P L D 1967 Karachi 158 (PLP)

(a) those contracts which are the executed contracts; (b) those contracts which are for the benefit of minors ; and (c) those contracts in which leases are created by the minors. In this context, it is proper to refer to the following observations in the Commentary of Mulla, on section 11 of the Contract Act in his book on the Indian Contract and Specific Relief Acts (Ed. VIII) at page 69:‑ "There was formerly, however, a current opinion, countenanced by the law forms in which some of the decisions were expressed, that infants' agreements were of three kinds namely, that some were wholly void as being obviously not for the infant's benefit, some valid as being obviously for his benefit, and all others voidable. This opinion is now quite exploded, but it was to be found in text‑books at the time when the Indian Contract Act was framed." The above view indicate that the controversy that existed at one time with reference to the three kinds of contracts has been set at rest by the enactment of section 11 of the. Contract Act. The section itself is explicit on the proposition that a person in order to be competent to enter into a contract should not suffer from the disqualifications set out in it. It runs as under : "Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject."

10. It is not contended from any side that plaintiffs No. 3 and 4 are not minors; nor has it been contended that their mother as a natural guardian had the authority to make a contract binding on them with respect of their estate and property. On this point, section 365 of the Principles of Muhammadan Law by D. F. Mulla, (15th Edn.) is instructive. It is as follows:‑ "Neither the guirdian of a minor nor the manager of his estate is competent to bind the minor or his estate by an agreement for the purchase of immovable property. Such an agreement is void." The above view is founded on the Privy Council ruling in Mir Sarwarjan v. Fakhruddin.

11. In view of the above state of law, the conclusion appears to be irresistible that the mother of plaintiffs Nos. 3 and 4 could not bind the minor plaintiffs by making the contract which is in dispute in this case. But there is another aspect of this case which is to be considered below.

12. That aspect is that this contract has been made by four persons as purchasers. Two of them are admittedly major. Therefore, the question arises as to whether those of the purcha sers who are major would be entitled to enforce the contract or not. Mr. Zari has contended that they would not be so entitled, because, according to him, the contract is indivisible and being void with respect to two of the parties, should be taken to be void with respect to the rest of them also. I enquired from counsel as to what was the logic of this proposition. In reply he merely repeated the same proposition. It is difficult without any authority in support of the proposition to accept it as correct. To me it appears that the invalidity of the contract with respect to two of the purchasers has no contagious effect on the contract made by the other two purchasers who do not suffer from any disqualification. Here I may additionally mention that the argument of Mr. Zari is that the contract made on behalf of the two minor purchasers is void. If it is so, as it does appear to be, then that part of the contract is itself a nullity and deser ves to be disregarded. The result would be that the rest of the contract which has been made by two purchasers who are not at all hit by the provisions of section 11 of the Contract Act should be taken to have been validly entered into by them and that they are entitled to enforce it. Here Mr. Joshi, for the plaintiffs, draw my attention to the words "jointly and severally" which appear in the agreement of sale, and which have been reproduced above. He contended that the intention and the meaning of this expression is that each of the purchasers desired to make the transaction jointly and severally. Mr. Zari's reply was that this expression appears in the description of the purchasers and not in the body of the document. It is so. But this does not mean that it has been used without any purpose at all. If due significance is attached to it, then the view which Mr. Joshi has advanced appears to be justified.

13. The result of the above discussion is that, although the contract made on behalf of plaintiffs Nos. 3 and 4, who are minors, is void, it is valid and binding on the other parties and, therefore, enforceable on behalf of them. In this respect Mr. Joshi's statement should be noted which is to the effect that, the sale of the property in favour of plaintiffs Nos. 1 and 2. who are the major parties to the contract, is acceptable to him on behalf of the minor plaintiffs also and that the major plaintiffs wish to make it clear that the transaction will be meant and understood to be for the benefit of the minors also.

14. Issue No. 2.‑Taking up the second issue. Mr. Zari has contended that relief by way of specific performance is a discretionary one. Additionally, it is not to be granted if the relief was hit by the provisions of section. 21 (a) of the Specific Relief Act. That provision is as follows :‑ "The following contracts cannot be: specifically enforced :‑ (a) a contract for the non‑performance of which compen sation in money is an adequate relief ; In this case, according to Mr. Zari, compensation in money for the non‑performance of the contract has been admitted by the plaintiffs to be adequate relief, in their notice dated the 22nd December, 1965, marked J, to which reference has been made above. The relevant portion of that notice on which Mr. Zari has relied has been reproduced. It leaves no doubt that the plaintiffs considered legal damages to be an adequate compensation for the non‑performance of the contract. Mr. Zari has in this connection referred to the following part of section 12 of the Specific Relief Act also : "Except as otherwise provided in this Chapter the specific performance of any contract may in the discretion of the Court be enforced. (a) (b) (c)When the act agreed to be done is such that pecuniary compensation for its non‑performance would not afford adequate relief; or (d)

15. Counsel argued that reading section , 21 (a) and section 12(c) together, the conclusion at which one arrives is that granting the relief of specific performance is a discretionary matter with the Court and that the discretion is to be exercised against granting specific performance if it is found that pecuniary compensation can afford adequate relief to the claimant.

16. Mr. Zari interpreted the above‑quoted portion of the notice, marked J, as sufficient to create estoppel against the plaintiffs against giving up that position and claiming specific performance.

17. He was right to the extent that specific performance is a discretionary relief, but he did not appear to advance a sound view of the provision of law when he contended that the mere fact of a: party s willingness to accept compensation in the event of the failure of the opposite‑party to perform Its part of the contract, is sufficient to establish the allegation of fact that compensation in money is actually an adequate relief. The word of clause (a) of section 21 do not refer to the views of any one party but lay down, for adjudication, the consideration whether compensation in money is or is not an adequate relief. This aspect of the matter becomes clearer if we look at section 20 of the Specific Relief Act, which is as follows :‑ "A contract, otherwise 'proper to be specifically enforced, may be thus enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same." The above section has the following illustration : "A contracts to grant B an under‑lease of property held by A, under C and that he will apply to C for a licence necessary to the validity of the under‑lease, and that, if the licence is not procured,. A will pay B Rs. 10,000‑A refused to apply for the licence and offers to pay B Rs. 10,

000. B is nevertheless entitled to have the contract specially enforced if C consents to give the licence."‑‑

18. The conclusion to which the discussion leads is that the Court itself has to determine whether compensation in money is an adequate relief in a case like this or not. In this respect the Explanation to section 12 of the Specific Relief Act is of obvious importance. It is as follows:‑ "Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved." The above is a legal presumption, and it is to be seen whether it has been rebutted in this case or not. All that has been pointed out to rebut it is the portion of Annexure J that has been reproduced above. That, to my mind, is not a sufficient rebuttal of the presumption. Additionally there is apparently a misdirec tion of thought in Mr. Zari interpretation of the above quotation. I shall try to explain it in the following paragraph.

19. According to the above quotation, the plaintiffs deman ded Rs. 2 Lacs and Rs. 200 per day as mesne profits in the event of the defendant failing to complete the transaction and thus depriving them of the vacant possession of the bungalow. Mr. Joshi has explained that the plaintiffs were not prepared to accept Rs. 2 Lacs and Rs. 200 per day in lieu of the contract to purchase the property. What they did state is that they would demand these amounts if the defendant failed to perform the contract but they have come to this Court to make the defendant perform its part of the contract and thus to rectify the failure. In these circumstances, the acceptance of Rs. 2 Lacs and Rs. 200 per day as a substitute for the performance of the contract does not arise. Mr. Joshi has further explained that demand of the plaintiffs was not only fur Rs. 2 Lacs in a lump sum, but it was also for Rs. 200 per day. Now, this claim for Rs. 200 per, day is without any limit of time. If the plaintiffs' demand is to be taken on its face value, it will defy satisfaction by the defendant. A better inference, therefore, is that the plaintiffs were prepared to accept monetary compensation if they had to do that. It is neither of such a nature as to create estoppel nor adequate for drawing the inference that they have admitted compensation in money to be an adequate relief.

20. The conclusion that I am able to draw from the above discussion is that issue No. 2 is to be decided against the defendant.

21. As the over all conclusion of all the foregoing discus sion a decree for specific performance is granted against the defendant and in favour of plaintiffs Nos. 1 and 2 for the purchase of the property which is described in the plaint against the payment of Rs. 1,25,000, as the balance of the sale price. This amount is to "be deposited by the two plaintiffs in Court within a week's time. The defendant is directed to complete the sale within a month's time and to with draw the amount of money from the Court on the registra tion of the sale‑deed. Plaintiffs Nos. 1 and 2 should in the meanwhile submit a draft of the sale‑deed for the approval of this Court which is to be executed and registered on behalf of the defendant by an officer of this Court, if the defendant fails to complete the sale as directed. In the event of the sale teeing thus completed through the Court the defendant will be entitled to withdraw the deposited amount on such completion. Since the defendant is already in possession of Rs. 1,25,000 and the plaintiffs have sued for possession also, they will be entitled to get possession of the property, in tams of paragraph 2 of the prayer clause, immediately after they have deposited the balance of the price in Court. Plaintiffs Nos. 1 and 2 will get the costs of this suit. The reliefs contained in paragraphs (iii) arid (is), clause 22 of the plaint are not pressed by Mr. Joshi in the present circumstances. The suit of plaintiffs Nos. 3 and 4 is dismissed with no order as to costs. K. B A. Suit decreed.