[This Petition first came on for hearing on the 28th day of March 1918, before their Lordships Sadasiva Aiyar, J. and Napier, J.]

Napier, J.

The plaintiff in this suit sues for recovery of moneys due on a mortgage deed executed in his favour by the mother of the 1st defendant as his guardian. The Lower Appellate Court found that the greater part of the money was borrowed for the marriage of the 1st defendants sister and that the amount was moderate and spent for legitimate purposes. Both Courts have held that the property could not be mortgaged without the sanction of Government. But the first Court held that the 1st defendant was bound to liquidate the debt by any property other than the mortgaged property, and decided that the plaintiff was entitled to a decree for Rs. 550 against the 1st defendant as head of the Vajjula family and manager of the family property. The decree followed the terms of the judgment.

The sole point taken before us is that this is a personal decree against the minor on an obligation created by his guardian and that no such decree can be given. Reliance is placed on the decision of the Privy Council in Waghela Rajsanji v. Shekh Masludin (I.L.R., 11 Bom., 651). The covenant in that case which was contained in a mortgage of a Talukdars estate by his guardian, is found in the deed set out at pages 553 and 5

54. It is as follows: If Government should make a claim in any way * * * * and if you should have to pay * * * * all those moneys and the interest on those moneys, we and our heirs are to pay to you * * *You are to recover your money from the said property, etc., and from our persons. The Bombay High Court gave judgment for a sum of Rs. 12,000 to be recovered from the defendant Rajsanjis property generally as well as from him personally. So far as the personal liability is concerned, the view of their Lordships is stated at page 561: Now it was most candidly stated by Mr. Mayne, who argued the case on behalf of the respondent, that there is not in Indian Law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English Law. In point of fact, the matter must be decided by equity and good conscience, generally interpreted to mean the rules of English Law if found applicable to Indian society and circumstances. Their Lordships are not aware of any law in which the guardian has such a power, nor do they see why it should be so in India. They Conceive that it would be a very improper thing to allow the guardian to make covenants in the name of his ward, so as to impose a personal liability upon the ward, and they hold that in this case the guardian exceeded her powers so far as she purported to bind her ward, and that, so far as this suit is founded on the personal liability of the Talukdar, it must fail. This decision was considered by this Court in Venkitaswami Naicker v. Muthuswamy Pillai (34 M.L.J., 177). In that case, the guardian of a minor executed a bond in favour of a certain mortgagee to pay certain express which the Lower Appellate Court found reasonable and with respect to which this Court was no prepared to differ from the lower Appellate Court. The High Court was of opinion that the decision in Waghela Rajsanji v. Shekh Masludin (I.L.R., 11 Bom., 551) went no further than this, that no decree should be made against the minor personally, but that a decree might be made against his property. It was admitted that if the property had been specifically charged, such a decree could be passed, but it was argued before the Court on the authority of Indur Chunder Singh v. Radha Kishore Ghose (I.L.R., 19 Cal., 507) that in the absence of such a specific charge no decree could be passed against the estate of the minor. The Court pointed out that in Indur Chunder Singh v. Radha Kishore Ghose (I.L.R., 19 Cal., 507), the Judicial Committee were dealing with a document which did not purport to have been executed by a guardian on behalf of the minor and referred to page 513 of the report where the Board pointed out that the plaintiff was asking the minor to fulfil obligations entered into by the lessees in their own name. The judgment also points out that in several cases since the decisions of the Privy Council, this Court has held that the minors estate could be made liable, the decisions being Subramania Ayyar v. Arumuga Chetty (I.L.R., 26 Mad., 330), Duraisami Reddi v. Muthial Reddi (I.L.R., 31 Mad., 458), Sanka Krishnamurthi v. The Bank of Burma (I.L.R., 35 Mad., 692) [LQ/MadHC/1911/141] and Krishna Chettiar v. Nagamani Ammal (I.L.R., 39 Mad., 915) [LQ/MadHC/1915/295] . In view of this catena of decisions in the Presidency, the Court saw no reason why they should refer the case to the Full Bench. It has now been pressed upon us that the decision in Venkataswamy Naicker v. Muthuswamy Pillai (34 M.L.J., 177) does not give full effect to the decision of the Privy Council in Waghela Rajsanji v. Shekh Masludin (I.L.R., 11 Bom., 651), in that suit was dismissed by the Privy Council and no limited form of decree given. It is further contended that although in the case in Indur Chander Singh v. Radha Kishore Ghose (I.L.R., 19 Cal., 507) the mortgage did not purport to be executed qua guardian, there are dicta at page 511 which are inconsistent with the decision in Venkitaswamy Naicker v. Muthuswamy Pillai (34 M.L.J., 177). The language is as follows:The contention that mother and widow * * * had power to bind the minor by contract was abandoned in the Court below and their Lordships are of opinion that such a contention could not be sustained. I agree that this is definite language. But it is doubtful whether it carries the case any further than the decisions in Waghela Rajsanji v. Shekh Masludin (I.L.R., 11 Bom., 651). Reliance is also placed on the decision of a Bench of this Court in Swaminatha Aiyar v. Srinivasa Aiyar (32 M.L.J., 259). But that was a case not of a guardian of a minor, but of a trustee with reference to temple property, and the question now before us only arose on the suggested analogy between such a trustee and the guardian of a minor. The last case prior to the decision in 34 M. L. J. 177 is that in Parvathi Ammal v. Namagiri Ammal (6 L.W., 722). The question in that case was how far an estate can be made liable where the executor had borowed money on a promissory note for the purpose of paying a legacy to the testators daughter. The position then is this: that there are two cases in the Privy Council which go a long way to support the appellants contention; and there are subsequent decisions of this Court which it is contended are inconsistent with the ratio decidendi in the Privy Council cases.

I think it advisable therefore to refer to the Full Bench the question whether any decree, and if so, what decree can be passed against a minor or his estate on a covenant entered into on his behalf by a guardian for his benefit, under which covenant no charge is made on the estate.

Sadasiva Aiyar, J. I agree.

John Wallis, C.J.

[1] The decision of the Privy Council in Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 with reference to a personal covenant made on behalf of a Hindu minor by his guardian, that a guardian cannot be allowed to make covenants in the name of the ward so as to impose personal liability upon him, precludes us, in my opinion, from holding that a guardian has any such power in India. It was, however, pointed out in Maharana Shri Ranmalsingji v. Vadilal Vakhatchand (1894) I.L.R. 20 Bom. 61 at p. 70 that this ruling does not affect the liability of the minor s estate under Section 68 of the Indian Contract Act to persons who have supplied him during minority with necessaries suited to his condition in life. What are necessaries must depend on the facts of each case, and in the case of a Hindu, money advanced for the expenses of a marriage which the minor has to perform or to pay off a debt binding upon him, may be recoverable under this head from his estate. It was held in this case that a guardian has no power to acknowledge debts on behalf of the minor, but this part of the decision was overruled by a Full Bench in Annappagauda v. Sangadigyappa (1901) I.L.R. 26 Bom. 221 at p. 232 where Sir Lawrence Jenkins, C. J., pointed out that the fact that a guardian cannot impose a personal liability on his ward by contract does not prevent him from binding the ward by acknowledgments under Section 19 of the Limitation Act: "for an acknowledgment under the Act is fundamentally different from a fresh contract, though it may in some respects have similar results." Further, where a guardian himself borrows money for the necessities of the minor in such circumstances as to give him a right to reimbursement from the minor s estate, his creditor may in a proper case be subrogated to his rights as held in Sanka Kriehnamurthi v. The Bank of Burma (1911) I.L.R. 35 Mad. 692. In practically all the cases in this Court which are referred to in the order of reference or were cited before us, it will be found that the minor s estate could have been made liable under one of the first two heads independently of any contract by the guardian on his behalf. No practical inconvenience, therefore, would result from giving full effect to their Lordship s express decision, but, even if it were otherwise, we should be bound to follow it. That this rule is well settled appears to me to be assumed by the Privy Council in Indur Chunder Singh v. Radha Kishore Ghose (1892) I.L.R. 19 Cal. 50

7. I do not read the recent judgment in Imambandi v. Mutsaddi (1917) L.R. 45 I.A. 73 : 35 M.L.J. 422 as holding that a Mahomedan guardian can bind a minor s estate by contract except in the sense that the minor s estate will be liable for necessaries supplied by his agency, and that he can sell the minor s property in proper cases. The question under consideration in that case was the right of a de facto guardian to alienate the minor s property.

[2] It was also argued that the decision in Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 B. 551 only established the illegality of covenants imposing personal liability on the ward in the sense of making him liable to arrest after attaining majority in execution of a decree obtained against him on such covenants. This contention is clearly untenable.

[3] The High Court had passed a decree against the appellant, who was sued after attaining majority on a covenant made during his minority by his guardian, for Rs. 12,000 with interest to be recovered from the defendant s property generally as well as from him personally. The contention raised on appeal was that the covenant was not binding on him at all, and their Lordships upheld this contention and dismissed the suit altogether. Further the term personally liable is well understood in English Law, and has reference to the old classification of actions into personal, real and mixed. "Actions may be personal, as contradistinguished from real and mixed; the first being actions against the person only for damages, the second for recovery of real estate, the third for both." A.G. v. Lord Churchill (1841) 8 M. and W. 171, 192 : 151 E.R. 99

7. A man who was liable in the old personal actions of debt, covenant, trespass, etc., was said to be personally liable and is still so described after the abolition of these old forms of action and of the liability to arrest in execution. I think the answer should be that a decree cannot be passed against a minor or his estate on a covenant entered into on his behalf by a guardian for his benefit.

Ayling, J.

[4] I would prefer to frame our answer as suggested by my learned brother Seshagiri Aiyar, J., in his judgment about to be delivered.

Seshagiri Aiyar, J.

[5] It was tacitly agreed that the decision in Indur Chunder Singh v. Radha Kishore Ghose (1891) I.L.R. 19 Cal. 507 to which reference is made in the order of the Division Bench has no bearing on the question we have to decide. That was a case of a personal and onerous executory contract by the widows in management which was held not to bind the minor heir. The question before us is what is the principle laid down in Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 and what are its limits. There are some accepted propositions: (a) A guardian can for a proper purpose, by apt words, create a charge over the property under his management so as to bind the minor. See Dowse v. Gorton (1891) A.C. 190 : (b) If the guardian acts for the minor and borrows and if the creditor obtains a decree for the loan against the guardian, the latter can sue the minor for reimbursement: This is based on the principle of subrogation and may shortly be styled the theory of indirect recourse. Strickland v. Symons (1884) 26 Ch. D. 245 In re Johnson: Shearman v. Robinson (1880) 15 Ch. D. 548; Farhall v. Farhall (1871) 7 Ch. 7 A. 128 and Sanka Krishnamurthi v. The Bank of Burma (1911) I.L.R. 35 Mad. 692 : (c) For necessaries, the debts contracted by the minor himself or by his guardian would bind the estate : Section 68 of the Contract Act and Maharana Shri Ranmalsingji v. Vadilal Vakhatchand (1894) I.L.R. 20 Bom. 61 : (d) If the guardian in management gives a bond in renewal of a debt binding on the minor, the estate could be proceeded against, as the act of the guardian may be regarded as keeping alive by acknowledgment a pre-existing liability : per Jenkins, C.J., in Annappagauda v. Sangadigyapa (1901) I.L.R. 26 Bom. 221 at p. 282.

[6] It is possible that the cases which are said in the Order of Reference to conflict with waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 may be brought under one or the other of the above categories. That is the view taken by my Lord and that is certainly one way of reconciling the Privy Council decision with the mass of cases which have been decided since that ruling.

[7] However, I shall shortly point out that the decisions in Madras and in the other presidencies can be based on a broader ground. I do not wish to take a narrow view of Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 B. 55

1. Mr. Justice Woodroffe in Mir Sarwarajan v. Fakharuddin Mahomed Chowdhry (1906) I.L.R. 34 C. 168 states that what the Judicial Committee intended to lay down was that an onerous covenant cannot be imposed by the guardian upon the person or property of the minor. That is also my view. Although this decision was overruled by the Judicial Committee in Mir Sarwarajan v. Fakharuddin Mahomed Chowdhry (1911) I.L.R. 89 C. 232 on another point, I do not think this View of the law was taken exception to in the argument before or in the judgment of the Privy Council. The various English decisions dealing with trustees and executors to which our attention was drawn in the course of the argument lay down that a trustee or executor has no power to bind the beneficiary by personal contracts--In re Johnson Shearman v. Robinson (1880) 15 Ch. D. 548 and In re Evans : Evans v. Evans (1887) 34 Ch. D. 59

7. I do not think the bona fides of the guardian is an element for consideration. But where an infant s estate would be liable but for the interposition of the guardian, I fail to see why the latter undertaking that liability should not bind the estate. After examining Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 B. 551 once again, I do not think their Lordships intended to lay down that under no circumstances can a minor be held liable for the acts of his guardian. Almost all the High Courts have, since Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 B. 551, held that the liability of the minor under the Hindu Law is not affected by the fact that the guardian has incurred that obligation. Nathuram v. Shoma Chhagan (1890) I.L.R. 14 B 562 Maharana Shri Ranmalsinghji v. Vadilal Vakhatchand (1894) I.L.R. 20 B 61 Siva Narayan Ghosh v. Kamakhya Ghose (1918) 28 Indian Cases 877 (Cal.) Sunaararaja Ayyangar v. Pattanathuswami Tevar (1894) I.L.R. 17 M. 306 Sinaya Pillai v. Munisami Ayyan (1899) I.L.R. 22 M. 289 Subramania Aiyar v. Arumuga Chetti (1902) I.L.R. 26 M. 330 Srimath Daivasikamani Pandarasannadhi v. Noor Mahomed Routhan (1907) I.L.R. 31 M. 47 Duraisami Reddi v. Muthial Reddi (1908) I.L.R. 81 M. 458 Krishna Chettiar v. Nagamani Ammal (1915) I.L.R. 39 M. 915 and Venkitasamy Naicker v. Muthusamy Pillai (1917) 34 M.L.J. 177 have all taken this view. Sarjeant, C.J., Telang, J., Mookerjee, J. and Muthuswami Aiyar, J. are among the Judges who have enunciated this view.

[8] If we examine some of the Privy Council decisions before, contemporaneous with, and after, Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 it will be seen that the Judicial Committee did not intend to lay down that under no circumstances can the guardian bind the estate of the ward, except it be by creating a charge. In 6 Moore s Indian Appeals 393, the well known case of Hanuman Prasad, their Lordships speak of a guardian borrowing on behalf of a minor and charging his estate in the same sentence. In Watson and Company v. Sham Lal Mitter (1880) I.L.R. 5 Cal 381 which is contemporaneous with Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 an agreement by a guardian to pay enchanced rent was held binding on the minor. In Imambandi v. Mutsaddi (1918) 45 I.A. 73 the Right Honourable Mr. Ameer Ali lays down that a Mahomedan guardian can bind a minor s estate by contracts entered into for the Iatter s benefit. So the rule of law in Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 is subject to exceptions. Strong reliance was placed on the observation of Lord Hobhouse at page 561: "Now it was most candidly stated by Mr. Mayne, who argued the case on behalf of the respondent, that there is not in Indian Law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English Law". I do not think that it was intended to lay down by this statement that no rule to the contrary under the Hindu Law would be countenanced. The term Indian Law was meant to apply to the statute law of the land and not to Hindu or Mahomedan Law, I am therefore of opinion that the rule laid down in Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 was not intended to affect the Hindu Law liability of the minor. In this view, the decisions which are mentioned in the order of reference are not inconsistent with Waghela, Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551.

[9] I would therefore answer the question under reference by saying that no decree should be passed against a minor or his estate on a contract entered into on his behalf by a guardian, under which covenant no charge is created on the estate except in cases in which the minor s estate would have been liable for the obligation incurred by the guardian under the personal Jaw to which he is subject. Although the answer given by the learned Chief Justice read with his opinion would cover my opinion also, I respectfully think that in order that doubts may not be entertained as to our meaning, the answer should be in the form I have suggested.