1991 PLP 640 (CLC)

As far the power of the legal guardian to alienate the immovable property of his ward, it is stated that:‑-- "The legal guardian cannot sell the immovable property of the minor except where he can obtain double its value; or where it is necessary for the maintenance of the minor; or where there are debts and legacies to be paid, and there are no other means; or where the property is falling into decay." The question with regard to powers of guardian appointed by the Court is somewhat different. There the guardian derives his authority from the order of the Court appointing him. Syed Ameer Ali after enumerating restrictions put on the sale of immovable property of the minor by his guardian said:‑

(c) He may also sell it when there are some general provisions in the wasiyet (will) of the testator, which cannot be carried into effect without the sale of the property. (d) When the property is required to be sold for the purpose of paying off the debts of the testator, which cannot be liquidated in any other way. (e) When the income accruing from the estate is not sufficient to defray the expenditure incurred in its management and the payment of the kharaj (land‑revenue). (f) When it is in imminent danger of being destroyed or lost by decay. (g) When the minor has no other property, and .the sale of it is absolutely necessary for his maintenance. (h) When it is in the hands of a usurper, and the guardian has reason to fear there is no chance of restitution. In other words, even a guardian de jure, like the father or his executor, cannot sell the immovable property of the minor without absolute necessity or unless it is to the manifest or evident advantage of the minor (emphasis supplied by me)." Para 362 of Principles of Mahomedan law by D.F. Mulla laid down a similar principle. In paragraphs 270 to 272 of Mahomedan Law by Faiz Badruddin Tyabji, the question was dealt with in similar terms. Paragraph 2"70 reads:‑

A guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with it, if it were his own and, subject to the provisions of Chapter III of the Guardians and Wards Act, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property." Para 271 states:‑-- "The guardian of the property of a minor may either exercise or refuse to exercise the‑right of pre‑emption on behalf of the ward." There is no dispute that pre‑emption is a mode for fresh acquisition of immovable property and could not be equated with its sale for necessity of and benefit to the minor. Paragraph 272 is more near the point. It states:‑ (1) A guardian cannot validly contract in the name of a ward, so as to impose on him a personal liability. (2) It is not within the competence of manager of a minor's estate, or of a guardian of a minor to bind the minor, or the minor's estate, by a contract for the purchase of immovable property. (3) A guardian's powers with respect to the immovable property of his ward, are restricted so that he cannot alienate it unless there is absolute necessity for the alienation, or it is greatly for the benefit of the war (emphasis has been supplied by me)." More important question would be whether the listed conditions permitting the sale of immovable property of the ward by his legal guardian are exhaustive of all the situations or are illustrative of a principle of law governing rule of necessity and benefit to the ward. For example, the first instance which gave sanction for the sale of immovable property of the minor for double' its value is clearly illustrative of a monetary benefit. Similarly, other conditions which gave power for sale of the immovable property of the minor by his legal guardian are a pointer in the direction of necessity and benefit. Therefore, the underlying governing rule in case of alienation of immovable property owned by the minor by his legal guardian would be the rule of absolute necessity and benefit. An example which readily came to my mind and which supports the above conclusion was the ailment of the minor and his treatment requiring an expenditure which could be met out of the sale of his immovable property only. Placed in such a dilemma, should the ward be allowed to deteriorate and languish to death at the cost of conserving his property or could the legal guardian ' lay his hands on his property for saving his life. Neither money nor property are an end in themselves. Their purpose is to promote human weal and that is and should be their proper role in human society. In case of absolute necessity of or clear benefit to the minor, a legal guardian can alienate immovable property belonging to him. In my opinion, the enumerated instances are illustrative of a basic rule of absolute necessity of and benefit to the minor. It appealed to reason also and I would, therefore, humbly accept it as a correct rule of Islamic Law to govern the power of a legal guardian to alienate immovable property owned by his ward. Thus far, I dealt with the point without the aid from the case‑law in pre‑partition and post -partition era. There are a large number of decided cases which dealt with the question relating to power of a guardian to alienate the immovable property of the ward both under Muslim and Hindu law. Those cases relate to the power of a guardian to purchase immovable property for the minor as also its sale and also the question about specific performance of agreement to purchase or sell the immovable property in the name of the minor. All these cases have been admirably noticed in a Full Bench judgment from Hyderabad High Court in Amir Ahmad and others v. Meer Nizam Ali A I R 1952 Hyderabad 120. 'Leading judgment in the Full Bench case was given by M.S.Ali Khan, J. In para 3 of the judgment, the learned Judge observes:‑

"There remains, however, 'a separate and distinct' question whether and how far a minor can make a contract through his guardian. Cases have taken the distinction between the various grades of the guardians. The only guardians, who can within certain limits, make disposition of minor's immovable property are recognized to be the father, his executor, grandfather, his executor or guardian appointed by the Court. Every other guardian like the mother, the uncle, elder brother, etc. are termed de facto guardians and are deemed to be usually without authority to dispose of or bind the minor for the purchase of immovable property. Question remains how far the dispositions by a father and the other de jure guardians are binding on the minor. As explained in 'Imambandi v. Haji Mutasaddi', A I R 1918 P C 11, de jure guardian has power to dispose of minor's immovable property, though this power is subject to stringent conditions, all governed by the basic and fundamental principle that the acts of the guardian should be to the advantage and benefit of the minor and his estate. For fulfilling the actual wants of the minor and for his bringing up and maintenance as well as for the preservation of his property these guardians are empowered to dispose of certain immovable property of the minor. Otherwise, even dispositions by them are not considered valid. Taking the reverse side of the case, namely, acquisition of a property for the minor if the contract for the same is for the benefit of the minor and it is actually completed so as to transfer the ownership of the property to the minor, the transaction has been held to be valid." Down below in para 9, the learned Judge stated:‑-- "Lastly, 'I may refer to the case of 'Shri Kakulam Subramaniam v. Kurra Subba Rao', P L D 1948 PC

52. There the mother of a minor son has contracted as guardian to sell a land for paying off the debt of the father of the son and had given possession of it to the pr6misee. The suit for specific performance by the promisee was dismissed but on appeal to their Lordships of the Privy Council it was held that: "Their Lordships entertained no doubt that it was within the powers of the mother as guardian to enter the contract of sale on behalf of the respondent for the purpose of discharging his father's debts, and that, if the sale had been completed by the execution and registration of the sale‑deed, the respondent would have been bound under Hindu Law." They observed further that: "The position of the minor under such a contract is discussed in the following passage with which their Lordships agree, in Pollock and Mulla's Indian Contract and Specific Relief Act, 7th Edn., p.70: "A minor's agreement being now decided to be void (by 'Mohori Bibi v. Dhurmodas Ghose', 30 Ind App 114 (PC), it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council. 'It is, however, different with regard to contracts entered 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." This, in my opinion, is an important and recent pronouncement of the Privy Council and if the portions underlined (here in single inverted commas) were carefully considered, it would be evident that their Lordships of the Privy Council held with regard to contracts entered on behalf of minors by their guardian that they can be specifically enforced by or against the minor if the guardian Js competent to make a contract binding on the minor and the contract is for the benefit of the minor. (6) It will be seen that the case of 'Mir Sarwarjan v. Fakhruddin Mahomed', 39 Ind App I (PC), is based on two grounds, namely, that no contract by a guardian of a minor can be specifically enforced, as in the first place, it lacks mutuality, and, in the second place, a guardian or manager cannot bind a minor by personal covenants. The above review of the cases will show that a contract for the sale or purchase of immovable property is regarded as a personal covenant for the reason that having regard to S.54 of the T.P. Act a mere contract does not pass any into rest in or create any charge on land; that until it is executed and registered the title to the land does not pass from a vendor to the vendee, and the contract remains a personal covenant. In spite of this, it has been held in the cases cited above that if the contract for sale is entered into by a certificated guardian under the Guardians and Wards Act or the Court of Wards Act it will be specifically enforced. Similarly, a reference to, the summary of Mr. Justice Seshagiri Iyer's judgment given towards the end of para 5 above will show that a personal covenant of a guardian to create a charge over the property in his management binds the minor; that if the guardian acts for the benefit of the minor and borrows, the creditor can sue the minor upon the decree obtained against the guardian on the principle of subrogation; that personal covenants of the guardian for necessaries bind the minor or his estate and that a personal covenant acknowledging a debt binds the minor by keeping alive a pre‑existing debt; all these cases in which personal covenants of guardians bind the minors are so well‑established that they are termed as accepted propositions by Mr. justice Seshagiri Iyer. Moreover, their Lordships of the Privy Council in the well‑known case of 'Hanuman Pershad', (6 Moo Ind App 393 PC) have themselves spoken of a guardian borrowing on behalf of a minor and charging his estate in the same sentence; this means that they consider that for necessaries a contract or covenant of loan of a guardian binds the minor; similarly in 'Watson and Co. v. Shamlal Mitter' (15 Cal 8: 14 Ind App 178 PC) an agreement by the guardian to pay enhanced rent, which again is a personal covenant has been held to be binding on the minor by their Lordships of the Privy Council. Again in 'Imambandi v. Sheik Haji Mustasaddi' (A I R 1918 PC 11 at p. 16 Col 1), their Lordships of the Privy Council have held clearly that a Mohammadan guardian can bind a minor's estate by a personal covenant' entered into for the latter's benefit. Similarly, in 'Kali Dutt Jha v. Abdul Ali', 16 Ind App 96 (PC) their Lordships of the Privy Council have upheld a sale by the father for the purpose of putting an end to the pending litigation. All these various instances will show that even a personal covenant whether it be of borrowing money or selling immovable property by a guardian binds the minor, if it is for the obvious benefit of the minor or for legal necessity. In fact, works of Moslem Law will show that a guardian can sell the immovable property of his ward in the following among other cases: (i) Where he can obtain double its value; (ii) Where the minor has no other property and the sale of it is absolutely necessary for the maintenance; (iii) Where the late incumbent died in debt which cannot be liquidated but by the sale of such property; (iv) Where there are some general provisions in the will which cannot be carried into effect without such sale; (v) Where the produce of the property is not sufficient to defray the expenses of keeping it; (vi) Where the property may be in danger of being destroyed; and (vii) Where it has been usurped and the guardian has reason to fear that there is no chance of fair restitution. (Vide Macnaghten's Principles of Mohammadan Law, Ch.9, Principle 14; Amir Ali's Mohammadan Law, vol. II, 2nd Edn., pp. 479‑480). After all this, it is difficult to maintain that in no case personal covenants of guardians do not bind the minors. It appears to me that all such personal covenants of guardians will bind the minors as are for their obvious benefit or are impelled by necessity. I am fully aware of the fact that in 'Mir Sarwarjan' their Lordships of the Privy Council spoke of the incompetence of the guardian to bind the minor by a contract of purchase of immovable property and the cases just cited are cases other than cases of such personal covenants; they are cases of covenants of sale of immovable property or of creating a charge on immovable property or of contracts of purchase of movables for necessaries. But if, in spite of this, I mentioned these cases, it was because their Lordships of the Privy Council themselves in 'Subramanyam v. Subba Rao', P L D 1948 PC 52 laid down the proposition broadly and in more general terms without reference to a personal covenant for purchase of immovable property they observed or rather approved of the observations that a contract can be specifically enforced by or against the minor if it is one which 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; and not only in Mr. Justice Niyogi's judgment in Wrishnachandra v. Sait Rushaba Kumar', AIR 1939 Nag 265 but in most of the cases cited in para 5 above no distinction is made between 9 contract for sale and, a contract for purchase entered into on behalf of minor, as a reference to these cases will show. The cases cited in this paragraph will thus show that personal covenants of a guardian for the various purposes explained there including the sale of immovable property undoubtedly bind the minor." At bottom (column 2 of page 127), the learned Judge proceeded to say:‑

"As observed by Mr. Seshagiri lyer, J., the remarks of Woodroffe, J. in 'Mir Sarwarjan's case', when it was heard by the Calcutta High Court, that their Lordships of the Privy Council did not intend in 'Waghela Rajsanji's case', to lay down that contracts by a manager or guardian of a Hindu family do not bind the minor but that it was only intended to lay down that onerous covenants cannot be enforced by the guardian upon the person or property of the minor were not taken exception to either in argument before their Lordships or in the judgment. Hence, can we draw the inference that a guardian is competent to do all acts which are of advantage and benefit to the minor? In my opinion, such an inference can and should be drawn; for the only standard by which the competency of the acts of the guardian can be judged is the standard of the interest of the minor. However, even assuming that such an inference cannot be drawn and guardian is competent to do only such acts as are sanctioned also by the personal law of the minor, the question then comes to an examination of the competency of the guardian under Muslim Law. I will, therefore, consider what contracts are considered by Moslem Law to be within the competence of a guardian of a Muslim minor to enter into on behalf of the minor so as to bind him by them. In principle 6 in Macnaghten's Principles and Precedents of Mohammadan Law it is laid down about the de jure guardian that: "They answer to the term of Curator in the Civil Law having power over the property of the minor for purposes beneficial to him." and in principle 15 it is said that:

"Every contract entered into by near (De Jure) guardian on behalf of and for the benefit of the minor with the advice and consent of his near guardian as far as regards his personal property is valid and binding upon him provided there be no circumvention of fraud on the face of it." Similarly in the same book in Chapter 7 on Precedents of Guardian and Minority in case (3) it is stated that: "The principle of the law is, that it is allowable for a guardian, executor, or any one who has the case (care) of the person and property of the minor to enter into a contract on his behalf where the profit must be clear and certain. For instance, they may always accept a gift on his behalf. In the case of a contract where there is a possibility of loss, it has been held that a near guardian (by which is meant a father or grandfather or guardians duly‑appointed by them) is at liberty to enter into such contract on behalf of the minor. Where, however, nothing but loss can accrue to the minor such as in the case of making a donation or granting a loan, it is not legal for any guardian, near or remote, or for any executor or other person under whose care he is, to act on his behalf." And turning now to the English rendering of Hidaya of Hamilton bk. 35 p. 534 1 will quote a passage which will throw much light upon the competence of the guardian of the minor as also upon the capacity of a minor to contract: "The acts of an infant are unlawful because of the defect in his understanding; but the licence or authority of his guardian is mark of his capacity whence it is that in virtue thereof an infant is accounted the same as an adult." A careful consideration of this passage will show that a Moslem minor has no capacity to contract because of defect in understanding; but that if his acts have the licence and authority of his guardian, then the defect is removed and the minor is accounted the same as an adult. Evidently this means that if a contract on behalf of a minor is approved or entered into by the guardian the minor is equally bound by that contract. In the same work and on the same page in Hamilton's Hidaya it is also laid down that the acts spoken of in the above passage include: all transactions of any kind such as sale, 'purchase' and so forth." The inclusion of 'purchase' in the acts mentioned in the passage is significant and speaks for itself. Similarly, in Fatwai‑e‑Alamgiri Vol.1, Edn. 1834 page 82 it is stated that: "That is "the acts of an infant are not valid except when they are done under the licence or authority of his guardian; that Tahtavi has explained this to state that the father, grandfather, their executors, Qazi or hi executor can lawfully allow an infant to trade; when an infant who understands sale and purchase, that is, understands that a sale divests the ownership and a purchase vests it and understands also the difference between a small and a substantial loss sells or purchases, his guardian if he considers the sale or the purchase advisable, can assent to it; and when an infant receives such an assent or authority for a transaction and makes it, the transaction is enforced whether it occasions loss or not. The Sirajiah is to the same effect. In transactions which are purely advantageous, an infant is accounted the same as an adult; and that is why an infant can himself accept a gift and need not wait for the authority of the guardian." Again in Allfatawi-e‑Kubra, Vol. III p. 38 by Than Hajar Al Miski in a case where: "A minor was in one town and his property in another town it was held by the Moslem servants that the Qazi of the place where the property was, can purchase lands for the benefit of the minor." Again on page 48 it is laid down that: "if owing to disturbed conditions no Government has authority over a town, the people of the town should elect a Qazi and the Gazi should appoint a guardian for orphans, that is, for fatherless minors and he can enter into a contract on behalf of a minor for the exchange of one garden for another garden if the transaction is for the benefit of the minor." It will be seen that in these passages minor's transaction of sale as well as of purchase of movables as well as immovables are allowed when they are entered into with the assent and authority of the near or De Jure guardians. This means sufficiently clearly that a Muslim guardian can bind by personal covenants a Muslim minor even when the covenant is for the purchase of immovable property. Of course, as laid down elsewhere in Hidaya and Fatawai‑e‑Alamgiri and quoted by Justice Amir Ali in Imambandi v. Haji Mutasaddi', A I R 1918 PC 11 at p. 16, Col.1, contracts by a De Jure guardian are governed by strict conditions of minor's necessity and benefit. So much, with all respect, as to the first ground of decision in the 'Mir Sarwarjan's case', namely, that a guardian is not competent to bind the minor by a personal covenant for the purchase of immovable property." Down below in para 11 of the judgment, the learned Judge proceeds to observe: "The 'Subramanyam's case', A I R 1448 PC 95 as well as almost all the cases in which specific performance has been decreed, are cases of sale of minor's property by the guardian; the question is, whether in view of the fact that 'Mir Sarwarjan's case', 39 Ind App I PC was a case of purchase of immovable property by the guardian, there should be any difference between the two categories of cases, I am of opinion that there should not be any difference; for, as pointed out by the learned Judge, Mr. Viswanatha Sastri, in the arguments before the Board in 'Subramanyam's case', reference had been made to the Indian decisions where specific performance had been refused of guardian's contract on the ground of want of mutuality in suits by or against the minor; yet, their Lordships upheld the contention that a guardian's contract was specifically enforceable if the contract was beneficial to the minor. Mr. Justice Viswanatha Sastri, though he utterly dislikes 'Mir Sarwarjan's Case', yet has remarked that as the 'Subramanyam's case', as well as the case before him, were cases of sale of immovable property of minor by a guardian and, as 'Mir Sarwarjan's case', was a case of purchase of immovable property, the doctrine 'of the latter case 'need not' be extended to the former class of cases. I understand that this remark of his Lordship was due to the fact that as the case before him was not that of purchase of immovable property it would be mere 'Obiter Dicta', if he extended the principle to a case of purchase as well, otherwise, when he has taken the distinction between contracts by a minor and contracts by a guardian and when he has expressed his strong disapproval of the doctrine of mutuality as understood in many an Indian decision, it cannot be said that he was not prepared to extend the principle to the case of purchase of immovable property by a guardian. However this may be, the point that I want to make is that in the 'Subramanyam's case', their Lordships of the Privy Council have approved the passage of Pollock and Mulla quoted in para. 5 (9) of this judgment, in which the law has been laid down in broad terms without any limitation to contracts of sale." In para 12, the learned Judge said:‑

"The position then comes to this. A Muslim 'De, Jure' guardian, according to my reading of the Muslim Law, is empowered not only to dispose of minor's property in case of necessity and to advance the interest of the minor, but is competent also to acquire property on his behalf if it is to the obvious advantage of the minor (vide the references to original texts in paragraph 6 above). Hence, in my opinion, there seems to be no bar in Muslim Law to uphold contracts for purchase of immovable property made by the guardian on behalf of a minor if they are to the obvious advantage of the minor. As a Muslim guardian is thus competent to contract on behalf of the minor, it is evident that, if in any given case both the conditions of competence of the guardian and the benefit of the minor stated in the passage from Pollock and Mulla quoted by their Lordships of the Privy Council with approval are fulfilled, then there is no bar to decreeing specific performance of a contract for the purchase of an immovable property by a Muslim guardian. It appears to me also that the first and foremost principle of guardianship is that the interest of the minor is paramount and should be attended to and it is hard to hold that if a contract for the purchase of immovable property is for the benefit of the minor, the minor cannot take advantage of the contract entered into on his behalf by his guardian. I have shown above also that in America the objection of mutuality does not apply to the contracts entered into by the guardians but is confined only to the contracts entered into by the minor himself. All these considerations impel me to hold that in a contract for sale or purchase of immovable property entered into by a 'De Jure' guardian of a minor should be specifically enforced if they fulfil the two tests of the competency of the guardian and the benefit of the minor. It should be noted also that, as held in America, in a suit for specific performance by or against a minor on a contract of a guardian of a minor, the minor's interest is safeguarded, for the Court can always refuse specific performance if the contract is not fair to him. But I must also state that whatever the state of law might appear to be from a study of original Arabic bo9ks fm Fiqh, still there is the very clear pronouncement of their Lordships of the Privy Council in 'Mir Sarwarjan's case', 39 Ind App 1 PC, that it is not within the competence of a guardian of a Muslim minor to bind him by a personal covenant of the purchase of immovable property. As to this I am of opinion that we will have to read the case along with the 'Subramanyam's case', P L D 1948 PC 52, also decided by their Lordships of the Privy Council; and as in that case their Lordships have stated the law on this question in broad terms and have upheld the contract in respect of immovable property entered into by a guardian on its fulfilling the two tests of competency of the guardian and the benefit of the minor, we should also follow these tests only." Having observed thus the reference "Whether a minor who has agreed to purchase property through his guardian can bring a suit for the specific performance of the contract?" was answered 'Yes' if the guardian is a de jure guardian and competent to bind the minor by his contract and the contract is for the obvious benefit of the minor. Siddiqi, J., was in full agreement with judgment of M.S. Ali Khan, J., but Deshapande, J., gave qualified concurrence by observing:‑

"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 'Subramanyan v. Subba Rao', P L D 1948 PC 52 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 sale of the property of the minor by a guardian, if it is within the competence of the manager of a minor's estate or within the competence of the guardian of 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 the manager of the minor's estate or within the competence of guardian of a minor to bind a minor or minor's estate by a contract. Therefore, in my opinion, so far as the question of purchase is concerned, which is the specific question referred to us, the law as laid down by their Lordships of the Privy Council in 'Sarwarjan v. Fakhruddin Mohammad', 39 Cal 232 PC stands and there cannot be a suit for specific performance of the contract when the contract is for the purchase of immovable property by a guardian of a minor." I have extensively quoted from the judgment of the Full Bench merely to show as to what should be the correct rule or principle to govern the power of a legal guardian under Muslim Law in case of the alienation of the immovable property of his ward. In my opinion, the case lays down a correct statement of law and it is my view also. However, as the c4se before me related to a contract for sale of immovable property, I shall confine the rule in regard to only the sale of the minor's property by his legal guardian and as for the power of guardian to purchase the immovable property for the minor. I shall not express any final opinion by leaving it for further examination on another appropriate occasion. As far the decision from our own Court in Khalid Rashid and others v. Mst. Ajaib Khanurn and others 1988 C L C 1755, it is not of much assistance on the exhaustiveness of the conditions permitting the sale of minor's property by his legal guardian. With respects, without much discussion, circumstances listed in paragraph 362 of Mahomedan Law by D.F. Mulla were taken as exhaustive of the powers of a legal guardian to alienate the immovable property of his minor son. In my opinion, it is not a binding authority on the powers of a legal guardian to alienate the minor's property in those conditions only. The true and correct rule as would be seen from the preceding discussion is the rule of absolute necessity of and the benefit to the minor apart from the rule of competence of the guardian. After having stated the rule, I shall revert to the facts to rind out whether the act of the guardian in concluding an agreement for transfer of the land at enhanced sale price qualified the tests of competence, necessity and benefit. Sale in favour of the minors was pre‑emptible. Pedigree‑table Ext.P3 indicated that plaintiffs were brothers of Ghulam Mohammad. Except for the land sold by Inayat Begum, their right of pre‑emption was superior qua the vendees. Plaintiffs said that they intended to pre‑empt the sale and also gave evidence in support of it. To save the vendees from unnecessary expense and hazards of Court litigation, their father who was also their natural guardian agreed to re‑convey the land at the enhanced sale price and received Rs.2000 as earnest. Sale‑decd in favour of the vendees was registered on 14‑3‑1967. From the date of registration of the sale‑deed, pre‑emption suit could have been instituted till 13‑3‑1968. However, a few days earlier, the father entered into an agreement to transfer the land to the plaintiffs and agreed to finalise the sale within a month. After going through the record, I am sufficiently convinced that Courts below rightly observed on the genuine execution of agreement Ext.P

2. This being a finding of fact is not open to review in second appeal. Even otherwise, Ch. Mohammad Hussain who in the opinion of the appellants' learned Advocate was a prominent person, did not step in the witness‑box to deny his act and felt satisfied in leaving the defence of the suit to his other son Mohammad Akram who was a stepbrother of defendants 1 and

2. DW‑2 vainly feigned ignorance about signatures of his father on Ext.P

2. His statement was untrue and unconvincing. Record disclosed no defect in person of Ch. Mohammad Hussain. He purchased the land in dispute for his sons in 1967, for sale price of Rs.7,

500. Those days, it was not a small amount. He himself paid the sale price. Clearly, his intention was to benefit his sons. However, when he apprehended pre‑emption from the plaintiffs, he concluded an agreement with them to transfer the land to them at the enhanced price leaving some margin of profit in that deal also. His act was not detrimental to his minor sons. Rather, in the circumstances, it was beneficial to them. He intended to save the property but finding that course difficult agreed to re‑transfer it at better price. Agreement concluded by him was thus clearly binding on the minors. There was no bar for specific enforcement of this executory agreement. If in case of necessity and benefit the guardian could sell the property outright, there was no impediment to conclude an agreement for its sale as a preparatory step towards its finalisation. Therefore, the agreement was capable of being specifically enforced through a Court of law. Finally, comes the question about non‑payment of court‑fee on the relief for specific performance. Plaint in the suit contained two reliefs. First relief was with regard to pre‑emption of the sale and the second which was expressed in the alternative was for specific performance of an agreement to sell concluded on 83‑1968. For purposes of court‑fee, plaint was assessed at fifteen times of the net‑profits accruing from the land in dispute in the year preceding the institution of the suit. Annual net‑profits were assessed at Rs.300 and eventually court‑fee of Rs.242.25 was paid upon the plaint. Initially, the defendants had objected to the valuation of the suit and contended that it was incorrectly assessed and less amount of court‑fee was paid on the plaint. It is seen from an order of the trial Court passed on 25‑3‑1970 that deficit court‑fee calculated on fifteen times of the net‑profits was paid in pursuance of a direction from the Court. It is common ground that relief for specific performance was neither separately assessed for purposes of court‑fee on it nor any court‑fee was paid on that part of the relief in the trial Court. As said above, the trial Court had decreed alternative relief for specific performance but declined relief in regard to pre‑emption. Both parties filed separate appeals in the Court below. Plaintiffs were aggrieved of that part of the decree which refused their claim of pre‑emption and the defendants about the decree for specific performance granted to the plaintiffs. On the memorandum of appeal, defendants had affixed court‑fee stamps of Rs.243 and the plaintiffs on their appeal Rs.242.25. In terms of section 17 of the Court Fees Act, 1870, the plaintiffs were obliged to separately assess, and, pay court‑fee on their plaint in the suit which embraced two distinct subjects. They had assessed one subject in the plaint and paid court‑fee on the relief for possession through pre‑emption but had paid no court‑fee in respect of their claim for specific performance of an agreement to sell in their favour. To this extent, their plaint was deficiently stamped and the plaintiffs were bound to make good the deficiency in court‑fee. Rule laid down in Siddique Khan and 2 others v. Abdul Shakur Khan and another P L D 1984 S.C 289 impels for a reasonable opportunity allowable to the respondents for paying the discovered deficit court‑fee before invocation of a punitive action. Even otherwise, court‑fee is primarily a question between the suitor (plaintiff) and the State. The Court Fees Act was enacted merely to collect revenues for the benefit of the State and it is not intended to arm a contesting party with the weapon of defence to obstruct the trial of an action. As far the appeal riled by the defendants in the lower Court against decree for specific performance passed against them, the memorandum of appeal was also deficiently stamped. Subject‑matter in dispute in appeal filed by them was the decree for specific performance in respect of an agreement of sale for a sum of Rs.8,

250. The appellants (defendants) were obliged to pay ad valorem Court‑fee according to the amount of consideration viz. the price payable for the land agreed to be sold. Thus seen, proper court‑fee was not paid upon the memorandum of appeal. They had paid court‑fee of Rs.243 whereas the correct amount of court‑fee payable by them on the memorandum of appeal was Rs.516.37. Therefore, the court‑fee paid was less by Rs.273.37. This amount of court‑fee they are bound to pay. The appellate Court has ample power under section 12 (ii) of the Court Fees Act, 1870 to call upon a party to make good the deficient court‑fee chargeable in the lower Court for it is its duty to see that proper court‑fees are paid not only in regard to proceedings before it but also with regard to the proceedings in the lower Court. In view of the aforesaid, appeal fails and is, accordingly, dismissed with no order as to its costs in this Court. Respondents (legal representatives of Bhole Khan and Rasool Bakhsh) are called upon to pay ad valorem court‑fee on the sum of Rs.8,250 in the trial Court by or before 18‑2‑1991 failing which their plaint in regard to specific performance shall be deemed to have been rejected under Order VII, rule 11 Civil P.C. As for appellants, they shall make good the deficit court‑fee on Rs.8,250 (less the amount of court‑fee already paid on the memorandum of appeal) in the lower appellate Court by or before the above date failing which their appeal shall also be deemed to have been dismissed for non payment of proper court‑fee. At the end, I must express appreciation for the valuable assistance rendered by the learned counsel for the parties in the case. AA./M‑2590/L Appeal dismissed