1. This appeal was preferred by one Mt. Maida who was the principal defendant in the suit out of which it arose. She died during the pendency of the appeal and is now represented by her son Qutubullah and heirs of the other son Wali Muhammad, who also died during the pendency of the appeal.
2. The suit was brought by the plaintiffs B. Kishan Bahadur Singh and three others for recovery of Rupees 6,249-12-0 as damages for certain property having passed out of their possession. The property had been transferred to them by Mt. Maida acting as the guardian of her minor sons Qutubullah and Wali Muhammad, under a sale deed dated 30th July 1908.
3. The circumstances which led to the present litigation are not in dispute. One Namdar died in 1907 leaving his widow Mt. Maida and three sons, Chhedi, Qutubullah and Wali Muhammad. Chhedi died in 1915 and is now represented by his heirs defendants 2 to 4. At the time of Namdar's death and for some time after it Qutubullah and Wali Muhammad were minors. Namdar left shares in several villages. Mt. Maida was appointed guardian of the person and property of her minor sons by the District Judge of Gorakpur, Namdar was indebted to certain persons. An application was made on behalf of Mt. Maida for permission to transfer the four annas and two pies and two suls share said to belong to her minor sons. The sale was to be made in favour of the present plaintiffs in respect of six annaa four pies share belonging to the three sons of Namdar. The District Judge granted permission to Mt. Maida to sell the minor's share. He did not himself make any enquiry as regards the necessity for the alienation but asked a Munsif to investigate and report. On receipt of the Munsif's report the District Judge sanctioned the sale which was effected on the 30th July 1908. On the same date an agreement was executed by Mt. Maida and her son Chhedi, Mt. Maida acting as the guardian of her sons, Qutubullah and Wali Mohammad. A share in another village was hypothecated as collateral security. The agreement provided that
if any interference or loss is caused in the share sold or the sale consideration of the vendees by any act of us, the executants, or our heirs, the vendees shall be at liberty to recover the sale consideration together with damages, penalty and costs incurred in Court with interest, etc., at the rate of annaa four per rupee per annum to be calculated from the date of execution from all the rights, interests and zamindari items appertaining or that may appertain to our six anna share in mauza Pakri....
4. The vendees obtained possession of the share sold to them under the deed-to which reference has already been made. In 1922 Qutubullah and Wali Muhammad instituted a suit for cancellation of the sale deed executed on their behalf by their mother and for recovery of possession of two-thirds of the property covered by the sale deed alleging fraud and collusion on the part of the vendees and pleading want of authority on the part of Mt. Maida to transfer their share. Among other pleas the vendees put forward the plea of limitation. The Court of first instance negatived the plaintiff's case of fraud and collusion but held that the sanction given by the District Judge for the sale made by Mt. Maida on behalf of her minor sons was not a valid sanction as it contravened the provisions of Sections 30 and 31, Guardians and Wards Act. The sale was considered for that reason to be one without the permission of the District Judge and therefore voidable at the option of the minors. It decreed the suit of one of the minors, who, ac. cording to its finding, had attained majority within three years of the institution of the suit. He dismissed the suit of the other minor holding that he had attained majority before three years of the institution of the suit and whose suit was therefore barred by limitation. The vendees and one of the plaintiffs of that suit appealed to this Court. It was eventually held that both the minors had attained majority within three years before the institution of> the suit; and that their suit was within limitation. It was also held that the permission given by the District Judge was not in accordance with law and therefore invalid. In that view the sale was declared to be voidable at the option of the minors and was set aside in respect of the minors' share in the property conveyed by the sale deed. It should be mentioned that the sale deed treated the entire six-annas odd belonging to the minors as if no part of it belonged to Mt. Maida herself. If that share belonged to Namdar and there was no family arrangement after his death, Mt. Maida herself would inherit one-eighth of it and each of her sons would be entitled to one-third of the remaining seven-eighths. In the sale deed however the entire share was treated as belonging to the sons. In decreeing the suit of Qutubullah and Wali Muhammad the Subordinate Judge and this Court treated the entire six-annas odd share as one left by Namdar in intestacy in which the widow had 1/8 and each of her sons had one-third of the remaining 7/8. Accordingly the decree passed in favour of Qutubullah and Wali Muhammad was not in respect of two-thirds of the property sold but of two-thirds of 7/8, the share of each being 7/24. The present suit was brought by the vendees on 7th June 1928 claiming damages. They asked for refund of consideration after making allowance for certain sums of money which were paid by Qutubullah and Wali Muhammad under the decree of the Subordinate Judge and this Court which bad put them on terms. The plaintiffs' case as set out in the plaint is baaed on the allegation that through
the improper act and collusion on the part of the defendants a good deal of lose was occasioned to the plaintiffs who besides suffering the loss of sale consideration, interest, etc., incurred considerable expenses in defending their title and were put to much trouble.
5. The plaint went on to allege that
under a deed of agreement dated 30th July 1908, defendant 1 (Mt. Maida) and the ancestor of defendants 2 to 4 (Chhedi) had covenanted that in the event of there being any loss to, or interference in the possession of, the consideration money or the share sold, the plaintiffs should have power to recover their consideration money with damages, penalty and costs incurred in Court and interest, etc. at the rate of Rs. 25 per cent per annum from a six annas share in mauza Pakri as well as from other property.
6. It was also alleged that
irrespective of the condition of the said agreement, the plaintiffs are, according to law and justice also entitled to have the said amount refunded.
7. Mt. Maida contested the plaintiffs' claim denying the execution of the sale deed in favour of the plaintiffs. She pleaded that she was an illiterate, inexperienced village woman and had no experience of Court proceedings or the execution of a document. She alleged that
at the time of the execution of the documents alleged in the plaint the contesting defendant had nobody to give her advice excepting Chhedi Chaudhari who had joined in the fraud; and the plaintiffs and Chedi give her no opportunity to receive an independent advice, so much so that without the knowledge and consent of the contesting defendant and in her absence they obtained clandestinely a fictitious certificate also from the Court of the District Judge.
8. It should be observed that no part of the plaintiffs' claim is based on any covenant contained in the sale deed and importing personal liability of Mt. Maida. In course of the trial or of the arguments before the trial Judge the plaintiffs appear to have relied upon a clause in the sale deed which according to them made Mt. Maida personally liable for damages in case the vendees were deprived of any portion of the property sold to them or loss was otherwise occasioned to them.
9. Defendants 2 to 4, the representatives-in-interest of Chhedi, contested the plaintiffs' claim on grounds which it is not necessary to mention for the purpose of this appeal. The learned Subordinate Judge held that as each of the three sons on whose behalf the sale-deed in favour of the plaintiffs was executed had a distinct share and as Chhedi's share conveyed by the sale deed is in possession of the plaintiffs who have not been deprived of any part of it, they cannot claim any damages against defendants 2 to 4. The plaintiffs' claim as against them was therefore dismissed. A decree was passed against Mt. Maida for Rs. 3,105-6 0 which represented her liability in respect of the shares of Qutubullah and Wali Muhammad as to which the sale had been set aside.
10. The judgment of the learned Subordinate Judge so far as it decrees the plaintiffs' claim against Mt. Maida is somewhat sketchy. It does not discuss any of the questions that have been argued before us. Mt. Maida'a liability arising from the fact that she executed the sale deed and the agreement in favour of the plaintiff is assumed rather than judicially determined.
11. It was argued before us that Mt. Maida merely acted as guardian of her minor sons in executing the sale-deed and the agreement in question and that she did not incur any personal liability. It was contended that apart from any personal undertaking a guardian is not liable for damages to the vendee if the latter is deprived of part of the property sold by the guardian on behalf of his or her infant ward. In be far as the plaintiffs may be relying upon any personal undertaking of Mt. Maida it was argued by the appellants, that there is nothing in the sale deed and the agreement which can be construed as imposing a personal liability on her. In any case, it was urged, that if such a liability arises on a proper construction of the two documents, there is no evidence to establish that Mt. Maida who was a pardanashin lady, understood that she was incurring a personal liability in a transaction in which she acted in a purely representative capacity.
12. On the general question whether a guardian selling the property of his minor ward is liable for damages to the vendee if the latter is deprived of the whole or part of the property in consequence of the permission of the District Judge conferring authority on the guardian to transfer being found to be invalid. I am clearly of opinion that apart from any covenant personally binding the guardian, he or she is not liable personally for damages to the vendee. From the very nature of the case such liability cannot be inferred. The guardian professes to act on behalf of others whose estate he or she is entitled to manage. Any covenants found in the deed executed by the guardian as such should be considered to be the covenants binding on the minor if such covenants are valid. Merely because the guardian acts on behalf of the minor he or she does not incur any vicarious liability on the failure of the transaction in consequence of a competent Court subsequently declaring that the permission of the District Judge under which he or she acted was ineffective for conferring upon her the power to transfer. We cannot read into a deed executed by the guardian in her representative capacity a clause to the effect that in case any loss is occasioned to the vendee the person and the property of the guardian would be liable. We should not be understood as laying down that in no case is the person and property of the guardian liable. If the guardian has expressly or by necessary implication agreed to indemnify the vendee, in his personal capacity wholly apart from his capacity as guardian of the minor whose interest he represents he would be liable.
13. Of the rulings cited before us, Shet Manibhai Prembhai v. Bai Rupaliba (1900) 24 Bom. 166, has some resemblance to the case before us. In that case the plaintiff, having lent a sum of money to the guardian of her infant son, brought a suit against the minor represented by the same guardian, and a consent decree was passed. Subsequently the minor coming of age had that decree set aside. The plaintiff then sued the guardian for refund of the sum advanced by him alleging that the guardian had represented that she had authority to incur the debt on behalf of the minor and to bind his estate whereas she had actually no such authority. It was held that the plaintiff could not recover, there having been no such misrepresentation as would support an action for a breach of warranty. It was also held that assuming; there was a representation, the only possible representation, if the case be treated as coming within Section 235, Contract Act, was that the defendant represented that she was the agent of her son. But as the plaintiff knew that the son was an infant, he must have been aware that any representation that defendant was her infant son's duly authorized agent was incorrect, for an infant cannot appoint an agent, and consequently no warranty, such as would support a suit, could arise out of such a representation. The foundation of the plaintiff's action in that case was an alleged misrepresentation by the guardian. It was however held, on the assumption that that there was a misrepresentation that the truth being known to the creditor he could not sue for breach of warranty. The case was also argued with reference to Section 235, Contract Act, which provides for cases in which an unauthorised person acts on behalf of another representing that he had the requisite authority. I do not think that Section 235, Contract Act, is in terms applicable to a case in which the position of the guardian, who is not in all respects the agent of the minor is to be considered. In Sabir Husain v. Farzand Husan All. First Appeal No. 256. It was held:
There is no rule general law in force in this province which justifies an inference that a guardian entering into a contract on behalf of his minor son, renders himself liable as surety in the absence of an express contract to that effect; nor is there anything in the Evidence Act which justifies a presumption from the circumstances of such a case that a guardian makes himself personally liable.
14. This was a case in which a Muhammadan father had contracted the marriage of his minor son and agreed to pay a certain amount of dower. In a suit by the heirs of the wife for recovery of dower against the estates of the husband and also of his father both having died in the meantime, the question arose whether the father, who had acted as the guardian of the son on the occasion of the latter's marriage, was liable. In our opinion the principle on which the decision in that case proceeded is applicable to the case before us, so far at any rate as the general aspect of the question is concerned. The learned advocate for the respondents referred us to Adikesavan Naidu v. M.V. Gurunatha Chetti A.I.R. 1918 Mad. 315, in which a manager of a joint Hindu family had agreed to sell immoveable property belonging to himself and the minor members of the family. The manager failed to perform the contract as it was found that the minors were not bound by it. The opposite party sued the manager for damages who was held to be liable. We do not think that that case is any authority for the proposition contended for in the present case. The manager of a joint Hindu family agreeing on behalf of the family also agrees on his own behalf. Any breach of the agreement to which he was a party personally rendered him liable because he had expressly agreed to do what he failed to do. In the case before us it is in controversy whether Mt. Maida gave any personal undertaking. If it be found that she did she may be held to be liable. As already stated the plaintiffs' suit is mainly founded on the agreement executed almost simultaneously with the sale deed. It purports to be on behalf of the minor sons of Mt. Maida represented by her aa their guardian, and by the adult son Chhedi. A share in certain property other than that transferred by the sale deed was hypothecated and it was covenanted that:
We, the executants, therefore...give in writing that if any interference or loss is caused in the share sold or the sale consideration of the vendees by any act of us, the executants, or our heirs, the vendees, shall be at liberty to recover the sale consideration together with damages, penalty and costs incurred in Court with interest, etc....from all the rights, interests and zamindari items appertaining or that may appertain to our six annas share in mauza Pakri...as well as from our other moveable and immoveable properties and person....
15. I do not think this covenant can be construed as if Mt. Maida incurred a personal liability to compensate the vendee. It was clearly intended to bind the minors whom she represented. One of their properties was specifically hypothecated and the general liability of their person and property was also declared. The words 'we, the executants' clearly refer to the sons. There is nothing else in the agreement which can be construed as implying a personal liability of Mt. Maida. The sale deed contains the following covenant:
We or the minors or the heirs, etc, have not nor shall have in future, at any rate, any objection regarding the receipt of money or in respect of possession and (occupation. If for some reason, or owing to any act on our part, there arises any defect in the share sold, the vendees and their heirs are at liberty to recover possession of the share sold in any way possible, and to recover the amount of consideration with interest, damages and costs, etc., from the persons and moveable and immoveable properties of us and the minors.
16. Except for an argument which we shall presently mention, the same considerations apply to this clause as to that occurring in the agreement. It is however pointed out that the words 'we' and 'us' in addition to the 'minors' imply that the undertaking was given by Chhedi and Mt. Maida. We do not think that it was the intention of the executants of the sale deed to declare that Mt. Maida would be liable otherwise than as guardian of her minor sons. The clause is loosely worded, but in our opinion the words 'we' and 'us' which are the translation of the vernacular 'hamare' have reference to one of the executants, namely Chhedi. All that the clause means is that Chhedi and the minors are bound as stated in the clause. The word 'hamare' is sometimes loosely used for one individual. If it had been the intention of the parties to the deed to provide that Mt. Maida would be personally liable, it is inconceivable to us that that intention would not have been expressly mentioned and should have been left to be inferred from dubious expressions like those referred to. Moreover the clause makes the executants liable on damage resulting to the vendee from any action of their own. It is not said that anything was done by Mt. Maida which deprived the vendee of part of the property sold.
17. In this connection it was argued by the learned advocate for the appellants that if this clause bears the interpretation which is sought to be put upon it the plaintiffs must show that it was explained to Mt. Maida and that she fully understood that by executing the sale deed she was incurring a personal responsibility. It is said that Mt. Maida was a pardahnashin lady and that any clause adversely affecting her cannot be enforced against her unless it is shown by satisfactory evidence that she had full knowledge of its nature and effect upon her interest. In our opinion this contention has force, if Mt. Maida be considered to be a pardahna-shin woman. The learned advocate for the respondents urged that Mt. Maida was not a pardahnashin woman. He referred to the circumstance that she was identified before the Sub-registrar by a patwari. This fact is noted in the registration endorsement. At the same time it is also noted that she was in a covered dooly at the time of the identification. There is evidence of a witness Rustam who clearly stated that Mt. Maida was a pardahnashin woman. Beyond the fact that she was identified on that occasion by a patwari, who was no relation of hers, there is no categorical denial of that fact in the statement of any of the plaintiffs' witnesses. The Sub-registrar treated her as a pardahnashin woman, and in our opinion the case must be decided on the hypothesis that she was pardahnashin. The plaintiffs did not rely in their plaint upon the clause in the sale-deed quoted above. If they had done so the question would in all likelihood have arisen more prominently than it did. In the written statement the defendants put the plaintiffs to proof of facts which are expected to be established in cases in which deeds executed by pardahnashin ladies are sought to be enforced. Mt. Maida belonged to a zamindar family of Muhammedans, and it is a matter of notoriety that women of her class are pardahnasbin.
18. Assuming Mt. Maida to be a pardahnashin woman and assuming that the clause occurring in the sale deed to which reference has been made can be rightly construed as implying a personal liability of Mt. Maida, the plaintiffs have in our opinion made no attempt to establish that the clause was explained to and was understood by Mt. Maida in that sense. In Amarnath Shah v. Aahan Kuar (1892) 14 All. 420 at pp. 426 and 427, it was observed by their Lordships of the Privy Council that there is no evidence that she was told that amongst the somewhat profuse heap of words conferring ordinary powers on a general attorney, there lurked just three words having a far different effect, the effect, namely, of subjecting her expectant estate to a burden which she was gratuitously undertaking. There is no evidence that at this time she knew anything about a prior mortgage.
19. It can be similarly urged with considerable force in the present case that Mt. Maida could not be expected to realise the effect of the words 'we' and 'us' as is now sought to be given to them. There is absolutely no evidence that her attention was drawn to that particular clause. It is true that the registration endorsement mentions the fact that the deed as a whole was read and explained to her, but in our opinion the explanation of the deed was wholly inadequate if her attention was not drawn to this particular clause and she was not definitely told what it meant, assuming that the sub-registrar himself was conscious of the meaning which is now put upon it. For these reasons we hold that in the first place the clause properly construed does not imply any personal undertaking by Mt. Maida, and assuming it does it cannot be enforced against her in the absence of evidence that it was explained to her and she understood that its effect was what it is now said to be. Reference was made in course of the argument to Section 55, Transfer of Property Act. It was argued that Mt. Maida who should be considered to be the 'seller,' who is to be deemed to have contracted
that the interest which the seller professed to transfer to the buyer subsisted, and that she had power to transfer the same.
20. Reliance is placed upon Sub-section (2) of Section 55. It should however be borne in mind that the presumption arising under that sub-section is subject to a contract to the contrary. Assuming that Mt. Maida can be considered to be the seller and that Sub-section (2) of Section 55 is otherwise applicable, we do not think she can be deemed to have contracted with the plaintiffs that she had power to transfer otherwise than under the authority of a permission granted by the District Judge. The permission is expressly recited in the sale deed. Any authority which Mt. Maida had to execute a sale deed on behalf of her minor sons is derived from the provisions of the Guardian and Wards Act and the permission given by the District Judge.
21. The plaintiffs were fully aware of the nature and extent of her authority. With their eyes open they took a sale deed from Mt. Maida without scrutinising the legality of the permission under which she was acting. Apart from this, in our opinion, in so far as Mb. Maida can be said to have incurred any liability under Section 55(2), she did so in her capacity as guardian, and if the vendees are entitled to recover any compensation they should do so from 'her in that capacity, that is from the property of her minor wards. The minors who were held not to be liable could not be bound by any implied covenant such as this. The effect of such an implied covenant is to bind the minors if the sale is valid. The sale having been set aside they or their property cannot be liable under an implied covenant. The proviso to Sub-section (2) of Section 55 has an important bearing on this aspect of the case. It is as follows:
Provided that, where the sale is made by a person in a fiduciary character, be shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.
22. Mt. Maida had undoubtedly a fiduciary character in relation to the sale deed executed by her. She should be deemed to have given a limited warranty in terms of the proviso, namely, that the seller (Mt. Maida) had done no act whereby the property was encumbered or whereby she was hindered from transferring it. It is not suggested that she had done anything which curtailed her power of transfer. Any limitation on her power which proved fatal to the sale arose from the defective certificate granted by the District Judge for which she cannot be held responsible. In the view of the case we have taken Mt. Maida did not render herself personally liable for damages to the plaintiffs who were deprived of the property considered to belong to the minors. In lour opinion their suit as against her [should have been dismissed. Accordingly |we allow the appeal, set aside the decree appealed from so far as it is against Mt. Maida, and dismiss the plaintiffs' suit with costs as against her.