IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 3743 of 2011 (O&M) Date of decision: December 06, 2011 Sat Pal Saini .. Appellant Vs. Gulzar Ali and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Krishan Singh, Advocate for the appellant. None for the respondents. A.N. Jindal, J (Oral) CM Nos.10625-26-C of 2011 Heard. For the reasons as mentioned in the applications, the same are allowed and the delay in filing as well as in re-filing the appeal is condoned. RSA No. 3743 of 2011 The plaintiff- appellant (herein referred as, 'the plaintiff') Sat Pal had filed a suit for specific performance of contract dated 20.11.2001 (Ex.P1) extended up to 17.10.2002, with thedefendant No.1- respondent qua the property of the defendants No.2- respondent No.2 (minor). Having failed to perform the contract by the defendants, plaintiff filed the suit which was dismissed by the trial court vide judgment dated 12.11.2009. However, the first appellate court, vide judgment dated 23.12.2010 partly decreed the suit for the alternative relief of `14000/- which the defendant No.1 had received under the agreement. As such, the plaintiff has preferred this regular second appeal. At the very opening of the arguments, it was contended that the defendants- respondent are Mahomedans. Though, Gulzar Ali- defendant No.1 entered into an agreement of sale of the property owned by his minor son Kayum Khan, yet, the agreement Ex.P1 reveals that he had to sell it for the maintenance and study of the minor, therefore, as per provisions of Section 362 of the Mulla's Principles of Mahomedan Law, the defendant No.1 was competent to enter into any such contract and the same cannot be said to be void, therefore, the decree for specific performance should have R.S.A. No. 3743 of 2011 (O&M) -2- *** been passed. Having considered the rival contentions, notwithstanding the fact that the defendants are mahomedans, yet, the case of the plaintiff is not covered by the provisions of Section 362 of the Mulla's Principles of Mahomedan Law, which reads as under :- “362. Alienation of immovable property by legal guardian – A legal guardian of the property of the minor (S. 359) has no power to sell the immovable property of the minor except in the following cases, namely, (1) where he can obtain double its value; (2) where the minor has no other property and the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid, and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.” Undoubtedly, the defendant No.1 being the father, is the legal guardian of the minor, as per Section 359 of the Mulla's Principle of Mahomaden Law, but the argument that the case is covered under sub- Clause (2) of Section 362 of the Mulla's Principles of Mahomedan Law does not appeal to the conscience of the court. The factum that the minor had no other property and the sale is necessary for his maintenance was required to be pleaded by the plaintiff, but, he has failed to do the same. Even otherwise, the onus lay heavily upon him to prove that the minor had no other property and the sale was necessary for his maintenance which he had failed to shift. It is also settled by now that the legal guardian of the property of the minor under Mahomedan Law has no power to sell the immovable property except in view of the aforesaid circumstances. Similar observations were made in case Gulzar Singh v. Gulphan and ohters (2009-3) PLR 530 (P&H) wherein it was held that the property of a minor Mahomedan can be sold only if the sale is for the benefit of the estate and it R.S.A. No. 3743 of 2011 (O&M) -3- *** further complies with the stipulations under Section 362 of the Mulla's Principles of Mahomedan Law. Similar view was earlier taken in Gulam Ali vs. Inayat Ali and another, AIR 1933 Lahore 95 and Meethivan Sidhique vs. Muhammad Kunju Pareeth Kutty 1997 (1) Apex Court Journal 349 (SC) by holding that the property of the minor mohammedan can only be sold or alienated keeping in view the provisions of Section 362 of the Mulla's Principles of Mahomedan Law. Further more, the Principles of the Mahomedan Law are being un-codified. The Indian Contract Act, 1872 governs the contracts by referring as to which contracts are valid and who were competent to contract. Section 1 excludes such laws and regulations, usage and customs of trade or any incident of any contract which is inconsistent with the provisions of this Act. Section 10 of the Act relates to the contracts which reads as under :- “10. What agreements are contracts - All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. Nothing herein contained shall affect any law in force in India and not hereby expressly repealed, by which any contract is required to be made in writing or in the presence of witnesses, or any law relating to the registration of documents.” In view of Section 11 of the Contract Act, 1872, a minor is not competent to contact, which reads as under :- “11. Who are competent to contract – Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he R.S.A. No. 3743 of 2011 (O&M) -4- *** is subject.” It has also been settled time and again that contract conducted by the legal guardian on behalf of the minor for selling the property without the permission of the court is a void contract, as Section 23 expressly bar such contracts which are forbidden by law, immoral, involves or imply injuries to the person or the property of the other and opposed to the public policy. As such, the defendant No.1 being not competent to enter into contract on behalf of the minor would certainly be treated as void. However, the trial court while considering individually that since the defendant No.1 had received a sum of `14,000/- from the plaintiff, therefore, he was bound to return the same to him, decreed the suit of the plaintiff to that extent. Both the courts below have returned concurrent findings of facts and appreciated the legal proposition as involved in the case. No question of law much less substantial question of law arises in this case for determination. No grounds to interfere. Dismissed. December 06, 2011 (A.N. Jindal) deepak Judge