Pattur Nagalingappa and Another vs Patukonda Venganna and Nimbagal Gumsidappa and Others

Odgers, J.—In these cases it has been argued that I should decide the point of the guardian''s liability as a. preliminary point and that if I find

for the appellant on that, the case for the respondent goes in both these appeals. The Subordinate Judge has held the guardian personally liable in

spite of Shet Manibhai Premabhai v. Rai Rupaliba 1 Bom.L.R. 646 : 12 Ind. Dec. 648 oil the authority of a ruling of the Calcutta High Court in

Rajani Kanta Roy v. Manmatha Nath Nandi 46 Ind. Cas. 665. The contention for the respondent is that on the wording of Exhibit A the -

guardians have personally bound themselves to pay. That Exhibit A (a hypothecation bond) contains a personal covenant to pay is true; it is

executed by the executants "" who are the guardians of the properties of the two minors,''viz., so and so."" The bond continues ""We have agreed to

pay, the guardians of the estate of minors Naglingappa and Marulappa."" In my opinion there is, on the wording of Exhibit A no personal covenant

to re-pay by the executants except as such guardians as aforesaid. Then it is said that there has been misrepresentation by the guardians. That

representation was to the effect that the guardians had authority to execute Exhibit A and is set out in the plaint, paragraph 6. The Subordinate

Judge decided that the guardians are personally liable on the failure of consideration or deceit and misrepresentation by stating that the money

would be applied to the. benefit of the. minor''s estate. There is no evidence that it was not. The fact that the guardians were dishonest or rash in

business does not Conclusively prove that the money raised by Exhibit A was not employed in the money-lending business, the family business of

the minor''s which ended in a loss. In Shet Manibhai Premabhai v. Bai Rupaliba 1 Bom.L.R. 646 it was pointed out that there could in such a case

be only two representations (a) that of agency as there was here and which was true, (6) that there was power to bind the estate which is a

representation of law; neither of these will, under the circumstances, support a suit on a warranty. [See Beattie v. Ebury (1872) 7 Ch. App. 777 :

41 L.J.Ch. 804 : 20 W.R. 994 The case relied on by the Subordinate Judge is Rajani Kanta Roy v. Manmatha Nath Nandi 46 Ind. Cas. 665.

Neither Shet Manibhai Premabhai v. Bai Rupaliba 1 Bom.L.R. 646 nor the English Law is discussed there. There is no statement of the reasons

which led the Court to affirm the liability of the mother to repay personally. I prefer the English and Bombay authorities. For these reasons I am of

opinion that these appeals must be allowed as regards the personal liability of guardian Pompanna with proportionate costs here and below, i.e.,

appellant will receive and pay proportionate costs throughout.