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Birjmohun Lal and ors. Vs. Rudra Perkash Misser - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1890)ILR17Cal944
AppellantBirjmohun Lal and ors.
RespondentRudra Perkash Misser
Cases ReferredRudra Prokash Misser v. Bhola Nath Mukherjee I.L.R.
Excerpt:
minor - age of majority--guardian and manager--limitation--agent duly authorised--act xl of 1858., sections 4, 7, 12--majority act (ix of 1875), section 3--court of wards act (bengal act ix of 1879), sections 7--11, 20, 65--limitation act (xv of 1877), section 20. - .....notes, nine of which were executed by the defendant, and one of which was executed by one sital prosad misser, the am-mukhtar or general agent of the defendant, between the 22nd aughran and 26th falgoon 1293 fusli, i.e., the 14th december 1885 and 16th march 1886.2. the answer of the defendant is (1) that he was a minor at the time of the execution of these rokas; (2) that he signed the rokas on blank sheets of paper, which he handed over to sital prosad, and that he himself received only rs. 2,000 out of the rs. 5,800 alleged to have been paid to him on them; (3) that the plaintiffs' claim on five of these rokas is barred by limitation; and (4) that sital prosad had no authority from him to borrow money or pay interest on his behalf.3. the lower court has found all these pleas.....
Judgment:

Rampini, J.

1. The plaintiffs sue the defendant for the sum of Rs. 5,800 due as principal and for the sum of Rs. 2,081 due as interest on ten rokas or promissory notes, nine of which were executed by the defendant, and one of which was executed by one Sital Prosad Misser, the am-mukhtar or general agent of the defendant, between the 22nd Aughran and 26th Falgoon 1293 Fusli, i.e., the 14th December 1885 and 16th March 1886.

2. The answer of the defendant is (1) that he was a minor at the time of the execution of these rokas; (2) that he signed the rokas on blank sheets of paper, which he handed over to Sital Prosad, and that he himself received only Rs. 2,000 out of the Rs. 5,800 alleged to have been paid to him on them; (3) that the plaintiffs' claim on five of these rokas is barred by limitation; and (4) that Sital Prosad had no authority from him to borrow money or pay interest on his behalf.

3. The lower Court has found all these pleas in favour of the defendant, and the plaintiffs now appeal and contend that the findings of the Subordinate Judge are wrong.

4. We proceed to deal with his findings seriatim, and, first, with his finding that the defendant was a minor at the time of the execution of these rokas.

5. It is admitted that the defendant was nineteen years and four months old at the time of the execution of the rokas, but it is said that, notwithstanding this fact, he was then a minor in consequence of the provisions of Section 3 of the Indian Majority Act (IX of 1875) which prescribe that any person of whose person or property a guardian has been or shall be appointed by any Court of Justice shall not attain his majority until he shall have completed the age of 21, and a decision of this Court, Rudra Prokash Misser v. Bhola Nath Mukherjee I.L.R. 12 Cal. 612, has been cited in which the question of the majority of this very defendant was at issue and in which it was decided that he did not attain his majority until the age of 21. But the present plaintiffs were not parties to that case, and therefore we cannot regard the decision in the case of Rudra Prokash Misser v. Bhcla Nath Mukherjee I.L.R. 12 Cal. 612 as more than a legal precedent for the principle that when a guardian has once been appointed to a minor under the provisions of Act XL of 1858, the disability of infancy will last till the age of 21, whether the original guardian continue to act or not. To enable this ruling to be used as evidence against the plaintiffs in this case, it is incumbent on the defendant to prove in this case the facts on which that decision was passed, and this the defendant has failed to do. He has not, in our opinion, in any way proved that any guardian of his person or property ever has been appointed by a Court of Justice under the provisions of Act XL of 1858. It has no doubt been said that a guardian of his property was appointed by the Judge of Bhagulporeon the 1st September 1873, inasmuch as on that date the Judge of Bhagulpore ordered the Collector (presumably of Monghyr), under Section 12, Act XL of 1858, to take charge of the defendant's property. But, in the first place, there is no legal evidence in this case of the Judge of Bhagulpore's having passed any such order. The evidence on this point consists of two returns submitted by the Collector of Monghyr to the Commissioner of Bhagulpore, the first of which is without date and the second of which is dated the 20th March 1886, and which have been marked Exhibits Cl and C2, respectively. In these it is recited that on the 1st September 1873 the Judge of Bhagulpore directed the Collector, under Section 12, Act XL of 1858, to take charge of the estate in question. But, strictly speaking, this is not legal evidence of the Judge having passed any such order. If he did pass such an order, the order itself, or an attested copy of it, should have been produced, and not merely a recital by another officer that such was the case, there being nothing to show how that officer became cognizant of the alleged order of the Judge.

6. In the second place, we do not think that, even if the Collector was appointed by the Judge under Section 12, Act XL of 1858, to take charge of the defendant's property, it can be said that a guardian of his property was appointed within the meaning of Section 3 of Act IX of 1875. We think that the guardian there referred to must be the guardian of the person and the administrator of the property of a minor which the Judge has power to appoint under the provisions of Section 7.1 of Act XL of 1858. It is to be observed that in Section 122 of Act XL of 1858 the Collector is not styled the guardian of the person or property of the minor, whose property he is appointed to take charge of; but, on the contrary, he is authorized to appoint some other person or persons to be the manager of the property and the guardian of the parson of the minor. Now, there is no evidence whatever in this case to show that any such manager or guardian of the defendant's property or person was appointed by the Collector by virtue of the order of the Judge passed on the 1st September 1873, and if there had been, this would not have brought the defendant within the purview of Section 3 of the Majority Act, for the Collector is not a Court of Justice. We of course have not failed to notice that in the case of Rudra Prokash Misser v. Bhola Nath Mukherjee I.L.R. 12 Cal. 612, the Collector has been spoken of as the guardian of the defendant's property, but the question as to whether a Collector appointed under Section 12, Act XL of 1858, can properly be styled the guardian of a minor's property seems never to have been raised or considered in that case. We therefore do not think that this point can be held to have been decided in that case, and hence we do not feel ourselves bound by that decision on this point.

7. Then, it has been said that the defendant was a minor, because his estate was at one time under the jurisdiction of the Court of Wards; but it is clear from the terms of Section 3 of the Majority Act that the disability of minority only continues as long as the Court of Wards retains charge of the minor's property, and no longer; and it is admitted and shown in this case that the defendant's property was released by the Court of Wards on the 6th December 1885, i. c, before the execution by the defendant of the first of the series of rokas sued on in this suit.

8. For these reasons we think that between the 14th December 1885 and the 16th March 1886, the defendant in this case was not a minor, but sui juris, and competent to enter into a binding contract.

9. Then, turning to the facts of the case, we feel no doubt that the defendant executed nine of the rokas now sued on (which indeed he does not deny) and got the full amount of the consideration mentioned in them, as well as the Rs. 200 paid on the roka of the 15th Falgoon 1293, which was executed for him by his admitted general agent and manager, Sital Prosad, who swears he executed it with the defendant's authority. We entirely disbelieve the defendant's statement that he signed blank sheets of paper and entrusted them to his agent Sital Prosad, who handed him over only Rs. 2,000 for them. The evidence adduced on behalf of the plaintiffs shows that the defendant came in person with Sital Prosad and got the money himself on all occasions but one, and the notes themselves, except Exhibit No. X, show that the amounts of the loans are written on them just above or below the signatures, evidently by the same hand as affixed the signatures to them. On this point the defendant says: -' In some blank chittis I sent through Sital Prosad, I noted the amount to be borrowed, in others not.' The rokas, however, show that this was done on all the rokas, except Exhibit X, signed by the defendant himself. This being so, we cannot believe that the defendant did not get the money. But even if he did not when he gave Sital Prosad authority to get the money from the plaintiffs for him, as he says he did, if his agent did not give it to him, he is liable to the plaintiffs for the amounts paid to his agent on his account with his assent and at his instance. There seems no doubt that the money was borrowed partly to meet the expenses of a case the defendant was carrying on in the High Court, partly to pay the Government revenue due on the defendant's estate, and partly to defray the expenses of the murhan ceremony of his brother.

10. There remains the question, as to whether the suit is in any way barred by limitation. It is admitted that if the payment of interest on the 15th Falgoon 1293 is proved, then the suit is not barred with regard to any of the rokas. Now, we feel no doubt that the interest on the first five rokas was paid, as alleged by Sital Prosad. We see no reason to discredit the endorsements on the back of the rokas. The Subordinate Judge says they have all been rubbed or fumigated so as' to give them an appearance of oldness.' In our opinion one or at the most two only of the endorsements on the rokas appear to have been rubbed or smudged, and we do not think this smudging gives them any appearance of oldness, nor can we see what effect it has had on them. We therefore see no reason for suspecting their authenticity on this account. On the whole, we think that the payment of the interest in question is sufficiently proved by these endorsements and by the oral evidence adduced by the plaintiffs.

11. The next question is whether Sital Prosad was 'duly authorised' to make such payment. It is to be observed that Section 20 of the Limitation Act does not require the agent to be authorized in writing, and we think that an agent may impliedly be so authorized. Undoubtedly Sital Prosad was authorised to borrow money for the defendant. This is clear we think from Sital Prosad and the defendant's conduct, as well as from the fact that while defendant admits that Sital Prosad was his am-mukhtar and manager, he does not produce his am-mukhtarnama to show how his authority was limited: Sital Prosad says it was left in his zemindari serishta. We therefore consider that Sital Prosad must be held to have been authorised to make the payment of interest, which is proved by the evidence to have been a condition precedent to the plaintiffs making any further loans to the defendant. In addition to any implied authority, there is, we think, ample evidence to show that the defendant was aware of the payment immediately after it was made and that he ratified it by receiving the balance of the Rs. 200 from Sital Prosad and by signing another note for Rs. 200 with the knowledge that the amount due for interest had been paid by Sital Prosad out of the amount borrowed by him on his (the defendant's) account. We, therefore consider that the defendant is bound by the payment of interest made on his behalf on the 15th Falgoon 1293 by Sital Prosad. The suit is consequently not barred by limitation in respect of the first five rokas, and the defendant is accordingly liable to pay the full amount for which he has been sued in this suit.

12. For these reasons we set aside the findings of the Subordinate Judge in this case on all points, and decree the suit in favour of the plaintiffs for the full amount claimed by them with costs.

1 Certificate of administration to whom to be granted.

[Section 7: If it shall appear that any person claiming a right to have charge of the property of a minor is entitled to such right by virtue of a will or deed, and is willing to undertake the trust, the court shall grant a certificate of administration to such person. If there is no person so entitled, or if such person is unwilling to undertake the trust, and there is any near relative of the minor who is willing and fit to be entrusted with the charge of his property, the court may grant a certificate to such relative.

Court may appoint such person guardian.

The Court may also, if it think fit (unless a guardian has been appointed by the father), appoint such person as aforesaid, or such relative or any other relative or friend of the minor to be guardian of the person of the minor. ]

2 When the estate consists of land, Court may direct Collector to take charge of estate.

[Section 12: If the estate of the minor consist, in whole or in part, of land or any interest in land, the Court may direct the Collector to take charge of estate, and thereupon the Collector shall appoint a manager of the property of the minor and a guardian of his person, in the same manner and subject to the same rules in respect of such appointments and of the duties to be performed by the manager and the guardian, respectively, so far as the same may Be applicable, as if the property and person of the minor, were subject to the jurisdiction of the Court of Wards.]


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