1. Raja Nil Kanth Narain Singh brought a suit against Rani Jagdamba Kumari, the widow of the late Raja Sarada Narain Singh, for declaration of his title to and recovery of possession of Gadi Srirampur, a valuable estate in the District of Hazaribagh. He got a decree, against which the Rani filed an appeal and applied for stay of execution pending the hearing of the appeal. This Court made an order on the 6th February 1912 that execution should be allowed to proceed upon the Raja's giving the security to the extent of one lakh of rupees for the payment of any mesne profits that might thereafter be found due to the Rani. Certain other undertakings were given by the Raja, which are immaterial for the purposes of the present Rule. A surety was found in the person of Babu Harnath Singh, the present petitioner; he executed a surety bond on the 3rd April 1912 and the Raja was duly put in possession of the estate.
2. Raja Nil Kanth Narain Singh has since died and been succeeded by his son Wazir Narain Singh. The present Rule was obtained by Harnath Singh, who applies to be discharged from his suretyship and asks that the properties which he gave as security may be released.
3. The ground on which the application is made is that though the petitioner had confidence in the capacity and honesty of the late Raja he has no such confidence in his son, and, therefore, is unwilling to continue to be surety for him.
4. The application is opposed both by the Rani and by Wazir Narain Singh.
5. It is conceded on behalf of the petitioner that he is liable under his bond up to the present time, but that he cannot be made liable for any future acts, as this is a case of continuing guarantee which may at any time be revoked by the surety: Section 130 of the Contract Act.
6. It is clear that if effect were to be given to this contention it would be necessary to at once replace the Rani in possession of the estate, unless the present respondent in the appeal could furnish other security similar to that given by Harnath Singh. The course would lead to manifest inconvenience in case the appellant succeeded in her appeal, which, it is expected, will be ready for hearing within a month. If, however, the petitioner is entitled to be discharged from his suretyship, any inconvenience to the parties which might result from giving effect to the rights, cannot be considered in adjudicating upon them. And I do not think the opposite parties need to rely on any argument based on convenience. They are on much surer ground than that.
7. In my opinion Section 130 of the Contract Act has no application, for there was not & continuing guarantee within the meaning of the section. The consideration was one and indivisible, it was the handing over of the estate to the Raja. The Court was bound under Order XLI, Rule 6 to require security and it was obviously never the intention of the Court that execution having been allowed to proceed the appellant should at any moment be in danger of losing the security. The surety when he offered himself must be taken to have accepted all natural risks. He cannot be allowed to set up the position that he did not anticipate the Raja's death.
8. An attempt was made on behalf of the petitioner to show that he only undertook his suretyship on condition that the Raja took his advice in connection with the management of the estate. There was such a, clause in a contract between the Raja and the petitioner, dated the 25th January 1915, but that is long after the execution of the security bond and no arrangement between the Raja and the petitioner can have any effect on the absolute undertaking by the surety to be responsible for any mesne profits, that might be found due to the Rani, to the extent of one lakh of rupees.
9. I would, therefore, discharge the Rule with costs, two gold mohurs, to each of the opposite parties.
10. I agree. There was in this case no continuing guarantee as to future transactions within the meaning of Section 130 of the Contract Act and the case comes within the principle laid down in Lloyd's v. Harper (1880) 16 Ch. D. 290; 50 L.J. Ch. 140; 43 L.T. 481; 29 W.R. 452.