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Mahmood Ali and ors. Vs. Chinki Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Contract
CourtAllahabad
Decided On
Reported inAIR1930All128
AppellantMahmood Ali and ors.
RespondentChinki Shah and ors.
Excerpt:
- - if, therefore, defendant 8, realizing the difficulties the minors were in, advanced the money which was applied to avert the danger with which they were faced, we are of opinion that the terms of section 68, contract act are clearly applicable. this appeal must fail and is accordingly dismissed with costs......the circumstances of the case. it is argued that no 'necessaries' were supplied to them, but the money advanced by defendant 8 was utilized for payment of government revenue, which ought to have been paid out of the income derived from the zamindari property in respect of which revenue was in arrears. we do not think that the scope of section 68, contract act can be so narrowed down as to exclude a case of this kind. it may be that the guardian of the appellants ought to have paid the government revenue before incurring any other expenses out of the income in his hands, but antecedent mismanagement will not alter the circumstances which existed at the time when the loan was advanced by defendant 8. it cannot be disputed that the property of the minors was threatened to be attached and.....
Judgment:

1. This is a second appeal preferred by defendants 1 to 5 against the decree passed by the First Subordinate Judge of Cawnpore modifying the decree of the Court of first instance in a suit brought by the plaintiff-respondent for recovery of Rs. 637-7 being Rs. 471-6 principal and Rs. 166-1 interest at the rate of one per cent per mensem on foot of a promissory note executed by one Mir Wilayat Husain (defendant 7) under the following circumstances. Defendants 1 to 5 were minors on the date of the pronote. Except one who has since attained majority they are still minors. Mir Wajid Ali (defendant 6) was their certificated guardian. He is a very old man being aged 75, and probably for that reason left the affairs of the minors to be looked after by his son Mir Wilayat Husain, defendant 7. Default was made in payment of Government revenue in respect of the minor's property. Both the lower Courts have found that the Naib Tahsildar arrived to attach the property belonging to the minors for realisation of Government revenue. It was under those circumstances that Dindayal defendant 8 advanced the necessary sum of Rs. 471-6 on foot of the pronote now sued on for payment of Government revenue. But for this timely assistance the property of the minors would have been attached and sold for satisfaction of Government revenue. Defendant 8, the original creditor, assigned his rights to the plaintiff-respondent, who has accordingly brought the present suit for recovery of money due from the estate of the minors. The Court of first instance held that the minors were not liable for payment of what may be found due to the plaintiff-respondent. A decree was, in that view, passed against defendant 7, the executant of the pronote. On appeal by the plaintiff-respondent the lower appellate Court held that the pronote executed by defendant 7 was not binding on the minors, who cannot be made liable on foot thereof. But in view of the circumstances found by it, which we have already mentioned, it held that the provisions of Section 68, Contract Act, justified a decree being passed against the estate of the minors for what had been advanced to satisfy their 'necessity.' It should be mentioned that defendant 6, the guardian, was according to the finding of the lower appellate Court, present when the transaction ending in the execution of the pronote was entered into. The lower appellate Court apparently was of opinion that though he did not execute the pronote, he is to be regarded as a consenting party to the transaction of loan. The decree was, for that reason, passed not only against defendants 1 to 5, the minors, and defendant 7, the executant of the pronote, but also against the gaurdian, defendant 6, who had not joined in execution of the pronote. Defendant 7 has acquiesced in the decree passed by the lower appellate Court and nothing further need be said as regards him. Defendant 7 has likewise not appealed from the decree passed against him by the lower appellate Court.

2. It is contended on behalf of defendants 1 to 5 that Section 68, Contracts Act, relied on by the lower appellate Court is not applicable to the circumstances of the case. It is argued that no 'necessaries' were supplied to them, but the money advanced by defendant 8 was utilized for payment of Government revenue, which ought to have been paid out of the income derived from the zamindari property in respect of which revenue was in arrears. We do not think that the scope of Section 68, Contract Act can be so narrowed down as to exclude a case of this kind. It may be that the guardian of the appellants ought to have paid the Government revenue before incurring any other expenses out of the income in his hands, but antecedent mismanagement will not alter the circumstances which existed at the time when the loan was advanced by defendant 8. It cannot be disputed that the property of the minors was threatened to be attached and there was imminent danger of the same being sold for satisfaction of revenue. If, therefore, defendant 8, realizing the difficulties the minors were in, advanced the money which was applied to avert the danger with which they were faced, we are of opinion that the terms of Section 68, Contract Act are clearly applicable. The word 'necessaries' in Section 68 certainly includes money urgently needed for the requirement of minors and cannot be restricted to what is necessary for elementary requirements of the minors such as food and clothing.

3. In Nandan Prasad v. Ajudhia Prasad [1910] 32 All. 325, Section 68, Contract Act was applied by a Full Bench of this Court to a case in which money had been advanced for the performance of the marriage of the sister of the minor whose estate was sought to be made liable. It was found that the money was really needed for the performance of her marriage. It was held that the money should be considered as one 'supplied for necessaries' within the meaning of Section 68, Contract Act. Reference may also be made to Watkins v. Dhunnoo Baboo [1881] 7 Cal. 140 and Sham Charan Mal v. Debya Singh [1894] 21 Cal. 872, which are in point. In view of the circumstances of the case and the state of the law we have indicated, the decree passed by the lower appellate Court' is correct. This appeal must fail and is accordingly dismissed with costs.


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