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Keshav Madhavrao Deshmukh Vs. Balaji Vasudeo Athavale - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberSecond Appeal No. 272 of 1929
Judge
Reported inAIR1932Bom460; (1932)34BOMLR996
AppellantKeshav Madhavrao Deshmukh
RespondentBalaji Vasudeo Athavale
Excerpt:
.....charge on minor's property-minor not bound by such contracts-promissory note by certificated guardian-sanction of court-guardians and wards act (viii of-1890), section 33-minor not bound by such note.; a minor is not personally bound by contracts entered into by a guardian which do not purport to charge his estate.; waghela rajsanji v. shekh masludin (1887) l.r. 14 i.a. 89 : s.c. i.l.r. 11 bom. 551, 561 and maharana shri ranmalsingji v. vadilal vakhatehchand (1894) i.l.r. 20 bom. 61, followed.; a promissory note passed by the certificated guardian of a minor, with the sanction of the court under section 33 of the guardians and wards act, 1890, is not binding on the minor or his property. - - in point of fact, the matter must be decided by equity and good conscience, generally..........of the guardians and wards act are clear. under section 27 a guardian has to deal with the minor's estate as a prudent owner would deal with his own. under sections 28 and 29 his powers of alienating or charging the estate are restricted and he cannot either sell, mortgage or otherwise dispose of the estate without obtaining the sanction of court which has appointed him to be a guardian. then comes section 33 which gives him the right to approach the court for directions and advice. but such advice by itself cannot, in my opinion, impose a liability on a minor where none existed. the effect of the sanction under sub-clause (8) of section 33, in my judgment, is that it raises a statutory presumption of a faithful performance by the guardian of a duty cast upon him and protects him.....
Judgment:

Rangnekar, J.

1. The question in this appeal is whether a minor is liable on a promissory note passed by his guardian with the sanction of the Court. The material facts are that the grandfather of the minor defendant died possessed of considerable property which by his will he settled on trust for the benefit of his grandson. By the will he appointed his daughter Kondubai and the minor's mother as his trustees. Kondubai passed a promissory note on November 22, 1917, in favour of the plaintiff, and in 1920 she passed another note in renewal of the former for Rs.750. In the meanwhile both these ladies realised the estate and it appears came into possession of a considerable amount of money. They invested the money in their hands in constructing several buildings and in running a flour mill. These ventures did not turn out successful, and the evidence shows that the first promissory note of 1917 was passed for the purpose of borrowing moneys in order to complete a building. Thereafter they applied to the District Court for being appointed guardians of the property of the minor, and Kondubai and the Deputy Nazir of the Court were accordingly appointed as such guardians. In 1923 the second promissory note was renewed once again but this time with the sanction of the District Judge. It is on that note that the present suit was brought by the plaintiff. The trial Court found that the moneys were borrowed for the benefit of the defendant but held that the executants, viz., the two guardians had no authority to pass the promissory note which consequently did not bind the minor. The Court, therefore, dismissed the suit. The plaintiff appealed and the appellate Court raised two issues, viz., whether the executants of the promissory note had authority to pass it and whether it bound the estate of the minor. The learned appellate Judge found these issues in the negative and confirmed the decision of the lower Court. Hence this appeal,

2. Mr. Desai for the appellant says that as the trial Court found that moneys were borrowed in the first instance by the promissory note of 1917 and utilised them for the benefit of the minor, and the promissory note in suit was executed after obtaining sanction from the District Court, the minor is personally bound to pay the amount thereof to the plaintiff. It may be mentioned that pending the suit the minor attained majority and a consequent amendment in the plaint was made.

3. As early as 1887 the question as to the liability of a minor came before their Lordships of the Privy Council in the case of Waghela Rajsanji v. Shekh Masludin and their Lordships observed as follows (p. 96):-

Now it was most candidly stated by Mr. Mayne, who argued the case on behalf of the Respondent, that there is 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. In point of fact, the matter must be decided by equity and good conscience, generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. Their Lordships 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 concieve that it would be a very improper thing to allow the guardian to make covenants in the name of his ward, so as to impose a personal liability upon the ward,...

4. That case was followed in Maharana Shri Ranmalsingji v. Vadilal Vakhatchand I.L.R. (1894) Bom. 61 and there it was held that a minor cannot be bound personally by contracts entered into by a guardian which do not purport to charge his estate. These authorities are binding on me, and the principle laid down in these cases has been followed in many decisions of some of the Indian High Courts. It is unnecessary to refer in detail to these decisions. But the principle which seems deducible from them is that although a guardian can under certain circumstances sell or charge his ward's estate or property, he cannot bind him personally by a simple contract debt, nor can he bind his estate except by a document purporting to bind it. The observations of that learned author Trevelyan is his well-known book on Law of Minors are also to the same effect. In my opinion it is too late in the day to contest the position that a guardian cannot personally bind his ward by contract which does not purport to bind his estate. The case of Maharana Shri Banmalsingji v. Vadilal Vakhatchand was referred to with approval by Sir Norman Macleod and Mr. Justice Crump in Parbhubhai v. Bai Lalita (1923) Civ. App 257 of 1922, decided by Macleod C.J. and Crump J., on January 19, 1923, (Unrep), of course, as Mr. Desai says, that was not a case of a Court guardian, nor was any sanction obtained in that case from the District Court as in this, But apart from the question of sanction, it seems to me that the principle to be applied in the case of a minor in regard to a personal contract or a covenant must be the same whether the minor happens to be a ward of a Court or is under the protection of a testamentary or natural guardian. Mr. Desai relies on Hunoomanpersaud Panday v. Mussumat Babooee Munraj Koonweree (1856) 6 M.I.A. 393 and a decision of the Madras High Court in Raman Chettiar v. Tirugnanasambandam Pillai I.L.R. (1926) Mad. 217 But those are cases in which the estate of the minor was charged and the question was whether the charge was incurred for a legal necessity or for the benefit of the minor. In my opinion, therefore, the appeal must fail on this ground.

5. The only point which remains now is the effect of the sanction behind the promissory note in suit. The provisions of the Guardians and Wards Act are clear. Under Section 27 a guardian has to deal with the minor's estate as a prudent owner would deal with his own. Under Sections 28 and 29 his powers of alienating or charging the estate are restricted and he cannot either sell, mortgage or otherwise dispose of the estate without obtaining the sanction of Court which has appointed him to be a guardian. Then comes Section 33 which gives him the right to approach the Court for directions and advice. But such advice by itself cannot, in my opinion, impose a liability on a minor where none existed. The effect of the sanction under Sub-clause (8) of Section 33, in my judgment, is that it raises a statutory presumption of a faithful performance by the guardian of a duty cast upon him and protects him as regards his own liability either under his bond or in general to the Court or as against the minor. But the question before me is not whether the guardians acted prudently or not or executed this promissory note in the course of a faithful performance of their duty, but the question is whether they can bind the minor personally by a contract which they made in their own name and on the face of it for themselves. That question, as I have pointed out, can only be answered in one way having regard to the authorities not only in this Court but in other Courts. But apart from this question of law, it appears that there are no merits in the case for the plaintiff. It is undoubtedly true, as Mr. Desai says, that the trial Court found that the first promissory note was passed for the benefit of the minor, but the lower appellate Court seems to have come to a different conclusion, and as far as I can see, except the fact that the house in connection with which it is said the moneys were borrowed on the first promissory note is now occupied by the minor, it is difficult to hold that the dealings of Kondubai and her general administration of the estate of which she was a trustee prior to her appointment as a guardian by the Court were beneficial to the estate of the minor. It is unnecessary to go into details, but there is no doubt that these ladies having come into possession of a large amount of money spent it, undoubtedly in the hope of augmenting it, but foolishly, in land and building speculation, and the lower appellate Court held that Kondubai was squandering the estate and the plaintiff was assisting her in doing so. That is a finding of fact which is binding on me in second appeal.

6. The appeal, therefore, must be dismissed with costs.


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