1. In these suits an attempt was made to make the minor defendant responsible upon promissory notes executed by his father during the father's minority. It is found that, at the date of execution, the father was between 18 and 21 years of age but his minority was extended by the appointment of a guardian of his persons under the Guardians and Wards .Act. Prima facie as a minor is incompetent to contract, the promissory notes represented void contracts. See Mohori Bibee v. Dharmodas Ghose 30 C.P 539 : 30 I.A. 114 : 7 C.W.N. 441 : 5 Bom. L.R. 421 : 8 Sar. P.C.J. 374
2. But it is argued (1) that the defendant is estopped from raising the defence of minority as his father being at the time of execution between 18 and 21 and having shown to the payee, plaintiff, a partition deed to which he was a party and having been dealing with his' property as if he was a major, induced the plaintiff to believe that he had attained majority, (2) that the order appointing a guardian of a junior member of a Hindu joint family was ultra vires and a nullity so far as strangers are concerned, (3) that as soon as the elder brother attained majority the guardianship of the junior member ipso facto ceased.
3. These objections may be briefly answered.
4. The District Judge has found as a fact that there was no proof of any misrepresentation or fraud on the part of defendant's father at the time when he executed the suit pro-notes. No presumption of fraud arises in such a case. The fact that the person has attained 18 years and would be a major but for the Court's order appointing a guardian will not relieve the plaintiff from proving fraud or misrepresentation to have been committed by that person, like any other fact. It is only by proof of fraudulent misrepresentation that the plaintiff could succeed [see Dhurmo Bass Ghose v. Brahmo Dutt 25 C.P 616 : 2 C.W.N. 330 and as he has failed on this issue of fact, he has no case under Section 115, Evidence Act, as estoppel cannot overrule a plain provision of law or form the basis of a cause of action when the contract itself is void [see Arumugam Chetti v. Duraisingha Tevar 12 Ind. Cas. 568 : 37 M.P 38 : 10 M.L.T. 385 : (1911) 2 M.W.N. 461 : 21 M.L.J. 1077 and Vaikuntarama Pillai v. Athimoolam Chettiar 23 Ind. Cas. 799 : 38 M.P 1071 : 23 M.L. J. 612
5. Next the Privy Council has laid it down in Gharib Ullah v. Khalak Singh 25 A.P 407 : 30 I.A. 165 : 5 Bom. L.R. 478 : 7 C.W.N. 681 : 8 Sar. P.C.J. 483 that a guardian of the ancestral property of a minor of a joint Hindu family cannot be appointed, and this Court has declared such appointments invalid in Kanakasabai Mudaliar v. Ponnusami Mudaliar 21 Ind. Cas. 848 Appanna Prasada v. Appanna Mahapatro 40 Ind. Cas. 145 : 5 L.W. 374 Chidambaram Pillai v. Veerappa Chettiar 43 Ind Cas. 865 : 6 L.W. 640 : (1917) M.W.N. 744 : 22 M.L.T. 380 and Chidambara Pillai v. Rangasami Naicker 45 Ind. Cas. 905 : 41 M.P 561 : 34 M.L.J. 381 : 23 M.L.T. 266 : (1918) M.W.N. 265 : 7 L.W. 454 (F.B.) and the Bombay and Patna Courts have taken the same view [Bindaji v. Mathurabai 30 B.P 152 : 7 Bom. L.R. 809 and Mahanand Missir v. Dasrath Missir 46 Ind. Cas. 85], but I am not aware of any authority for the proposition that a guardian of the minor's person cannot be appointed by Court when the minor belongs to an undivided Hindu family governed by Mitakshara Law. On the contrary Alagappa Iyengar v. Mangathai Ammangar 34 Ind. Cas 766 : 40 M.P 672 : 30 M.L.J 504 is an authority for saying that a guardian of the minor's person can be appointed in such a case. There is no reason, therefore, to treat the order appointing a guardian as a nullity.
6. Thirdly, although it may be that in certain cases the guardianship of the property would cease on one of the co-parceners attaining majority [Bindaji v. Mathurabai 30 B.P 152 : 7 Bom. L.R. 809] and if it ceased the guardian might be removed by an order under Section 39(j), Guardians and Wards Act, that would not be the case with the guardianship as here of the minor's person [see Gordhandas v. Harivalubhdas 21 B.P 281 : Chitty's S.C.C.R. 514 : 11 Ind. Dec. (N.S.) 191 In any case the termination of the guardianship in this manner will not make any difference to the age of majority, for the Indian Majority Act expressly declares that every minor of whose person or property a guardian, other than a guardian ad litem, has been appointed by any Court of Justice before the minor has attained the age of 18 years 'shall be deemed to have attained his majority when he shall have completed his age of 21 years, and not before.' In my opinion the effect of this provision is that when once a guardian of a minor is validly appointed, that minor's age of majority becomes fixed by law at 21, and that nothing which may subsequently transpire can have the effect of reducing it again to 18.
7. The suits were rightly dismissed and the second appeals are dismissed with costs.
8. I agree with the order proposed by my learned brother. The suit is upon a void contract and I agree that the principle of estoppel cannot be invoked in order to render the contract enforceable.
9. I wish to reserve my opinion as regards the construction of the Indian Majority Act. Since it does not appear in the present case that the guardianship of the executant of the promissory note had ceased by the removal of the guardian or otherwise, at the date of the contract he was clearly a minor within the provisions of the Act.