1. The 2nd defendant is the grandmother of the 1st defendant and during the minority of the latter she sold certain property to the plaintiff in the year 1901. The plaintiff got possession and while in possession was ousted by a person who claimed a superior title and who obtained a decree in respect of the properly. Thereupon this suit was brought on the indemnity clause in the sale-deed. The suit was both against the minor, who has since attained majority, and the grandmother. They are defendants Nos. 1 and 2 respectively.
2. Mr. Sitarama Row conceded that, as regards the 1st defendant, he could not sustain his claim. The indemnity clause cannot bind the 1st defendant. That was decided by the Privy Council in Indur Chunder Singh v. Radhakishore Ghose 19 C.P 507 : 19 I.A. 90 : 6 Sar. P.C.J. 185 and consequently the claim, so far as the 1st defendant is concerned, must be dismissed. The second appeal, to that extent, is dismissed with costs.
3. The case against the 2nd defendant is different. We cannot help saying that the Courts below have confused the issue by introducing the question of deceit. So far as the plaint is concerned, there is nothing in it which suggests fraud either against the 1st defendant or against the 2nd. The simple case put forward by the plaintiff is that, relying on the representation of the 2nd defendant, he purchased the property, that he was deprived of the property, and that he is entitled to damages for the breach. That is stated very clearly in paragraph 3 of the plaint.
4. Mr. Rajah Aiyar contends that the 2nd defendant is not liable because the indemnity must be deemed to have been given by her as guardian of the 1st defendant. We are unable to agree with him. It must be presumed that these parties knew the law, and the law is that a guardian cannot bind the minor by a clause of indemnity like this. Therefore, when the 2nd defendant inserted this clause, she must be deemed to have agreed to indemnify the plaintiff against any loss in consequence of defect of title in the property she conveyed. It must be taken to be a personal covenant on her part and she is certainly liable to be proceeded against under that covenant. The passage in Story on Agency Mr. Sitarama Row quoted and the recent decision of the Privy Council in Firm of Sadasuk Janki Das v. Kishen Pershad 50 Ind. Cas. 246 : 46 C.P 663 : 29 C.L.J. 340 : 17 A.L.J. 405 : 25 M.L.T. 258 : 36 M.L.J. 429 : 21 Bom. L.R. 605 : 1 U.P.L.R. (P.C.) 37 : (1919) M.W.N. 310 : 23 C.W.N. 937 : 10 L.W. 143 : 12 BUR. L.T. 160 also support this view. Although the latter was a case under the Negotiable Instruments Act, the principle enunciated therein would apply with equal force. We are, therefore, of opinion that the Courts below are wrong in rejecting the claim on the ground that no question of deceit has been proved against her. The decree must be reversed and the case Sent back to the lower Appellate Court for disposal according to law.
5. Mr. Rajah Aiyar suggests that there has been default on the part of the plaintiff in not having asked the 2nd defendant to assist him in the litigation about the property sold. That is covered by the 3rd issue. That issue and the question as to the amount for which the 2nd defendant is liable, if she is liable at all, will have to be determined on remand.
6. Costs, so far as the 2nd defendant is concerned, will abide the result. The Court-fee, so far as the 2nd defendant is concerned, will be refunded.