JAGAT NARAYAN, J. - (1.) THIS is a plaintiff's second appeal in a suit for specific performance of an agreement of conveyance relating to some land situated at Pilani which is admittedly the joint family property of Mukh Lal defendant No. 1 and his sons Gajanand, Sadanand and Vidhyadhar.
(2.) ACCORDING to the finding of the lower appellate court this land was acquired for the family by Ram Lal father of Mukh Lal. Mukh Lal had another brother Jawala Prasad. The two brothers carded on business under the name and style of Mukh Lal Ram Lal. This firm had dealings with plaintiff's father Ram Chander in respect of which a sum of Rs. 19237/4/0 became payable by the firm to him. Jwala Prasad executed a pronote for this amount on behalf off the firm in favour of Ram Chander on 28. 6. 27. The latter instituted a suit on the basis of this pronote on the original side of the Bombay High Court on 25. 6. 30. against Mukh Lal and Jwala Prasad in which a decree for Rs. 23270/13/0 and future interest and costs was passed against them on 6. 8. 30. Ram Chander died in May 1940 and after his death the present plaintiff Chiranji Lal filed an application for execution of this decree on 10. 2. 41. During the pendency of this execution application Mukh Lal entered into an agreement Ex. 2 on 18. 10. 41 with the plaintiff under which the above decree was adjusted. It may be mentioned here that Jwala Prasad had died before the adjustment and Mukh Lal was the manager of the joint Hindu family consisting of himself and his three sons Gajanand, Sadanand and Vidhyadhar. Gajanand was major at that time and Sadanand and Vidhyadhar were minors aged 17 and 13 years respectively. The case of the plaintiff is that under the above agreement Mukh Lal contracted to pay Rs. 1910/- in cash, to transfer 11 shares of the Oudh Sugar Mills Ltd. , of the face value of Rs. 100/-each and to convey 5-1/2 bighas of land in full satisfaction of the above decree. In part satisfaction of the above agreement Mukh Lal paid Rs. 1910/ in cash and transferred 11 shares of the Oudh Sugar Mills Ltd. to the plaintiff. But he declined to execute the conveyance of the land on the ground that his son Gajanand was opposed to it. The present suit for specific performance of the agreement of conveyance was instituted on the allegation that the firm Mukh Lal Ram Lal was a joint family firm. The suit was contested by Mukh Lal on a number of grounds. He alleged that the firm Mukh Lal Ram Lal was a partnership firm of himself and his brother Jwala Prasad and was not a joint family firm. It was stated that the two brothers treated their earnings from business as their self acquired properties. Mukh Lal admitted having entered into agreement Ex. 2 dated 18. 10. 41, but alleged that he did not do so in his capacity is manager of the joint family. He alleged that he was not bound to transfer the land to the plaintiff under the terms of the agreement as his major sons Gajanand and Sadanand were not willing to join him in executing the conveyance. It may be mentioned here that on the date on which the suit was instituted namely 13. 10. 44 Sadanand had also become major. It was stated that a sum of Rs. 4000/- was tendered to the plaintiff under the terms of the agreement when Gajanand refused to join him in executing a conveyance which the plaintiff refused to accept and that he was even now wiling to pay this amount to the plaintiff in accordance with the terms of the agreement. Another plea taken by him was that the suit was bad for the non-joinder of Gajanand, Sadanand and Vidhyadhar who were the joint owners of the property the conveyance of which as sought to be specifically enforced. On this plea the trial court framed a preliminary issue as to whether there was non-joinder of necessary parties in the case. This issue was decided by the trial court by its order dated 24. 9. 45. As a result of this decision Gajanand, Sadanand and Vidhyadhar were added as defendants. They contested the suit inter alia on the ground that the agreement was not binding on them and could not affect the joint family property. The trial court held that the firm Mukh Lal Ram Lal was a partnership firm, the liabilities of which were not binding on the sons of Mukh Lal and on this ground it held that defendants No. 2 to 4 were not bound by the agreement and dismissed the suit for specific performance of the agreement. A decree for Rs. 4000/- was passed by it in favour of the plaintiff. On appeal by the plaintiff the learned District Judge held that the liabilities in satisfaction of which the agreement Ex. 2 was executed were binding on the sons of Mukhlal being an antecedent debt of the father for discharging which there was a pious obligation on the sons under the Hindu Law, but dismissed the suit on an interpretation of a judgment of the former Jaipur High Court and also on the ground that the agreement was hit by the doctrine of mutuality. In this he clearly acted erroneously in my opinion. As has been mentioned above the preliminary issue about non-joinder was disposed of by the trial court by its order dated 24. 9. 45. A reading of that order shows that the trial court did not hold that the sons of Mukhlal were "necessary parties" - - using the term in contradiction to "proper parties". It ordered the impleading of the sons as defendants in order to avoid multiplicity of suits. The plaintiff filed a revision application in the High Court of Jaipur against the order of the trial court. This revision application was rejected by the order dated 23. 1. 46. I have carefully gone through this order. It has nowhere been held in this order that the sons of Mukhlal were "necessary parties" to the suit. It was observed by the learned Judges - But as long as the claim for specific performance of the contract of sale stands, the order for joining these persons as parties under the circumstances noted above seems to us proper and necessary. " What their Lordships obviously meant was that the order impleading the sons was necessary in the ends of justice. The appellate court was misled into thinking that the High Court had held that the sons were "necessary parties" and as they were brought on record as defendants to the suit more than three years after the date of the agreement the suit for specific performance was barred against them and consequently the whole suit was dismissed. The learned counsel for the respondents did not dispute that the sons were not necessary parties to the present suit. In this connection I may refer to the decisions of the Privy Council in Kishanprasad Vs. Harnarain Singh (1) and of Full Bench of the Allahabad High Court in Horilal Vs. Munmankunwar (2 ). The learned District Judge also erred in thinking that the doctrine of mutuality was applicable to the present case. The Specific Relief Act does not specifically refer to mutuality in contracts. But since the decision of the Privy Council in Mir Sarwarjan Vs. Fakhruddin (3) it must be accepted as a general rule that contracts to be specifically enforced by the court must be mutual - that is to say, such that it might, at the time it was entered into, have been enforced by either of the parties against the other of them. In the same case it was held 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, even though the contract may be for the benefit of the minor. The same would hold good in the case of a contract for the sale of immovable property entered into on behalf of the minor. The contract of sale or purchase of immovable property made by a manager of a joint Hindu family on behalf of the family some of the members of which happen to be minors is however binding on the minor members of the family. In this connection I may refer to the decision of a Full Bench of the Allahabad High Court in Mst. Dhapo Vs. Ram Chandra (4 ).
(3.) IT is to be noted that a contract for transfer of immovable property by the manager can only be specifically enforced if the transfer itself is made by the manager, would bind the family. A manager can alienate joint family property for legal necessity or for the benefit of the family so as to bind other members including minors. But if the manager happened to be the father and the other members of the joint family are his sons he can alienate joint family property for the payment of his antecedent debts and such transfer would bind the sons. In these three cases where a manager enters into a contract for the transfer of immovable property but subsequently refuses to execute a conveyance the court may enforce specific performance of the contract though some of the members of the joint family are minors. In the present case the person who contracted to transfer the property was not only the manager but also the father of the other members of the joint family. He was competent to transfer the property in satisfaction of his antecedent debts. The decretal amount was recoverable from him personally and was an antecedent debt in satisfaction of which he could transfer the joint family property. The contract to transfer that property is thus specifically enforceable against him so as to bind the other members of the family. Another argument advanced on behalf of the respondent was that the agreement was not executed by Mukh Lal as a manager of the joint family. That makes no difference in my opinion. A reading of the agreement shows that parties were under the erroneous impression that Mukh Lal alone had no power to transfer the property in satisfaction of the decree but that it was necessary for his major son Gajanand to join in the sale-deed as an executant and it was also necessary that his minor sons should ratify it on attaining majority. A perusal of the agreement shows that Mukh Lal contracted to do all that lay in his power to transfer the property in satisfaction of the decree. Although the parties were not aware of the fact that Mukh Lal alone could have transferred the property on behalf of himself as well as the other members of the joint family in his capacity as a manager the legal position was that he could do so effectively. Mukh Lal is bound to execute a conveyance of the property under the agreement in his capacity as a father-manager of the joint family consisting of himself and his sons. As Mukh Lal alone can executed a conveyance of the property sec. 22 of the Limitation Act does not come into play at all. On behalf of the respondents the decree of the appellate court was sought to be supported on some other grounds. ;