[Prakash Ramkrishna Khadse, Vilas Ramkrishna Khadse and
Smt. Shakuntala wd/o Ramkrishna v. Manikrao Ramaji Sonwane and Ors., 2009
Vol. 111(9) Bom. L.R. 4137]
The appellant defendants, owners of suit property, entered
into an agreement of sale with the respondent plaintiff. Allegedly, the
plaintiff failed to perform his part of contract by providing evidence as to
payment of requisite consideration under agreement of sale. Therefore, the
defendants refused to register the sale deed in favour of the plaintiff and
entered into sale with the defendants No. 4-5 and later on with the defendants
6-7. The plaintiff had filed suit for specific performance.
One of the contentions raised by the appellant/defendants
was that there is no averment in the plaint that the contract was entered into
by the defendants 1 and 2 i.e., elder brother and mother for the
benefit of the minor defendant No. 3 or that it will so benefit the minor. He
submits that a guardian has no right to sell the property of minor without
obtaining permission of the District Judge and admittedly in this case the
permission was not obtained.
The suit property is admittedly the ancestral property of
the defendants No. 1 to 3 i.e., vendors of the plaintiff. S. 6 of the
Hindu Minority and Guardianship Act says that in the absence of the father,
the mother shall be the guardian of the person and property of the minor,
excluding his undivided share in the joint family property. S. 8 speaks of
powers of natural guardian in respect of separate property of the minor. S. 8
has no application to cases where the minor has an interest in Hindu undivided
family.
The Court observed that the permission of the Court u/s.8
of the Hindu Minority and Guardianship Act read with the provisions of the
Guardian and Wards Act would not be necessary where an interest in the joint
family is sought to be disposed of. In the instant case the elder brother who
was the Karta of the joint family and the mother have joined the execution of
the agreement.
The question that arose for consideration was whether a
contract entered into by a guardian of a Hindu minor for sale or for purchase
of immoveable property was specifically enforceable against the minor.
It was held that a minor has no legal competency to enter
into a contract or authorise another to do so on his behalf. A guardian,
therefore, steps in to supplement the minor’s defective capacity. The limit
and extent of the guardian’s capacity (authority) are conditioned by Hindu
law. They can only function within the doctrine of legal necessity or benefit.
The validity of the transaction is judged with reference to the scope of his
power to enter into a contract on behalf of the minor. Even the personal
liability arising out of the guardian’s contract is a liability of the minor’s
estate only. Since the guardian under the Hindu law has the legal competency
to enter into a contract on behalf of the minor for necessity or for the
benefit of the estate, the contract is valid from the time of its inception,
and since either party can enforce any contract, the test of enforceability is
satisfied.
The Court therefore held that a contract to purchase
immoveable property by a competent guardian acting within his authority on
behalf of a minor is specifically enforceable by or against the minor. Thus a
guardian has power to enter into a contract on behalf of a minor and it could
be so enforced against the minor. It will always be for the minor to repudiate
or not to repudiate on attaining majority. The contract is therefore not void.
