Julhash Mollah (Md) and another Vs. Ramani Kanta Malo and another, 1995, 24 CLC (AD) Thursday, 15 November 2007 15:33

Supreme Court

Appellate Division

(Civil)

Present:

Shahabuddin Ahmed CJ

MH Rahman J

ATM Afzal J

Latifur Rahman J

Julhash Mollah (Md) and another .......................Plaintiff-Appellants

Vs.

Ramani Kanta Malo and another .......................... Defendant-Respondents

Judgment

July 25th, 1994.

Cases Referred To:

Ashraf Ali vs. Elim Ali and others, 11 DLR 185 and 2) Rajubala Dasi vs. Nidhuram Pandit and others, AIR 1960 Calcutta 65; AT Raghava Chariar vs. OM Srinivasa Raghava Chariar, ILR 40 Mad. 308 (FB); Muniya Konan vs. Perumal Konan.

Lawyers Involved:

Moinul Huq, Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record-For the Petitioners.

Miah Abdul Gafur, Advocate-on-Record -For the Respondent No. 1.

No. one - For the Respondent No. 2.

Civil Appeal No. 43 of 1990.

Judgment:

                  ATM Afzal J- Relying upon Mir Sarwarjan vs. Fakhruddin Mahomed Chowdhury; ILR XXXIX Calcutta 232 (PC) a Single Judge of the High Court Division has held, in the impugned judgment dated 8th June, 1987 in Civil Revision No. 746 of 1984, out of which this appeal has arisen by leave, that a suit for specific performance of contract by a minor is not maintainable on the ground that the contract, namely the bainapatra, having being entered into with the minor was void for want of mutuality.

2. Leave has been granted to consider whether the facts of the present case are in any way different as not to attract the principle laid down by the Privy Council in the aforesaid case.

3. The appellants, who are brothers, No. 2 being minor at the relevant time, instituted Title Suit No. 80 of 1975 in the Fourth Court of Assistant Judge, Narayangonj for specific performance of contract for sale of the suit land alleging, inter alia, that defendant-respondent No. 1 entered into an agreement to sell the suit land to them and on receiving Taka 5,000.00 out of the total consideration of Taka 6,000.00 executed a bainapatra on 4.11.1973 and delivered possession to them. Upon refusal of the defendant to execute a deed of sale in terms of the agreement, the plaintiffs brought the suit.

4. The defendant contested the suit by filing a written statement denying the allegation of the plaintiffs and asserting further that he borrowed Taka 1,000.00 from Abdul Karim Molla, father of the plaintiffs, to meet the expenses of a suit, No. 46 of 1968, which was brought by one Abed Ali and ultimately compromised on 17.4.1969. The defendant had to give a signed blank stamp paper to Abdul Karim Molla on 17.4.1969 for the purpose of preparing a handnote as security of the money lent to him. There was a Salish in the matter wherein it was decided that the defendant would repay the money and Abdul Karim Molla would return the blank stamp paper to him and it was further decided that until then Abdul Karim would possess 15 decimal of land in the suit plot as adhi bargadar under the defendant. The defendant further alleged that Abdul Karim delivered barga crops to him for two years but, thereafter, he started possessing the suit land illegally without delivering any crops to him anymore. .

5. The trial Court originally decreed the suit but on appeal the first Appellate Court remanded the suit for re-trial with certain observation. Upon re-trial the trial Court dismissed the suit and on appeal the Appellate Court below set aside the judgment and decree of the trial Court and decreed the suit.

6. Defendant No. 1 being aggrieved by the appellate judgment and decree dated 20.6.1984 passed by the learned Subordinate Judge, Second Court; Dhaka in Title Appeal No. 192 of 1982 took the aforesaid revision to the High Court Division in which the impugned judgment was passed.

7. The learned Judge of the High Court Division noticed that plaintiff-Opposite Party No. 2 who was a minor at the time of the execution of the agreement for sale Ext. I was still a minor at the time of the hearing of the revision case. It was also noticed that while sending the case on remand the first appellate Court, inter alia, directed the trial Court to examine the question whether the minority of plaintiff-opposite party No. 2 had rendered the alleged

contract for sale of the suit property invalid. Neither the trial Court nor the Court of appeal, when the matter came before it for the second time, considered the question as aforesaid.

8. The learned Judge, therefore, took up the question for determination and referred to the aforesaid Privy Council case where it has been held that it was not within the competence, either of the Manager of the minor's estate, or of the guardian of the minor, to bind the minor or the minor's estate by a contract for the purchase of immovable property; that as the minor was not bound by the contract, there was no mutuality; and that consequently the minor could not obtain specific performance of contract. Following the said principle the learned Judge found that the suit was not maintainable and accordingly, made the Rule absolute in the revision case and affirmed the judgment and decree of the trial Court after setting aside those of the Court of appeal below.

9. Mr. Moinul Huq, learned Advocate for the appellants, has submitted that notwithstanding the aforesaid decision of the Privy Council it has been held in many cases that a contract entered into with a minor is not always void and a minor can ask for its enforcement if it is for the benefit of the minor. He has referred to two decisions in support of his contention-1) Ashraf Ali vs. Elim Ali and others, 11 DLR 185 and 2) Rajubala Dasi vs. Nidhuram Pandit and others, AIR 1960 Calcutta 65.

10. In the first case decided by a learned Single Judge, one of the questions for consideration was whether a Kabuliyat executed by the predecessors of the defendant in favour of the plaintiff who was a minor at the relevant time was void and a suit for rent filed by the plaintiff on the basis of the said kabuliyat was maintainable or not. On behalf of the defendant-petitioner reliance was placed, among others, on the aforesaid decision of the Privy Council. The learned Judge held:

"There is difference between executory contract and executed contract. If in executed contract the minor's part has been performed and nothing is left to be executed by the minor, i.e., no obligation is left to be discharged by the minor and to be enforced against him, such a contract is enforceable by the minor, as it is a contract for the benefit of the minor, such as completed by sale or mortgage in favour of the minor and is enforceable in law ..........It is true the contract in which the minor is a party cannot be enforced against the minor, but that does not mean the major party who with his eyes wide open to the fact of the minority of the other side entered into a contract with him, and after taking advantage of such a contract, cannot be allowed to go back from his part of the contract and repudiate it."

11. In taking the aforesaid view the learned Judge relied on a Full Bench case of the Madras High Court, AT Raghava Chariar vs. OM Srinivasa Raghava Chariar, ILR 40 Mad. 308 (FB). The question referred to the Full Bench was whether a mortgage executed in favour of a minor who advanced the whole of the mortgage money is enforceable by him or by any other person on his behalf. The learned Single Judge quoted extensively from the different judgments in that Full Bench case; that of Srinivasa Ayyanger, J. which is particularly apt is reproduced below-

"The provisions of the Transfer of Property Act and the Trusts Act make it clear that an infant can be a grantee though he cannot ordinarily be a grantor."Infants' it was said, 'cannot make grants; they may accept them,' Palmer vs. Low. In the consideration of this question, it is necessary, however, to remember that certain transactions may necessarily involve both a transfer of property and contract; as, for example a lease. In such cases, if a minor makes a promise in consideration of the transfer, or binds himself by obligations on account of the transfer, the transaction would be void and the transfer may not take effect. But a

distinction must be drawn between cases of contractual liability which a minor agrees to undertake, and obligations attached to the holding of property. Even in cases of pure gifts it is clear that there is an obligation on the part of the donee to pay the government revenue and public taxes. In the case of a gift of a man's whole property, there is the obligation to discharge the donor's debts to the extent of the value of the property. These obligations do not prevent the vesting of the property in the minor by a transfer inter vivos any more than by inheritance or devise. Those covenants or obligations are attached to the property, and are not really considerations for the transfer. This is the view taken by Sundara Ayyar and Spencer, JJ. in Muniya Konan vs. Perumal Konan: See also the observations of Jessels, MR, in Martin vs. Gale. A transfer to a minor by way of a lease, he agreeing to pay rent or to perform any particular covenants which form an essential pan of the transaction, may prevent the transfer from taking effect."

12. The learned Single Judge found that it is a lease to the minor creating obligation to pay rent, and other covenants in the lease which may prevent the transfer from taking effect. But in a lease by the minor in favour of the defendants and of which the lease hold property was given in possession of the defendants there is no obligation on the part of the minor to be enforced by the defendants, the lessees. In the facts of the case before him the learned Judge found that obligations are created by the lease to be discharged by the lessee and it can be enforced by the minor.

13. It will be seen that neither the facts of the Dhaka High Court case nor that of the Madras Full Bench can be compared with the facts of the present where the contract is neither an executed contract nor the obligation of the minor under the contract is over as in the case of a kabuliyat or a mortgage executed in favour of a minor as were respectively the cases in the Dhaka and 'Madras High Courts. The principles discussed in the two cases rather suggest that a contract such as an agreement for sale of the suit land not being enforceable against a minor cannot be enforced against the promissor also for lack of mutuality.

14. In the Calcutta case the question was whether an agreement for reconveyance of a property executed by a purchaser simultaneously with the purchase of the property can be specifically enforced on behalf of a minor. On behalf of the defendant-appellant it was contended that the appellant could not compel the minor to purchase the property, and so there was no mutuality in the contract, and it must be deemed to be a void contract for that reason. Reliance was placed on the aforesaid decisions of the Privy Council (ILR XXXIX Calcutta 232 (PC).

15. The learned Single Judge in dismissing the appeal held as follows:

"In the present case the agreement on which the suit is based is not an isolated transaction, but is vitally linked with the kabala executed by the respondents among whom the mother of the minor as representing the minor was one. So far as the minor is concerned, the kabala was executed by the mother on his behalf on the footing that she was competent to transfer the property of the minor. The position was accepted by the appellant who has obtained an advantage by the transaction of sale and has got the entire property, including the share of the minor. Having done so and after having agreed to reconvey the property in its entirety, she cannot now turn round and repudiate the authority of the mother to effect the sale on behalf of the minor, or to repurchase of the property of the minor upon refund of the consideration money. The appellant would be estopped by her conduct from doing so, and she must fulfill her part of the obligation by reconveying the property in favour of all the respondents, including the minor. For the purpose of the present litigation it must be held that it was within the competence of the mother to effect the sale and also to accept the agreement for reconveyance which is only an offshoot of the sale on behalf of the minor."

16. The principle of that case cannot be invoked in the present case as the facts of that case are entirely different. There the mother of the infant validly transferred the property of the minor and the transferee, it was held, could not defeat the right of the minor to get back the property under an agreement for reconveyance executed simultaneously at the time of the purchase of the property from the minor.

17. Mr. Moinul Huq lastly argued that plaintiff-appellant No. 2 having attained majority in the meantime and expressed his intention thereafter to own the disputed contract there should be no difficulty in allowing the specific performance of contract now. The submission cannot be accepted, for, Mr. Huq has himself conceded that an agreement which is void ab initio cannot be validated by ratification. In the Privy Council case also referred to above the minor had attained majority when the matter was before the Judicial Committee but that did not make any difference in the decision.

18. Mr. Huq has not been able to cite any authority in which a contract as in the present case has been found to be enforceable on the ground that it is for the benefit of the minor notwithstanding the principle laid down by the judicial committee in the aforesaid case. The cases relied upon by him are those where the transactions have already been completed and the minor has no further obligation remaining to perform under the contract. It is only in those cases that it has been found that the contracts which are for the benefit of the minor are enforceable at the instance of the minor. We have, therefore, found no reason to interfere with the decision of the High Court Division.

19. The appeal is, accordingly, dismissed without any order as to costs.

Ed.

This case is also reported in: 47 DLR (AD) (1995) 35