VADAKATTU SURYAPRAKASAM Vs. AKE GANGARAJU AND OTHERS
HIGH COURT OF ANDHRA PRADESH
Ake Gangaraju And Others
Referred Judgements :-
BAPAYYA V. PUNDRIKAKSHAYYA
SINGARA MUDALI V. IBRAHIM BAIG
KRISHNA CHETTIAR V. NAGAMANI AMMAL
NARAYANA RAO V. VENKATA SUBBA RAO
PATCHU RAMAJOGAYYA V. VAJJULA JAGANNADHAM
SRINATH V. JATINDRA
CHOCKALINGAM CHETTIAR V. MUTHUKARAPPAN CHETTIAR
NRIPENDRACHANDRA SARKAR V. EKHERALI JOARDAR
PALNI V. MUTHUSWAMI
RAMAKRISHNA REDDIAR V. CHIDAMBARA SWAMIGAL
SATYANARAYANA V. MALLAYYA
SIVAGURUNATHA V. PADMAVATHI
VENKATACHALAM PILLAI V. SETHURAM RAO
ZEEBUNNISSA BEGUM V. MRS. H.B. DANAGHER
AMID AHMMAD V. MEER NIZAM ALI
BAPAYYA V. PUNDARIKAKSHAYYA (G1)
HARI MOHAN V. SEW NARAYAN
RAMALINGAM REDDI V. BABANAMBAL AMMAL
SUBRAHMANYAM V. SUBBARAO
ABDUL HAMEED SAIT VS. PROVIDENT INVESTMENT CO LTD
KONDAPALLI SUDARSANA RAO VS. PUTTA DALAYYA
MEENAKSHI SUNDARAM CHETTY VS. RANGA AYYANGAR
BHOLA SINGH VS. BANWARI
PANDURANG VITHOBA DAHAKE VS. PANDURANG RAMCHANDRA GORLE
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(1.)ORDER OF REFERENCE :-
This appeal raises the question as to whether an agreement to sell by the guardian of a Hindu minor is specifically enforceable against the minor. Two decisions of the Privy Council have been referred to by the learned counsel as bearing on the point; viz., - 'Mir Sarwarajan v. Fakhruddin Mohammad', 39 Cal 232 (PC) and - 'Subrahmanyam v. Subbarao', AIR 1948 PC 95. The earlier case laid down that it was not within the competence of the guardian of a minor to bind the minor or his estate by a contract to purchase immovable property and that such a contract was not enforceable by either party for want of mutuality.
The principle of this case was applied by a Full Bench of the Mad High Court in - 'Venkatachalam Pillai v. Sethuram Rao', AIR 1933 Madras 322 in the case of a Hindu minor seeking to - enforce an agreement in his favour for the resale of a property which had been alienated by his guardian and it has been uniformly held in that Court that no decree for specific performance could be passed in favour of or against a minor on the basis of a contract either for sale or purchase of immoveable property entered into on his behalf by his guardian.
The other decision of the Privy Council related to the effect of Section 53-A, T. P. Act. There, the guardian of a minor had executed a contract for sale of the minors property and had put the contractee in possession. The question arose as to whether in a suit filed by the minor for possession of the property on the ground that the contract was binding on him the purchaser could invoke the doctrine of part performance under the section.
Their Lordships held that in the case of a contract entered into on behalf of a minor, it would be the minor who would be the 'transferor' within the meaning of Section 53-A though the contract was entered into by his guardian and the vendee could resist the action. Subsequent to the Privy Council decision, Viswanatha Sastry, J. has decided in the Madras High Court in - Ramalingam Reddi v. Babanambal Ammal', AIR 1951 Madras 431 that so far as an agreement by a guardian to sell a minor's properties is concerned, it would be enforceable specifically against the minor.
In - 'Hari Mohan v. Sew Narayan', AIR 1949 Assam 57 a Bench of the Assam High Court took the opposite view. In a Full Bench of the Hyderabad High Court however in Amid Ahmmad v. Meer Nizam Ali', AIR 1952 Hyderabad 120 (FB) two learned Judges of the High Court held that a contract to purchase immoveable property entered into on behalf of a minor by a de jure guardian was enforceable against the minor provided it is for his benefit, while the other Judge took the view that though a contract for sale in such circumstances might be enforceable against the minor a contract for purchase would be.
My Lord the Chief Justice sitting as a 'Judge of the Madras High Court referred this question for determination by a Full Bench of the Madras High Court but it does appear that the Madras High Court has dealt with the matter yet. Though as has been recently held by a Full Bench of this Court decisions of the Madras High Court rendered before 5-7-1954 may be binding upon this Court, subsequent decisions will only have a persuasive force.
Thus, there is no decision of the Madras High Court subsequent to the Privy Council decision in AIR 1948 PC 95 which is binding on us, the decision of Viswanatha Sastry, J. being only that of a single Judge. We therefore propose to refer the following question to a Full Bench of this Court.
"Whether a contract entered into by a guardian of a Hindu minor for sale or for purchase of immovable property is specifically enforceable against a minor ?"
OPINION OF THE FULL BENCH Subba Rao, C.J.:-The following question has been referred to the Full Bench by a Division Bench of this Court :
"Whether a contract entered into by a guardian of a Hindu minor for sale or for purchase of immoveable property is specifically enforceable against the minor ?"
(3.)The facts that gave rise to the reference may be briefly stated. The suit tiled house and site in Kakinada belonged to one Akke Subbarao. having been obtained by her under a will dated 15-6-1942 executed by her mother in her favour. She executed two mortgage bonds dated 21-12-1942 and 22-12-1948 in respect of that property in favour of defendant 5 for Rs. 2,000/- and Rs. 4,000/- respectively. On her death, it devolved upon her minor daughters, who are defendants 3 and 4. Defendant 1 is her husband and defendant 2 is her minor son. The tiled house was "in ruins and the rent therefrom was insufficient even to defray the interest due under the mortgage.
In the circumstances, defendant 1 as father and guardian of defendants 2 to 4 agreed to sell the same to the plaintiff under a registered agreement dated 26-4-1949 for a consideration of Rs. 11,500/- out of which Rs. 200/- was paid by the plaintiff as advance. Under the said agreement the plaintiff should discharge the two mortgages in favour of defendant 5 and keep the balance as deposit with him carrying interest and pay the same to defendants 3 and 4 after they attained majority and execute a sale deed within three months from the date of the agreement.
Subsequent to this agreement, defendant 1 sold the same to defendant 5 for. consideration. The plaintiff alleging that he was ready and willing to perform his part of the contract filed O. S. No. 5 of 1950 on the file of the Court of the Subordinate Judge, Kakinada for specific performance of the aforesaid agreement. To that suit he made the minor son and daughters of Akke Subbarao parties as defendants 2 to 4 and their father as defendant 1. Defendant 5 is the subsequent alienee.
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