Vijaykumar minor through father Tukaram Dyanoba vs Gokulchand Surajmal

L.M. Paranjpe, J.—The Plaintiff-appellant was a minor, aged about 9 years, at the time of the transaction which has given rise to this litigation. Purporting to act as the guardian of the minor Plaintiff, his father Tukaram entered into an agreement with the Defendant on the 13th of March 1954 to purchase a shop on the main road at Pusad for an amount of Rs, 12,000. Tukaram paid Rs. 1,000 as earnest-money and undertook to pay the balance of Rs. 11,000 at the time of registration of the sale-deed, which was to be executed on the 1st of April 1954. The Defendant executed an agreement, exhibit P-1, and Tukaram executed a counterpart of that document in favour of the Defendant. These documents mentioned that, in case the Defendant did not execute the sale-deed, he would return the earnest-money of Rs. 1,000 and pay damages of Rs. 2,000 to the Plaintiff and, in case the Plaintiff did not take the sale-deed, the amount of the earnest-money of Rs. 1,000 will be forfeited and the Plaintiff would have to pay Rs. 2,000 as damages to the Defendant. On the 31st of March 1954 Tukaram sent a registered notice, exhibit D-4, to the Defendant to call upon him to furnish security. In this notice, he alleged that he had learnt after the agreement that the property did not belong to the Defendant alone and the Defendant was heavily indebted and was intending to effect the transfer to defraud his creditors. Tukaram, therefore, asked in the notice to give security for reimbursing the Plaintiff if he was put to a loss by completing this agreement. The notice also called upon the Defendant to satisfy the Plaintiff that the Defendant had an unencumbered title. The notice farther mentioned that if the Plaintiff was not satisfied as asked in the notice, ho would have to revoke and rescind the agreement, dated the 13th of March 1954. This notice reached the Defendant on the 2nd of April 1954, but in the meantime the Defendant had sent a telegram on the 1st of April 1954 to call upon the Plaintiff to complete the transaction as per the agreement, dated the 13th of March 1954. On the 7th of April 1954, the Defendant sent his reply exhibit D-5, to Tukaram''s notice, exhibit D-4, denying the allegations made therein. Thereafter, the Plaintiff gave another notice to the Defendant on the 17th of May 1954 to intimate that the contract, exhibit P-1, was rescinded. On the 13th of March 1957 the present suit was filed.

The Plaintiff, through his guardian father, filed the present suit for a refund of consideration and for rescission of the contract, exhibit P-1, on the following allegations:-

On the date of the agreement, the Defendant had misrepresented to Tukaram that he was not indebted and the property was his own and was free from encumbrance. Tukaram had come to know that the property did not belong to the Defendant alone but it belonged to the firm "Rameshwar Gokulchand" of which the Defendant was one of the partners. Tukaram had also learnt that the Defendant was in heavy arrears of income tax to the tune of Ra. 57,855 and was also otherwise indebted and he was effecting to transfer the shop in order to defraud his creditors, and to avoid payment of income tax. On learning these new facts, Tukaram had called upon the Defendant by the notice, exhibit D-4, to give clear title and to satisfy the Plaintiff that he was not indebted and was not selling the property to defraud other creditors and the Government and also to furnish a surety for reimbursing the Plaintiff in case he suffered any loss. The Defendant, however, did not comply with those suggestions. There was no mutuality in the agreement, exhibit P-1, and it was not for the benefit of the minor Plaintiff to complete the transaction as it would involve him in litigations. The contract was thus void and the Plaintiff was entitled to claim a refund of consideration and the cancellation of the agreement, exhibit P-1.

The Defendant resisted the claim on the following allegations: Tukaram had not entered into the agreement as the guardian of the Plaintiff but had brought about the agreement for and on behalf of the joint family of which he was a member. The shop was being purchased by the joint family of the Plaintiff and not by the Plaintiff himself. The allegations that the Defendant was indebted either to the creditors or to the Government on account of income tax arrears were false. The shop belonged to the Defendant alone. There was no intention of defrauding the creditors or the Government and the transaction was not effected for such purposes. The demands made in the notice, exhibit D-4, were unreasonable. The Defendant was always willing to carry out the contract of sale according to the agreement, exhibit P-1, and there were no grounds for rescinding it. The allegation that there was no mutuality was denied. No question of mutuality arose because the agreement was made by Tukaram for and on behalf of the family. No question of benefit of the minor also arose because the contract was in the course of the management of the joint family carried on by the Plaintiff''s father and uncle. Benefit must be presumed under the circumstances. The Plaintiff is not entitled either to a refund of the earnest-money or to a cancellation of the sale-deed.

The learned trial Judge found on facts that the shop in question was the property of the Defendant and he was not indebted either to the Government or to other creditors and the suit property was not liable to be proceeded against by any of the creditors of the Defendant. The learned trial Judge overruled the contention of the Defendant that the transaction was entered into by Tukaram for and on behalf of the joint family, on the ground that section 92 of the Evidence Act precluded the Defendant from varying the terms of the contract, exhibit P-1, which evidenced the contract of the Plaintiff alone. He further found that no question of benefit to the minor could arise because the contract was not enforceable for want of mutuality between the parties. In that view, he decreed the claim for refund of the earnest-money with interest and for cancellation of the sale-deed.

The Defendant went up to the District Court to challenge the decree which was passed against him. In the course of the argument, the learned Advocate for the Plaintiff did not question the findings of fact on issues Nos. 5 to 9 and indeed, accepted them. Consequently, the learned District Judge affirmed the findings of fact that the suit property belonged to the Defendant alone and it was not liable to be proceeded against by the creditors of the Defendant or by the Government because the Defendant was not indebted to either of them. Differing from the learned trial Judge, however, the learned District Judge held that the transaction was for the benefit of the entire joint family of the Plaintiff''s father, as also for the benefit of the minor Plaintiff and it was enforceable of such benefit. In that view, he reversed the decision given by the trial Court and dismissed the suit. That dismissal is now being challenged in this Court.

The learned trial Judge had held on the authority of Mir Sarwarjan v. Fakhruddin Mahomed Chowdhri 39 I. A. 1 that there was no mutuality and, therefore, the agreement to purchase the property was not enforceable at law. The learned District Judge, Yeotmal, had, however, preferred to follow a later decision of the Privy Council in AIR 1948 95 (Privy Council) which has upheld an agreement of sale in favour of a minor effected through the guardian of the minor. The main question in the present appeal, therefore, is whether the suit should be decided on the basis of the view taken by the Privy Council in the earlier case of Mir Sarwarjan or in the later case of Sri Kakulam Subrahmanyam.

The facts leading to the Privy Council decision in Mir Sarwarjan''s case were that one Mr. Garth was the manager of the Plaintiff''s estate, and an agent of Mr. Garth had entered into an agreement with Mir Sarwarjan to purchase certain property. This agreement of the agent was subsequently ratified by Mr. Garth. On these facts, the Division Bench of the Calcutta High Court had referred to the Full Bench the question "Can specific performance of a contract validly entered into on behalf of a minor be enforced ? ". The Full Bench answered the question by saying that if the contract was validly entered into on behalf of a minor and there was mutuality in such contract, it might be specifically enforced. In consequence of this answer by the Full Bench, the Division Bench held that the contract was enforceable by a decree for specific performance. The matter was taken up before the Privy Council. Their Lordships of the Privy Council proceeded on the assumptions made in the High Court that the contract was intended to bind the minor or his estate and that the purchase was an advantageous purchase for the minor. While considering the opinion of the Division Bench that there was no difference between the position and powers of a guardian and those of a manager, their Lordships made the following observations:

Without some authority Their Lordships are unable to accept the view of the learned Judges of the Division Bench that there is no difference between the position and powers of a manager and those of a guardian. They are, however, of opinion that it is not within the competence of a manager of a minor''s estate or within the competence of a guardian of a minor to bind the minor or the minor''s estate by a contract for the purchase of immovable property, and they are further of opinion that as the minor in the present case was not bound by the contract there was no mutuality, and that the minor who has now reached his majority cannot obtain specific performance of the contract.

Mr. Natu was contending that the present case also was of a contract to purchase property, which was an executory contract, as in Mir Sarwarjan''a case and, therefore, the principles laid down in that case ought to he treated as the last word on the subject. According to him, the subsequent decision in AIR 1948 95 (Privy Council) was with respect to a completed and executed contract of sale and, therefore, the principles laid down in that case would not be applicable to the facts of the present case. As against that, Mr. M. N. Chanduikar, Advocate for the Defendant, contended that the question whether a transaction was of a sale or of a purchase or whether it was executory or executed was irrelevant for deciding whether a minor''s Contract was enforceable or not. According to him, the earlier decision of the Privy Council had not considered the provisions of sections 196 to 199 of the Contract Act which permit ratification of a contract by a minor on his attaining majority. He also pointed out that the earlier decision was with respect to the law applicable to the Muslims and the special powers of a Hindu father in accordance with the Hindu Law were not considered in that case as they were not relevant for the purposes of that decision. In his view, the latter contract also was only executory. According to Mr. Chandurkar, it was this later ruling of the Privy Council which ought to be taken as the final authority on the subject.

While supporting the earlier view of their Lordships of the Privy Council that the powers of a manager of minor''s property and of the guardian of a minor were the same, Mr. Natu did not dispute that a Hindu father has greater powers of dealing with the minor''s property under the Hindu Law than what a mere guardian would have while dealing with his ward''s property. Hindu Law permits a father to contract away his minor son''s property under certain circumstances and for certain reasons. However, Mr. Natu contended that a Hindu father had much higher rights of dealing with his minor son''s coparcenary property but he had no right or authority of dealing with the separate property of the minor. He further contended that the funds, out of which the Plaintiff was going to purchase the suit house, were the separate property of the minor and, therefore, the natural father could not be entitled to deal with them or to enter into any contract with respect to them. Mr. Chandurkar contended, on the other hand, that there was no warrant for making a distinction in the powers of the natural guardian of a Hindu boy with respect to his coparcenary property and his separate property. He further contended that even if there was such a distinction, the Plaintiff did not go to trial on the basis that this was his separate property and there was no material on record to warrant the submission of MR. Natu that the funds with which this property was to be purchased, were the separate property of the minor. Mr. Chandurkar farther submitted that the contention stood repelled by the finding of fact by the two Courts below that the consideration for this sale did not flow from the maternal grandfather of the Plaintiff but flowed from the natural father of the Plaintiff.

It was difficult to understand or accept the distinction which was sought to be made by Mr. Natu with respect to the natural guardian''s powers over the minor''s coparcenary property and hip separate property. Mr. Natu did not show any authority in support of this distinction which he was seeking to draw even after he was specifically asked by me to show any authority in support thereof. I am afraid such a distinction is unwarranted. The powers of a Hindu father as the natural guardian of his minor son are the same whether he is dealing with the coparcenary or separate property of the minor. Under certain circumstances, a Hindu father has a right to enter into a contract for and on behalf of the son with respect to all the property of the minor son. Even if such a distinction existed, the facts on record would not warrant its application. Mr. Chandurkar was right in submitting that the Plaintiff did not go to trial on that basis. He was also right in saying that the finding of fact by the two Courts below that the consideration of the earnest-money had not flown from the maternal grandfather of the Plaintiff by way of a gift to him but had flown from the natural father, namely, Tukaram, debarred the Plaintiff from saying that the agreement was with respect to any separate property of the minor so as to preclude the father from entering into an agreement on behalf of the minor with respect to that property.

As adumbrated, the decision in Mir Sarwarjan''s case was with respect to a minor governed by the Mohammedan Law. It was not with respect to the powers of the natural guardian of a Hindu boy. When admittedly the powers of a natural guardian, namely, the father, over the property of his minor son are much wider than the powers of an ordinary manager or a guardian of a minor''s property, the earlier Privy Council decision would not preclude the natural father from entering into an agreement so as to bind the minor.

The next contention of Mr. Natu was that the Privy Council decision in Mir Sarwarjan''s case had been followed and applied in other cases also and, therefore, it ought to be applied to the present case. He relied on Raj Rani Vs. Prem Adib, . Though the decision had referred to Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri 39 I. A. 1 the facts thereof would show that the contract therein was not enforced because it was held to be without consideration. That ruling would, therefore, not be of any use to the Plaintiff. That ruling also has been distinguished on the same ground in Civil Revision Application No. 488 of 1958, decided on the 18th of March 1959 (Note No. 39 in 1960, Nagpur Law Journal). Mr. Natu was then relying on Hari Mohan v. Sew Narayan AIR 1949 Assam 57 which also had followed the Privy Council view referred to above. Mr. Natu submitted that though the Privy Council had decided the case of a Muslim minor, the principle laid down therein was applied by the Assam High Court to a contract effected by a natural guardian af a Hindu minor. In that case, the later Privy Council decision in AIR 1948 95 (Privy Council) was referred to but was distinguished because of the view that it had been decided on the basis of other decisions of the Indian High Courts which were given before their Lordships of the Privy Council decided Mir Sarwarjan''s case. As I would show in the sequel, this later decision of the Privy Council has not only followed the earlier views of the Indian High Courts but had taken a line of reasoning which was very much different from the reasoning in Mir Sarwarjan''s case.

Mr. Natu then contended that the Privy Council view in Mir Sarwarjan''s case was also followed and applied in Gopalkrishna v. Tukaram AIR 1950 Bom. 566 and, therefore, it should be followed in this case also. Mr. Chandurkar submitted in this connection that the later Privy Council decision in AIR 1948 95 (Privy Council) 5 was not cited before this Court and was not even considered therein and consequently that decision, which was given without considering the later view of the Privy Council, cannot be the last word on the subject. There was considerable force in this contention of Mr. Chandurkar.

On considering the apparently conflicting views of the Privy Council in Mir Sarwarjan''s case and in Sri Kakulam Subrahmanyam''s case, the Pull Bench of the Madras High Court held in N.B. Sitarama Rao Vs. Venkatarama Reddiar and Others, that the two decision could be reconciled by holding that the earlier view in Mir Sarwarjan''s case was confined to cases of purchase of property and not in respect of agreements to sell which came within the ambit of the later view. With respect, I may point out that none of these two decisions purports to lay down any such limitations. Mr. Natu was also relying on this decision for supporting his contention that there cannot be a mutuality because of want of competence on the part of the guardian in case of executory contracts. He did not, however, dispute that in case of coparcenary property a minor''s guardian had competency to complete a transaction on behalf of the minor. The result, therefore, of that argument would be that the natural guardian of a Hindu minor had power to complete a transaction of purchase or sale on behalf of the minor but had not got the power to take the preliminary step of entering into an agreement for effecting such a transaction. This, would clearly amount to an incongruity as was pointed out by the Full Bench of the Andhra High Court in Vadakattu Suryaprakasam v. Ake Gangaraju AIR 1956 AP 33.

Mr. Chandurkar, Advocate for the respondent, submitted that there Lordships of the Privy Council had taken a different view in their later decision in AIR 1948 95 (Privy Council) and that later decision must he deemed to have overruled the earlier view in Mir Sarwarjan''s case. Mr. Natu contended, on the other hand, that their Lordships of the Privy Council were not even referred to the earlier decision in Mir Sarwarjan''s case and, therefore, they never reconsidered that decision and they cannot be deemed to have overruled that decision in AIR 1948 95 (Privy Council) . Mr. Natu was not right in saying that the earlier decision in Mir Sarwarjan''s case was not even referred to before their Lordships in the later case. The full report of that decision in AIR 1948 95 (Privy Council) would show that this decision was referred to in the argument of Sir Herbert Cunliffe K. C. It is true that the decision by their Lordships does not specifically mention Mir Sanvarjan''s case which was referred to in the course of arguments. But the decision had referred to their two earlier decisions in Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koomoeree 6 Moore''s Indian Appeals 393 and in Mohori Bibee v. Dhurmodas Ghose 30 I. A. 114 which had not been considered in the earlier case of Mir Sarwarjan. As was pointed out by the Full Bench of the Andhra High Court in Vadakattu Suryaprakasam v. Ake Gangaraju AIR 1956 AP 33 referred to above, their Lordships of the Privy Council who had before them all their earlier decisions must be deemed to have overruled the decision in Mir Sarwarjan''s case 39 I. A. I, and the decisions of the Indian High Courts which were based thereon.

In the case of AIR 1948 95 (Privy Council) on which Mr. Chandurkar was relying, their Lordships of the Privy Council were dealing with the case of a contract for sale by mother, acting as the natural guardian on behalf of the minor son. The deceased father of the minor had left some debts including a debt of Rs. 16,000 due to the appellants. By an agreement in writing, the mother of the minor agreed to sell the suit lands to the appellants for Rs. 17,200 and that purchase price was to by applied for satisfying the debt of the appellants and a mortgage debt of Rs. 1,200 owing to a different person. A sale-deed was to be executed and registered. The appellants paid off the mortgage-debt and they were let into possession of the lands in accordance with the agreement to sell them, but no sale-deed was executed. Subsequently, the minor through his natural guardian mother, filed his suit for claiming possession of that property. On these facts, their Lordships of the Privy Council held that the mother, as a guardian, was competent to sell the property of the minor for paying off the antecedent debts of the deceased father of the minor and the appellants, who had entered into possession on the strength of the written agreement to sell, were protected by section 53-A of the Transfer of Property Act and, therefore, they could not be evicted from the property. Their Lordships further held that, under the circumstances of the case, the transfer would be for the minor for whom the mother had acted. The effect of this decision was that, by this agreement executed by the mother in her capacity as a guardian, mutuality was created between the minor on the one hand and the transferee on the other.

Mr. Natu repeated several of his arguments which I have considered above for saying that this later decision should not be taken to override the earlier view in Mir Sarwarjan''s case. His arguments were mainly based on the view of the Full Bench in N.B. Sitarama Rao Vs. Venkatarama Reddiar and Others, I have already considered some of those arguments, Mr. Chandurkar pointed out that the submissions of Mr. Natu have been effectively answered by a Full Bench of the Andhra High Court in Vadakattu Suryaprakasam v. Ake Gangaraju AIR 1956 AP 33. I was taken through these two decisions by the learned Advocates for the parties. It clearly appears that the Full Bench of the Andhra High Court has considered the question in greater details and has given satisfactory answers to the submissions that the view in Mir Sarimrjan''s case should prevail despite the subsequent decision of the Privy Council. With respect, I am inclined to agree more with the Full Bench of the Andhra High Court on this point than on the Full Bench of the Madras High Court. I have already indicated that the decision of this Court in Gopalkrishna Govind and Another Vs. Tukaram Narayan and Others, was given without considering the later view of the Privy Council in AIR 1948 95 (Privy Council) .

The question had come up before this Court once again after the decision in Gopalkrishna Govind and Another Vs. Tukaram Narayan and Others, . In Gujaba v. Nilkanth 1957 N.L.J, 615, the question was whether a contract for sale of movable property effected by the natural guardian of a Hindu minor can be specifically enforced by or against the minor if the contract was for the benefit of the minor. Mr. Justice Mudholkar, as he then was, considered the two views of the Privy Council in Mir Sarwarjan''s case and in AIR 1948 95 (Privy Council) , and following the view in the later case, he held that a contract entered into on behalf of a minor by a guardian can be specifically enforced, by or against the minor if the contract was within the competence of the guardian and for the benefit of the minor. For the reasons given elaborately by the Full Bench of the Andhra High Court, I would hold that the earlier decision in Mir Sarwarjan''s case was modified by the later decision of the Privy Council in AIR 1948 95 (Privy Council) , and in accordance with that decision, as also in accordance with the later decision of this High Court in Gujaba v. Nilkanth 1957 N.L.J, 615,, I would hold that the contract by the minor would be enforceable if the guardian was competent and if it was for the benefit of the minor.

Mr. Natu''s contention was that the natural guardian was not competent to enter into this agreement because the consideration therefore was to flow from the maternal grandfather who was intending to make a gift of it to the Plaintiff. Mr. Chandurkar contended in this connection that the Plaintiff had not even raised a plea in his plaint or in the notice given to the Defendant that the natural guardian was not competent to enter into any agreement on behalf of the minor or that the competency was affected on the alleged ground that the funds were supposed to be the separate property of the minor. Mr. Chandurkar further contended that the findings of fact that the consideration flowed from the natural father out of the funds of the joint family to which he belonged concluded the contention that this transaction was with respect to the separate property of the minor.

On realizing that the Plaintiff had not raised a plea regarding the want of competence on the part of the minor, Mr. Natu contended that it was not necessary for the Plaintiff to raise any such pleading but an adverse inference should be drawn against the Defendant for not denying the plea which was not raised by the Plaintiff. Mr. Natu was wanting to rely on some assumed and unspecified principles of the British common law in support of this argument. In making these submissions, Mr. Natu was overlooking the fact that it was not the Defendant who had come to Court to enforce the agreement but it was the Plaintiff who had come to Court to have the agreement rescinded on the ground of want of mutuality based on want of competency of the guardian and want of benefit to the minor. Under these circumstances, it is impossible to agree that the Plaintiff, who wants to ask for a relief on certain grounds, need not even allege those grounds or that the Defendant should plead on a point which has not been raised by the Plaintiff at all. The law of pleadings is very clear on the point and it was impossible to understand how there could be any question of the Defendant pleading on this point. As adumbrated, the Plaintiff, who wanted a relief on specific grounds, did not set up the ground of the alleged or assumed want of competence of the guardian. Consequently, the Defendant had no reason to deny want of competency or to plead specifically that the guardian was competent. It was not open to the Plaintiff to seek to establish a case without having pleaded it and without having gone to trial thereon. Even if the Plaintiff was justified in advancing that argument, the findings of fact by the trial Court that the earnest-money had flown from the father out of the funds of the joint family, negatived the contention or possibility of the funds being the separate property of the minor.

Mr. Natu contended that the learned District Judge''s finding that the suit agreement was on behalf and for the benefit of the entire joint family was vitiated by section 92 of the Indian Evidence Act. His argument was that the suit agreement (exhibit P-1) was on behalf of the minor Plaintiff alone and section 92 would debar the Defendant from seeking to vary or to add to its terms by setting up a plea that it was on behalf and for the benefit of the entire joint family. In his opinion, the learned District Judge was in error in bringing this plea under the sixth proviso to that section on the basis that it was a fictitious or a, benami transaction. Mr. Chandurkar did not dispute that the learned District Judge was in error in treating Exh. P-1 as a fictitious transaction, which it was not. He contended, however, that the transaction was rightly treated as benami so as to allow evidence to prove who were the real beneficiaries thereunder.

It was obvious that the learned District Judge was in error in treating the agreement as a fictitious transaction when it was not so. Mr. Chandurkar was overlooking the fact that the rulings on which he was relying for supporting the District Judge''s view that the transaction was benami were distinguishable on facts. In those cases, the father had purchased the property for himself but in the name of the minor son with the intention of concealing the fact that he was acquiring the property for himself. He was himself the buyer and was only wanting it to appear that the buyer was his minor son. The facts of the present case are different. The Defendant is not saying that the minor was not the buyer. He is saying that the agreement was on behalf of the minor, but it was also on behalf of the entire joint family of which he was a member. That defence clearly meant that the Defendant wanted to vary or to add to the terms of the agreement which was reduced to writing as required by law. Consequently, there would be no question of bringing the case under the sixth proviso and section 92 of the Evidence Act would clearly bar this defence. The learned District Judge was, therefore, not justified in upholding that defence. His additional finding that the agreement was also on behalf and for benefit of the entire joint family was clearly vitiated by section 92 and will have to be left out of account, though his concurrent finding that the agreement was on behalf and for the benefit of the minor will have to stand.

Mr. Natu strenuously contended that the findings of fact of the learned District Judge that the earnest-money of Rs. 1000, had flown from the natural father and not from the maternal grandfather and that the agreement was for the benefit of the minor Plaintiff, should be reconsidered and reversed. His arguments in support of the submission were these. The learned Judge had wrongly reversed the findings of fact arrived at by the trial Court. This Court, should, therefore, interfere with those findings of fact on the authority of Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, , Even that ruling was not applicable, the findings of the learned District Judge were erroneous and, therefore, this Court should reappraise the entire evidence and reverse the findings. Mr. Chandurkar contended, on the other hand, that the basic assumption, that the learned District Judge had reversed the lower Court''s findings was unwarranted and there was no question of interfering with the findings of the final Court of facts on that ground. While disputing the correctness of the claim that the findings were erroneous, he submitted that findings of fact, however, erroneous they may be, cannot be questioned in a second appeal, as was held in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, .

Mr. Natu was not in a position to substantiate his basic assumption that the appellate Court had reversed the trial Court''s finding so as to make Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, applicable. His submission that the trial Court had not given "clear-cut findings" and, therefore, the District Judge should be deemed to have reversed the earlier findings, was also entirely unsupportable and unwarranted. When there was no reversal of findings by the first Appellate Court, there was no force in the contention of Mr. Natu that the findings should be reappraised on the basis that they had been wrongly reversed by the first Appellate Court. The ruling in Sarju Pershad''s case, on which Mr. Natu was relying was entirely inapplicable to the facts of the present case. Therein, the High Court sitting as the first Appellate Court, and the final Court of facts, had reversed the findings by the trial Judge who had had the advantage of seeing and hearing the witnesses. When the matter went up to the Supreme Court, their Lordships laid down the principles on which the first Appellate Court should interfere with findings of fact by the trial Court u/s 107 of the Code of Civil Procedure. That ruling was no authority for deciding a second appeal which would be governed by section 100 of the Code of Civil Procedure. That section has been interpreted in several recent decisions of their Lordships of the Supreme Court. It has been held in Ramchandra v. Ramlingam A. I. R. 1903 S. C. 302 that even if appreciation of evidence by the lower Court is patently erroneous or if the finding of fact recorded in consequence is grossly erroneous, that cannot be said to introduce a substantial error or defect in the procedure so as to entitle the High Court to interfere with the findings of fact u/s 100 of the Code of Civil Procedure. In view of that decision and other authorities on the point Mr. Natu was not right in seeking a reappraisal of the evidence or in asking this Court to ignore the concurrent findings of fact.

Mr. Natu was then contending that even though the finding of fact that the agreement was for the benefit of the minor could not be challenged by him, that finding was liable to be quashed for two other reasons; (1) the Courts below had overlooked the fact that it could not be for the benefit of the minor as it provided for forfeiture of earliest-money and made the Plaintiff liable to pay damages of Rs. 2,000 and (2) these terms were onerous. Mr. Chaudurkar contended that in raising the first ground Mr. Natu was only seeking a reappraisal of evidence which he was not entitled to do. According to him, the conditions which were now called onerous were to come into force only on nonperformance of the agreement and the Plaintiff was not entitled to say for that reason that the performance of the agreement was not to his benefit. Mr. Chandurkar further pointed out that the Defendant was also made liable to similar penalties in case of non-performance on his part. As regards the second ground, Mr. Chandurkar''s reply was that the Plaintiff had never raised it in the Courts below and he was not entitled to raise it for the first time in this second appeal.

Mr. Chandurkar was right in saying that Mr. Natu was virtually seeking a reappraisal of the findings of fact on the basis that certain circumstances were not considered. He was not entitled to do it. Moreover , the conditions of forfeiture of the earnest-money and of a liability to pay Rs. 2,000 as a penalty were to arise only in the case of non-performance of the contract and there was no question of those conditions arising in the event of the contract being performed. The possibility of a loss or penalty in the event of nonperformance of the agreement by the Plaintiff himself cannot amount to want of benefit on the completion of the agreement by the Plaintiff. The point to be considered is not whether the Plaintiff would benefit or not by not carrying out the contract, but whether the contract, if carried out, was for the benefit of the Plaintiff or not. In his plaint, there was a mere vague recital that the transaction was not for his benefit but no particulars thereof were given. Actually, the detailed averments in the plaint amounted to say that the possibility of an eventual loss due to litigation was the same as want of benefit. With the findings of fact, that possibility does not survive and there is no question of a consequent loss. It was not the case of the Plaintiff that the consideration was inflated on that the property was worth much less so as to entitle the Plaintiff to say that the transaction was not for the benefit of the minor. This contention must, therefore, fail.

A perusal of the plaint would show that the Plaintiff had never challenged the agreement on the ground that it was onerous. The alleged onerous nature of the agreement was a pure question of fact which was never raised in the trial Court. It is not open to the Plaintiff to raise that question of fact for the first time in second appeal. Moreover, the conditions which are now characterised as being onerous are to arise only in the event of non-performance of the contract and not if the Plaintiff carries out his terms of the contract. It may be pertinent to note that the Defendant also was liable for equally onerous conditions in the event of non-performance of contract on his part. The contention of Mr. Natu that the contract cannot be enforced on the ground of one rouses must necessarily fail.

It would be seen from the foregoing discussion that the natural father had capacity to enter into the agreement on behalf of his minor son, the Plaintiff. By the agreement, the Plaintiff stood to gain valuable property on the main road of Pusad for a consideration of Rs. 12,000. In view of these facts, there was clear mutuality and it was not open to the Plaintiff to say that the contract was hit by the alleged want of mutuality. The Plaintiff had no justification or ground for seeking a rescission of the contract. The learned Appellate Judge was, therefore, right in allowing the appeal and in dismissing the suit of the Plaintiff.

In the result, the appeal stands dismissed with costs. As ordered by the Appellate Court, the cost of the Defendant shall be payable by the natural guardian personally.