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Second Appeal No. 176 of 1967, decided on 8th Angus, 1967.
, S. 11‑Contract of purchase of property on behalf' of minor, entered into by guardian‑ Enforceable ‑at lawful guardian is competent to enter into such a contract‑Muhammadan Law‑‑‑Guardianship‑Father competent to enter into a contract on behalf of a minor for purchase of properly‑Benefit of minor.
A distinction is to be drawn between contracts made by minors and those made by their guardians on their behalf. The important point for consideration in the latter class of cases should be as to whether the guardian is competent to make a contract on behalf of the minor or not.
Purchase of property can also be for the benefit of the minor.
In the present case the father had spent a good deal of money to construct a building on the plot of land for, which purpose the plot was agreed to be taken, and irrespective of whether the minor was deaf and dumb or not, held, that the ownership of the property would be for his benefit.
The contract of purchase of plot of land was therefore enforceable and minor's suit for issue of injunction was decreed.
Subrahmanyam v. Subba Rao A I R 1948 P C 95 and Amir Ahmad v. Meer Nizam Ali A I R 1952 Hyd. 120 ref.
Mir Sarwar's case I L R 39 Cal. 232 and Subrahmanyam v. Subba Rao I L R 1944 Mad. 749 considered.
Mustafa Siddiqui for Appellant.
Nemo for Respondent
Date of hearing : 8th August 1967.
This Second Appeal is directed against the judgment of an Additional District Judge, Karachi, dated the 28th of November 1966, by which he accepted the First Appeal of the present respondent and dismissed the suit of the present appellant.
2. The facts which form the background of this appeal, according to the appellant, are what a plot bearing No. 1/1‑N, Block VI, P. E. C. H. Sookty, measuring 150 sq. yards was intended to be purchased by one. Hakim Jamiluddin for the benefit of his son, Muhammad Mursaleen who is the present appellant. According to counsel, the appellant is deaf and dumb by birth. The transaction could not be made by executing a sale deed because the P. E. C. H. S. is a Co‑operative Society and there are restrictions on sales of plots making it conditional that a plot of land only be sold after it has been built over. The ordinary method adopted for the sale of a plot situated in the P. E. C. H. S. therefore has been to enter into agreements and to execute irrevocable powers‑of‑attorney in favour of the intending purchasers who are supposed to make construction on the plot sought to be purchased on behalf of the real owners. In this case, according to counsel, the price was settled to be Rs. 16,000 out of which Rs. 12,100 were paid at the outset‑and Rs. 900 were paid subsequently. Possession of the plot was given to the father of the proposed purchaser as the attorney of the seller. The father started construction on the plot and a building now exists thereon.
3. Disputes seem to have arisen between the seller and the purchaser, as a result of which the seller 'claimed the property to be his own, and; according to counsel, tried to recover rent from the tenants of the property. He also cancelled the power of attorney which was granted to the father of the proposed purchaser. To counter this situation a suit was filed by the father as next friend of the minor for declaration and injunc tion. The declaration asked for was that the cancellation of the power‑of‑attorney was illegal, and injunction was sought to restrain the seller from interfering with the, rights of the proposed pur chaser. The suit was tried by a Civil Judge First Class, Karachi and was decreed, vide his judgment dated the 23rd of December 1964. The defendant went in appeal which was accepted by an Additional District Judge of Karachi, as mentioned above, vide his judgment dated the 28th of November 1966. The ground on which the appeal has been accepted is solely that the agreement which was made by the father of the minor was void; therefore, the power‑of‑attorney which was subservient to the agreement must also be held to be void. Since the power‑of‑attorney was itself regarded to be void, it was held that no declaration could be granted to the effect that its cancellation was illegal. The reasons for holding the agreement to be void, as given in the judgment, are that the contract was made for a minor by his father to purchase a plot of land and that such an contract was of no value in law. In support of this view, the learned Additional District Judge has cited two judgments. One of them is by the Privy Council in Mir Sarwar's case (I L R 39 Cal. 232) and the other by the Madras High Court reported as Subrahmanyam v. Subba Rao (I L R 1944 Mad. 749). The reasoning is that the father is not competent to make a contract on behalf of his minor son because a minor has no capacity to enter into contracts; in such a contract there is no mutuality, with the result that it cannot be enforced at law.
4. I may mention here that on enquiry from counsel for the appellant, it has transpired that there is nothing on the record of this case to prove that the minor appellant is deaf and dumb. I, therefore, exclude this allegation from consideration.
5. I would have liked very much to hear the respondent because this is a case which can, be said to involve a difficult point of law. The respondent has not engaged counsel; therefore, notice was sent to him, but he did not attend the Court yesterday, for which date the case was originally fixed, nor is he present today. I, therefore, proceed ex parte against him.
6. Counsel for the appellant has relied on two judgments mainly, one of the Privy Council in the case of Subrahmanyam v. Subba Rao (A I R 1940 P C 95) and the other of the High Court of Hyderabad in the case of Amsr Ahmad v. Meer Nizam Ali (A I R 1952 Hyd. 120). The Privy Council's judgment refers to the following passage from Palloch and Mulia's Indian Contract and Specific Relief Acts (Edo. VII) at page 70 :‑
"A minor's agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is necessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council." .
Their Lordships of the Privy Council have approved the above remarks, and proceeded to observe as follows:‑
"The learned authors are here (above) referring to the decision in 30 I A 114 (Mohori Bibi v, Dhurmadm) already cited. They continua':‑--
"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 Privy Council 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." .
The approval of their lordships of the Privy Council extends to the above passage also.
7. The significance of the above observations of the Privy Council is that a distinction is to be drawn between contracts made b minors and those made by their guardians on their behalf. The important point for consideration in the latter class' of cases should be as to whether the guardian is competent to make a contract on behalf of the minor or not.
8. The above question has been specifically examined by a Full Bench of the Hyderabad High Court, to which reference has been made above. Two of the learned Judges have come to the conclusion that, according to Muhammadan Law, the father of a minor is entitled to enter into a contract to purchase property on behalf of his minor son; therefore, such a contract made by the father is enforceable. One of the learned Judges who con stituted the Bench, namely, Mr. Justice Panday has dissented, but the dissent is limited to a distinction which he has drawn between a contract to sell and a contract to buy property. In this respect he has observed as follows:‑‑--
"A contract for the purchase of immovable property can rarely be demonstrated for the benefit of the minor's estate or for legal necessity. But the same cannot be said for the sale of the minor's property."
With utmost respect to the learned Judge, it appears to me that an equation seems to exist in Lordship's mind between benefit and legal necessity. These two conceptions appear to me to be different. A case in which a property is purchased for the minor may not be easily demonstrated to be necessary, but it would be much easier to demonstrate that it is for his benefit. I would here also note that the observation is that benefit can rarely be demonstrated; the possibility is not altogether ruled out. The distinction emphasised by him is expressed in the following words to the concluding paragraph:
"I fully agree with the opinion of my learned brother Dr. Siadatali Khan, J., that in view of the judgment of their lordships of the Privy Council in Subramanyam v. Subba Rao. A I R 1948 P C 95, and to all other cases referred to by him in his judgment, the suit for the specific performance can be instituted in case the contract is for the Bale of property of the minor by a guardian, if it is within the competence of the manager of minor's estate or r within the competence of the guardian of a minor to bind the minor or a minor's estate by the contract: But so far as the purchase of the immovable property is concerned the same rule cannot apply as it cannot be held that it is within the competence of a guardian of a minor to bind a minor or minor's estate by a contract."
The above passage indicates that all the learned Judges constitut ing the Full Bench of the Hyderabad High Court were of the view that the father of a Muslim minor can enter into contracts on behalf of the minor in respect of the minor's estate, with the distinction that according to one of the learned Judges, such a contract cannot be made for purchasing a property because purchase can, rarely be demonstrated to be beneficial for the minor. As indicated above, I feel inclined, with very great respect, to take the view that purchase of property can also be for the benefit of the minor. In the present case the father has spent a good deal of money to construct a building on the plot of land for which purpose the plot was agreed to be taken, and irrespective of whether the minor is deaf and dumb or not, it is quite clear that the ownership of the property will be for his benefit.
9. In consequence of the above conclusion, I accept this appeal, set aside the judgment of the learned Additional District Judge, Karachi, dated the 28th of November 1966. As to the ques tion of relief, it should be mentioned that, according to counsel for the appellant, the father died during this litigation and the elder brother of the minor is now his next friend. This means that the power‑of‑attorney, whether revocable or irrevocable, has ceased to be operative. Counsel for the appellant, has however taken the stand that the validity or otherwise of the contract is of greater importance to the minor because in terms of the contract, a sale deed is to be executed and the transaction of sale and purchase to be completed. In this view of the matter the suit cannot be decreed with respect to the declaration as to the legality or otherwise of the cancellation of the power of attorney. It should, however, be decreed with respect to the prayer for injunction to restrain the respondent from interfering with the possession and enjoyment of the property.
10. The suit is accordingly decreed with the cost of this appeal and of the First Appeal.
A. H. Appeal accepted.
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