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A.R. Krishnan Chetty (Died) and ors. Vs. Vellaichami thevan (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported in12Ind.Cas.568; (1911)21MLJ1077
AppellantA.R. Krishnan Chetty (Died) and ors.
RespondentVellaichami thevan (Died) and ors.
Cases ReferredBhaval Saha v. Baijnath Pertab Narain Singh I.L.R.
Excerpt:
.....de facto guardians and to incur debts hi good faith for the benefit of a minor, could not bind the minor's property by their acts, if in fact they had no legal status as guardians. the position of a mother after the appointment of a guardian by court appears to be no better, even though she may be guardian of the minor's person as in this cage. the want of authority of a de facto guardian is a good defence to a suit brought by a mortgagee to enforce his mortgage against a minor, though if the positions were reversed and the minor was suing to set aside the mortgage, as was held in nizam-ud-din shah v. 288 the certificated guardian joined with the minor in executing the mortgage in dispute but failed to obtain the court's permission, and the court treated the transaction as voidable and..........the appellant's behalf fall far short of establishing the proposition that, when a guardian of a minor's property is appointed under the guardians and wards act, persons other than such guardians can legally bind the minor's estate. it would be exceedingly inconvenient for the minor's interests if there was such conflict of authority between guardians. the legislature has in fact provided for such an eventuality so far as guardians appointed by court are concerned. section 7(2) of the guardians and wards act takes away the power of any guardian net so appointed, by declaring that the court's order appointing a guardian under the act will have the effect of removing any other guardian. sections 29 and 30 provide against the lawfully appointed guardian encumbrancing or alienating.....
Judgment:

1. The plaintiff in the lower court, a money-leader by profession, based his claim upon two hypothecation bonds, Exhibit Z, for Rs. 1,000 executed on July 27th, 1898 and Ex. A for Rs. 3,000 executed on June 28th, 1899, and as his suit was dismissed he now appeals, On account of the first defendant's minority, a guardian named Krishnasawmy Iyer was appointed on January 18th, 1897, under the order of the District Court of Madura, marked Ex. CC. On November 20th, 1899, by force of orders marked Ex. EE and FF, the first defendant's mother who had by Ex. CC been made guardian of the persons of the first defendant and his minor sister jointly with the guardian of their property was appointed guardian of their property also and Krishnasawmi Iyer was discharged from his office. On October 31st, 1900, the first defendant was declared by the court to have attained majority and the guardian's powers ceased.

2. Exhibit L was executed by the first defendant's mother Rukku Nachiar alone, purporting to act as guardian of the first defendant and his sister. Exhibit A was executed both by the first defendant and his mother, but she does not describe herself therein as his guardian. A comparison of dates easily shows that both documents were executed during the continuance of the guardianship of the guardian of the property appointed by court. The Subordinate Judge has found that the first defendant was below eighteen years when the guardian was appointed. Mr. Srinivasa Aiyangar has asked us to come to a different conclusion on the evidence, but on this point we may briefly remark that no evidence, sufficient to rebut the legal presumption that the first defendant was a minor when guardians of his person-and property were appointed by the court having jusisdiction under Act VIII of 1890, has been laid before us.

3. As regards Exhibit L, it has been contended that it is valid on the ground that it was executed by the first defendant's mother who was guardian of his person and de facto guardian of his property, if the debt was incurred for necessary purposes. But in the first place there is no proof that she was de facto guardian beyond the vague statement of the plaintiff's 8th and 9th witnesses that her men managed the first defendant's villages and there was no suggestion of the kind in Exhibit DD when a motion was made to the court to remove Krishnasawmi iyer and appoint Rukku Nachiar. In the second place the authorities cited on the appellant's behalf fall far short of establishing the proposition that, when a guardian of a minor's property is appointed under the Guardians and Wards Act, persons other than such guardians can legally bind the minor's estate. It would be exceedingly inconvenient for the minor's interests if there was such conflict of authority between guardians. The legislature has in fact provided for such an eventuality so far as guardians appointed by court are concerned. Section 7(2) of the Guardians and Wards Act takes away the power of any guardian net so appointed, by declaring that the court's order appointing a guardian under the Act will have the effect of removing any other guardian. Sections 29 and 30 provide against the lawfully appointed guardian encumbrancing or alienating portions of the minor's estate without the court's permission. In Nathu v. Balwant Row I.L.R. (1903) Bom. 90 it was held that an adverse act of a mother, while acting de facto guardian of her son, in disposing of the minor's property as if it was her own and purporting to pay her own debts, although the purchase money was in fact applied in payment of debts for which the minor was liable, would not bind the minor for whom a guardian had been appointed by court. The effect of appointments under the Act of extinguishing the powers of a natural guardian is discussed in Ramchander v. Chanda Lal I.L.R. (1904) A.L.J. 460. No doubt these cases are not on all fours with the present, but they show how other courts have treated the powers of certificated guardians as exclusive, and the language of the Act is clear enough. In Abdul Khader v. Chidambaram Chettiar I.L.R. (1908) M. 276, where the parties were Mahomedans, this court held that persons purporting to act as de facto guardians and to incur debts hi good faith for the benefit of a minor, could not bind the minor's property by their acts, if in fact they had no legal status as guardians. The position of a mother after the appointment of a guardian by court appears to be no better, even though she may be guardian of the minor's person as in this cage. The want of authority of a de facto guardian is a good defence to a suit brought by a mortgagee to enforce his mortgage against a minor, though if the positions were reversed and the minor was suing to set aside the mortgage, as was held in Nizam-ud-din Shah v. Ananda Prasad I.L.R. (1896) A. 373, a court might equitably decline to grant relief until the plaintiff compensated the mortgagee to the extent to which he had benefited by the money advanced on the mortgage.

4. Turning to the decisions cited on the other side, they do not help us much, Honappa v. Mahalpai I.L.R. (1890) Bom. 259 and Manishankar Pranjivan v. Bai Muli I.L.R. (1888) Bom. 686 deal with the powers of natural guardians when no certificated guardian has been appointed. So also the cast of Arunachella Reddi v. Chidambara Reddi (1902) 13 M.L.J. 223. There was a testamentary guardian in that case and he acquiesced in the alienation made by the natural guardian for necessity. In Ananthayya Kamtti v. Lakshmi Narayanappayya (1904) 15 M.L.J. 233 there was a caretaker in possession of a minor's estate as a guardian but no conflict of authority arose between guardians, certificated or natural. In Madan Mohan v. Ranji Lal I.L.R. (1901) A. 288 the certificated guardian joined with the minor in executing the mortgage in dispute but failed to obtain the court's permission, and the court treated the transaction as voidable and good if not followed by notice of an intention to avoid it, whereas in Mohori Bibi v. Dharmodas Ghose I.L.R. (1903) C. 539 the Privy Council has treated mortgages entered into by minors as void for want of contractual capacity. In Ghwribullah v. Khalak Singh I.L.R. (1903) A. 407 certain mortgages were contracted by the manager of an undivided Hindu family, and the mother who obtained a certificate of guardianship did not get the court's sanction under Section 29. It is thus not a case in point.

5. Next it is contended that apart from Rukku Nachiar's act being valid, the first defendant and those who claim under him are precluded from disputing the validity of Exhibit L, because in 1903 after attaining majority, the first defendant undertook in a letter filed as Exhibit L(1) to see that this debt and that secured by Exhibit A were paid at an early date if the plaintiff arranged to take an assignment of Exhibit L from the original mortgagee Mahomed Ibrahim. It is sought to make Exhibit L(1) do duty as an estoppel, as a ratification of the suit bonds Exhibits A and L, or as a foundation for a new contract between the first defendant and the plaintiff after the attainment of majority. The plaintiff's position is said to have been made worse by his acting on 1 the first defendant's offer to pay promptly on condition of his taking the assignment (Exhibit M) but the plaintiff's statements at page 167 of the printed documents that the first defendant's mother represented her son to be 17 or 18 in 1896 or 1897 (the year when a guardian was appointed), that he got no record to show his age, and that he was aware of the guardianship petition being presented, show that he was not wilfully kept in ignorance of the first defendant's minority, and there can be no estoppel if the person concerned knows the truth about the facts, asserted. Moreover, estoppel cannot be invoked to defeat a plain provision of law vide Madras Hindu Mutual Permanent Benefit Fund v. Raghava Chetty I.L.R. (1895) M. 200. A mortgage can only be effected by a registered document, and there is no registered document validly executed by the first defendant in existence. There is only an alienation made by his mother without authority. The case of Sarat Chander Dey v. Gopal Chander Saha I.L.R. (1892) C. 296 can be distinguished by the circumstance that the District Judge found that Ahmed, whose acquiescence in his, mother's conduct was held to amount to estoppel, had reached majority at the date of the mortgage. The case of Parameshwar Ojaha v. Mussamat Goollee (1869) 11 W.R. 446, relied on by Mr. Srinivasa Aiyangar, was another case of a major permitting his mother to represent him as a minor, and to mortgage ancestral property. If in that case he had been in fact a minor, his permission would have gone for nothing. Then too, there can be no ratification of a void transaction, void owing to the promisor possessing no contractual capacity at the time, vide Ramasawmi Pandia Thalavar v. Authiappa Chettiar (1904) 16 M.L.J. 422 and POLLOCK & MULLA'S Contract Act, p. 56.

6. Nor can a void deed form a good consideration for a fresh contract, made on attaining majority. In this case we are told that the first defendant was benefitted by not being put into court at once and by a change, of creditors and the promisee was benefitted by the promise of the 1st defendant to pay the debt of Rs. 3,000. These advantages may serve as consideration for the assignment, but this suit was brought on the mortgages, the cause of action is described in the plaint as starting from them, and no case of a new contract appears to have been put forward till now. Even in the prayer for additional issues, at page 185 of the printed documents, this case is not clearly set out. A cause of action cannot be founded on an estoppel, nor does an estoppel arise from a representation of a mere intention such as the first defendant's intention to pay promptly - vide HALSBURY'S Laws of England, Vol., XIII, p. 377, Section 534.

7. As regards Ex. A, it was executed both by the first defendant and his mother. Decisions have been cited to show that it is not necessary for a guardian to describe himself as a guardian if he actually is one, but when a minor purports to act and execute for himself, as in this case, it would be a violent presumption to treat his mother as acting for him.

8. Assuming, however, that her act was the act of a guardian, it is bad for the same reason as her execution of Exhibit L, viz., because there was a guardian appointed by the court at the time. The first defendant's execution of Ex. A was bad as being the act of a minor.

9. Again it is argued that the plaintiff is entitled to be reimbursed for necessaries supplied to the minor and to get a charge on his estate independently of the suit bonds. Section 68 of the Indian Contract Act and the decision in Bhaval Saha v. Baijnath Pertab Narain Singh I.L.R. (1907) C. 320 are quoted in support of this position and some of the items and oral evidence have been referred to in order to show what the cost of the minor's maintenance was and how the money borrowed from the plaintiff was expended. On this point it will be sufficient to note that the Subordinate Judge, in paragraph 19 of his judgment, found no evidence that the debts which Exhibit A discharged and those which the account Exhibit K evidence, were all borrowed for the real necessity of the first defendant or Rukku Nachiar. In our opinion also, the plaintiff failed to establish satisfactorily that the debts were incurred for the first defendant's benefit, several of the debts mentioned in Exhibit A being incurred by his mother. The plaintiff evidently knew that he was dealing with a limited owner as he states (at page 170 of the printed documents) in his evidence that he knew, when Exhibit B was taken, that Krishnasawmi was appointed guardian and that the first defendant and his mother told him that he, the guardian appointed by the court) was giving Rs. 20 for their maintenance every month. Exhibit B in date is after Exhibit L and before Exhibit A. From Exhibit DD it appears that Rukku Nachiar was given monthly Rs. 30 and 4 1/2 kalams of paddy, and although the cash payments were delayed for a time, there is no such allegation as to the grain. Thus the first defendant and his mother were not without necessaries for their support, and we are not satisfied that the could not have lived within their income if they had tried. Even if some of the articles purchased with the money advanced by the money-lender were necessaries, the responsibility would rest on him when a bond is taken for the debt to take care that the bond is so drawn up as to render the estate of the minor in law liable for the debt. This was the opinion of the learned judges who decided the case in Bhaval Saha v. Baijnath Pertab Narain Singh I.L.R. (1907) C. 320, and we agree with them. If the present suit had been based on accounts and the plaint framed for the recovery of necessaries supplied to a minor, questions of limitation would have arisen.

10. Lastly, a question has been raised whether the lower court should have given the plaintiff a decree on the admission of liability under both Exhibits A and L contained in the first defendant's statement presented on February 27th, 1905, and printed at pages 8 and 9 of the printed pleadings. The plaint contains a prayer for a personal decree against the first defendant. The first defendant is now dead and the 12th respondent is his legal representative. In the first defendant's first written statement dated September 6th, 1904, upon which issues were framed on November 30th, 1904, he completely denied his liability. In his deposition on July 18th, 1905, he stated that his first written statement was put in at the instance of the fifth defendant and his second written statement at the instance of the plaintiff. He added that the facts mentioned in the written statement put in through Mr. Naganathier (i.e., the first) were true. Exhibit IV is a notice given by the first defendant to plaintiff in August 1904, in which he alleged that the plaintiff had held out false hopes to him before suit and had practised fraud in respect of the documents for 1,000 and 3,000, by which Ex. L and A are evidently intended, and that they were unsupported by consideration and invalid. Section 152 of the Code of Civil Procedure, in force when the suit was tried, declares that if at the first hearing of a suit it appears that the parties are not at issue on any question of law or fact, the court may at once pronounce judgment. Section 158 contains a similar provision for suits in which there are, as here, several defendants. No doubt admissions may be made by parties at any time, but seeing that the court of first instance did not treat the first defendant's second statement as a confession of judgment and pass a decree against him on the strength of it, we are of opinion that it can only be treated as a piece of evidence, and that not conclusive, looking to the circumstances under which it was made. These are that its maker contradicted it before and retracted it afterwards alleging that he had been induced to make it, that it was put into court or a day when there was no hearing of the suit and after the framing of issues, and that at the time it was made the first defendant appears to have parted with most, if not all, of his rights over his property.

11. We think that the appellant is not entitled to any relief in this suit and we would dismiss his appeal with costs of 5th and 6th (one set) and 4th and 13th respondents (one separate set).


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