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Kesanupalli Venkatarayudu Vs. Ayina Khasim Saheb - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad1041
AppellantKesanupalli Venkatarayudu
RespondentAyina Khasim Saheb
Cases ReferredMata Din v. Ahmad Ali
Excerpt:
- .....years from the original promissory note which is dated 1908. taking the history of this promissory note debt, it is clear that in order, to prevent the debt from being barred, at the end of each period of limitation or just before it expired, a renewal of the promissory note was taken with the object solely of keeping the debt alive. from 1908 therefore the original debt evidenced by the promissory note had been renewed towards the end of each period of limitation; and that was the case with regard to the suit promissory note also. it is argued on behalf of the respondent here that under the mahomedan law (1) the mother is not the guardian of the minor at all and (2) if she is merely the de facto guardian, she has no authority to contract in this way by executing a promissory note in.....
Judgment:
ORDER

Beasley, C.J.

1. The question here is whether the suit by a plaintiff on a promissory note executed by the mother as guardian of a Mahomedan minor in renewal of previous promissory notes executed by the minor's father in renewal of earlier promissory notes must fail in view of the fact that the minor's mother has no authority to renew a promissory note on behalf of the minor and the minor is therefore not bound under such promissory note. The District Munsif has dismissed the suit. I may observe that the promissory note sued upon is one in renewal of a series of promissory notes renewed at intervals of three years from the original promissory note which is dated 1908. Taking the history of this promissory note debt, it is clear that in order, to prevent the debt from being barred, at the end of each period of limitation or just before it expired, a renewal of the promissory note was taken with the object solely of keeping the debt alive. From 1908 therefore the original debt evidenced by the promissory note had been renewed towards the end of each period of limitation; and that was the case with regard to the suit promissory note also. It is argued on behalf of the respondent here that under the Mahomedan law (1) the mother is not the guardian of the minor at all and (2) if she is merely the de facto guardian, she has no authority to contract in this way by executing a promissory note in renewal of a previous promissory note so as to bind the minor. With regard to (1) it is quite correct and her mother was only a de facto guardian. It is quite true that under the Mahomedan law the powers of guardians of Mahomedan minors are very much restricted and particularly so with regard to the powers of a de facto guardian; but there is no case, so far as I have been able to see, which says that a de facto guardian, such as the minor's mother in this case must be regarded, cannot, in order to prevent a suit on a promissory note in respect of an antecedent or ancestral debt being filed, execute a promissory note in renewal of that note. The question as to whether a sale by a de facto guardian if made for necessity or for the payment of an ancestral debt affecting the minor's property and if beneficial to the minor is-altogether void or merely voidable was in the Privy Council decision in Mata Din v. Ahmad Ali (1912) 34 All. 213 left open for decision. That of course deals with the question as to whether such alienations as those are void or merely voidable. The difficulty in accepting the respondent's argument is this: that, if it is correct, it means that where a Mahomedan father contracts a debt in respect of which he-executes a promissory note and he dies and the period of limitation of three years is drawing to a close nothing that the minor can do through his mother or any person who is a de facto guardian can possibly prevent the suit from being : filed, that is to say, that the only thing that is open to the minor to do is either to pay the debt when the demand for its payment is made or to be faced with a suit, and a decree and execution against the minor's property, as it is clear that under the Mahomedan law the heirs of a deceased Mahomedan are liable for the deceased's debts in proportion to their share of the deceased property which comes to them by inheritance.

2. It seems to me that the renewing of the debt by staying off as it were that evil alternative is something which is being done and created by the emergency for the benefit of the minor. Them being no cases placed before me which show that such an act as this is beyond' the competence and authority of the de facto guardian, I think that I should take the view that what was done in this case was within the authority of the de facto guardian and that therefore the minor could be successfully sued upon the promissory note which was in renewal of previous promissory notes. That being so the decree of the lower Court must be set aside and the case remanded to the lower Court for dispossal according to law. The Civil Revision Petition is allowed with costs here. The costs in the lower Court will abide the result of the trial on remand.


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