusion, in my opinion, is irresistible that they did not exist in fact and were purely imaginary, arbitrarily mentioned in Ext. 8e to impart to it legal validity. The learned Additional District Judge was, therefore, right in declining to draw any such inference and basing his Judgment on the evidence on record. This contention also fails.
12. The learned Government Advocate appearing for the respondents contended that even on the assumption that the sale deed (Ext. 8e) was genuine, the long delay made in its enforcement disentitled the plaintiffs to any relief and relied, in support of this proposition of law, on the observation of their Lordships of the Privy Council in Ardeshir v. Flora Sassoon, AIR 1928 PC 208 and a Bench decision of this Court in Rameshwar Prasad Said v. Anandi Devi AIR 1960 Pat 109. It will be seen that this contract of sale was made on 27-11-1953. The present suit was brought on 23-5-1956- In between, the position of the parties changed, and the registered sale deed (Ext. C) was executed by defendants 1 and 2 on 4-10-1954. The purchasers served on the Company a notice to quit on 8-9-1954. The plaintiffs are partners in this Company. They, therefore, certainly became aware of this registered sale deed on 8-9-1954. if not earlier. Stil1, they waited for twenty months to bring the present suit for no obvious reason; Prior to that, they had failed to take any steps for its compulsory registration. Apart from this, they have not as yet paid the balance of the consideration of Rs. 3800/-, and there is no evidence of willingness on their part to make immediate payment of this amount. The lower appellate Court has found as a fact that the plaintiffs made undue delay in bringing the suit for specific performance of contract. Thus, the two circumstances namely, undue delay on the part of the plaintiffs and absence of willingness to perform their part of the contract are, in my opinion, enough to nonsuit them. In the case of Ardeshir; AIR 1928 PC 208, their Lordships of the Privy Council have observed that the plaintiffs are required to prove a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract On their part, and failure to do so brought with it the inevitable dismissal of their suit. Similarly in the other case, namely, AIR 1960 Pat 109, a Bench of this Court, to quote the placitum has laid down as follows:
"Where B executes a sale deed in favour of A but refuses to get it registered two remedies are open to A. It is open to him to apply for compulsory registration of the document under Section 23, Registration Act and in case the prayer for registration is refused it is open to him to bring a suit under Section 77 of the Act. It is also open to A to have recourse to the fuller and more comprehensive remedy provided for a suit for specific performance of contract for sale. These two remedies are independent and it is open to A to follow either of these courses for obtaining relief. But the failure of A to take any kind of action for a period of about twelve months is tantamount to an abandonment of contract and waiver of his rights to sue for specific performance. Delay of this kind is always fatal to the plaintiff in a suit for specific performance which is a discretionary relief."
The present case stands on a higher footing. Here, there was a long delay of nearly 2 1/2 years, and there was no satisfactory explanation for the plaintiffs' inaction. These cases therefore, support the contention of the learned Government Advocate, and applying the principles laid down, therein, it must be held that the delay on the part of the plaintiffs amounted to abandonment of contract and waiver of their rights to sue for specific performance and was thus fatal to the suit.
13. The learned Government Advocate also put forward an additional contention to defeat the plaintiffs' claim. Defendants 3 and 4 are minors, and so arc plaintiffs 3 to 5, in whose names the sale deed (Ext. 8e) has been executed. On these facts, the learned Government Advocate contended that as the contract could not be enforced by or against the minors, it was void for want of mutuality. In support of his contention he referred to the well known decision of tie Privy Council in Mir Sarwarjan v. Fakhruddin Mohamed Chowdhuri 39 Ind App 1 and also to a Bench decision of this Court in Abdul Haq v. Yehia Khan, AIR 1924 Pat 81, which is based upon the said Privy Council decision. Both these cases rebate to a contract of sale of property belonging to a Muhammadan family. In the Privy Council case a suit was brought by three plaintiffs (of whom the first was an infant by his nest friend and duly appointed guardian), aliening that they were respectively the owners by right of inheritance of the property claimed in the plaint; that a purchase thereof at a Court auction had been made by the first defendant's vendors; that before the said Court auction the first defendant, Mir Sarwarjan, had agreed to sell them the said property at the price which might be paid by him therefor and they prayed for specific performance of the said agreement. The question canvassed in that case was--Can specific performance of a contract validly entered into on behalf of a minor be enforced? Their Lordships of the Privy Council observed as follows;
''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 minor's estate, by a contract for the purchase of immovable property, and they are further of opinion that as the minor in the present case was not bound by the contract there was no mutuality, and that the minor who has now reached his majority cannot obtain specific performance of the contract."
As a general proposition of law, it is no doubt correct, but the important question is whether those observations of their Lordships of the Privy Council apply even to a contract of sale entered into by a manager and karta of a joint Hindu family on behalf of the minor members for legal necessity. This question was considered by a Full Bench of this Court in Hari Charan Kuar v. Kaula Rai, 2 Pat LJ 513 : (AIR 1917 Pat 478) (FB) and their Lordships have laid down that the case of Mir Sarwarjan does not apply to contracts made by the managing members of a joint Hindu family for family necessities or for the benefit of the family. They have further held that a contract entered into by the manager of a joint Hindu family can be specifically enforced even though some of the members of the joint family were minors at the time when the contract was entered into. The same view has been taken by their Lordships of the Privy Council subsequently in Subrahmanayani v. Subba Rao, 75 Ind App 115 : (AIR 1948 PC 95). In that case the respondent, who with his father had constituted a joint Hindu family, shortly after the latter's death by an agreement in writing, being minor by guardian and mother, agreed to sell certain land to the appellants, the purchase price to be applied in discharging a debt owing to the appellants which had been incurred by the respondent's father. The appellants were let into possession of the land, but the provision in the contract that a sale deed was to be executed and registered was never complied with, and about three years later the respondent, while still a minor, began the present suit by his mother claiming possession of the land contracted to be sold. As to the validity of this contract, their Lordships of the Privy Council, in course of their judgment quoted with approval the following passage from Pollock and Mulla's Indian Contract and Specific Relief Acts, 7th Edition, page 70 as laying down the correct law on the subject:
"As minor's agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Judicial Committee. It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a Manager of his estate. In such a case it has been held by the High Courts of India in cases which arose subsequent to the governing decision, of the Judicial Committee, that the contact can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and further, if it is for the benefit of the minor. But if either of these two conditions is wanting, the contract cannot be specifically en-forced at al1".
14. Recently, in a very elaborate and learned judgment, Viswanatha Sastri, J., has, on a careful review of various authorities, including the aforesaid Privy Council decision, laid down in Ramalingam v. Babanambal Ammal, AIR 1951 Mad 431 that a minor Hindu is bound by a contract entered into by his guardian on his behalf for sale of his property for purposes considered under Hindu law as necessary; such a contract can be enforced against him. His Lordship has further observed that the doctrine of mutuality, as laid down by authorities beginning with Mir Sarwarjan's case 39 Ind App 1 (PC), has no application to such circumstances. I respectfully agree with the view of the learned Judge.
It is thus settled beyond controversy that where a manager and karta of a Hindu joint family enters into a contract for the sale of immovable property belonging to the family for a legal necessity, the purchaser is entitled in law to obtain a decree for specific performance of contract though some of the members of the joint family are minors, in case the manager subsequently refuses to complete the transaction of sale. The only requirement for the validity of such a contract of sale is that there must be a justifying necessity. Indeed, this is true of all transfers effected by the manager and karta of a Hindu family. The learned Government Advocate accepted the correctness of this proposition of law. He, however, urged that although the contract of sale can be on forced even against the minors of a Hindu joint family, the latter cannot enforce the same against the purchasers, if they or some of them are minors. There is no logic in this contention. In the eye of law, there is no distinction between a contract of sale and a contract for purchase, and if the purchaser can enforce specific performance of contract against the minor sellers, there is no reason why the minor sellers should not similarly enforce the same against the minor purchasers. To accept this argument will be tantamount to introducing a qualification in the aforesaid principle of law laid down by their Lordships of the Privy Council in the case of Subrahmanayam 75 Ind App 115 : (AIR 1948 PC 95), in that that principle will not conic into operation when some of the purchasers happened to be minors. According to the learned Government Advocate, specific performance of contract of sale entered into by the manager of a Hindu joint family can be decreed by Count only when it is in favour of majors. There is no rational basis for different treatment of contract of sale and contract for purchase and it is not acceptable on the principles laid down by their Lordships of the Privy Council in the case of Subrahmanyam, 75 Ind App 115 : (AIR 1048 PC 95). It will appear from their observations quoted above that a contract can be specifically enforced by or against the minor. This contention, therefore is not supportable in principles and on authorities and must be overruled.
15. In the result, there is no merit in this appeal which must be dismissed with costs.
Ramratna Singh, J.
16. I agree.