Kali Rai vs Karu Singh

Jwala Prasad, J.—These two appeals arise out of a suit brought by the plaintiff for the recovery of money due under a mortgage-bond, dated the 24th September 1907, executed by the defendant No. 1 as guardian of the defendant No. 2. The Courts below have decreed the plaintiff''s suit partially, holding that the minor was benefited only to the extent of half the amount borrowed by his mother, and that the property mortgaged which belongs to the minor is liable only to the payment of half the money advanced.

Appeal No. 1422 of 1916 is by the plaintiff, and Appeal No. 1464 of 1916 is by the minor defendant No. 2. The plaintiff in his appeal contends that he is entitled to a decree for the entire sum advanced by him. The ground for his contention is, that the money advanced was for the payment of a certain rent-decree obtained by the landlords against the minor defendant No. 2 and a co-sharer in the holding, named Nathuni Singh, and that the holding in which the minor was interested was on sale. It is contended, therefore, that the minor was actually benefited by the loan taken by his mother in order to protect the property in which he was interested from sale. Now the money advanced by the plaintiff was, as is mentioned in the mortgage bond and as held by the Courts below, to pay off the decretal amount as well as the arrears of rent for the years 1313 and 1314. The Courts below have held that the minor was liable only to the extent of half the amount of the decree, as well as to half the amount of the rents due for the years 1313 and 1314. It cannot be said to be a prudent act on the part of a guardian to pay more than what is due from his minor ward. The payment by the mother of the other half of the rent and the amount due under the decree was in excess of the minor''s liability and was not at all in the interests of the minor bat went actually to benefit the other co-sharer Nathuni Singh. It baa not been shown that the mother did make any attempt to see that the other half of the decretal amount was paid by Nathuni Singh, or that she actually knew that Nathuni Singh would not pay his share and would allow the entire property to be actually knocked down at the auction sale. It is possible that Nathuni Singh the other judgment-debtor might have at the last moment prevented the sale by paying off the decretal amount due from him. The guardian cannot act upon a mere conjecture that the other co-sharer would not pay and that the entire property would be sold, I, therefore, agree with the view of the Courts below that it has not been proved in this case that the plaintiff creditor used proper discretion in advancing the entire amount when he knew full well that the minor was only liable to half the amount covered by the bond. The plaintiff in this case happens to be one of the decree-holders, as held by the learned Munsif. Apart from the obligation of a creditor to make due enquiry as to the benefit that would accrue from the loan to the minor, the plaintiff knew as a matter of fact that the minor was only liable to half the amount of the decree. The plaintiff, therefore, is not entitled to a decree for more than what has been allowed by the Courts below. This disposes of the appeal of the plaintiff. The appeal should, therefore, in my opinion be dismissed but without any order as to costs.

In the appeal of the minor defendant, the contention is that the minor is not liable at all for the amount covered by the mortgage-bond in suit. It is said that the actual judgment-debtors under the decree were Lachmi Koer the mother of the minor and Nathuni Singh, and that the minor was not at all a judgment-debtor, and hence was not liable to the payment of the decretal amount. It is not disputed that the minor is in possession of the holding in respect of which the rent-decree in question was obtained. As a matter of fact it appears to have been admitted in the written statement of the minor that the minor was liable for half the rent as well as the amount due under the decree. Under the rent-decree the holding itself was liable to be sold, whether the minor was or was not actually a judgment-debtor. It might have been possible for the guardian to have the sale set aside by taking certain proceedings under the CPC on the ground that the minor was not a judgment-debtor, but it would have involved the minor in litigation and heavy expenses which a prudent guardian would try his best to avoid. The rent-decree was, as has been held by the Courts below, a just decree for which the holding was liable. It was, therefore, a prudent act on the part of the mother as guardian of the minor to pay the amount of the decree instead of launching into a heavy and expensive litigation. It has been held by the Courts, below that the financial condition of the minor was not such as to pay the decree, or the rents due from the holding, without taking a loan by the guardian. The necessity in this case has been established, and I, therefore, overrule this contention of the defendant.

It is next contended by the plaintiff that the bond in question was executed by the mother as guardian of the minor and that it has not been expressly mentioned in the bond that the estate of the minor or the minor personally was liable for the payment of the loan taken by the mother, and therefore it is contended that the minor''s estate would not be liable and that the loan taken was merely a personal loan by the mother. This contention appears to me to be unsustainable. Reliance has been placed upon the authority in Bhawal Sahu and Others Vs. Baij Nath Pertab Narain Singh for this contention. But in that case it was said that it was not clear that the debts were incurred for the benefit of the estate of the minor. Whatever be the general observations in the above case, the facts of that case appear to be distinguishable from the present case, in that in the present case it is clear from the bond itself that the money was taken to save the minor''s holding from sale, under the rent-decree. The bond in this case has been executed by the mother describing herself as guardian of the minor. The intention of the mother is clear from the bond that the money was taken not for her own personal purpose but for the benefit of the minor and for the benefit of the estate of the minor. Even if the mother had not described herself as guardian of the minor, the minor''s estate would he liable. The intention of the mother, as is apparent from the document, was to benefit the minor and his estate. The principle laid down in the Privy Council cane of (1887) ILR 15 8 (Privy Council) appears to be applicable to this ease. Upon the principle enunciated there as well as that laid down by Sargent, C.J., in the case of Murari v. Tayana ( 20 B. 286 : 10 Ind. Dec. N.S. 749), it is clear that the omission in a document executed by the guardian of any reference to the minor does not render the document ineffectual, if it is proved that it was the guardian''s intention to deal with the interest of the minor and not merely with any interest that the guardian may himself have. I, therefore, think that there is no substance in the contention of the learned Vakil for the minor. This appeal should also be dismissed but without costs. The result is that both Appeals are dismissed without costs and that the decree of the Court below is upheld.

Chapman, J.

I agree.