Mears, C.J.
1. The facts of this case will be better understood by a reference to the following pedigree:
Hira Lal|-----------------------------------------------| | |Chuni Lal Ram Kumar Ram Gopal| | |--------------- Nandan Lal | | | | Bal Mukand Hansraj | | |Ganga Baksh || | ------------------- || | |Vital Das Nanik Chand |(Deft. 3) (Deft. 4) |-------------------------------------------------------| | | |Ram Ballahb Ram Belas Ram Niwas Hemraj(Deft. 1) (Deft. 2) |Sons
2. This is the appeal of the plaintiffs from a decision of the Subordinate Judge of Agra in a suit for specific performance. The learned Subordinate Judge decided, for reasons which we shall discuss, that the plaintiffs were not entitled to the relief claimed by them. The plaintiff-firm is known as Swarath Ram-Ram Saran and Sital Prasad is one of the owners of that firm. For many years they had occupied as tenants a godown at Agra. The landlords were the defendants. The defendants in the year 1913 mortgaged this godown together with other Properties to Nemi Chand for the sum of Rs. 90,000 carrying interest at the rate of 6% per annum. On the 11th of April, 1914 it appears that the defendant firm sent a notice to the plaintiffs enhancing their rent from Rs. 400 to Rs. 750 a year. On the 13th of January, 1917 there was a partition. The principal parties to that partition were the sons of Bal Mukand, Ram Kumar and Ram Gopal. The effect of the partition was that Nandan Lal, the son of Ram Kumar, was bought out and thereafter the son of Bal Mukand, Ganga Baksh, and the sons of Ram Gopal each had a half share in the business which, we have been told, was that of commission agents, that is to say, presumably at the end of each financial year the profits of the business would be equally divided between the sons of Ram Gopal and the son of Bal Mukand. In April 1917, and probably towards the end of that month, there was a conversation between Sital Prasad, Ram Ballabh and Nemi Chand as regards the purchase of the godown by the plaintiffs. There was some conversation as regards the price ranging round Rupees 11,300 but eventually on the suggestion of Nemi Chand, Sital Prasad expressed his willingness to give Rs. 12,000 for the property. Ram Ballabh seems to have acquiesced in this as being a reasonable offer and one which he himself would have accepted had the decision' rested entirely with him and he stated that he would return to Sambhar and discuss it with the other people who were interested in the property. At this date there is reason to believe that Ganga Baksh was alive. He was undoubtedly dead on the 27th of May. According to the evidence no message came from Sambhar as to the offer and about the 18th of May, Ratan Lal, munib of the plaintiff-firm, wont to Sambhar and had an interview with Ram Ballabh. The question whether he ever went there has been disputed and it has been pointed out that in this firm one would expect to find a record of his expenses, whereas it is admitted that no record exists. The answer is according to the evidence, that Sital Prasad paid the sum of Rs. 10, 12 or 15 which was said to be the cost of the journey from Agra to Sambhar and back, out of his own pocket.
3. We think be must have gone and on his return he said that there had been an agreement by all the interested parties. The next matter is one of importance. It is said that on the 20th of May Ram Ballabh wrote a lotter to Nemi Chand addressed to Ajmere. At that date apparently Nemi Ohand was in Agra. He was at all events in Agra on the 22nd of May and on the 22nd of May he sent for Sital Prasad who, with Ratan Lal, went to see him. He is stated to have shown the original letter of Ram Ballabh to Sital Prasad and Ratan Lal and Ratan Lal is said to have taken a copy. Before reading the letter we might just mention here that in our opinion the copy of the letter which Was preferred to the Court and which was reserved in evidence ought not to have been received for the reason that the preliminary steps were not taken which would have made that document evidence. Nemi Chand having died, the presumption would be that the letter was in the possession of Tikam Chand, his son and successor to the business, and a notice ought undoubtedly to have been sent to Tikam Chand to produce that document. If Tikam Chand had then said that it was not in his possession, then, if it was likely that it was in the possession of any one else, another notice should have been sent to that person. Indeed it was suggested that the letter had passed into the possession of a man named Ram Kumar who was said to be such a long way away from the Court at a place called Hoshangabad. No matter whether he was there or not, the rules of the Court must be obeyed and before the Judge could have received this copy in evidence he ought to have been satisfied that the preliminary steps bad been taken both as regards Tikam Chand and Ram Kumar to rind out the whereabouts of that original document. However, the case proceeded and the Court accepted the letter and we also now accept it as a true copy of a document which did arrive at Agra on the 22nd of May, 1917 and did come from Ram Ballabh. That letter shows that the writer expected that the munib of the plaintiffs was very likely to have come to Nemi Chand in respect of the sugar godown and the letter further says that the munib has also seen him. That does support Ratan Lal in his statement that he had in fact gone to Sambhar. 'Please send for him and get earnest money in respect of Rs. 12,000 deposited. Please bring him round politely.' Now that undoubtedly meant that Ram Ballabh did not want to lose a purchaser at Rs. 12,000 and he wanted Nemi Chand, who is a man of considerable social position at Agra, to deal carefully and prudently with the munib and arrange the contract. There is the sum of Rs. 12,000 mentioned and it had already been a matter of assent by Nemi Cband that if this money were paid he would reduce the principal sum under'the mortgage to Rs. 78,000 with a corresponding reduction of interest, aud inasmuch as the defendants were receiving Rs. 400 only as rent and were paying Rs. 720 per annum as interest, it was obviously to tbeir interest to get this matter carried through without delay and it was good business to sell the godown. Sital Prasad says that he assented to the terms of this letter and that in faot he gave Nemi Chand a document in writing setting out all the particulars. Again, no stop was taken by the plaintiffs.to get that document and there is no evidence before this Court as to its contents. But we do know that on that day Nemi Chand mentioned Rs. 200 as the necessary earnest money and on that day the Rs. 200 was paid into the account of Nemi Chand. On the 27th of May, 1917 the firm of Seth Ram Ballabh executed a power of attorney to two people, one Tara Chand and the other Kewal Chand. On the 14th of July, 1917 a stamp vendor at Ayra sold a Rs. 120 stamp to a man whose name he recorded as Kewal Ohand, munib of Hira Lal Chunni Lal. It is said that Kewal Chand came down to Agra on this very business and was there round and about the 14th of July. It is further stated that a draft of the sale-deed was prepared by Ikram Husain, that it was submitted to Kewal Chand, that the parties went to a pleader named Basdeo Sahai. Basdeo Sahai thought it better to re-draft the whole agreement. Kewal Chand took that document away with him. At this interview with Basdeo Sahai, and possibly before, the name of Hansraj was mentioned. He, it will be seen; is the son of Chunni Lal and Sital Prasad was anxious that Hansraj should be one of the executants of the sale-deed. Kewal Chand opposed it and said that it was not necessary because Hansraj had become bankrupt in Bombay some time before and bad ceased to have any interest in the business. Sital Prasad was clearly not satisfied with this and instituted enquiries and those enquiries, according to Ratan Lal, took 1 to 2 months and according to Sital Prasad five to six months before it was ascertained that Hansraj had been adjudicated bankrupt. Later we shall show that there is a curious circumstance in connection with this because we have not been able to discover on the record Exhibit IV, mentioned in the evidence of Sital Prasad. The conclusive document which shows that Hansraj did become bankrupt is under the seal of the Bombay High Court. The date when the document was obtained from Bombay is the 30th of September 1918 and it evidences Hansraj's bankruptcy in 1914. On the 29th of July, 1917 the defendants wrote a letter to the plaintiffs. It is a document which has given us cause for a certain amount of doubt as to whether Kewal Chand was in fact in Agra at the time when the stamp of Rs. 120 was purchased because the whole tone of the letter is that of a man who has never seen the text of any draft, who is anxious to got the matter through and who is prepared to send Kewal Chand after the receipt of it. But at all events whatever may be the real truth about it whether Kewal Chand came to Agra or not, this letter of the 29th of July, 1917 asks the plaintiff not to make a delay. From that date, viz., the 29th of July 1917 there is an unbroken silence for a year. It is said that during that period the plaintiffs wore verbally urging the defendants to complete but the evidence is very slender on that and in any circumstance a plaintiff seeking specific performance must show a great deal more than verbal request week after week and month after month to complete. The plaintiffs must force the defendants either to complete or to repudiate. There is no real explanation of how it happened that the delay occurred, but it may very well be that Basdeo Sahai, afc the interview when the name of Hansraj came up, pointed out to Sital Prasad that the mere fact of a bankruptcy of a member of the firm did not make that member walk out of the firm, hut merely substituted his trustee in bankruptcy for him and that if in fact Hansraj had any property in this business that was of value, the trustee in bankruptcy could come in and could claim it. That may have been one of the circumstances that disposed the plaintiffs to hesitate as to whether this contract was worth carrying through. On the 26th of August, 1918 the defendants wrote a letter to the plaintiffs asking for an account relating to the godown which is rented by them. It is very curious that there is no reference whatever to be found in this letter to the fact that they bad through the agency of Nemi Chand entered into a firm contract of the sale of the godown for Rs. 12,000 and the letter is the ordinary letter which one would expect from people who had stood to each other in the relationship of land-lord and tenant. For the moment we pass over a very material date to mention that on the 5th of September, 1918 an account was sent by the plaintiffs in which the included the sum of Rs. 200 which had been paid as earnest money and the further sum of Rs. 120 which had been spent in the purchase of the stamp paper. The explanation of that may possibly be that a munim was told to make out the account as it stood between the parties and he merely took a copy of the ledger exactly as it was and that there was in that ledger no separate rent account and no separate purchase account. An important date to which we have to refer is the 30th of August, 1918. At p. 93 of the record will be found a letter of the most definite repudiation. It shows that there had been a registered letter sent by the plaintiffs after the 12 months of unexplained silence. That registered letter, we are told, was a notice directed to the defendants to complete the contract. We think there is no doubt that by this time the plaintiff-firm had come to know that the defendants second party on the record Sarju Prasad and others had begun the negotiation for the purchase of this godown. The letter of repudiation written on behalf of the firm by a pleader says: 'I neither sold any house to you, nor took any earnest money.' It makes a reference to the fact that the rent should be Rs. 750 and again asks for an account. Notwithstanding that most plain assertion by the defendants that there was no contract and never had been one, the plaintiffs wait ten more months before they commence the action and in fact sent the account of September 5th. In the interval they sent notices to various people who are connected with Sarju Prasad and others, the defendants second party, telling them that they (the plaintiffs) have entered into a contract for purchase of the godown and warning them not to buy over their head. On the 23rd of March, 1919 the defendants first party' sold the godown to the defendants second party for the sum of Rs. 14,250. On the 14th of June, 1919 this suit was instituted.
4. The first question that one has to consider is what was the effect of the death of Ganga Bakhsh at a time when beyond question the proceedings were in the negotiation stage only. From the time of the partition, which had taken placa some four months before, the business presumably had been carried on jointly by Ram Ballabh and Ram Bilas on the one side and Ganga Bakhsh on the other. When Ganga Bakhsh died it did not seem to occur to any of these contracting parties that by operation of law the partnership had come to an end and that there would have to be a reconstitution of the partnership before any sale of this character could be carried through, nor apparently did it occur to the parties that Mt. Godaveri, the mother of Vithal Das and Nanik Chand who were boys of tender ago, was the legal guardian of those minors. At its highest the case is that Run Ballabh has been spoken of in this Court as the de facto manager of the business and de facto guardian of the minors. The fact is that there was in law no partnership business and Ram Ballabh had not behind him any record of past management of the business as it stood at and after the death of Ganga Bakhsh. There is no evidence given to us to show that there was any reconstitution of the business and no evidence given to show that Mt. Godaveri requested Ram Ballabh to look after the interest of the minors or that they had been incorporated into the firm. We are of opinion that in law Ram Ballabh had no authority to act on behalf of these minors. If, however, he had, then it appears to us that the plaintiffs are met by the difficulty which has boon pointed out in Waghela Rajsanji v. Sheikh Masludin (1887) 11 Bom. 551, viz., that Ram Ballabh was purporting to bind the minors by a personal obligation. In this case the mother and guardian of a minor conveyed certain villages which were part of a taluqdari estate in liquidation of debts which were chargeable upon the estate and stating that those villages were rent free, covenanted that if the villages should be assessed to Government revenue, she, the guardian, and her minor son, the ward, would be liable to pay to the purchaser the amount of such Government revenue. The liability was also charged upon other parts of the minor's estate. In fast later those villages were declared assessable to revenue and the question then arose as to whether the minor could be made liable to repay the amount which the purchaser of the village had been called upon to pay. The important passage is to be found at p. 561 and their Lordships of the Privy Council stated that it was conceded that there was not in Indian law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English law. They continue that they are not aware of any law in which the guardian has such a power, nor do they see why it should be so in India. They stated that it would be a very improper thing to allow the guardian to make a covenant in the name of his ward so as to impose a personal liability upon the ward and they held that in this case the guardian exceeded her powers so far as she purported to bind her ward and that so far as the suit was founded on the personal liability of the taluqdar, it must fail. The emphasis there is laid upon personal liability and it is to be noted that in this suit for specific performance the personal liability of the minors is sought to be enforced against them. We have also had called to our notice the case of Mir Sarwarajan v. Fakhruddin Mohammad Chowdhari (1912) 39 Cal. 232 in which Lord Macnaughten in Privy Council laid it down that neither the manager of a minor's estate nor the guardian of a minor is competent to bind the minor or the minor's estate by a contract for the purchase of immovable property. The reason which their Lordships gave was that the minor not being bound by the contract there was no mutuality and even though the minor in that case had reached his majority he could not obtain specific performance of a contract. Sir Tej Bahadur Sapru has put it in argument that the principle in that case is equally applicable whether a minor be a purchaser or a vendor of an immovable property and that in either case the element of mutuality being wanting, no suit for specific performance can be brought by or against the minor. We need not decide this point as we are satisfied that the case must fail on other grounds. Another case which has been brought to our notice is Patchu Ramajogayya v. Vajjula Jagannadhan (1919) 42 Mad. 185. In that case the learned Chief Justice gave a judgment which followed the case of Waghela v. Masludin (1887) 11 Bom. 551 to the full and held that a decree cannot be passed against a minor or his estate on a covenant entered into on his behalf by a guardian for his benefit. Two other learned Judges who arrived at the same conclusion of law gave some rather different reasons for their decision. The case is a strong one because the minor bad though his mother borrowed money for the purposes of defraying the expenses of the marriage of his sister. It was held that his mother as guardian could not enter into a contract on his behalf so as to impose any personal liability on him and in the peculiar tenure of the property it was held that the morbgage which had been given was invalid. The question, however, for the decision of the Madras Bench was solely the question of personal liability. In this connection the case of Imambandi v. Sheikh Haji Mutsaddi A.I.R. 1918 P.C. 11 might also be considered.
5. The result, therefore, is that first of all we hold that Ram Ballabh assumed an authority to deal with the minors' property which he did not possess it in law. Even if he did possess it in law we hold that he could not by any engagement entered into by him put the minors under a personal obligation. There are other matters which, in our opinion, are fatal to this case and we have already mentioned the matter of Hansraj. Undoubtedly the question did arise as to whether Hansraj was to be a party to the conveyance, or not Sital Prasad never appears to have told Ram Ballabh that his objection to the omission of Hansraj's name from the document had been swept away. One had better see exactly what he did say. He said that 'it was agreed' between him and Ram Ballabh that the name should not be inserted. That statement, 'it was agreed,' is a conclusion of fact. It wag not for a witness to draw a conclusion of fact, but it wag for the witness to give evidence of facts from which the Judge would draw his own conclusion as to whether or not it was agreed. Sital Prasad never informed the Court when or where or in what manner he bad communicated to Ram Ballabh the fact that he assented to the omission of Hansraj's name from the document. He says : 'I had a talk with Ram Ballabh about the name of Hansraj being mentioned on receiving the copy of adjudication from Bombay.' We have been quite unable to fix what that date is. If it is a reference to some period about 5 to 6 months after May it would be understandable, but it is not understandable if it is a reference to the 3Oth of September, 1918 on which date he obtained a copy of the record of insolvency because it is inconceivable that Ram Ballabh then said 'very well' as Sital Prasad represents him to have done, when one remembers that exactly a month before the defendants had written a letter of repudiation in the plainest terms. He says : 'When the draft was prepared I did not tell Kewal Chand in how many days I would make enquiry about Hansraj. I said only so much that I would enquire about Hansraj from Bombay. Had not the enquiry satisfied me I would not have obtained the sale-deed. I did not also tell Kewal Chand that I would inform him after making an enquiry.' The position, therefore, with regard to Hansraj is, as we have said before, that it was one important outstanding matter which was certainly outstanding for many months and one which Sital Prasad may never have subsequently discussed with Ram Ballabh or with Kewal Chand.
6. Then comes the final matter of delay. The first delay that is mentioned in the record is 5 to 6 months for obtaining information about Hansraj. Ratan Lal says 1 to 2 months. If in fact Sital Prasad took all that time to enquire, Sital Prasad was grossly negligent because an enquiry of that kind, if made through a proper person, would have resulted in an answer being obtained certainly within 21 days. The only thing which was wanted was the answer to one question - has one Hansraj been adjudicated bankrupt by the Bombay High Court? There was no need to wait for formal documents yet in that way, according to Sital Prasad himself, six months pass by. We have already pointed out that from the 29th of July, 1917 to some time in August, 1918 there is no sign of activity on the part of Sital Prasad. Lastly, when on the 30th of August, 1918, the defendants tell him in terms which admit of no possible doubt that they do not regard him in any sense as a purchaser of the godown, again Sital Prasad waits some ten months. We think those are circumstances coupled with the substantial difficulty about Hansraj which entitle us to assume that Sital Prasad had in fact abandoned all intention of going on with this contract, but was stimulated into activity by learning that the property was likely to be sold over his head. Thereafter he wrote the series of letters of which we have spoken in the hopes that Sarju Prasad would not continue negotiations and that having failed, brought the suit for specific performance. We agree with the learned Subordinate Judge that this is a case in which specific performance should not be granted and inasmuch as we have decided that Ram Ballabh had no authority to act on behalf of the infants, it follows that the whole suit must fail and we, therefore, dismiss this appeal.
7. In view of the fact that Ram Ballabh said untruthfully that the contract had to be carried through within 3 months and in view of the fact that he had also stated that Kewal Chand had ceased to be his munim, whereas in truth and in fact Kowal Chand was carrying, though on their behalf, a sale of Rs. 45,000 in value, on the 23rd of November, 1918 and was acting obviously under the power of attorney of the 27th of May, 1917, we deprive Ram Ballabh and the other defendant's first party of their costs in this Court. Sarju Prasad will get his costs of this appeal from the plaintiffs including fees on the higher scale. The defendants second party Nos. 5 to 13 will get their costs from the plaintiffs including fees on the higher scale.