Amberson Marten, Kt., C.J.
1. This is a reference under Order XLVI, Rule 1, of the Civil Procedure Code, by the learned District Judge of East Khandesh, The point in question is, whether, under the document Exhibit 3 in the case, the minors, who are there mentioned, are excluded by limitation from bringing a suit on the document, or whether they had three years from attaining their majority in which to bring a suit, The learned Judge has felt a difficulty in consequence of a decision of this High Court by Sir Norman Macleod and Mr. Justice Shah in Vishnu v. Keshav : AIR1924Bom468 and has consequently referred this point to us, more especially as he states that other cases in the District are pending on the right decision of this particular point. Vishnu v. Keshav purported to follow the case of Ramanuja Ayyangar v. Sadagopa Ayyangar I.L.R. (1904) Mad. 205 The latter was a case where a promissory note had been taken by the mother and guardian of an infant in her own name. As I read the report, it does not even appear that the minor's name was mentioned at all. Accordingly, the Court there held that the holder of the promissory note was the mother, that she was the proper person to sue on the note and not the minor, and that, accordingly, the ordinary period of limitation applied, and the minor did not get an extended three years after the period of limitation had expired.
2. Again, as I read the decision in Vishnu v. Keshav, the Court there considered that the note was given to and taken by the guardian alone. Sir Norman Macleod in various parts of his judgment says:
The promissory note was taken by his guardian when he was a minor... The note was given to his guardian, and his guardian could have sued on it. The guardian having taken the note, he is the person entitled to sue on it.
3. We have seen the record in that case, and it may well be that the Court acted on the statement of facts in para 1 of the petition for revision in which it was said that the pro-note was passed in favour of the guardian of the minor,
4. Now, it may be admitted that, if one turns to the promissory note itself, which was Exhibit 3 A in that suit, there is a considerable doubt as to whether, in fact, this was the true effect of the note, 'Unfortunately, we have not got the original which of course is in the vernacular, but according to the translation on the record the note begins :-
Promissory note dated Shake 1828 Jeshth Vadya 10th, May 16, 1906, on that day taken in writing by Vishnu Narayan Deo, minor by the vahiwatdar of his estate Sadashivrao Raghunath, to him the promissory note is given in writing by Viahnu Moreshwar Fotbhare.
5. On that translation the important words would seem to be 'to him.' If those words refer to the manager or guardian, then one can quite understand the Court holding that ha was really the holder of the note. If, on the other hand, they refer to the minor, then different considerations may well apply. But whether that particular promissory note was construed in the same way as we ourselves might be disposed to construe it, is immaterial. We are concerned with, the general principle, and we consider that Vishnu v. Keshav can only be considered as an authority in a case where a promissory note has been taken in the name of the guardian alone, and where consequently the facts are similar to Ramanuja v. Sadagopa which that decision purports to follow.
6. If, on the other hand, the promissory note is taken in the name of the minor alone, then we think it reasonably clear that the minor would have three years from attaining his majority in which to sue. That point was in effect decided in Yeknath Ramchandra v. Waman Brahmadev I.L.R. (1885) 10 Bom. 241 a decision of Sir Charles Sargent and Mr. Justice Nanabhai, which was not cited apparently in Vishnu v. Keshav. There, through the instrumentality of the guardian of a minor, a bond was obtained in the minor's name alone. It was argued that the minor's brother could have sued on the bond and given a valid discharge, and consequently the suit was time-barred. But the Court held that the plaintiff's brother not being a party to the bond, Section 8 of the Limitation Act, 1877, did not apply, and that time did not begin to run against the minor until the latter attained his majority.
7. So, too, in Mahipatrav Chandrarav v. Nesuk Anandrav Shet Marvadi (1867) 4 B.H.C.R.109 an account current was continued after the death of a lender for the benefit of the lender's son, and eventually a balance was struck by the mother and guardian of the infant, It was there held that, although the balance was struck by the guardian, the minor would have an extended time after attaining his majority in which to sue.
8. It must also be borne in mind that, under Section 23 of the Negotiable Instruments Act, a minor may inter alia endorse and negotiate promissory notes so as to bind all parties except himself. And in Subba Narayana Vathiyar v. Ramaswami Aiyar I.L.R. (1903) Mad. 88 it was held that it was not open to the defendant to plead that a payee or indorsee, who, on the face of the document, purported to be a principal, was in fact a mere benamidar.
9. In our view, therefore, if the note had been simpliciter to and for the benefit of the minor, the minor would not have been barred until three years after he attained his majority.
10. What, then, is the true construction o the note we have to deal with here It is Exhibit 8, and is described as a debt instalment bond. The parties are thus mentioned : '(1) Pandharinath Manikshet Vaishya Sonar; (2) Bhanudas Manikshet Vaishya Sonar, both minors their guardian mother Saibai.' Then the husband's name is given. They are described as the persons who took the bond, Then the person giving the bond is mentioned as Ajamkha, and his address is given. Then the body of the document shows that a particular buffalo had been bought for Rs. 60 ; that Rs. 10 had been paid, and a balance of Rs. 50 remained. Then follows a promise to pay the balance by certain instalments.
11. In our opinion that document on its true construction is not a document given solely to the guardian within the meaning of Ramanuja Ayyangar v. Sadagopa Ayyangar I.L.R. (1901) Mad. 205 It is a document given to the minors acting by their mother and guardian Saibai, Accordingly, in our view, it has substantially the same effect as if it was given to the minors alone. We cannot accept the contrary argument that we must ignore the minors altogether and treat the document as if it was given to the guardian alone. One must remember that in the ordinary course of events a minor does, for certain purposes at any rate, contract by his guardian, and that, as pointed out in argument, a common form of writing taken in India where minors are concerned is, AB minor, acting by his guardian X.
12. Under these circumstances the view which we take is that this case falls within the principle of Yeknath Ramchandra v. Waman Brahmadev I.L.R. (1885) 10 Bom. 211 and not within the principle of Ramanuja v. Sadagopa and that, consequently, in this particular case the minors had three years from attaining majority in which to bring their suit, That is the result of Section 6 of the Limitation Act.
13. To guard against any misconception, I am not here considering whether the younger minor will have an additional period of limitation from that of his elder brother. I assume that even in the case of the elder brother the suit was brought within three years from the elder brother attaining his majority.
14. Accordingly, I would prefer not to answer the question submitted to us in the rather general form in which it is framed , but to answer that the suit on this particular bond may properly be brought within three years after the elder minor attained his majority ; and that in general where any Court is of opinion, on the true construction of the document in question, that it is taken in the name of a minor or in the name of a minor acting by his guardian, then a similarly exteaded period would apply. But, if, on the other hand, a Court is of opinion that the document is taken solely by the guardian, then that extended period would not be open for the benefit of the minor.
15. As regards costs, Order XLVI, Rule 4, provides that the costs, if any, consequent on a reference for the decision of the High Court, shall be costs in the case. Mr. Chitale is instructed by the defendant, and Mr. Bhandarkar, who has given us the benefit of his arguments for the plaintiffs, is appointed by the Registrar. Consequently, the plaintiffs have not incurred any costs in respect of this reference. We, therefore, think the proper order under Order XLVI, Rule 4, will be that the defendant's costs of this reference are to be costs in the cause.