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Surendra Nath Sarkar Vs. Atul Chandra Roy - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal892
AppellantSurendra Nath Sarkar
RespondentAtul Chandra Roy
Cases ReferredWaghela Rajsanji v. Shekh Masludin
Excerpt:
guardian and ward - minor--account, suit for--guardian's power to bind minor--advances made to guardian for minor's benefit--principal and agent--advances made by agent toguardian of principal. - .....for an account by a principal against his agent. 'when the suit was instituted the principal was a minor and the suit was by his mother as his next friend. he subsequently attained majority and elected to go on with the suit, and is the present appellant. a preliminary decree for accounts was passed and accounts were taken by a commissioner. the matter then came before the subordinate judge; and he in effect affirmed the view of the commissioner and found that a sum of rs. 4,581-1 anna was due from the plaintiff to the defendant instead of anything from the defendant to the plaintiff. the plaintiff then appealed to the district judge, and his appeal was dismissed with costs. hence the present appeal.2. the first question that arises in the circumstances. is whether certain advances made.....
Judgment:

Francis W. Maclean, C.J.

1. This is a suit for an account by a principal against his agent. 'When the suit was instituted the principal was a minor and the suit was by his mother as his next friend. He subsequently attained majority and elected to go on with the suit, and is the present appellant. A preliminary decree for accounts was passed and accounts were taken by a commissioner. The matter then came before the Subordinate Judge; and he in effect affirmed the view of the commissioner and found that a sum of Rs. 4,581-1 anna was due from the plaintiff to the defendant instead of anything from the defendant to the plaintiff. The plaintiff then appealed to the District Judge, and his appeal was dismissed with costs. Hence the present appeal.

2. The first question that arises in the circumstances. is whether certain advances made by the agent to the guardian of the minor which were found by both Courts to be expended for the benefit of the minor, can, in taking the accounts as between the plaintiff and his agent, be properly allowed to the agent. It is urged by the appellant that they cannot, As I have said, both Courts have found that these advances were made for the benefit of the minor. It is said that a guardian cannot bind his minor ward by a personal covenant: and, reference is made to the case of Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 decided by the Privy Council. Nobody disputes that. But the question here is a very different one. The question here is, where a minor comes to this Court to have an account taken as between himself and his agent, and it is found on taking that account that the agent has made certain advances to the guardian--the only person to whom he. could make advances as representing the minor--and those have been applied for the benefit of the minor, whether the agent ought not to be allowed those advances, in taking the accounts. I think he ought. Here the plaintiff seeks relief from a Court administering equity, and he must do equity himself. I think it is most equitable, when it is found that the minor has had the benefit of these advances, that they should be allowed to the agent, on taking the accounts. I have, therefore, very little hesitation in saying, in the circumstances of this case, that the view taken by both the lower Courts as to the allowance of these sums was correct.

3. Then the second question is whether the Judge-erred on the ground that all these advances were not made for the benefit of the minor plaintiff. I thought at first there was something in that point; but when one looks at the judgment of the Subordinate Judge, which has been accepted on this point by the District Judge, it is clear that all these sums were really advanced for the benefit of the minor. Had we thought otherwise, it might have been necessary to remand the case. Now that our attention is called to the finding of the Subordinate Judge, affirmed as it is by the District Judge, I do not think any remand is necessary.

4. The third point is whether a decree can be made in a suit for account, in favour of the defendant. I should have thought that it could. But this point has not been raised until the present moment; it was not raised in either of the Courts below nor is it made a ground of appeal, and I think it is too late to raise it now.

5. The only other question is as to costs. The Court below has exercised its discretion as to costs: and, upon the facts found as to the manner in which the defendant has been treated by the plaintiff, I think the conclusion at which the Court below has arrived is right.

6. The result, therefore, is that the appeal fails and must be dismissed with costs.

Holmwood, J.

7. I agree.


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