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Parbhubhai Morar Vs. Bai Lalita and ors. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom304; 76Ind.Cas.555
AppellantParbhubhai Morar
RespondentBai Lalita and ors.
Excerpt:
minor - contract by guardian--minor, whether bound. - - her contract on his behalf might be ineffectual like one entered into by himself, but the liability to discharge debts incurred for necessaries would remain......money advanced for necessary purposes would be entirely different to those that would arise in a suit on a promissory-note. in a recent case of vithalrao sheshgirirao moktesar v. vithalrdo sondekar 72 ind. cas. 242 : 25 bom. l.r. 151 : a.i.r. (1923) (b.) 244 which was a suit against the members of a joint family on a promissory-note signed by one of them, we said: 'the real point is whether a suit which is primarily a suit on a promissory-note and, therefore, a suit to which particular rules of procedure apply, could also be treated as a suit for the debt for which the promissory-note was passed. if that were permissible difficulties would arise, because the issues in a suit on a promissory-note would be entirely different from the issues which would be raised in a suit against the.....
Judgment:

1. The plaintiff brought this suit against three defendants to recover Rs. 950 being the amount of principal due on a promissory-note dated the 30th November 1921. Admittedly, defendants Nos. 2 and 3 are minors and did not, and could not, make themselves liable on the promissory-note, although as a matter of fact the 2nd defendant signed for his sister. The promissory-note recites that the minor's father Keshavram Parbhuram had taken Rs. 200 and their mother had taken Rs. 300 to institute a suit in a Court. At the date of the note Rs. 627 1/2 were due on those loans. On the day of the note Bai Lalita had taken Rs. 300 to engage another Pleader. The promissory-note was signed for the total Rs. 927 1/2. Then follow the words: 'I had to take these rupees because I conduct a suit in the Court as the guardian of minors named Thakordas and Shankarlal, and I shall pay you the rupees of this promissory-note with interest at one per cent. per mensem whenever you will demand the same.'

2. The suit was decreed against the 1st defendant, but dismissed against defendants Nos. 2 and 3. Avery large number of cases were cited, and we have been referred to various decisions here, but the first point to note is that Lalita was not the natural guardian of the minors. She was only the next friend to conduct the suit on behalf of the minors, and, even assuming that she was a de facto guardian, she does not purport in the document to bind the minors. They cannot, therefore, be personally responsible on the note, nor could Lalita as the next friend or as sister of the minors make a contract with the plaintiff which would bind the estate of the minors.

3. In Maharana Shri Ranmalsingji v. Vadilal Vakhatchand 20 B. 61 : 10 Ind. Dec. 599 it was held that a minor could not be bound personally by contracts entered into by a guardian which did not purport to charge his estate. The Court was there referring to a legal guardian. At page 70 is the following passage: ''While holding, however, that a minor cannot be bound personally by contracts entered into by a guardian which do not purport to charge his estate, we do not think it follows that he is necessarily exempt from liability. If the debts were incurred for necessaries, he would, we believe, be bound to pay them on the general principle embodied in Section 68 of the Contract Act, as his liability would not probably be affected by the fact that the loans were advanced at the instance of the guardian. Her contract on his behalf might be ineffectual like one entered into by himself, but the liability to discharge debts incurred for necessaries would remain. The necessity for them would determine whether or not he was bound to repay them, and not, we think, the reasonable belief of the lender that they were for necessary purposes.'

4. The questions, therefore, which would arise between the plaintiff and the minors in a suit for money advanced for necessary purposes would be entirely different to those that would arise in a suit on a promissory-note. In a recent case of Vithalrao Sheshgirirao Moktesar v. Vithalrdo Sondekar 72 Ind. Cas. 242 : 25 Bom. L.R. 151 : A.I.R. (1923) (B.) 244 which was a suit against the members of a joint family on a promissory-note signed by one of them, we said: 'The real point is whether a suit which is primarily a suit on a promissory-note and, therefore, a suit to which particular rules of procedure apply, could also be treated as a suit for the debt for which the promissory-note was passed. If that were permissible difficulties would arise, because the issues in a suit on a promissory-note would be entirely different from the issues which would be raised in a suit against the whole family to recover a debt. I think an application should have been made in the first instance for amendment of the pleadings when the point was taken that only the party signing the note could be liable in a suit based on the note itself.'

5. We think, therefore, that questions which would orderly arise in a suit against the minors to recover moneys which they might be liable to pay as a debt incurred by their father or by their mother or sister for necessary purposes cannot be decided in this suit, although it will be open to the plaintiff to proceed against the minors in a suit properly framed. Nothing has been decided in the present suit with regard to their liability to satisfy such a demand.

6. The Rule will be discharged with costs. The first defendant appeared, but there was no necessity for her to appear as there was no doubt about her liability. One set of costs.


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