Brij Nath Prashad vs Buxi Bindeshwari Prasad Singh and Another

Ross, J.—The plaintiff''s case was that the defendant No. 1 was appointed his guardian tinder the Guardians and Wards Act on the 16th of July 1913, and was required to furnish security. This security was given by the grand father of defendant No. 2, the appellant, who is stated in the plaint to have been a relation of defendant No. 1 and whose son worked as cashier in the Kayesth Bank under defendant No. 1 who was the manager. The suretyship bond was executed for Rs. 1,250 and it was stipulated therein that in case of any money being found due from defendant No. 1, the properties detailed in the bond would remain mortgaged and hypothecated for realization of the aforesaid money. On the 7th of December 1915 the defendant No. 1 resigned his guardianship and on an audit of his account a sum of Rs. 1,042-6-8 was found due from him. The plaintiff, therefore, claimed a decree for this amount against the defendants, to be realised by sale of the mortgaged properties specified in the suretyship bond. The principal defence was that the grandfather of defendant No. 2 had no right to execute the suretyship bond and that under the Mitakshara School of Hindu Law neither the defendant nor his property was liable for the plaintiff''s claim.

The Munsif who tried the suit found that the defendant No. 2 was not benefited by the bond; that it was not necessary for his grandfather to stand surety, for defendant No. 1 and that he did this by way of favour only. He then proceeds to say: "The security bond (Ex. 3) recites that the executant was to make good any loss caused by defendant No. 1 to the extent of Rs. 1,200. In other words it recites that the grandfather stood surety against embezzlement or misappropriation on the part of defendant No. 1 and this cannot but be called to be unlawful so far at least as the other members the joint family were concerned;" and, therefore, the minor was not legally bound to pay this debt. The learned Additional Subordinate Judge reversed this decision and gave the plaint-ill a decree. He held that the main question was whether the act of the grandfather of defendant No. 2 could be said to be unlawful or illegal; and following the decision in Benares Bank Ltd. v. Jugdip Narayan Pandey 62 Ind. Cas. 465 : 2 P.L.T. 468 : 6 P.L.J. 198 he held that the plaintiff was entitled to a mortgage decree.

The real question is as to the nature of the suretyship bond and whether the grandfather of defendant No. 2 stood surety for the honesty of defendant No. 1 or for the payment of a debt It is conceded that in the former case the bond is not enforceable and, in the latter case, it is; and this is clear from the authorities: Mahabir Prasad v. Siri Narayan 48 Ind. Cas. 27 : 3 P.L.J. 396 : 4 P.L.W. 437 : (1918) Pat. 328 and Tukarambhat v. Gangaram Mulchand Gujar 23 B. 454 : 12 Ind. Dec 301 and Maharaja of Benares v. Ramkumar Misir 26 A. 611 : 1 A.L.J. 330 : A.W.N. (1904) 142. Now, in my opinion, there is no basis for the finding of the Munsif that the security bond recited that the grandfather stood surety against embezzlement or misappropriation on the part of defendant No. 1. It is not suggested that there is any reference in the bond to embezzlement or misappropriation. What a guardian appointed under the Act is required to do is to give a bond, with or without sureties, engaging duly to account for what he may receive in respect of the property of the ward. The defendant No. 1 failed to account to the extent of Rs. l,042-6-8. This may have been due to a variety of causes and it cannot be held that any case of embezzlement is involved here. The grandfather of defendant No. 2 undertook to make good to the extent of Rs. 1,250 any default in the payment of the cash balance of the guardianship properties. The undertaking was simply an undertaking to make good a sum of money. The grandfather of defendant No. 2 cannot be said to have stood surely for the honesty of defendant No. 1. In my opinion the learned Subordinate Judge took the right view in this case and the appeal must be dismissed with costs. It should, however, be made clear in the decree that the property of defendant No 2 is only to be proceeded against in case the debt cannot be realized from defendant No. 1.

Kulwant Sahay, J.

I agree.