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Arumugam Chetti and anr. (Legal Representatives of Krishnan Chetti) Vs. Duraisinga Tevar and Thirteen ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Judge
Reported in(1914)ILR37Mad38
AppellantArumugam Chetti and anr. (Legal Representatives of Krishnan Chetti)
RespondentDuraisinga Tevar and Thirteen ors.
Cases ReferredBhawal Saku v. Baijanath Pertab Narain Singh I.L.R.
Excerpt:
.....wards act (viii of 1890), sections 7(2), 29 and 30 - guardian appointed by court--encumbrance of minor's property by natural guardian while court guardian in existence--encumbrance void--consideration, void deed, no, for fresh contract on attaining majority. - - 276 where the parties were muhammadans, this court held that persons purporting to act as de facto guardians and to incur debts in 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 case. the want of authority of a de facto guardian is a good defence to a suit brought by a..........on the appellant's behalf fall for 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 were 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 not 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 encumbering or alienating portions.....
Judgment:

1. The plaintiff in the lower Court, a money-lender by profession, based his claim upon two hypothecation bonds. Exhibit L for Rs. 1,000 executed on July 27, 1898, and Exhibit A for Rs. 3,000 executed on June 28, 1899 and as his suit was dismissed, he now appeals. On account of the 1st defendant's minority a guardian named Krishnaswami Iyer was appointed on January 18, 1897, under the order of the District Court of Madura marked Exhibit CC, On November 20, 1899 by force of orders marked Exhibits EE and FF, the first defendant's mother, who had by Exhibit 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 Krishnaswami Iyer was discharged from his office. On October 31, 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 Rakku 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 property appointed by Court. The Subordinate Judge has found that the first defendant was below 18 years when the guardian was appointed. Mr. Srinivasa Ayyangar 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 jurisdiction 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 eighth and ninth 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 Krishnaswami Iyer and appoint Rakku Nachiar. In the second place the authorities cited on the appellant's behalf fall for 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 were 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 not 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 encumbering or alienating portions of the minor's estate without the Court's permission. In Nathu v. Balwantrao I.L.R. (1903) Bom. 390 it was held that an adverse act of mother while acting as 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 Ram Chunder v. Chaeda Lal 2 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 Chettipar I.L.R. (1909) Mad. 276 where the parties were Muhammadans, this Court held that persons purporting to act as de facto guardians and to incur debts in 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 case. 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 were suing to set aside the mortgage, as was held in Nizam-ud-din Shah v. Anandi Prasad I.L.R. (1896) All, 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. Honp v. Mhlpi I.L.R. (1891) 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 Arunackala Reddy v. Chidambara Reddy : (1903)13MLJ223 . There was a testamentary guardian in that case and he acquiesced in the alienation made by the natural guardian for necessity. In Ananthaya Kamthi v. Laxminarayanappapya : (1905)15MLJ233 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. Rangi Lal I.L.R. (1901) All. 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 Bibee v. Dharmodas Ghose I.L.R. (1903) Calc. 539 the Privy Council has treated mortgages entered into by minors as void for want of contractual capacity. In Gharib-ullah v. Khalak Singh I.L.R. (1808) All, 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. Next it is contended that apart from Rakku 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.

5. 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 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 Benefit Permanent Fund v. Ragava Chetti I.L.R. (1896) Mad. 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. Sarat Chunder Dey v. Gopal Chunder Laha 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 mortgage. Purmessur Ojha v. Mussamut Goolbee (1869) 11 W.R. 446 relied on by Mr. Srinivasa Ayyangar 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 Ramaswami Pandia Thalavar v. Anthappa Chettiar : (1906)16MLJ422 and Pollock and Mulla's Contract Act, page 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 benefited by not being put into Court at once and by a change of creditors, and the promisee was benefited by the promise of the first 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 mortgage; the canse 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, volume XIII, page 377, Section 534.

7. As regards Exhibit 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, hut 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 Exhibit A was bad as being the act of a minor. 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 of Bhawal Sahu v. Baijanath Pertab Narain Singh I.L.R. (1908) Calc. 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 N), evidenced wore all borrowed for the real necessity of the first defendant or Rakku 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 Krishnaswami 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 Rakku Nachiar was given monthly Rs. 30 and 41/2 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 they could not have lived within their income if they had tried. Even if some of the articles purchased with the money advanced by the moneylender 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 as to render the estate of the minor in law liable for the debt. This was the opinion of the learned Judge who decided the case in Bhawal Saku v. Baijanath Pertab Narain Singh I.L.R. (1908) Calc. 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.

9. 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 5th 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. Naganatha Ayyar (i.e., the first) were true. Exhibit IV is a notice given by the first defendant to the 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 one thousand and three thousand by which Exhibits 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 of fact, the Court may at once pronounce judgment. Section 153 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 gment 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 on 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.

10. We think that the appellant is not entitled to any relief in this suit and we would dismiss his appeal with costs of fifth and sixth (one set) and the fourth and twelfth respondents (one separate set).


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