1. The transaction giving rise to this litigation was as follows: The plaintiff, who was a minor at the time, had to receive about Rs. 1,000 from the Collector under the Land Acquisition Act. Amjad Ali, the ancestor of defendants Nos. 2--7, became the certificated guardian and Asraf Ali, the deceased defendant No. 1, the ancestor of defendants Nos. 8--11, stood surety for him to the extent of Rs. 1,000, the consideration most probably being that the guardian agreed to deposit with the surety the amount of Rs. 1,000 when drawn, so that the surety might consider himself safe. Soon after the certificate had been granted, the money was drawn and deposited with the surety who undertook to pay Rs. 60 annually as 'profits' for the maintenance of the minor and to return the principal amount and profits within one year. The transaction is called a deposit but the agreement to pay profits and to return principal with profits signifies that it was intended that the money should be used by the surety. As the suretyship would subsist as long as the guardianship, the mention of one year as the term seems to have been made by the scribe to conform to the usual phraseology of a bond as the document was named. This explains why in 1902 the guardian sued for the profits only up to 1902 and not for the principal which had then fallen, due, and obtained a decree. The guardian died and the minor on attaining majority in 1907 at once brought this suit for the principal and for profits after 1902. Asraf Ali did not deny the bond, but pleaded that Amjad Ali had realised the amount by suit and out of Court, that the plaintiff had no cause of action and was barred by Section 43 of the Civil Procedure Code. The first Court gave a decree but the learned Subordinate Judge has dismissed the suit, holding that the plaintiff had no cause of action and even if he had one, it was barred by Section 43 of the Civil Procedure Code.
2. It has been argued in second appeal before us that the learned Subordinate Judge is wrong on both these points and we think the contentions are sound and must prevail.
3. The terms of the document are, quite clear and we are surprised that the learned Subordinate Judge was able to hold that it does not show that the money belonged to the minor. Assuming that these is some ambiguity in the first part of the document as to the ownership of the money, the fact of the stipulation for paying the whole of the profits for the maintenance of the minor taken with the facts of the guardianship, the surety ship, the Land Acquisition Collector's cheque clearly mentioned in the document, leave no doubt in our minds that the money belonged to the minor. The learned Judge says the stipulation for the support of the minor is not enough and the guardian might have lent his own money. This way of singling out one fact in a case and making surmises upon it independently of the surrounding facts is very apt to mislead and has in this case led to a grave miscarriage of justice.
4. In the view that we take of the document, the money belonged to the plaintiff and he had a right of suit in respect of the same.
5. But is that right barred by Section 43 of the Civil Procedure Code? In the first Court this bar was attributed to an application made by the plaintiff to the District Judge for the realization of the amount from the guardian and the surety and was easily repelled by the learned Munsif as the application was not a suit on the bond and the plaintiff was still a minor at the time of the application. The learned Subordinate Judge, however, puts the matter upon a more plausible ground that as the guardian had admittedly sued for the profits or interest only after both principal and interest had become due, the guardian had abandoned the principal and the bar under Section 43 applied. This view has been supported by the learned Vakil for the respondent on the authority of Gopal Rao v. Narasingh Rao 22 M. 309. There, as in this case, the circumstances in which the previous suit had been brought were not disclosed in the evidence and the learned Judges said: We cannot say that Section 43 of Civil Procedure Code has no application to a suit in which the plaintiff is a minor. The acts of the guardian in the conduct of a suit must be upheld unless it is shown that they were unreasonable or improper.' We may, however, refer to the case of Kylash Chander Sircar v. Gooro Churn Sircar 3 W.R. 43 (Jackson and Glover, JJ.,) in which the learned Judges say: 'There is no law that prevents a minor when he comes of age, suing in his own name for anything that his guardian either through ignorance or negligence has omitted to prosecute. If this were the law, no minor could be safe.' It was held in that case that Section 7 of Act VIII of 1859 was no bar to a minor suing for properties omitted from a previous suit by his guardian. This case was referred to with approval in the case of Lalla Sheo Churn Lal v. Ramnandan Dobey 22 C. 8 (Trevelyan and Ameer Ali, JJ.). That was a case of the statutory bar under Section 103 of the old Civil Procedure Code and the learned Judges said: 'Section 7 of Act VIII of 1859 corresponds with the first part of Section 43 of the present Code and is as much a statutory bar as Section 103: so if negligence gets rid of the statutory bar under Section 43, it equally gets rid of the one imposed by Section 103.' We prefer to follow the decisions in our own Court as they are in favour of the right to proceed and consistent with the rules of justice, equity and good conscience. Even supposing that Section 43 could be called in to support the defence, we think the conduct of the guardian, in taking the bond in his own name, and especially in suing for the profits only, was not only unreasonable and improper but positively fraudulent. He knew that if he sued for the principal, his surety would cancel the surety-bond for which in reality it was a security and thus and his guardianship and, therefore, sued for the profits only. In that view, it would be a clear breach of duty for securing a personal end and could not at all bind his ward. If, again, the understanding between the parties was that the principal should not be called in during the subsistence of the guardianship and the suit was, therefore, limited, the surety or his heirs cannot be heard to say that there was any abandonment.
6. In this view of the case, we set aside the judgment and decree of the Subordinate Judge and restore the decree of the Munsif with costs in all Courts.