Gujoba Tulsiram vs Nilkanth And Anr. on 28 March, 1957

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Bombay High Court
Gujoba Tulsiram vs Nilkanth And Anr. on 28 March, 1957
Equivalent citations: AIR 1958 Bom 202, (1957) 59 BOMLR 1123, ILR 1957 Bom 847
Bench: Mudholkar


1. The only point in this appeal is whether the plaintiff is entitled to specific performance of a contract of sale entered into by him with the defendant. At the relevant time, while the defendant No. 1 was a major, the defendant No. 2 was a minor and the contract was entered into on his behalf by his father. It may be mentioned that the property in question solely belonged to the defendants having been gifted to them by their relation and was not their joint family property. The lower appellate Court held on the authority of the decision in Mir Sarwarjan v. Fakruddin, ILR 39 Cal 232 (PC) (A), and several other decisions that the agreement was not binding on the defendant No. 2 because he was a minor at the date of the agreement and that consequently specific performance could not be decreed. It however ordered the defendants to refund Rs. 450/- which were paid by the plaintiff to them as earnest money.

2. It is not disputed that the defendants as well as their father are tailors by profession. The plaintiff has alleged in the plaint that they wanted to purchase a sewing machine and for that purpose they entered into the transaction of sale of khasra No. 334 (60) of mauza Kanhargaon for Rs. 600/-. The defendants’ reply to this statement was that they have been working as servants in the shop of one Gulabchand at Nagpur and that they never needed any sewing machine, nor did they represent that they wanted to sell the land for this purpose.

3. The trial Court however found in favour of the plaintiff on this point. The lower appellate Court did not give any specific finding on the point but from the observations contained in paragraphs 8 and 9 of the judgment it would appear that it accepted the plaintiff’s case though in its opinion the defendant No. 2 had not gained or profited by the transaction. In my opinion, the lower appellate Court’s view that the defendant No. 2 was not benefited by the transaction is not correct. It is not based upon any evidence and is contrary to the finding of the trial Court that a machine was really required by the family and was actually purchased. As already stated, that finding is implicitly accepted by the lower appellate Court. The trial Court had decreed specific performance but the lower appellate Court reversed its decree on that point on the ground that there was lack of mutuality. In second appeal No. 501 of 1946, D/- 15-2-1951 (Nag) (B), I took the view that where a minor has received a benefit from a transaction entered into by his guardian, specific performance ought to be ordinarily granted. The view I took in that case

finds support from the decision of their Lordships in Subrahmanyam v. Subba Rao , their Lordships quoted with approval the following passage from Mulla’s Indian Contract and Specific Relief Acts:

“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 contract 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 enforced at all.”

In this case, both the conditions have been satisfied. In the circumstances, therefore, the plaintiff is entitled to specific performance.

4. Referring to this decision of their Lordships Mantha Rama Murti, who has edited the 4th Edition of Iyer and Anand’s law of Specific Relief has stated as follows at page 101 :

“DOCTRINE DISCARDED: The words are clear and unmistakable. Mir Sarwarjan’s case (A), was quoted and relied on in the High Court’s judgment under appeal. In these circumstances this passage clearly shows that the doctrine of mutuality which has so long sterilised contracts of sale entered into by a guardian on behalf of his ward for the latter’s benefit or interest, has been definitely discarded by the very tribunal which was responsible for its introduction in India. It need not any longer cast its spell on Indian Courts. This view is further supported by a still more recent decision in Ramalingam Reddi v Babanambal Ammal, , in which Viswanatha Sastri J., ably reviewed the English and Indian decisions. It was pointed out that even according to English Law want of mutuality did not stand in the way of granting specific performance by or against a minor. The learned Judge asked why should not a guardian’s contract be included in Section 21 Specific Relief Act which deals with contracts which cannot be specifically enforced if such a contract could not be enforced?”

“TRUE TESTS As a result of the above discussion it may be stated that the true test for validity and enforceability of a guardian’s contract of sale on behalf of a minor is 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.”

5. I agree with this view. Accordingly I allow the appeal, modify the decree of the lower appellate Court and instead pass a decree for specific performance in favour of the plaintiff. The plaintiff will be required to deposit Rs. 150/- for payment to the defendants after adjusting the costs of this litigation which will be borne in their entirety by the defendants. The deposit must be made within three months. I am allowing such a long period as the summer vacation would intervene.

6. Decree modified.

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