K.C. Das Gupta, J.
1. The subject matter of the present litigation is one godown on the ground floor in premises No. 18/1 Nimtola Ghat Street, Calcutta. The godown was admittedly held by Kanai Lal Marwari under the owners Brojen Dutt and Bejoy Krishna Dutt. On 29th March 1948, they filed an application for possession of the godown. The application was allowed and possession was directed to be delivered on 25th May 1949. The date of delivery of possession was extended from time to time till at last on 20th June 1951, the present petitioner Sew Sankar Lal filed an application purporting to be one under Order 21 Rules 98 and 99, Civil P. C. read with Section 13(2), West Bengal Premises Rent Control Act, 1950, alleging that he had been a subtenant in respect of the godown since the latter part of 1947 that he had a right to remain (in?) possession under the provisions of Section 13(2), West Bengal Premises Rent Control Act, 1950, that the landlord's application for police help should be treated as one under the provisions of Order 21 Rule 97, Civil P. C. and so the Court should act under the provisions of Order 21 Rules 98 and 99 of the Code and the order for police help which had been passed earlier should be vacated. This application has been refused.
2. It has been held in the case of -- 'Thakurdas Pushpraj v. Dwarka Prasad', 87 Cal. LJ 181, (that?) the right created in favour of a sub-tenant by Section 11(3) of the Act of 1948 cannot be enforced by way of an application in a proceeding for possession, and the only remedy of the sub-tenant is to enforce his right by regular civil suit instituted for the purpose. It was contended, however, that when a person in whose favour an order for possession has been made is resisted and he instead of filing an application under the provisions of Order 21, Rule 97, Civil P. C. asks for police help, the Court should not grant police help if it appeared to the Court that a bona fide claim has been made under the provisions of Section 11(3), W. B. Premises Rent Control Act, 1948, or Section 13(2), W. B. Premises Rent Control Act, 1950.
3. Whether the Court should order police help or not is a matter of discretion and I am of the opinion that the fact that a claim is made by the person offering resistance that he is entitled as of right to be in possession, is a matter which the Court must take into consideration in exercise of that discretion. I am further of the opinion that if the Court thinks that a bona fide claim of a sub-tenancy has been made and there is nothing on the face of it to reject the case of a sub-tenancy, the Court ought not to grant police help.
4. It has been urged, however, on behalf of the opposite parties that on the face of it in this case there was no legal sub-letting as the person claiming to be the lessee is a minor. Quite clearly, the lease on which the petitioner claims relief is said to have come into existence when the petitioner was a minor. No case is made that the minor's father was a sub-tenant. It is the minor himself who claims to be the first sub-tenant in the case. On the authority of the decision of the Judi-cial Committee in the case of -- 'Mohori Bibee v. Dharmodas Ghose', 30 Cal 539 (PC), a contract of lease if it was entered into by the minor himself was void.
5. It was argued, however, that if the lease was taken by his guardian during his minority for his benefit, then on the authority of the decision of the Privy Council in the case of-- 'Hunooman Persaud Panday v. Mt. Babooee Munraj Koonweree', 6 Moo Ind App 393 (PC), the lease would be valid and binding. It is important to notice, however, a point which has been brought out in several later decisions that in 'Hanooman Persaud's case' their Lord--ships of the Privy Council were considering the question of benefit to the existing estate of the minor. In the case of -- 'Indur Chunder Singh v. Radhakishore Ghose', 19 Ind App 90 (PC), their Lordships of the Privy Councildrew attention to this distinction between the transaction purporting to be for the benefit of a estate and a transaction which created a new liability. That was a suit to recover arrears of rent. The defendant was an heir to a deceased lessee of the plaintiff and during his minority his guardians, the mother and widow of the original lessee, renewed the lease. In considering an argument that as the lease was really taken for the minor and the lessees were in possession for his benefit, the minor's estate was liable for the rent, their Lordships observed after referring to 'Hanooman Persaud's case thus :
'In that case, however, the managers of an infant's estate were actually dealing by way of mortgage with a portion of that estate, and it was held that the manager might do so in a case of need or for the benefit of the estate, and that the fact that the mortgage contained the inaccurate statement that the mortgagor had a beneficial proprietary right, was immaterial. But in the present case the mother and widow of Gopi Mohan Ghose were not dealing with, and did not purport to deal with or affect his estate, but were incurring new obligations which it is now sought to transfer from them to the estate.'
It was held that the renewal of the lease by the mother and widow of Gopi Mohan Ghose did not establish any relation between the plaintiffs and the estate. In 'Indur Chunder Singh's case', the lease was taken by the two women in their own names and not on behalf of the minor, but that does not affect the binding force of the decision that where the guardian and manager of the minor's estate is incurring new obligations and not dealing with the minor's estate as such, 'Hanooman Persaud's case' can have no application.
6. In the case of -- 'Waghela Rajsanji v. Masludin', 14 Ind App 89 (PC), where a guardian covenanted for herself and her infant ward to indemnify the purchaser of the ward's estate against any claim by the Government for revenue, their Lordships of the Privy Council held that it was beyond the power of the guardian to impose a personal liability on the ward.
7. These cases were considered by the Federal Court in the case of -- 'Sriramulu v. Pundarikakshayya1, AIR 1949 FC 218. The question the Federal Court had to consider in that case was whether a 'de facto' guardian of a Hindu minor can, in law, execute a promissory note in the name of the minor in respect of money borrowed for a necessary purpose and thereby bind the minor's estate. TheCourt decided that a guardian, whether 'de facto' or 'de jure', could not bind the minor's estate by such a contract. Mukherjea J. in his judgment observed that
'a minor is under the Indian Contract Act absolutely incapable of being a party to a contract; vide -- 'Mohori v. Dharmodas', 30 Ind App 114: 30 Cal 539 (PC) and none but a party to a contract can be sued upon it. Even if he is nominally a party to a contract through his guardian, no suit on the basis of such contract would lie against the minor and no decree could be obtained in execution of which his general assets could be touched.'
8. On these authorities it must be held that a contract of lease, which is not for the benefit of the minor's existing estate, entered into by a guardian on behalf of a minor is equally invalid in law as much as a contract entered into by a minor himself. It must, therefore, be held that, on the face of it, there was no legal sub-tenancy in favour of the petitioner. There is, therefore, no ground for interference with the order passed by the learned Court below directing police help to be given for effecting delivery of possession.
9. The Rule is discharged with costs.
10. Let the records be sent down as early as possible.
11. I agree.