K M JAINA BEEVI Vs. M K GOVINDASWAMI

JUDGEMENT

(1.) APPEAL 26 of 1964: This appeal by the defendants turns on enforceability against the third defendant, a Muslim, minor, of an agreement which he had entered into on 12-2-1961 with the respondent to lease out premises No. 34 general Patters Road, Madras after reconstruction and put him back in possession thereof. The premises were purchased in the name of the minor in 1954. The respondent continued to be a tenant of a major portion of the premises even after the purchase. In November 1960, on behalf of the minor a notice to quit the premises was served on the respondent on the ground that the existing structure had to be pulled down and a new building raised with ground and first floors and that a plan of the proposed construction had already been sanctioned by the corporation. The respondent replied on 22-11-1960 stating that there had been an oral discussion on the matter between him and the minor's father, the second defendant, and that it was agreed that the respondent might temporarily vacate the portion of the building under his occupation for the purpose of reconstruction and that when the reconstruction was over, he should be allowed to occupy the ground floor portion corresponding to the then existing plinth area of the reconstructed building. But, as the respondent did not vacate, a partition was taken out before the Rent Controller, Madras, under the provisions of the Madras buildings (Lease and Rent Control) Act 1960, for his eviction. Pending this petition there would appear to have been negotiations between the second defendant and the respondent which eventually fructified into the suit agreement. In view of it, the respondent submitted to an eviction order and surrendered possession on 184-1962. The agreement was between the respondent and the minor, then 13 years of age, represented by his motherland guardian, the first defendant. The agreement was, however, executed by the second defendant in his capacity as the power of attorney agent of the first defendant. The actual agreement was that the minor would allow the respondent to occupy the whole of the ground floor as soon as the same was built up and provide for payment of a specified monthly rent and an advance. On 1-8-1962, the respondent gave a suit notice complaining of failure to abide by the terms of the contract and calling upon the defendants to complete the construction and put him in possession of the stipulated portion therein. This was later on followed by the respondent by the present suit for a decree directing the defendants to specifically perform the contract of lease as rectified by completing the construction of the ground floor of the premises in accordance with the plan, originally sanctioned by the Corporation and handing over possession of the same to him. The reference in the prayer to rectification relates to the respondent's case that in point of fact there had been an agreement to lease out the property not on a monthly tenancy, but for a period of ten years. But, this was, by a mutual mistake or fraud, omitted from the agreement drawn up and executed. On this basis, the respondent also wanted a decree for rectification of the agreement by interesting therein a provision to that effect providing for the terms of the lease to be ten years. The suit was resisted by the defendants contending inter alia that the property exclusively belonged to the minor and the contract entered into by him or on his behalf was not enforceable specifically against him, that since the building was still not completed, the suit was premature and that there was no understanding that the lease should be fore a period of ten years. They also maintained that the respondent's prayer for an injunction against them from leasing out the property to third parties should not be granted.

(2.) THE suit was tried by the First Assistant City Civil Judge, Madras. He framed as many as six issues and recorded his finding that there was no fraud or mutual mistake as alleged by the respondent and so no rectification of the agreement could be ordered, that since, in his view, the contract was, for a monthly tenancy in respect of the minor's property, it was not a contract entered into by the minor, but on his behalf by his guardian and that there was, therefore, no impediment to the prayer for specific performance being granted. He accordingly decreed the suit for specific performance of the agreement to lease. But the decree drawn up was in terms of the prayer in the plaint, namely, that the defendants should perform the contract of lease by completing the construction and putting him in possession of the premise in question.

(3.) MR. K. Rajah Aiyer for the appellants submits that the contract being one entered into by a Muslim minor represented only by his personal law, and is unenforceable against him and that in any case, as the construction had not been completed, no specific performance could be granted, because the court in such a case could not effectively supervise and compel a party to build. Learned counsel also urges that where a contract to build does not specify with particularity the specifications of the proposed construction, specific performance should be denied on grounds of vagueness. Lastly, his submission is that before the completion of the building the suit is premature. He also adds that courts will not grant specific performance, where the party who asks for it, can be compensated adequately for breach of contract. On the view we take on his first contention it may not be necessary to deal with the rest of his points. Nevertheless, we shall briefly dispose of them first.