(FEDERAL COURT)

Kania, C.J.

Civil Appeal No. XI of 1948

1. This is an appeal from a judgment of a Full Bench of the Madras High Court. The direct question raised for decision is about the power of a de facto guardian to alienate the property of a minor in consideration of a promissory note executed by such guardian in the name of the minor, under Hindu Law.

2. The material facts are these. The respondent (plaintiff) is the adopted son of Chelamayya Chowdhari who died on 9th January 1925 leaving him surviving two widows. The junior widow, Krishnamma, was empowered by the deceased to adopt a son to him and accordingly she adopted the respondent who was then about six years old. Krishnamma managed the estate of the minor after such adoption. On 1st February 1923 Chelamayya Chowdari had borrowed Kg. 3,000 from the appellant (defendant) who was his pleader. On 23rd April 1925, Krishnamma, then the de jure guardian of the minor, renewed this promissory note. By the time the debt with interested had amounted to Rs. 3,802. On the same date she executed another promissory note in respect of a further sum of Rs. 1,200 alleged to be due(sic) the appellant for professional work done by him during the lifetime of Chelamayya. On 23rd April 1928, Krishnamma executed a consolidatory promissory note for Rs. 6,802-11-6 in renewal of the two previous notes. She died in November 1928. Thereafter, the respondent's natural father China Seshayya entered upon the management of his estate. He was not appointed a guardian by any order of the Court and therefore had no legal title to manage the minor's estate. On 22nd June 1931, China Seshayya professing to act as the guardian of the respondent purported to renew the promissory note in the name of the minor. The debt then amounted to Rs. 9,251-11-6. The promissory note was in these terms:

"Promissory note, dated 22nd June 1931, executed in favour of Kondamudi Gopala Rao's son Sriramulu, residing at Tenali by Myneni Chelamayya Chowdari's adopted son Pundarikakshayya, residing at Myneni-varipalem, hamlet of Dulipudi in Repalle taluk, being minor by natural father and guardian Mandava Rama-swami's son China Seshayya, inhabitant of Sajjavari-palem now at Tenali.

The amount of principal and interest due up to 23rd April 1931 under the promissory note executed on 23rd April 1928 by Sri Krishnamma, the minor's adoptive mother for herself and as guardian of the minor being Rs. 9,251-11-6, the interest that had accrued due on that sum from 23rd April 1931 up to this day being Rs. 18115-0 and the value of the stamps being As. 4, a total sum of Rs. 9,433-14-6 is due. On demand, I shall pay you or your order, this sum of nine thousand four hundred and thirty-three rupees fourteen annas and six pies, with interest at re. 1 per cent, per mensem. To this effect is the promissory note executed as of consent,

(on four one-anna stamps)

Myneni Pundarikakshayya, being minor-.

(mark and left thumb impression of) Mandava China Seshayya, the natural father and guardian."

3 It was alleged that the note was renewed in June 1931 as the period of limitation expired during the Court vacation when the payee had the right of instituting a suit on the reopening of the Court and that the new promissory note was executed to avoid a suit being filed. On 2nd June 1932, China Seshayya conveyed the immovable properties mentioned in the plaint to the defendant for Rs. 14 873. Only Rs. 75 were paid in cash and this represented the cost of the stamp on the conveyance and the registration charges. The rest of the consideration was supposed to be satisfied by the discharge of the promissory note of 22nd June 1931 and by payment of Rs. 4,590-9-6 to another creditor.

4. On 9th December 1937 the respondent attained majority and he instituted the suit on 9th December 1940. In order to enable the High Court to determine the points of law, it was accepted on behalf of the respondent that the promissory note executed by the minor's adoptive father were executed for full consideration, that the de facto guardian had administered the minor's estate to the best of his ability and that in executing the promissory note of June 1931 the de facto guardian did so in order to ward off a suit against the minor's estate threatened by the creditor.

5. The point directly to be decided in the appeal is whether a de facto guardian of a Hindu minor has power to pass a promissory note in the name of the minor so as to bind his estate and become consideration for a conveyance executed by the de facto guardian. It is conceded that except the promissory note or the debt covered by it there was no other consideration for the conveyance executed by the de facto guardian in June 1932.

6. The few Hindu law texts which deal with the disposal of a minor's property by some one else in case of necessity are collected in Colebrooke's Digest, Vol. 1, p. 302. As regards authoritative judi-cial decisions, the first was given in 1856 in Hunooman Persaud Panday v. Mt. Babooee Munraj Koonweree, 6 M.I.A. 393. As that decision is the foundation for all decisions of Indian High Courts, it is necessary to carefully notice the facts therein and the principles laid down by the Judicial Committee. Money was advanced to a zemindar by the appellant's father and as security for some of them the Raja had conveyed certain villages by way of usufructuary mortgage. After the death of the Raja, an adjustment of account was made by his son and heir and certain further bonds and mortgages were given. That son died, leaving him surviving an only infant son and a widow. The widow assumed the proprietorship of the estate of her late husband and the guardianship of the infant son. Her name was registered along with the minor in the Government records as owner. An adjustment of account took place between the infant's mother and the banker. Certain family estates being in arrears of revenue and being in danger of sequestration, the banker paid to the local Collector revenue at the request of the infant's mother. For this, three separate bonds were passed by the mother in favour of the banker. Further loans were taken and adjustments were made. On the final adjustment The minor's mother gave a mortgage bond in favour of the banker and that transaction was the subject-matter of the suit which gave 'rise to the appeal. In that bond the mother was described as being possessed of the mortgaged property in proprietary right.

7. When the minor (respondent) attained majority, he filed a suit in the Sudder Ameen's Court to set aside the mortgage bond. In addition to the contention that the mother was purdanashin and, being ignorant, was imposed upon and deceived, the transaction was challenged on the ground that there was no valid authority in anyone to effect the transaction. The Sudder Ameen dismissed the suit but on appeal the High Court reversed the decision, proceeding on the footing that the Ranee (mother) had conveyed the property as proprietor and as she had no title to convey the property, none passed to the banker, Although in the course of argument before the High Court it was contended, in the alternative, on behalf of the plain-tiff that the Ranee was not competent under the Hindu Law to make such a bond, the High Court did not deal with this argument because according to the High Court the defendant had not raised the plea that the transaction was effected by the Ranee acting as her son's guardian. When the matter came before the Judicial Committee this point was specifically urged. Their Lordships held that the contention was covered by the second issue raised in the trial Court and therefore, it was open to the defendant to urge the alternative contention. The Board considered the validity of the transaction under headings 2 and 3 which were formulated in these terms:

"Secondly, did it (High Court) take a right view of the relation in which the Ranee intended to start her son's estate;, and, Thirdly, did it consider the point whether the rights of these parties could wholly depend upon the question whether that relation was duly or unduly constituted"

They held that the High Court had not taken the correct view as to the relation in which the Ranee meant to stand and substantially stood to the estate of her son and disposed of that contention as follows:

"They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever description she gave to herself,, or others gave to her; that she must be viewed as a Manager, inaccurately or erroneously described as 'proprietor ' or ' heir'; and it is to be observed, that the Collector takes this view, for, whilst he remarks on the improper description of her as heir, or proprietor, he continues her name as 'Surberakar'."

Upon the third point they observed as follows:

"Under the Hindu Law, the right of a bona fide incumbrancer who has taken from a de facto Manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of (sic)state, is not (provided the circumstances would support the charge had it emanated from a de facto, and de jure manager) affected by the want of union of the de facto, with the de jure, title. Therefore, had the Ranee intruded into the estate wrongfully, and even practiced a deception upon the Court of Wards...it would not follow that those acts, however wrong, would defeat the claim of the incumbrancer. The objection to the Ranee's assumption of proprietorship...does not really go to the root of the matter, nor necessarily invalidate the charge."

They noticed that in the plaint it was stated that the Ranee had assumed possession as guardian, i. e., as managing in that character. After first dealing with the actual factum of the deed of charge, they considered the question of consideration. They discussed the question of onus of proof and declined to lay down any general rule but observed that each case had to be considered on its own circumstances and merits. They expressed the opinion that the lender has-to establish a prima facie case to show necessity or benefit to the estate. As the necessary mate-rials to. determine the question of necessity or benefit to the estate of the minor were not before the Board they remanded the case for further enquiry with the following observations:

"The power of the Manager for an infant heir to charge an estate not his own, is under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance is the thing to be regarded.... Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to' satisfy himself as well as he can, with reference to the parties with whom he is-dealing, that the Manager is acting in the particular instance for the benefit of the estate.... It is obvious that money to be secured on any estate is likely to be obtained on easier terms than a loan which rests-on mere personal security, and that, therefore, the mere creation of a charge securing a proper debt cannot be viewed as improvident management."

In giving final directions for the remand they observed that the mortgage bond had been executed by the Ranee as and in the character of guardian of the infant. In respect of the actual liability to be ascertained, they observed as follows:

"And their Lordships are of the opinion that the validity, force, and effect of the bond, as to all and each of the sums, of which the sum of Rs. 15,000, thereby purporting to be secured, is composed, depend on the circumstances under which the sums, or such of them as were advanced by the appellant, were respectively so advanced by him, regard being had also, in so far as may be just, to the circumstances under which the same were respectively borrowed. And their Lordships are also of the opinion that, assuming the bond to be invalid and ineffectual, the appellant would nevertheless, be entitled to the benefit of any-prior mortgage or mortgages paid off by him affecting the property comprised in the bond, if and in so far as such prior mortgage or mortgages was or were valid and effectual."

8. It should be noticed that in this case although the mother was the natural guardian, the Judicial Committee decided the case not on that footing but on the footing that there was a manager in fact of a minor's estate. The observations therefore clearly cover the case of a de facto manager and are not confined to the position of a natural guardian only.

9. These observations of the Privy Council, although made in respect of a mortgage, have been held applicable to cases of sales also. The principles enunciated in this case have been applied in the case of sales or mortgages by persons having a limited estate, like a Hindu widow or the manager of a joint Hindu family.

10. The next case to be noticed in this connection is Waghela Rajsanji v. Shehh Masludin, 14 I.A. 89. In that case the plaintiff was the creditor of the defendant's father and the debt appeared to have been one for which the taluqdari family estate might be made liable. An account of the debt was made up in 1858 and instead of enforcing payment, the mother and guardian of the minor, who was then about eleven years old, conveyed a certain portion of the family land to the creditor. That transaction was challenged by the minor in 1868 on his attaining majority, but was held to be a bona fide one and within the range of her powers. The question in the Privy Council appeal arose because the family had claimed to hold the conveyed lands rent-free and the guardian conveyed them as rent-free, but the purchaser not being content with the assertion of the family (though it was in fact held as rent-free) took a covenant from the guardian to indemnify him in case the Government should enforce their claim to receive rent out of the estate. That covenant was framed so as to bind both the guardian and the infant, who was nominally by his guardian a party to the deed. There was no doubt that the covenant bound the guardian but the question of liability of the infant taluqdar on the covenant was raised. The lower Courts had not applied their mind to this fact because they considered that the previous decision covered the matter. On behalf of the respondent (plaintiff) in that case it was candidly admitted that in Indian law there was no rule which gave a guardian and manager greater power to bind an infant by a personal covenant than what existed in English law. The Board held that according to English law a guardian or manager had no such power and similarly in India also there existed no such authority in a guardian to give a covenant which would be binding on the minor or his estate. The third decision of the Privy Council is Mohoribibee v. Dharmodas Ghose, 30 I.A. 114. In that case it was held that a minor's contract was not voidable, as it had been thought till then but was void.

11. The High Courts in India have considered the effect of these decisions in different cases. Numerous cases were cited at the Bar and they show that till the decision under appeal the view of the Madras High Court in respect of the power of a de facto guardian to pass a promissory note was not uniform. The Bombay High Court in Nagindas Goculdas v. Bhimrao Damu, A.I.R. (80) 1943 Bom. 44 [LQ/BomHC/1942/49] held that a de facto guardian had no power to pass a promissory note even for a necessary purpose so as to bind the minor or his estate.

12. In this state of judicial decisions, the liability of a Hindu minor's estate may be considered under three heads.

"(1) Whether an alienation (mortgage or sale) of a minor's immovable property is permissible in case of necessity.

(2) Whether there is liability for money borrowed for necessity and, if so, in what manner it could be so borrowed; and

(3) Whether a negotiable instrument can be executed for or in the name of the minor so as to be enforceable against the minor's estate."

13. In my opinion, much of the apparent conflict of views will disappear if a de facto guardian is described as a de facto manager. In law there is nothing like a de facto guardian. There can only be a de facto manager, although the expression ' de facto guardian' has been used in text books and some judgments of Courts. If that description is adopted (and I consider it to be the correct description of a person generally managing the estate of a minor without having any legal title to do so) the powers of a natural guardian are not brought into consideration in defining the position of such a manager. On first principles, it appears clear that a manager, who manages the estate of the minor because he finds it necessary to do so, although he has no legal title to handle the estate, must have his powers circumscribed by the limits of the necessity or benefit to the estate of the minor. The law has tried to find a solution out of two difficult situations. When a Hindu minor has no legal guardian, there will be no one who can handle and manage his estate in law, so that unless some one is deemed to have such authority, the minor will not receive any income or return from his estates. The second point is that a person having no title cannot be permitted to intermeddle with the minor's estate so as to cause a loss to the minor. Judicial decisions have tried to find a way out of these difficulties. It may be noted that these difficult situations are not confined to Hindu minors only. Minors of all communities and everywhere have to face these difficulties. There appears to me no justification for treating the minors of different communities on different principles or to lay down different principles for the safety of the minor's estate, unless the personal law of the minor justified such a distinction. Waghela Rajsanji v. Shekh Masludm, 14 I.A. 89 was decided by the Judicial Committee on this line of reasoning.

14. The principle of the minor's estate being liable in case of necessity has been recognised by an Act in India in 1872 in section 68, Contract Act which is applicable to all persons. Under that section, it is provided that if necessaries were sup-plied to a minor his estate could be made liable for the same. The statement of law by the Privy Council in Hunooman Persaud's case 6 M.I.A. 893 has been followed in India for nearly a century and titles to properties Lave been created on that basis. Similarly, loans taken for the necessity of a Hindu minor have been ordered by the Courts to be repaid out of the minor's estate for several years past. It is unnecessary to have a discussion here on that question. 'That however, will be no justification for extending the application of the principle of necessity to transactions which do not strictly conform to that test. I do not think that the Court can over-look the duty of safeguarding the minor's estate against indiscriminate borrowings on the part of the guardian. As the minor cannot enter into a contract, I am reluctant to accept the argument that a de facto manager is the authorised agent of the minor and can therefore make his estate liable even in cases of necessity by making a contract in the name of the minor. That would be permitting a person without legal title to do something which the minor cannot himself do.

Normally the creditor gives credit to the guardian although he is aware that the loan is wanted for the minor's estate. He does not necessarily exclude the responsibility and liability of the guardian while he is conscious of his rights to recover the money from the minor's estate. In my opinion it is therefore right to hold that when a loan is taken for the purpose of necessity or bene-fit of the minor's estate by a de facto manager, he cannot effect a transaction so as to exclude his own liability. So far as the creditor is concerned this involves no hardship because he can proceed against the de facto manager and make the minor's estate liable on the principle of subrogation. This does not hurt the honest de facto manager because he has got the necessary facts and materials to show that the transaction was for the necessity of the minor or for the benefit of his estate. It does not adversely affect the minor's interest because when a claim is mads and the facts show that the transaction was for necessity or for the benefit of his estate and he has no claim against the de facto manager for maladministration, his estate should meet the obligation. Moreover, since 1856, appropriate Acts have been passed by the different Legislatures to enable the parties to obtain an order of the Court to safeguard the interest of the minor and protect the guardian also. In my opinion, therefore, the law as it stands permits a de facto manager to borrow money for the necessity or the benefit of the minor's estate, so as to make the minor's estate liable for the loan when he can do so without making out a contract between the minor and the creditor.

15. In respect of borrowing money on the security of negotiable instruments, the same test should be applied but with greater strictness, because by giving a negotiable instrument in the name of a minor, a de facto manager is bringing into existence a contract between a minor and the creditor and which contract under the Negotiable Instruments Act creates rights and privileges in favour of third parties, e. g., presumption as to consideration, rights of holders in due course, etc. I do not see therefore how the test laid down in Hunooman Persaud's case 6 M.I.A. 393, can authorise a de facto manager to make a negotiable instrument in the name of a minor. If a creditor chooses to accept a negotiable instrument made out in the name of the minor and on which the de facto manager is not liable, in my opinion, it is clearly void and unenforceable against the minor or his estate. If the lender files a suit on the debt (apart from the negotiable instrument) he will have to satisfy the conditions necessary to make the minor's estate liable in respect of the transaction sought to be enforced by him, as mentioned above. This view reconciles the three principal decisions of the Judicial Committee on which the rights of the creditors and liabilities of Hindu minors, when the minor's estate is dealt with by a de facto manager, are based.

16. Applying those principles to the case before us, in my opinion, the Full Bench decision of the Madras High Court under appeal is correct. The promissory note of June 1931 is worded so as to exclude the de facto manager's personal liability. It purports to be a note executed on behalf of the minor alone. It may be noticed that it is a distinct departure from the previous notes where the natural guardian had made herself personally liable on the notes also. In my opinion, the promissory note of June 1931 is not binding on the minor in any way. The attempt of the applicant to rely on this note, not as a promissory note but as an acknowledgement of liability of the debt, must fail on two grounds. Firstly, it is made by a person who is not authorised to give an acknowledgement under the Limitation Act. That right is limited to a 'natural guardian by Section 21. Secondly, this alleged acknowledgement was passed more than three years after the promissory note was passed by the natural guardian and although it may have been open to the creditor to file a suit on that previous note when the Court reopened in June, that extension of time was only for the limited purpose of filing the suit and not for keeping the debt alive.

17. The appellant contended that the promissory note of June 1931 was passed by China Seshayya for legal necessity. The Full Bench of the Madras High Court decided the appeal on two admitted facts only: (1) That China Seshayya had managed the minor's estate to the best of his ability, and (2) that in executing the note he did so in order to ward off a suit against the minor's estate threatened by the creditor. The first statement only proves that the de facto manager had acted bona fide That is no proof of necessity or benefit to the estate of the minor. The evidence led before the Subordinate Judge shows that the applicant was making preparations for filing a suit and had prepared a list of properties with a view to make an application for attachment before judgment. The evidence does not show that any notice of demand was served on the manager or any stamp papers were purchased or any plaint was drafted. Without adequate materials to establish that the manager was threatening to dispose of any property of the minor so as to defeat or delay the execution of any decree which may be passed in the intended suit against the minor's estate (and for which there is not even a suggestion in the evidence on record), it is obvious that no Court would pass an order of attachment before judgment under Order 38, Rule 5, Civil P.C.The amount-mentioned in the promissory note of 1928 included charges for the appellant's work as a pleader, which do not appear to have been scrutinised by anyone. The appeal is decided against the ap-pellant on the grounds mentioned above and it should not be deemed to be held that the above-mentioned two admitted facts before the High Court or the evidence led before the Subordinate Judge is considered sufficient to make out a case of necessity or proof of pressure on the estate so as to justify the revival of a debt.

18. The result therefore is that when the conveyance of 2nd June 1932, was executed in favour of the appellant there was no valid and enforceable debt owing to the appellant and the conveyance therefore cannot be supported as given for valid consideration or for necessity or for the benefit of the minor's estate. The sale therefore should be set aside, and the plaintiff restored to possession of the properties with mesne profits. The High Court has given relief in respect of the amount actually paid by the appellant and given the appellant a charge in respect of the same. The decree of the High Court is therefore confirmed and the appeal is dismissed with costs.

Fazl Ali, J.

19. This appeal raises an important point of law, viz., 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. Once the law on this point is correctly deter-mined, there will be no difficulty in applying it to the facts of this case, which will be stated later in so far as it is necessary to state them for the purpose of deciding this appeal.

20. It may now be taken to be well settled by a long course of decisions that a de facto guardian has, in case of necessity or benefit to the minor, power to charge, mortgage or sell the minor's property. The earliest case which sup. ports this view is the well-known case of Hunoomanpersaud Panday v. Mt. Babooee, 6 M.I.A. 393, on which a large number of subsequent decisions are based. The question before the Privy Council in that case was whether the mortgage of a part of a minor's estate by his mother (who was his natural guardian) was binding on him but in view of certain contentions put forward on behalf of one of the parties suggesting that the status of the mother was no higher than that of a de facto manager, their Lordships observed:

"...it is to be observed that under the Hindoo law, the right of a bona fide incumbrancer who has taken from a de facto Manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto with the de jure title."

The view so expressed has been held in a number of subsequent decisions of the various High Courts to cover sales by a de facto guardian on the ground that if the de facto guardian has the power to charge or mortgage the minor's property, he must also have the power to sell it, in case of necessity or benefit to the minor. The rule enunciated by the Privy Council has also been extended in some cases to simple loans contracted by a natural or lawful guardian of a minor, whether under a simple bond or a promissory note. Some of these cases are : Padma Krishna Chettiar v. Nagamani Ammal, A.I.R. (3) 1916 Mad. 677, [LQ/MadHC/1915/295] Ramakrishna v. Chidambara, A.I.R. (15) 1928 Mad. 401, Duraisami Reddi v. Muthial Reddi, 31 Mad. 458, Meenakshi Sundaram Chetty v. Ranga Ayyangar, A.I.R. (19) 1932 Mad. 696, [LQ/MadHC/1931/290] Satyanarayana v. Mallayya, A.I.R. (22) 1935 Mad. 447 [LQ/MadHC/1934/454] (F.B.). In the last two cases, the guardian had executed simple bonds, but, in other cases, the liability of a minor on a promissory note was the subject of discussion. In all these cases, the test laid down in Hanoomanpersaud Panday's case 6 M.I.A. 393, formed the basis of the decision.

21. These decisions however cannot be reconciled with certain other decisions in which the opposite view has been taken. In Maharana Shri Ranmalsingji v. Vadilal Vakhatchand, 20 Bom. 61, it was held that a minor cannot be bound personally by contracts entered into by a guardian which do not purport to charge his estate. This view was reaffirmed in Keshav v. Balaji, A.I.R. (19) 1932 Bom. 460 [LQ/BomHC/1932/35] . In that case, a promissory note had been executed by the certificated guardian of a minor with the sanction of the Court but it was held that it was not binding on the minor or his property. The same view was taken in Shankar v. Nathu, A.I.R. (19) 1932 Bom. 480, [LQ/BomHC/1932/40] in which case also a promissory note had been passed by a certificated guardian. These two cases were decided by a single Judge, but their decision was referred to with approval by a Division Bench of the Bombay High Court in Nagindas Gokuldas v. Bhimrao Damu, A.I.R. (30) 1943 Bom. 44 [LQ/BomHC/1942/49] .

22. There are thus two divergent series of cases, one favouring the view that it would be illogical to restrict the observations of the Privy Council in Hunoomanpersaud Panday's case 6 M.I.A. 393 to mere mortgages and sales and not to extend it to simple loans contracted in case of necessity : and the other stressing the view expressed by the Privy Council in certain cases in which it was held that no decree can be passed on the guardian's covenant either against the estate of the minor or against his person. The two leading cases on the subject are: Waghela Rajsanji v. Shekh Masludin, 11 Bom. 551 and Indur Chunder Singh v. Radhakishore Ghose, 19 Cal. 507. In the first case, the mother of a minor as his guardian had conveyed a part of a talukdari estate in liquidation of certain debts due from the minor's father. The property was described to be rent-free, but one of the covenants in the deed of conveyance was that in case the villages, which were the subject of the conveyance, should be assessed to Government revenue, the guardian and ward would be liable to pay to the purchaser the amount with costs. This liability was also charged upon every part of the talukdari estate. Upon these facts, it was held by the Privy Council that the covenant in question was not binding on the minor, inasmuch as a guardian could not contract if the name of the minor so as to impose on him a personal liability. In the course of their judgment their Lordships observed as follows:

"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 (sic) 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."

In the second case, the facts were these: Upon the death of one Gopi Mohun Ghose, an jaradar, his mother and widow, as managers under his will, remained in possession of the land leased. Subsequently a son was adopted to him by the widow and succeeded to his estate. The lease having expired, a renewal for five years was taken by the managers, but was surrendered before that period elapsed, during the minority of the son, against whom on his attaining full age, a suit was brought by the lessor to recover three years rent of the renewed jara. In these circumstances, the Privy Council held that the contract of the adoptive mother and guardian was not personally binding upon the adopted son, and the suit was accordingly dismissed. The relevant observations in that case were these:

"The contention that the mother and widow of Go Mohun Ghose 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."

Later, their Lordships distinguished the case of Hanoomanpersaud Panday 6 M.I.A. 393 and in doing so, made certain observations to which I shall revert later.

23. These decisions can be explained with reference to their own facts, but the observations which I have quoted being of a somewhat general nature had to be considered in a number of cases. In some of the cases, it was suggested that the rule enunciated by the Privy Council was subject to certain exceptions based on Hindu law, and in Trevelyan's "Law relating to minors", the law on the subject was stated to be as follows:

"Although a guardian may in certain circumstances sell or charge his ward's property, he cannot bind his ward personally by a simple contract debt, by a covenant or by any promise to pay money or damages unless such promise be made merely to pay or keep alive a debt for which the ward's property was liable."

24. The rule stated in the above passage was further extended in Ramajogayya v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B. In that case, the following question was referred to a Full Bench:

"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."

According to Walli C. J., who was one of the members of the Full Bench, the proper answer to the question was 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. The other two learned Judges took a different view and held that the above statement should be qualified by adding the words:

"except in cases in which the minor's estate would have been liable for the obligation incurred by the guardian under the personal law to which he is subject."

25. The principle laid down in this Full Bench case was subsequently applied by another Full Bench of the Madras High Court to a case in which the mother of certain minor members of a Hindu joint family had executed a promissory note in renewal of an earlier promissory note by her which again was in renewal of a promissory note executed by the father of the minors. The Full Bench held that it was within the competence of a guardian by executing promissory notes to make a minor liable to the extent of the joint family property in his hands.

See Satyamrayana v. Mallayya, A.I.R. (22) 1935 Mad. 447 [LQ/MadHC/1934/454] F.B.

26. So far as the de facto guardian of a Hindu minor is concerned, no direct cases were cited before us to show that he can bind the minor's estate by executing a promissory note in respect of money borrowed for a necessary purpose. On the other hand the reported cases that were cited lay down that he has no such power. In Nagindas Gokuldas v. Bhimrao Damn, A.I.R. (30) 1943 Bom. 44, [LQ/BomHC/1942/49] it has been held that although a de facto guardian of a minor can validly sell the minor's property to a third person for legal necessity, the Courts would not be justified in extending the rule so as to cover the case of a promissory note passed by a de facto guardian, even though it may be for an antecedent debt of the minor's father. A similar view was expressed in Swaminatha Odayar v. Natesa Iyer, A.I.R. (20) 1933 Mad. 710, [LQ/MadHC/1933/159] in which Reilly J. supported his decision by using the following argument:

An essential feature of a promissory note is that the promise to pay is unconditional. And a negotiable instrument is intended to be one which can pass from hand to hand, bearing it3 meaning on its face, as itself the basis and evidence of a money claim. Any qualification of the promise in a promissory note, such as that it is only to be enforced against a minor if necessity binding on the minor can be shown is wholly foreign to the idea of a negotiable instrument.

This decision was followed in Vembu Ayyar v. Subbiah Pillai, A.I.R. (30) 1943 Mad. 273 [LQ/MadHC/1942/403] but in Satyanarayana v. Mallayya, A.I.R. (22) 1935 Mad. 447 [LQ/MadHC/1934/454] F.B., although the reasons upon which Reilly J. had based his decision were not approved, yet the correctness of the decision itself was not questioned. On the other hand, it was explained that the decision of the case before him rested on the fact that the promissory note was not executed by a lawful guardian at all. As I have already stated, the person who had executed the promissory note in that case was a de facto guardian. In the present case, a Full Bench of the Madras High Court has affirmed the view expressed in Swaminatha Odayar v. Natesa Iyer, A.I.R. (20) 1933 Mad. 710, [LQ/MadHC/1933/159] as will appear from the following observations in the judgment under appeal:

"We are of the opinion that the cases in which it has been held that a de facto guardian cannot bind the minor's estate by a promissory note executed by him in the minor's name have been rightly decided. He could only bind the minor by such an instrument if the personal law of the minor allowed him to do so. The ancient texts do not, of course, contemplate such a situation and it is not suggested that authority had been conferred by custom. It is one thing for a de facto guardian to borrow money for a necessary purpose and quite another thing to sign a negotiable instrument on the minor's behalf. There is nothing in the judgment in the Hanoomanpersaud's case 18 W. Rule 81 P. C., or in any later case to support such a proposition. On the other hand, as we have shown, there are decisions directly to the contrary. A power to borrow does not in itself imply a power to execute a negotiable instrument in respect of the debt."

27. It seems to me that the question which we have to decide in this case is really bound up with the larger question, viz., whether the. guardian of a minor can bind the minor's estate by a simple contract of loan entered into on his behalf in case of necessity. The cases to which I have referred clearly show that the law on the subject is in a state of great confusion. This confusion is, in my opinion, due to an overemphasis of the principles laid down in Hanoomanpersaud Panday's case 6 M.I.A. 393, and the failure to apply the distinction pointed out by the Privy Council in Indur Chunder Singh v. Radhakishore Ghose, 19 Cal. 507, between the power of the manager of an infant's estate to mortgage the minor's property and his power to bind him by contract. In that case after referring to the decision in Hanoomanpersaud Panday's case 6 M.I.A. 393, the Privy Council observed as follows:

"But in the present case the mother and widow of Gopi Mohun 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 may be that, as between them and the infant they might be able, in some circumstances, to show that the estate ought to bear the burden they had taken upon themselves, but that is not the question raised in this ease, in which the plaintiffs seek to establish a direct relation between themselves and the estate of the infant, and a liability on the part of the infant now that he is of age, and of his estate, to fulfil the obligations entered into by the lessees in their own name."

28. The principles deducible from this statement which is to be read with an earlier statement where the Privy Council negative the contention that the mother and widow of Gopi Mohun Ghose had power to bind the minor by contract, seem to me to be these :

"(1) The manager of an infant's estate can deal with the minor's estate by way of mortgage, in case of need or for the benefit of the estate.

(2) He cannot bind the minor by contract or under obligations and then transfer them to the minor's estate so as to enable the creditor to establish a direct relation between himself and the estate.

(3) In certain cases (which must presumably be cases of necessity or benefit to the minor), he might be able to show that the estate ought to bear the burden which he had taken upon himself. "

These propositions seem to be in consonance with the principles of Hindu law as well as general principles. A person who has to manage a minor's estate must have the power in case of necessity or benefit to the minor, to deal with it in the manner best suited to the occasion, in the interest of the minor. Such a power may extend to charging or alienating the properties of the minor in cases where no other course is open, and must vest in the manager by virtue of his position in order to enable him to manage the estate in a way beneficial to the minor. But it does not necessarily follow that he can make contracts on behalf of the minor so as to involve the minor and his estate in obligations or liabilities and inasmuch as every con-tract of loan, if it is to bind the minor, must saddle him with liabilities, a power to enter into such a contract does not necessarily go with the power to deal with the estate. There may however be cases in which the minor's needs have to be met and in such cases, the third principle enunciated by the Privy Council can come into play, that is to say, the manager or guardian can show that the estate ought to bear the burden which he had taken upon himself. In such cases, by the principle of subrogation, the creditor might be allowed to stand in the shoes of the guardian and invoke the latter's right to reimbursement out of the minor's estate. That right must usually be subject to the state of accounts between the guardian and his ward.

29. It has been held in a series of cases that an executor or a trustee cannot by borrowing money from a person make him creditor of the estate in his hands even though the money was applied for the purpose of the estate. In Farhall v. Farhall, (1871) 7 Ch. App. 12, Mellish L.J. took it to be settled law that upon a contract of borrowing made by an executor after the death of the testator, the executor is only liable personally and cannot be sued as executor so as to get execution against the assets of the testator. The principle enunciated in this case has been applied to the case of an executor or a trustee in a number of cases in this country also. [See Shailendranath Palit v. Hade Kaza Mam, A.I.R. (19) 1932 Cal. 356, where some of these cases are collected.] The general rule however is subject to certain exceptions and, in a proper case, the executor or trustee may be entitled to be indemnified out of the estate in his charge.

30. It is true that the case of a guardian stands on a somewhat different footing from the case of an executor or a trustee, but it will be more in consonance with general principles to bring his case under the rule enunciated above than to invent a special rule for him which is not supported by Hindu law or by any unimpeachable authority. It is said that in Hanoomanpersaud Panday's case 6 M.I.A. 393, the guardian had contracted loans by executing simple bonds, and yet the Privy Council nowhere suggested that those loans could not have been contracted by a guardian. But it is overlooked that the circumstances under which the bonds were executed are not fully set forth in the judgment of the Privy Council, and there is nothing there to show that the guardian did not make herself personally liable under the bonds. It is to be remembered that in that case the mother of the minor claimed proprietary rights in the estate. It is also said that in the interests of the minor, the guardian should have ample powers to borrow on his behalf. It seems to me however that the interests of the minor would on the whole be better served by restricting the powers of the guardian than by unduly widening them, The question as to whether the necessity for the loan exists or not is sometimes a very difficult and complicated question, and it appears to me to be dangerous to lay down in the case of simple loans, as has been laid down in some cases following the rule in Hanoomanpersaud Panday's case 6 M.I.A. 393, that the minor's estate is liable even though the money raised on loan was not applied to actual necessity, if the creditor had made bona fide enquiry about the necessity. In my opinion, the undue extension of the principle laid down in Hanoomanpersaud Panday's case 6 M.I.A. 393 merely complicates rather than simplifies the law.

31. As to the specific question raised in this case, it seems to me that the view expressed in the judgment under appeal is correct. According to Section 4, Negotiable Instruments Act, a promissory note must contain an unconditional undertaking to pay a certain sum. Section 32 of that Act pro-vides that, in the absence of a contract to the contrary, the maker of a promissory note is bound to pay the amount to the holder on demand. Section 117 provides for compensation to be paid in case of dishonour of a promissory note, and Clause (e) of that section provides as follows:

"The party entitled to compensation may draw a bill upon the party liable to compensate him, payable at sight or on demand, for the amount due to him, together with all expenses properly incurred by him. such bill must be accompanied by the instrument dishonoured and the protest thereof (if any). If such bill is dishonoured, the party dishonouring the same is liable to make compensation thereof in the same manner as in the case of the original bill."

Section 118 states what matters are to be presumed about a negotiable instrument and, according to it, one of the presumptions to be drawn is that every negotiable instrument was made or drawn for consideration.

32. It seems to me that no guardian, much loss a de facto guardian, who has assumed without authority the power to act as guardian can be allowed to involve the minor's estate in liabilities which may follow by a strict application of the somewhat stringent provisions of the Negotiable Instruments Act. To give an undertaking on behalf of the minor that a certain sum will be paid on demand and that, in default of such payment, compensation will be payable is a somewhat onerous transaction, and, in my opinion any contract which exposes the minor and his estate to the risks involved in such a transaction cannot be countenanced in law.

33. The matter may also be looked at from another point of view. It has been pointed out in Swaminatha Odayar v. Natesa Iyer, A.I.R. (20) 1933 Mad. 710, [LQ/MadHC/1933/159] that any qualification of the promise in a promissory note such as that it is only to be enforced against a minor, if necessity binding on the minor can be shown, is wholly foreign to the idea of a negotiable instrument. A promissory note executed by a guardian on behalf of a minor is not a document containing an unconditional undertaking to pay a certain sum, because the undertaking is subject to two conditions. Firstly, that the note is to be enforced against the minor, if necessity is proved, and secondly that the amount is not payable except out of the estate of the minor, the creditor being thus unable to proceed personally against the guardian or the minor. It is clear that the negotiable quality of a mercantile instrument such as a promissory note will be greatly affected by reading these conditions into it : and also if any enquiry is permitted into the sufficiency of consideration, there is really no undertaking to pay a certain sum. It seems therefore to be doubtful whether such a document can be enforced as a promissory note. The questions remain as to whether it can be enforced as a simple bond or whether it can be used as evidence of a loan. These questions however appear to me to be merely academic, if the guardian cannot bind the minor's estate by contracting simple loans.

34. Now let us see what are the facts of this case. On and June 1932, Chinna Seshayya, the father of the respondent, who acted as a de facto guardian during his minority, after the death of his adoptive father and mother conveyed some of his lands to the appellant for a sum of Rs. 14,873. The consideration for this conveyance was made up of (1) a sum of Rs. 10,207-6-6 which was due to the appellant under a promissory note executed by Chinna Seshayya in favour of the appellant on 22nd June 1931, (2) a sum of Rs. 4,590-9-6 which represented part of the amount due on another promissory note which Chinna Seshayya had executed in the name of Gutta Punnayya on 11th November 1931 and (3) a sum of RS. 75, which was spent on purchasing stamp for the conveyance and on registration. We are not concerned in this appeal with Gutta Punnayya'a dues, as the decree of the High Court, which has not been challenged by the respondent, has granted an equitable relief to the appellant in respect of the sum paid to Gutta Punnayya. We are only concerned with the dues under the promissory note of 22nd June 1931.

35. It appears that the father of the respondent owed some money to the appellant. For this, he had executed a promissory note in his favour on 1st February 1923. On 23rd April 1925, the respondent's adoptive mother, Sri Krishnamma, renewed the above promissory note and also executed another promissory note in favour of the appellant for a sum of Rs. 1,200, which upon the findings in this case may be taken to have also been due by the respondent's adoptive father. Subsequently, on 23rd April 1928, the respondent's mother executed a promissory note in favour of the appellant for Rs. 6,802 odd in renewal of the two promissory notes of 23rd April 1926. On 22nd June 1931, Chinna Seshayya purported to renew that promissory note. This pro-note was executed' more than three years after the date on which the respondent's mother bad signed the last pro-note. It is, however, common ground that the period of limitation expired during the court-vacation, and the creditor had the right to institute a suit on the re-opening of the Court ; and it has been found that the new pro-note was executed on 22nd June in order to avoid the suit being filed.

36. The pro-note which was executed by Chinna Seshayya on 22nd June 1931, has been reproduced by my Lord the Chief Justice in his judgment. It is a peculiar document and is very different from the pro-notes which Chinna Seshayya had executed in favour of the other creditor, Gutta Punnayya and those which Sri Krishnamma had executed in favour of the appellant and Gutta Punnayya. In the promissory notes which were executed by Sri Krish-namma she made herself as well as the minor jointly liable. The promissory note of 12th November 1928, was executed by Chinna Seshayya himself in favour of Gutta Punnayya, though he describes himself as a guardian in that note. On the other hand, the pro-note with which we are concerned purports to be a pro-note by the respondent, who is described as minor, but it bears the left thumb impression of Chinna Seshayya who is described as his natural father and guardian. It was conceded before us that in the material part of the pro-note which says "On demand, I shall pay you or your order", the reference is to the minor, and the liability for payment is stated to be his.

It is well-settled that a contract by a minor is void, and it was expressly held in Ma Unit v. Hashim Ebrahim Meter, A.I.R. (6) 1919 P.C. 129, that a promissory note executed by a minor is also void. There can be no doubt that neither the respondent nor Chinna Seshayya can be made liable on the pro-note of 22nd June 1931. This pro-note also can-note be treated as an acknowledgement in law because Chinna Seshayya, not being a lawful I guardian, could not make a valid acknowledgement so as to extend the period of limitation under Section 21, Limitation Act. It follows that there was no valid debt due to the appellant to justify the alienation on 2nd June 1931. It has been contended before us that as the pro-note of 22nd June 1932, purports to discharge the dues under the prior pro-note, the minor was benefited by reason of the execution of the pro-note, and therefore he could be made liable. I cannot appreciate this argument. If the dues had become barred by limitation, the guardian could not have alienated properties to pay such a debt even though initially the money had been borrowed to meet the necessities of the minor. Therefore, unless there was a valid and enforceable debt, the alienation could not be supported. In this view, the decree of the High Court must stand, and I agree with my Lord T the Chief Justice that this appeal should be dismissed with costs.

B.K. Mukherjea, J.

37. This appeal is directed against a judgment of a Pull Bench of the Madras High Court, dated 21st August 1945, and it involves questions of some importance relating to the rights of a de facto guardian, under Hindu law, in the matter of alienating properties of the infant and creating contractual liabilities enforceable against the minor's estate.

38. The facts which are material for our present purpose may be shortly stated as follows : The plaintiff in the suit, out of which this appeal arises, is the adopted son of one Chelamayya Chowdari who died in January 1925 without any issue and leaving him surviving, his two widows, Rattama and Krishnamma, of whom the junior widow Krishnamma was authorised by the last will of the deceased to take a son in adoption to him. The plaintiff, who is the natural born son of one China Seshayya, was born in the year 1919 and he was adopted as a son by Krishnamma soon after the death of Chelamayya. The estate of Chelamayya which vested in the minor plaintiff after his adoption, was looked after by his adoptive mother Krishnamma so long as she was alive and after her death, which took place in November 1928, China Seshayya, the natural father of the plaintiff took charge of the infant and his estate and began to manage the properties as a de facto guardian without obtaining any certificate of guardianship in respect of the same. The defendant, who is the appellant before us, is a pleader practising at Tenali in the district Guntur and admittedly he acted as the legal adviser of Chelamayya and conducted several litigations on his behalf during his life-time. On 1st February 1923 Chelamayya executed a promissory note in favour of the defendant for a sum of Rs. 3000 only. After the death of Chela-mayya, his widow Krishnamma for herself and as the natural guardian of her adopted son executed two promissory notes in favour of the defendant on 23rd April 1925, one of which was for a sum of RS. 3802, being the principal and interest due on the earlier promissory note executed by Chelamayya on 1st February 1923, and the other for a sum of RS. 1200 which was alleged to be due to the defendant as his fees for legal work done by him during Chelamayya's lifetime. No payment, it seems, was made by Krishnamma towards either of these notes and on 23rd April 1928 she executed a fresh promissory note for a sum of RS. 6802 in favour of the defendant both on behalf of herself as well as her infant son and by this promissory note the principal and interest due on the earlier notes were consolidated. Krishnamma died, as stated above, in November 1928 and on 22nd June 1931 there was a renewed promissory note purporting to be executed by the plaintiff through his natural father and guardian China Seshayya promising to pay the sum of Rs. 9251-11-6 pies which was the principal and interest due on the note of April 1928. The promissory note is worded as follows:

"Promissory note, dated 22nd June 1931, executed in favour of Kondamudi Gopala Rao's son Sriramulu, residing at Tenali by Myneni Chelamayya Chowdari's adopted son Pundarikashayya, residing at Mynenivari-palem, hamlet of Dulipudi in Repalle taluk; being minor by natural father and guardian Mandaya Ramaswami's son China Seshayya, inhabitant of Sajjavaripalem now at Tenali.

The amount of principal and interest due up to 23rd April 1931 under the promissory note executed on 23rd April 1928 by Sri Krishnamma, the minor's adoptive mother, for herself and as guardian of the minor being Rs. 9251-11-6', the interest that had secrued due on that sum from 23rd April 1931 up to this day being Rs. 181-15-0 and the value of the stamps being As. 4, a total sum of Rs. 9433-14-6 is due. On demand, I shall pay you or your order, this sum of nine thousand four hundred and thirty-three rupees, fourteen annas and six pies, with interest at Re. 1 percent, per mensem. To this effect is the promissory note executed as of consent.

(On four one-annas stamps).

Myneni Pundarikakshayya, being minor -

(Mark and lefthumb-impression of) Mandava China Seshayya the natural father and guardia."

39. Thus the promisor was Pundarikakshayya himself and he being a minor the mark and left thumb impression of the natural father was given.

40. On 2nd June 1932 China Seshayya, as de facto guardian of the plaintiff, executed a sale deed in favour of the defendant, by which he transferred about 20 acres of land belonging to the plaintiff for a consideration of Rs. 14,873. Out of this, a sum of Rs. 75 only was paid in cash for meeting the vendor's share of the expenses of stamp papers. As regards the balance, the sum of Rs. 10,207 annas odd was taken by the purchaser in satisfaction of his dues under the promissory note, dated 22nd June 1931 mentioned above, and the remainder amounting to rupees 4590-9-6 pies, the vendee undertook to pay to one G. Punnayya in part satisfaction of the debt due to him on the basis of a renewed promissory note executed in his favour by the plaintiff's natural father on 11th November 1931. The plaintiff attained majority in 1937 and in December 1940 he commenced the present suit against the defendant for recovery of possession, with mesne profits, of the properties conveyed to the latter by his natural father by the deed of sale executed on 2nd June 1932.

41. The allegations in the plaint in substance were, that China Seshayya, the natural father of the plaintiff, was a mere intermeddler with his estate and had no legal authority to act as guardian after the plaintiff was given away in adoption to another family, that he was not competent to execute or renew any promissory note or to convey properties belonging to the plaintiff when he was a minor and that the transfer in question being made without any legal necessity or benefit to the minor and not being supported by any consideration was not binding on him.

42. The suit was contested by the defendant who contended inter alia that the sale in his favour was for valuable consideration and was effected by the natural father of the plaintiff as his de facto guardian for legal necessity and was consequently binding on the plaintiff. It was further averred that the plaintiff after attaining majority ratified the transaction and was, therefore, stopped from challenging its validity.

43. The case was heard by the Subordinate Judge of Bapatla and by his judgment, dated 27th September 1943 the learned Subordinate Judge dismissed the suit. It was held that the sale was supported by consideration and was bind-ing on the plaintiff, though there was no ratification by the latter which would stop him from questioning its validity. The claim for mesne profits at the rate of Rs. 1,000 a year was not considered by the Subordinate Judge to be excessive but as the suit was dismissed in its entirety, the question of mesne profits was not at all material.

44. Against this decision, an appeal was taken by the plaintiff to the High Court of Madras. The appeal came up for hearing in the first instance before Leach C. J. and Rajaman-nar J. but as in the opinion of the learned Judges the case involved an important question of Hindu law, namely, whether a de facto guardian can make the minor liable on a pro-missory note executed by him in the minor's name, the appeal was referred for decision to a Full Bench. In the order of reference it was stated by the referring Judges that the plaintiff's advocate accepted the position that the promissory notes executed by the plaintiff's father were executed for full consideration, that the de facto guardian administered the minor's estate to the best of his ability and that the promissory note executed on 22nd June 1931 was for the purpose of warding off a suit against the minor's estate which was threatened by the defendant.

45. The appeal was eventually heard by a Full Bench consisting of Leach C.J., Lakshmana Rao and Rajamanner JJ. and by the judgment, dated 21st August 1945 the learned Judges allowed the appeal and reversed the judgment of the trial Court. It was held that the natural father of the plaintiff, who was not his guardian de jure, had no authority, in law, to execute promissory notes on behalf of the minor and, therefore, there was no consideration for the conveyance that was made in favour of the defendant. It was also held that the de facto guardian of the plaintiff could not extend the period of limitation in respect of debts contracted by his adoptive father and consequently these debts were unenforceable and not subsisting at the date of the conveyance, The High Court agreed with the trial Judge that there was no ratification of the sale by the plain-tiff after he attained majority and it held further that the defendant was entitled to a charge on the properties, covered by the conveyance, for a sum of Rs. 4,590 annas odd which he actually paid to G. Punnayya in part satisfaction of the debt due to the latter, under the terms of the sale deed, together with interest at 6 per cent, per annum from the date of payment. The result was that the plaintiff was given a decree for possession with mesne profits, of the properties in suit, subject to the charge mentioned above.

46. Against this judgment the defendant obtained leave to appeal to the Judicial Committee of the Privy Council, but before the re. cords were transmitted to England, Act I [l] of 1948 was passed which enlarged the jurisdiction of this Court and in accordance with the provisions of that Act, the petition of appeal was lodged in this Court.

47. The appeal has been argued before us with considerable ability and thoroughness by the learned advocates on both sides and we are indebted to them for the assistance we received in arriving at our decision on the somewhat difficult points that are involved in this case.

48. The whole controversy in this case centres round the point as to whether the conveyance which was executed by China Seshayya, the de facto guardian of the plaintiff, in favour of the defendant in satisfaction of the debts due on certain promissory notes executed in the name of the minor by the de facto guardian himself could be held to be binding on the minor. The arguments advanced by Mr. Raghava Rao, who appeared in support of the appeal, may be briefly summed up as follows: His contention is that under Hindu law the position of a de facto guardian does not differ from that of a guardian de jure and under the law laid down by the Judicial Committee in Hanooman Persaud Pandey v. Mt. Babooee, 6 M.I.A. 393, a guardian either de jure or de facto is competent, in course of management, to charge or alienate any portion of the minor's properties for purposes of legal necessity or benefit to the estate. On the same principle, it is said, the de facto guardian can, in the interest of the minor, and to meet legal necessity, incur simple contract debts without charging any property and such debts would be binding on the minor's estate, It is immaterial-the learned advocate contends-whether such debt is evidenced by an ordinary money bond or by promissory note which is negotiable in law. In either case, the liability of the minor does not arise on the instrument itself but on the1 debt which is evidenced by it and if the debt wa3 for legal necessity or benefit of the minor, the creditor can recover his dues from the estate of the minor. This being the position in law, it is argued, that the promissory note executed in the name of the plaintiff by the de facto guardian in favour of the defendant on 22nd June 1931 which was the consideration for the sale created a valid debt binding on the minor's estate firstly because, it was given to the defendant to stave off a litigation which was threatened by the latter and which would have seriously jeopardised the interest of the minor, and secondly because it was binding on the minor being given in renewal of earlier promissory notes, the original debt being contracted by the plaintiff's adoptive father during his lifetime. A large number of decided authorities were canvassed before us on both sides which are neither very clear nor uniform. Admittedly, there is no Statute law in India which would help us in such matters. The questions, therefore, would have to be answered with reference to the personal law of the Hindus supplemented by rules of equity, justice and good conscience on matters where the Hindu law is altogether silent.

49. The extent of authority of a guardian either de jure or de facto over the property of the minor has not been a specifiic subject of discussion by any of the Hindu Smriti writers. It is clear, however, that the ancient Hindu law did recognise the rights of a de facto manager of the family and even of an individual member who was not in the position of a 'Karta' to alienate family property or to contract debts in times of distress or to meet family necessities or to discharge some pious obligation. The idea apparently is that the necessity itself creates authority in the person who otherwise would have no authority to alienate a property belonging to the family or to contract debts on its behalf. Colebrooke in his Digest {vide Colebrooke's Digest Texts 190 and 193), quotes a text of Narada which says:

"whatever debt has been contracted for the use of the family by a pupil, an apprentice, a slave, a wife or an agent must be paid by the head of the family."

Another text which is ascribed to Catyana runs thus:

"Whatever has been borrowed for the benefit of the family or during distress or in consequence of foreign invasion; or for the nuptials of his daughter or for funeral rites all such debts contracted by one of the family must be discharged by the chief of the family."

These are really cases of what are known as implied agency in law. A more pointed reference to the case of minors occurs in Mitakshara. Immovable property, according to Mitakshara, can. not be alienated even by the father without the consent of the sons. This is the, general rule ; but to this rule an exception is mentioned which is formulated in the following text which is as described to Vyasa:

"Even a single individual may conclude a donation, mortgage or sale of immovable property during a season of distress or for the sake of the family and especially for pious purposes."

Vignaneshwar's comment upon this text is as follows:

"While the sons and grandsons are minors incapable of giving their consent to a gift and the like; or while brothers are so and continue unseparated, even one person who is capable, may conclude a gift, hypothecation or sale of immovable property, if a calamity affecting the whole family requires it, or the support of the family renders it necessary or indispensable duties such as the obsequies of the father or the like make it unavoidable." (Vide Mitakshara, Chap. I, Section 1, Verses 27 and 29).

50. The texts undoubtedly relate to a case of joint property where the de facto manager of the minor's estate has also the interest of a co-owner, but as was observed by Banerjee J. in Mohanand v. Nafur, 26 Cal. 820 [LQ/CalHC/1899/62] at p. 824, that by itself might not affect the question, because so far as minor's interest is concerned, the right of the co-owner to dispose of it rests only on his power as manager.

50a. The materials such as these are undoubtedly scanty and the first definite and authoritative pronouncement of the law on this point is really to be found in the decision of the Judicial Committee in the well-known case of Hunooman Persaud Panday v. Mt. Babooee, 6 M.I.A. 393. This decision of the Judicial Committee has been the basis of all subsequent judicial pronouncements in India on the subject and as the learned Advocate for the appellant relies strongly upon this case in support of his contentions, it is necessary, I think that the facts and decision in this case should be examined with some care.

51. The case arose out of a suit commenced by one Lal Inderdowun Singh to set aside a mortgage executed, in respect of certain properties appertaining to his estate, during his infancy, by his mother Rani Digambaree, who was defendant 2 in the suit, in favour of defendant l, the mortgagee. There was prayer for recovery of possession of the property which the principal defendant possessed as mortgagee and also for mesne profits. The allegations in the plaint in substance were that Rani Digambaree managed the estate of the plaintiff as guardian during his minority, and being a Purdahnashin lady of no wordly experience was imposed upon by her servants and agents. The mortgage in question, it was said, was executed without any consideration and without her knowledge and authority and it was the result of fraud and misrepresentation practised upon her by the defendant money-lender.

52. The defendant, in his answer, traversed these allegations and asserted his right as a mortgagee under the bond executed by the Rani which he averred was a valid document which could not be assailed by the plaintiff. It was also asserted that the plaintiff himself on attain-ing majority ratified the transaction. The first Court held in favour of the mortgagee and dismissed the plaintiff's suit. On appeal to the Sadar Dewani Adaulat, the judgment was reversed and the relief claimed by the plaintiff was allowed except in so far as it was abandoned by him. The view taken by the Sadar Dewani Adaulat was that as the bond purported to be executed by the plaintiff's mother in her capacity as proprietor of the estate and not in the capacity of a guardian of her son, which was the allegation made in the plaint, and as the defendant asserted his rights on the basis of the document thus executed by the Rani as proprietor of the estate, the only question in issue that arose upon the pleadings was whether the Rani was at all a proprietor or not. As that issue was decided in favour of the plaintiff and against the defendant mortgagee, the bond would not be binding on the plaintiff even if the Rani voluntarily executed the document and received consideration. This judgment was set aside on appeal by the Privy Council, and it was held by their Lordships that the view taken by the Sadar Dewani Adaulat was wrong. It was held, in the first place, that pleadings of Indian litigants should be construed liberally and that the issue which was framed in the suit, namely, "Whether the bond ought to have effect against the mortgaged villages" was sufficiently wide to raise a question as to whether a valid charge was created by the instrument irrespective of the fact that the Rani purported to execute it qua proprietor and not as guardian of her son. It was next pointed out by the Judicial Committee that the terms "proprietor" and "heir" were loosely used in the documents and that the Rani was really a manager and 'Surberakar' as she was described by the Collector and she never had any intention of asserting a title adversely against her son. In the third place, their Lordships held that

"Under the Hindu law, the right of a bona fide Incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto, with the de jure title. Therefore had the Rani introduced into the estate wrongfully, and even practised a deception upon the Court of Wards,...it would not follow that those acts however wrong, would defeat the claim of the incumbrancer."

This principle, their Lordships pointed out, was in consonance with the rules of Hindu law which were found embodied in several texts which were set out in Colebrooke's Digest and was borne out by the decision of the Sadar Dewani Adaulat in the case of Gopee Churun Burral v. Mussummat Ishwuree Lukhee Dibia, 3 S.D.A.R. 93. On the evidence adduced in the case, their Lordships held that the Rani did really take possession of the estate as guardian of her son and acted in that capacity in creating the incumbrances. It was also found that the document in question was duly executed and attested and there was no want of authority or knowledge on the part of the Rani. As regards payment of consideration, there was evidence to show that there were earlier bonds and transactions in satisfaction of which the security in dispute was created and as prima' facie these antecedent debts were binding on the estate, further investigation was necessary to find out how much, if any, the deed in question must stand as security for. The result was that the case was sent back for further enquiry and in sending it back their Lordships stated the general principles of Hindu law which should be applied to the final decision of the case in the following manner:

"The power of the Manager for an infant heir to charge an estate not his own, is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded.... Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under such circumstances, he is bound to see to the application of the money."

53. The specific directions given in the concluding portion of the judgment were first that the Rani should be deemed to have executed the mortgage bond which was the subject-matter of dispute in her character as guardian of the infant Inderdowun; secondly, that the validity of the bond as regards the different sums that-entered into the composition of its total consideration would depend upon the circumstances' under which each of these sums was advanced by the lender; and thirdly, even if the bond be invalid and ineffectual, the appellant would still be entitled to the benefit of prior mortgage or mortgages affecting the property which was or were paid off by him in so far as such prior mortgage or mortgages was or were valid and effectual.

54. The principle enunciated in Hunooman Persaud Panday's case 6 M.I.A. 393 has been followed since then in numerous cases by the Privy Council as well as by the High Courts in India and the principle has been applied to alienations by limited heirs like the Hindu widows, by managers of Hindu joint family and religious endowments and also by persons in charge of the estate of lunatics. The case itself related to a transaction by way of mortgage, but it cannot be disputed that the same principle applies to a sale, vide Sri Krishandas v. Nathuram, A.I.R (14) 1927 P.C. 37.

55. There is quite a number of cases decided by the different High Courts in India, where it has been held on the authority of the decision in Hunooman Persaud Panday's case 6 M.I.A. 393 that the powers of alienation for necessity or benefit of the infant can be exercised by a de facto guardian as well; and so far as these powers are concerned, there is no distinction in Hindu law between a de jure and a de facto guardian. The cases of Mohanand v. Nafur, 26 Cal. 820 [LQ/CalHC/1899/62] ; Seetharamamma v. Appiah, A.I.R. (13) 1926 Mad. 457, [LQ/MadHC/1925/422] Tulsidas v. Vaghela Raisingji Fulathai, A.I.R. (20) 1933 Bom. 15 F.B. and Kundanlal v. Beni Prasad, A.I.R. (19) 1932 Lah. 293 may be referred to in this connection. Mr. Som-mayya on behalf of the respondent contends that such extension of the doctrine in Hunooman Persaud's case 6 M.I.A, 393 is wholly unwarranted. It is true that in the case of Hanooman Persaud Panday 6 M.I.A. 393, the mother of the plaintiff was his legal guardian and it was expressly held by the Judicial Committee that she acted as such in creating the incumbrances upon the estate of her minor son. Certain observations, however, in connection with the third point formulated in the judgment of the Privy Council, which I have quoted above, would go to show that in their Lordships' opinion even a de facto manager of the minor's estate, who has come into possession without any lawful title, would be competent to create a charge upon it if it was required to meet a family necessity or to avert a danger to the estate. In view of the actual decision in the case, these observations may perhaps rank as obiter. But having regard to the fact that the view expressed in these observations was stated by their Lordships to be sanctioned by the ancient Hindu law texts, and having regard to the long course of decisions in this country which have uniformly construed these observations to lay down a rule of Hindu law, it is not possible for us at this date to say that the view so long accepted is wrong and is not sanctioned by Hindu law at all,

56. Mr. Sommayya says that it is not enough to uphold a transaction as valid simply because it is supported by necessity, a legal competency in the transfer or is also essential which the de facto guardian does not possess. I am not unmindful of the fact that is is scarcely possible to define the circumstances under which a man could be regarded as a de facto guardian with regard to the properties of a minor. Existence of near relationship between such person and the infant cannot be insisted upon as a matter of law ; nor can the Courts scan minutely the motives which actuated him in assuming the responsibilities of management except so far as such motives are manifested by outward acts. It cannot be said also for what period of time he must act as manager before a person can be-recognised as a de facto manager or guardian of a minor's estate. Undoubtedly, law should never encourage an officious inter-meddling with' the estate of a minor and if Hindu law has given a legal recognition to the de facto guardian, it; has given it only in the interests of the minor himself. As the law stands at present, if a person is not what is called an 'ad hoc' guardian and does not pose as a guardian for a particular transaction only but is found to be managing-the property of an infant in the same way as a de jure guardian would, he could be described as a de facto guardian, although he is neither a natural guardian nor a guardian appointed by Court. The dealings of such a guardian with regard to the estate of the infant would, in Hindu law, be not regarded as void altogether but would be voidable only; and the same tests would be applied in determining the validity of such acts as are applied in the case of a de jure guardian. To this extent and this extent only, a de facto guardian is to be treated as having the same position as a de jure guardian in Hindu law. It follows that a de facto guardian, who is not equipped with the requisite legal authority, is not competent to perform those acts which the law has prescribed for legal guardians only. Thus it has been held in several cases that a de facto guardian has no authority to acknowledge a debt on behalf of the minor under Section 19 read with Section 21, Limitation Act and in my opinion this view is perfectly correct. Vide Bireswar v. Ambica, A.I.R. (5) 1918 Cal. 977; Ramaswamy v. Kasinath, A.I.R. (15) 1928 Mad. 226 [LQ/MadHC/1927/51] ; Chinappa v. Onkarappa, A.I.R. (27) 1940 Mad. 33 [LQ/MadHC/1939/317] F.B. The de facto guardian is essentially a creature of necessity and he could claim no legal recognition beyond what necessity actually warrants.

57. In the case before us, the learned Advocate for the appellant does not dispute the position that although China Seshayya was the natural father of the plaintiff, he could not claim the rights of a legal guardian after the plaintiff was given away in adoption to another family. He was, therefore, a de facto guardian and it was conceded on behalf of the plaintiff in the Courts below that he looked after the affairs of the plaintiff and managed his estate to the best of his ability. The transaction that is challenged here is a sale of the minor's property by the de facto guardian and if the defendant succeeds in establishing that the transfer was for legal necessity or benefit of the minor or that he made the purchase after proper enquiries and with a bona fide belief in the existence of pressing necessity, the sale would certainly stand, in accordance with the principle enunciated in Hunooman Persaud Panday's case 6 M.I.A. 393. The purchaser, however, in the present case is not an outsider. He was himself a creditor of the family and for the satisfaction of debts due to him the property was sold. The consideration for the sale except what was payable to G. Punnayya under the terms of the conveyance was the money due on the promissory note executed by the de facto guardian himself in the name of the minor in favour of the defendant on 22nd June 1931. The main question for our consideration, therefore, is whether this promissory note created a liability which was valid and enforceable against the estate of the minor. If the debt was not legally subsisting at the time when the conveyance was executed and was not legally recoverable from the minor's estate, obviously the sale cannot be upheld as valid.

58. This leads us to enquire as to how far a guardian in Hindu law whether de jure or de-facto can bind his ward personally by a simple contract debt, or by a covenant or promise to pay money without creating a charge on his properties, and to what extent, if any, such liability could be enforced against the estate of the minor. It seems that there is a good deal of diversity in the judicial opinion on this point and it is somewhat difficult to deduce any consistent rule of law from the large mass of authorities existing upon it. The conflict, it seems to me, is to some extent due to the difference in the interpretations that have been put upon the decision of the Judicial Committee in Waghela Rajsanji v. Shekh Masludin, 14 I.A. 89. This case before the Judicial Committee arose out of a suit commenced by the plaintiff respondent to recover damages for breach of a covenant contained in a sale deed executed by the defendant's mother as his guardian when he was only a boy of eleven. It appears that the plaintiff was a creditor of the defendant's father and after the death of the latter, the defendant's mother as his guardian executed a conveyance of certain family properties in favour of the plaintiff with a view to satisfy the debts due to him. The lands sold had been treated as rent free lands of the family all along and as a matter of fact, no rents were ever paid in respect of the same. The purchaser, however, as a mea-sure of safety took a covenant from the guardian to indemnify him in case the Government demanded rents for these lands and the covenant was so framed as to bind both the guardian and the infant, who was nominally by his guardian, a party to the deed. There being a demand of revenue by the Government, the plaintiff instituted the suit for recovery of damages on the basis of this covenant and the claim of the plaintiff was substantially allowed by the Courts below. On appeal to the Privy Council, the judgment was reversed and it was held by the Judicial Committee that it was beyond the power of the guardian to impose a personal liability on the ward. The material portion of the judgment which deals with this point stands as follows:

"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 principle was affirmed by the Judicial Committee in the subsequent case of Inder Chunder v. Radha Kishore, 19 I.A. 90; though on the facts of that case the point did not actually arise, it being found that the kabuliyat containing the covenant for renewal was executed by the mother and grandmother of the infant in their own right and not in their capacity as guardians of the minor.

59. On the strength of these pronouncements, it has been held in certain cases by some of the High Courts that a minor cannot be bound personally by contracts entered into by a guardian which do not purport to charge his estate. It is not that the minor is exempted merely from personal arrest and detention in execution of a money decree but no decree against him could be passed on the basis of a contract entered into by his guardian in execution of which his general assets,could be attached and sold. The only exception that is admitted to this rule is when the debt has been contracted for necessaries supplied to the infant within the meaning of section 68, Contract Act and in such cases the minor's estate could be held liable. The decision of the Bombay High Court in Maharana Shri Ranmal v. Vedilal, 20 Bom. 61, can be taken to be a leading decision on this point. The same view was expressed by Wallis C. J. of the Madras High Court in the Full Bench case of Rama, jogayya v. Jagannadhan, A.I.R. (6) 1919 Mad. 611 F.B. though the majority decision in that case was different.

60. There is quite a large number of cases decided by the Madras High Court where it has been held that the Privy Council's decision in Waghela v. Shekh Masludin, 14 I.A. 89 cannot be taken to have laid down that under no circumstances whatever could the guardian bind the estate of the minor except by creating a charge. It has been pointed out that according to Hindu law there is power in the guardian to bind the minor's estate if the circumstances indicate a case of necessity or benefit. There could be no distinction on this point between money borrowed by way of simple loan or obtained by pledge or sale of property; and a guardian could contract simple debts with-out charging the estate for necessary purposes of the infant or for his benefit and such liability could be enforced against the properties of the minor. This was the view taken by the majority of Judges in Ramajogayya v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B. The same view was expressed in a number of cases decided by different Benches of the Madras High Court prior to the decision of the Full Bench, and in almost all the cases which have subsequently arisen, the High Court of Madras has taken this to be a correct statement of law : vide in this connection, Subramania v. Arumugam Chetty, 26 Mad. 330; Duraisami v. Muthial, 31 Mad, 458; Padma Krishna Chettiar v. Nagamani, A.I.R. (3) 1916 Mad. 677 [LQ/MadHC/1915/295] ; Venkitaswami v. Muthuswami, A.I.R. (6) 1919 Mad. 1102 F.B.; Meenakshi v. Ranga, A.I.R. (19) 1932 Mad. 696 [LQ/MadHC/1931/290] ; Annamalai v. Muthuswami, A.I.R. (26) 1939 Mad. 531 [LQ/MadHC/1938/359] and Satyanarayana v. Mallayya, A.I.R. (22) 1935 Mad. 447 [LQ/MadHC/1934/454] F.B.. The Patna High Court ex-pressed its views almost in similar terms in Suchit v. Harnandan, A.I.R. (20) 1933 pat. 29.

61. As regards money borrowed on promissory notes, several variations are noticed by different High Courts in their judgments. Some times the notes are executed by the guardian in the name of the minor alone, sometimes they are executed by him by describing himself as a guardian of the minor and in some cases he executes the note in his own name and also as a guardian of the minor. In several Madras cases it has been held that the minor's estate is liable if the debt evidenced by the promissory note was borrowed for necessity or for the benefit of the minor. The view which appears to prevail in Madras is that the claim can be considered as not made on the promissory note but on the debt evidenced by it. In Padma Krishna v. Nagamani, A.I.R. (3) 1916 Mad. 677, [LQ/MadHC/1915/295] the claim was evidenced by a promissory note signed by the mother not as a guardian. The money was borrowed for necessity of the minor. It was held that although the guardian had personally excluded her liability on the promissory note, the estate of the minor was liable. The Court considered that Sections 28 and 29, Negotiable Instruments Act, did not cover all cases of representation. This view, it seems, was doubted in later cases : vide Ammalu v. Namagiri, A.I.R. (5) 1918 Mad. 300 [LQ/MadHC/1917/115] and Subbanna v. Subbarayudu, A.I.R. (13) 1926 Mad. 390 [LQ/MadHC/1925/334] . In Venkitaswamy v. Muthuswamy, A.I.R. (6) 1919 Mad. 1102 F.B. Sheshagiri Ayyar J. expressly observed in his judgment that a good deal might be said in favour of the position that the Hindu law liability of minors should not be extended to cases under the Negotiable Instruments Act. In Swaminatha Odayar v. Natesa, A.I.R. (20) 1933 Mad. 710, [LQ/MadHC/1933/159] Reilly J. made a distinction between the liability arising from an ordinary debt and that arising from a debt secured by a negotiable instrument and doubt was expressed by the learned Judge as to whether a guardian could at all impose unconditional liability upon the minor which is the essence of a negotiable instrument. In the later Full Bench case of Satyanarayana v. Mallaya, A.I.R. (22) 1935 Mad. 447 [LQ/MadHC/1934/454] F.B., these doubts were held not to be well-founded, though the decision of Reilly J. was found to be correct on the grounds that the promissory note in that case was executed not by a de jure but a de facto guardian. The implication of the Full Bench decision, therefore, is that a de facto guardian cannot impose any liability at all upon the infant by making a promissory note. In Nagindas v. Bhimrao, A.I.R. (30) 1943 Bom 44 [LQ/BomHC/1942/49] , it was held by a Division Bench of the Bombay High Court that a de facto guardian cannot pass a promissory note even for necessary purposes which could be enforced against the minor's estate; whether a de jure guardian was competent to do so was not decided.

62. In view of these conflicting authorities, it is necessary, I think, that attempt should be made to formulate as clearly as possible the principles of law which should be applicable to cases of this description.

63. There could be no dispute that in the absence of any statutory provision, it is the personal law of the minor that determines the extent of power of the guardian to impose liabilities based on contracts upon the estate of the ward. I agree with the view taken by the Madras High Court that the Privy Council decision in Waghela v. Shekh Masludin, 14 I.A. 89 cannot be taken to have laid down anything which goes contrary to this principle, and it certainly does not affect the liability of a minor which exists under Hindu law. It is to be noted that in Waghela's case 14 I.A. 89, the covenant that was sought to be enforced by the plaintiff against the minor was a personal covenant of an extremely enerous character, and there could be no question of the minor being benefited by it in any way. Moreover, the promise of indemnity was given in this case by the mother of the infant personally and the infant also purported to have made the promise through his mother as guardian. Their Lordships pointed out that the mother would be liable on the document but not the infant who could not be bound by this contract. The decision in Indur Chunder v. Radha Kishore, 19 I.A. 90 is, in my opinion, an authority only for the proposition that when the guardian enters into a contract in his own name and does not purport to act in his capacity as guardian of the minor, then whatever the rights might be as between him and the minor's estate, the other party cannot establish a direct relation with the minor's properties on the basis of such contract, nor make the infant liable when he comes of age to fulfil the obligations created by it.

64. Now, as regards the powers of a guardian under Hindu law, I have said already that the subject has not been dealt with specifically by any of the Hindu Smriti writers. There are discussions in the Mitakehara relating to authority of the manager of a joint family and the Judicial Committee has in a recent case observed that the decision in Hunooman Persaud Panday v. Mt. Babooee, 6 M.I.A. 393 was apparently based on these Mitakshara texts, vide Banares Bank Ltd. v. Hari Narain, A.I.R. (19) 1932 P.C. 182. Be that as it may, at the present day, the pronouncement of the Judicial Committee in Hunooman Persaud Panday's case 6 M.I.A. 393 would certainly have to be taken as an authoritative statement of Hindu law on the subject particularly because it has been accepted and acted upon by all the High Courts in India for a period of nearly one hundred years.

65. In Hunooman Persaud Panday's case 6 M.I.A. 393, their Lordships laid down that the manager of an infant heir could charge the estate only in case of need or for the benefit of the estate. The transaction in that case was by way of mortgage and it is difficult to say that their Lordships while they were using the word "loan" had in mind only the powers of the manager to create charge upon property as security for debt and not to borrow money on personal contract. The question, how. ever, was neither specifically raised before nor was decided by the Judicial Committee. It has been said in some of the Madras cases that it would be a great anomaly if a guardian is denied the power to contract a simple debt while he is competent in similar circumstances to charge on even sell a portion of immovable property belonging to the minor. This argument by itself is not conclusive. Such anomalies, if they are to be called as such, do exist in many departments of law. The law cannot always proceed upon logic, and there might be various weighty reasons which account for such seeming inconsistencies. By way of analogy, I may cite the casa of an executor who can sell or mortgage property in course of administration of the estate but if be borrows money for the purpose of administration, he makes himself only personally liable and the creditor cannot proceed directly against the estate, vide Farhall v. Farhall, (1871) 7 ch. A. 123 : 41 L.J. ch. 146. But quite apart from this, it seems to me that as the whole object of conferring power upon the guardian to deal with the minor's property is to protect the interest of the ward, there is no reason why the authority should be restricted to raise loans by creating mortgage or charge upon the property, although it may be more prudent in the circumstances of a particular case to borrow money on simple bonds. But while this much is conceded, it must be said at the game time that differences do exist between alienation of specific property belonging to a minor by the guardian and contracting of debts by the latter which creates only personal obligation; and these differences flow from the well established rules of law and procedure relating to enforcement of contractual rights. When a specific immovable property belonging to a minor is transferred by the guardian, the alienee can assert his right to that particular property on the strength of the transfer provided he can establish legal necessity or benefit to the minor. On the other hand, a creditor who advances money to the guardian of a minor, cannot claim to recover his' money from the minor's properties unless he gets an effective decree binding on the minor on the basis of the loan. A minor is under the Indian Contract Act absolutely in-capable of being a party to a contract: vide Mohori v. Dharmodas, 30 I.A. 114 : (30 cal. 539 p.c) and none but a party to a contract can be sued upon it. Even if he is nominally a party to a contract through hi3 guardian no suit on the basis of such contract would lie against the minor and no decree could be obtained in exe-cution of which his general assets could be touched. This was really what happened in Waghela's case 14 I.A. 89. When, however, the debt is for necessaries sup-plied to the infant, the creditor can always claim reimbursement from the minor's property on principles laid down in section 68, Contract Act irrespective of the fact that the minor could not be made liable on the contract.

66. When the guardian himself is party to the contract in his capacity as guardian, a suit can certainly be instituted against him and a decree obtained. But simply because the defendant is sued in his capacity as guardian, the estate of the ward cannot be proceeded against in execution of the decree obtained in such suit. In order to bind the minor's estate, the minor must also be made a party to the suit properly represented. Now on what basis can a decree be made in such a suit making the minor's estate liable for the money borrowed by the guardian The minor being incapable of being a party to a contract there could be no direct contractual liability established against him or his estate. But as the guardian was personally liable under the contract, he would be entitled to reimbursement from the minor's estate under the rule of Hindu law if the borrowing was for necessity or benefit of the minor. The creditor in such circumstances can invoke the equitable doctrine of subrogation in his favour and claim to be placed in the position of the guardian for enforcement of the latter's right of reimbursement against the minor's estate. Instead of there being two suits, one by the creditor against the guardian and the other by the guardian against the minor, both the reliefs may be worked out in one and the same suit and thereby multiplicity of litigation could be avoided. This is the only proper way in which the Hindu law rights of the guardian in the matter of contractual debts for necessity or benefit of the minor could be given effect to in perfect consonance with the well-established principles of the law of contract and the ordinary rules of procedure in personal actions. The application of this rule would be just and equitable to the minor also. As the creditor stands only on the shoes of the guardian and can claim the rights of indemnity which the latter can assert against the minor's property, it would be open to the minor to show that the guardian himself was in default and would not be entitled to any indemnity if accounts were properly taken. In England this principle is applied in case of an executor who is personally liable for the debts of the business but has a right of indemnity against the assets of the testator's estate so far as they are authorised to be employed in the business. The creditor, on the other hand, has no legal claim against the estate but he is allowed in equity to be subrogated to the executor's right of indemnity while he retains his claim against the executor personally vide in re. Johnson; Shearman v. Robinson, (1880) 15 Ch. D. 518, in re Firth; Newton v. Rolfe, (1902) 1 ch. 342. The position of a guardian is certainly different from that of an executor but there cannot be any objection to the application of the equitable doctrine of subrogation, where the guardian is personally liable on the contract but has, under the rules of Hindu law a right of indemnity against the minor's estate. This principle has been adverted to in some of the cases mentioned above but its full significance, it seems, was not appreciated.

67. When the guardian borrows money on a bond in his capacity as guardian but excludes his personal liability altogether, there could be no suit on such a bond against the minor's estate for the guardian can claim indemnity when he. is personally liable, and it is only by subrogation to the rights of the guardian that the creditor can have recourse to the minor's estate. Whether the creditor in such cases, or when the minor alone is the ostensible contracting party, can ignore the bond altogether and proceed against the guardian on the original consideration is a question upon which different answers are possible depending upon the circumstances of different cases and I do not consider it proper to discuss all such matters for our present purpose. Whenever the guardian is or can be made personally liable for debt contracted on behalf of an infant, the creditor can claim to be subrogated to the latter's rights of indemnity, and in that way may proceed against the minor's estate; otherwise, the minor's estate can be availed of only when the debt has been incurred for necessaries supplied to the infant.

68. When money is borrowed on a promissory note the provisions of the Negotiable Instruments Act would undoubtedly be attracted. A promissory note is payable unconditionally on demand and it has got some other special features, viz., there is a presumption that it was made for consideration and that the holder of it is a holder in due course. It has been suggested in some of the cases, which I have mentioned above, that if a promissory note executed by the guardian is to be read as an undertaking to pay out of the minor's estate, then it would not be payable at all events and that would detract from the unconditional nature of the undertaking which is the essential thing in a promissory note. If the liability of the minor's estate in cases where the guardian is personally liable is based upon the doctrine of subrogation as I have attempted to show, I do not think that the special features of a promissory note would create any difficulty in the application of the principles which I have just now stated. If a promissory note purports to be executed by the minor it could not possibly be the basis of a suit at all.

If it is passed by the guardian who does not exclude his personal liability the holder of the note can certainly have a decree against the guardian and if the minor is made a party to such a suit and the plaintiff or the guardian succeeds in proving that it was made for necessity, the creditor can avail himself of the guardian's right of reimbursement against the minor's estate. As between the creditor and the guardian, the undertaking is certainly unconditional but that would not preclude the guardian for showing as against the minor that it was for necessity or benefit of the latter.

69. When the guardian is the maker of the note and be excludes his personal liability, no suit, in my opinion, could be instituted either against the guardian or the infant as explained above ; whether a suit would lie on the original consideration is another matter, and if it could be brought, the same principles would apply. The position therefore is that in case of contractual debts borrowed either on simple bonds or promissory notes the creditor can have recourse to the minor's estate indirectly on the principle of subrogation, when the guardian has the right of indemnity against the estate of the ward; and he would have the right of direct reimbursement out of the properties of the infant, only when the debt is for necessaries supplied to the infant. In this way can effect be given to the personal law of the Hindus in respect of the liability of a minor's estate for debts contracted by the guardian for legal necessity without infringing in any way the basic principles of the law of contract, and in this way alone, the different pronouncements of the Judicial Committee mentioned above can be consistently explained.

70. The question whether the guardian is a de jure or de facto would not be very much material in these matters. As I have said already, it is only in respect of transactions which are entered into for necessity or benefit of the minor that the de facto guardian has been given a recognition similar to that of a de jure guardian under the Hindu law. With regard to loans con. traded by a de facto guardian, the same test and principles should be applied for imposing the liability on the minor's estate as are applied in the case of a legal guardian. But as I have stated above, a de facto guardian cannot keep alive a debt by acknowledgement which only a de jure guardian can do.

71. Applying these principles to the facts before us, it appears to me that the conclusion is irresistible that there was no valid and subsisting debt enforceable against the estate of the minor on the basis of the promissory note executed in favour of the defendant, at the date when the conveyance was executed. The date of the conveyance is 2nd June 1932. The promissory note in favour of the defendant for the satisfaction of which the conveyance was executed is dated 22nd June 1931, and it purports to be renewal of an earlier note made by Krishnamma, the plaintiff's adoptive mother on 23rd April 1928. At the date of the renewal, therefore, the earlier promissory note was already time, barred. It is said that as three years from the date of the earlier note expired during the summer vacation of 1931 when the civil Courts of Tenali were closed, the defendant had the right to institute a suit upon the pro. missory note when the Court reopened. It has been found by the trial Court that the defendant was making preparations for filing a suit and had actually made a list of properties belonging to the plaintiff with a view to make an application for attachment before judgment just after the suit was instituted. It seems to me that this finding rests upon very slender foundation. It is admitted that no notice or a pleader's letter demanding payment was at any time served by the defendant upon the plaintiff or his guardian. It was certainly possible for the defendant to file a suit on the reopening day if he so chose but the facts found by the Subordinate Judge do not show that there was any such serious threat to avert which the execution of the promissory note was necessary in the minor's interest. Be that as it may be, I am definitely of opinion that no suit on the basis of the promissory note dated 22nd June 1931, could have been Successfully instituted by the defendant and a decree obtained which was capable of being enforced against the estate of the minor plaintiff. This promissory note was not passed by the guardian on behalf of the plaintiff. As has been stated it is the infant plaintiff who was, made to execute the note through his natural father as guardian. No suit could be brought against the minor's estate on the strength of such a promissory note except when the debt was for necessaries supplied to the infant which is certainly not the allegation of the defendant in the present case. It is said that the defendant might have ignored the promissory note and brought a suit on the original debt, which being the debt of plaintiff's adoptive father, was binding on him. Assuming this was possible, there was still an insuperable difficulty in the way of the defendant. The original debt was long time barred and the only way to keep it alive was to treat the promissory note on 22nd June 1931 as an acknowledgement of the original debt. The minor himself could not acknowledge the debt, nor could the natural father who was a mere de facto guardian. The- result, therefore, is that there was no valid and enforceable debt owing to the defendant in existence at the date when the plaintiff's natural father executed the conveyance in his favour on 2nd June 1932. Obviously, it is neither necessary nor consistent with prudent management that a minor's property should be sold for payment of a barred debt. If the defendant had actually threatened to institute a suit, there was little chance of the suit being successful. In these circumstances I am of the opinion that the decree made by the High Court is a proper one; the sale should be set aside, and the plaintiff restored to possession of the properties with mesne profits, subject to the charge in respect of the sum of money which the defendant actually paid to G. Punnayya. The appeal, therefore, stands dismissed with costs.

[In Civil Appeal No. XII of 1948, their Lordships delivered judgment as follows:]

Kania, C.J.

72. This appeal has to be decided in accordance with the judgments just delivered in Civil Appeal No. XI of 1948 as the points of law involved in both are the same. For the reasons contained in my judgment in that appeal, when applied to the facts here, this appeal must fail and is therefore dismissed with costs.

Fazl Ali, J.

73. I am of the same view as my Lord the Chief Justice.

B.K. Mukherjea, J

74. I am of the same view as my Lord the Chief Justice.

Mahajan, J.

75. These appeals from two decisions of the Madras High Court can conveniently be disposed of by one judgment, as they raise the same question of law, namely,

"whether a person who is a de facto manager of the estate of a Hindu minor can in law execute a promissory note in the name of the minor in respect of money borrowed for necessary purposes and thereby bind the minor's estate."

76. A Full Bench of the High Court See A.I.R. (33) 1946 Mad. 1 [LQ/MadHC/1945/230] (F.B.) held that a de facto manager cannot bind a minor's estate by a promissory note executed by him in the minor's name. It was observed that it was one thing for a de facto guardian to borrow money for a necessary purpose and quite another thing to sign a negotiable instrument on the minor's behalf and that a power to borrow does not in itself imply a power to execute a negotiable instrument in respect of the debt. The question is a very important one of general interest. There is a considerable body of authority in decided cases which touches it, but it is not concluded by any judgment of the Privy Council or of this Court.

77. It is necessary to set out the facts giving rise to both the appeals before considering the question of law raised in them. One Chelamayya Chowdari was the resident of Mynenivaripalem, which is one of the hamlets of Dhulipudi. He was the village munsif of the place and is said to be a rich and influential person, leading a life in high style. He was an English educated gentleman and was the adopted son of Basava Chowdari, his paternal uncle. He had two wives, but no children from either of them. On 20th November 1924, he executed and registered a will, under which he conferred authority on his second wife Sri Krishnamma, to adopt a boy to him. Chelamayya Chowdari died on 9th January 1925 and was survived by his two widows. In pursuance of the authority conferred upon Sri Krishnamma, she adopted her sister's son the plaintiff in both the suits out of which these appeals have arisen. She died in November 1928 and after her death plaintiff's natural father, China Seshayya,. entered upon the management of his estate and continued managing it till 9th December 1937, the date on which the plaintiff attained majority. On 2nd June 1932 China Seshayya acting as the de facto manager of the minor's estate executed a sale deed in favour of the defendant, Konda-mudi Sriramulu, in respect of the land mentioned in the schedule to the plaint, about 21 acres in area, for a consideration of Rs. 14,873, comprised as follows :

"(a) Rs. 75 paid in cash, representing the cost of stamp and registration charges,

(b) RS. 10,207-6-6 due on foot of a promissory note dated 22nd June 1931 executed by China Seshayya, the de facto guardian, for a sum of RS. 9,251-11-6. This amount was due on an earlier promissory note of 23rd April 1928 executed by Sri Krishnamma for Rs. 6,802-11-6. This last note was for a consolidated sum due on two promissory notes of 23rd April 1925 by Sri Krishnamma for Rs. 3,802 and Rs. 1,200 respectively. The amount of Rs. 1,200 had been raised by her after the death of her husband for the necessities of the minor, while the amount of RS. 3,802 was on account of a loan borrowed by Chelamayya Chowdari himself on 1st February 1923 from the defendant, his pleader,

(c) Rs. 4,590-9-6 to be paid to one Gutta Punnayya in part discharge of the promissory note which China Seshayya as de facto manager had executed in his favour on 11th November 1931 in renewal of an earlier promissory note of 12th November 1928. This last note itself renewed an earlier note by Sri Krishnamma in favour of the same creditor. On 1st September 1919 Chelamayya Chowdari had borrowed money from Gutta Punnayya and had executed in his favour a promissory note for Rs. 4,082-9-6. This note was renewed by him on 27th August 1922. Later on this promissory note was renewed by his widow, Sri Krishnamma, on 12th July 1925 and then on 8th July 1928."

78. The suit out of which civil Appeal No. XI of 1948 arises, was instituted on 9th December 1940 for possession of the lands conveyed by means of the sale of 2nd June 1932. It was alleged in the plaint that the sale was not supported by consideration and was not binding on the plaintiff, that the said China Seshayya was neither the natural nor the de jure guardian but only an intermeddler and had no authority to borrow or to execute a new promissory note on behalf of the plaintiff, that the promissory note of 22nd June 1931 recited in the sale deed amounted to an acknowledgement of a barred debt by an unauthorized person, that the promissory note in favour of Gutta Punnayya was also not binding on the plaintiff, and that the sale-deed was for a grossly inadequate consideration as the suit lands could easily fetch a considerably larger amount than for which they were sold. The defence to the suit was that Chelamayya Chowdari borrowed from the defendant a sum of RS. 3,000 for the purpose of trade and executed a promissory note, that he had also civil and revenue litigations which continued for a long time in which the defendant was engaged as his pleader and Chelamayya Chowdari thus became indebted to him both in respect of fees and other expenses, that after his death his widow Sri Krishnamma, after going into the accounts executed a promissory note in his favour on 23rd April 1925 for Rs. 1,200 and on the same date she also renewed an earlier promissory note executed by her husband, that on 23rd April 1928 she executed in his favour a consolidated promissory note in discharge of the said two promissory notes, that after the death of Sri Krishnamma, China Seshayya as the natural father of the plaintiff and manager of the estate renewed the promissory note on 22nd June 1931 for a sum of Rs. 9,433 14.6 because the debt was getting time barred and the defendant was about to file a suit on the reopening day of the Court after the summer recess, but he did not do so at the request of China Seshayya who promised to renew the earlier promissory note and actually fulfilled this promise. It was also pleaded that the promissory note in favour of Gutta Punnayya was also in lieu of debts of the plaintiff's father renewed by the widow and subsequently renewed by China Seshayya. In these circumstances it was contended that the sale by the natural father as de facto manager of the minor's estate was for legal necessity and binding on the plaintiff. A number of other picas were also raised which are no longer material for the decision of the appeal. The only issue that is relevant for the present purpose is issue 2 which runs thus:

"Whether the sale-deed, dated 2nd June 1932, is supported by consideration, valid and binding upon the plaintiff"

79. The trial Judge gave a decision on this issue in favour of the defendant and held that the sale-deed was supported by consideration and was binding on the plaintiff. The learned Subordinate Judge said:

"It is clear that if such renewal had not been made the defendant would have filed a suit against the plaintiff and got an attachment of all his properties, which would have ended only in serious loss to him and that with a view to avert that injury to the estate, the de facto guardian in the exercise of his discretion renewed the debt by executing the sale-deed ; and as already stated, the prior debt was not extinguished on that date, but remained a claim capable of being enforced against a minor on that date with the result that the renewal cannot be said to be a renewal of an extinguished claim."

80. Against this decision an appeal was preferred by the plaintiff to the High Court of Madras.

81. In the High Court the position was accepted that the promissory notes executed by the minor's adoptive father were executed for full consideration, that the de facto guardian had administered the minor's estate to the best of his ability and that in executing the promissory note, EX. D-2, the de facto guardian did so in order to ward off a suit against the minor's estate threatened by the creditor. The judgment of the High Court records that for the purposes of the appeal it was conceded that the promissory notes executed by Chelamayya Chowdari were executed for full consideration and that the debts were binding on the estate up to three years after the last renewals by Sri Krishnamma, On the basis of these concessions the case was argued before the Full Bench and it was held that the de facto guardian could not bind the minor's estate by a promissory note executed by him in the minor's name and the sale, therefore, of 2nd June 1932 was without consideration. In the result the plaintiff's appeal was allowed and a decree for possession of the suit lands was granted in his favour subject to the charge on the properties in favour of the defendant in respect of a sum of Rs. 4,590-9-6, the amount that had admittedly been paid by him to Gutta Punnayya towards discharge of a decree obtained against the estate of the minor. A decree was also made in favour of the plaintiff for mesne profits at the rate of RS. 1,000 per annum. On the defendant's application a certificate was granted for preferring an appeal to His Majesty in Council against the decree of the High Court. As the records had not been transmitted to the Privy Council the appeal was transmitted to this Court and was heard by us.

82. Civil Appeal No. 12 of 1948 is directed against the decision of the High Court of Madras in Second Appeals Nos. 1342 and 1343 of 1944 : A.I.R. (33) 1946 Mad. 198 [LQ/MadHC/1945/252] . Leave to appeal was also granted in these appeals and they also were transmitted to this Court. The two suits which gave rise to these two second appeals arose in the following circumstances.

83. On 24th october 1933, an agreement was arrived at between China Seshayya, the de facto manager of the plaintiff's estate and defendant 1, Tadavarti Bapayya, under which 9 acres 11 cents of land belonging to the minor were to be conveyed to defendant 1 for Ha. 9,000. The whole of the consideration for the sale was on the foot of a promissory note dated 19th September 1931 for a sum of Rs. 7,845 14.1, executed by China Scshayya in favour of defendant 1. This promissory note had been given in lieu of an earlier promissory note of 21st September 1928 executed by him in favour of the same defendant for Rs. 5,725-5-7. This had renewed a promissory note dated 6th April 1928.for a sum of Rs. 5,416-5 11 executed by Sri Krishnamma in favour of the defendant. The history of this promissory note is as follows: Chelamayya Chowdari, the adoptive father of the plaintiff, had money-lending business with defendant 1, a money lender. On 5th June 1923 he executed in his favour a promissory note for Rs. 1,465-3-5. After his death, his widow Sri Krishnamma for herself and on behalf of her son executed on 16th April 1925 a promissory note for RS. 4,540-6-8 in favour of defendant 1. Rupees 2,480-6-8 were due on Chelamayya Chowdari's promissory note, and RS. 2,060 were borrowed by the lady in cash for effecting repairs to the house and improving the lands.

84. The total sum due on the foot of the promissory note of 9th September 1931 on 24th October 1933 was Rs. 9,883-30, 9 acres 11 cents. of land was agreed to be sold for Rs. 9,000 and for the balance of Rs. 883-3-0 a promissory note was promised to be given to defendant 1 by China Seshayya. In pursuance of the agreement of 24th October 1933 a conveyance was executed in favour of defendant 1 on 17th August 1934 and a promissory note for RS. 883-3-0 was also executed. The plaintiff on attaining majority instituted the suit out of which civil Appeal No. 12 of 1948 arises, on 9th December 1940 and claimed possession of the plaint properties and mesne profits. This claim was based on grounds similar to those mentioned in the suit which has given rise to Appeal No. 11 of 1948. It was con-tended that China Seshayya had no right to renew the promissory notes or to make the sale and there was no necessity for these transactions and they were not binding on the plaintiff. A number of defences were raised to the suit. Inter alia, it was contended that the sale-deed dated 17th August 1934 was valid and binding. The trial Judge dismissed the suit of the plain-tiff holding that China Seshayya as the de facto guardian of the minor could alienate his property, that he was recognised by everybody concerned as the de facto guardian, that if he did not step in and did not renew the debt immediately after the death of Sri Krishnamma, the defendants would have rushed to Court, obtained a decree and sold away the plaintiff's properties through Court and realised his debt, that it was China Seshayya's prudence that saved the plaintiff's estate at that time, that under pressure from the creditor he was obliged to execute Ex. D-4 and subsequently renew the transaction and that the settlement, which was arrived at in October 1933 for the liquidation of the debt, as recited in Ex. D-1 was for the benefit of the plaintiff's estate. On appeal to the Court of the District Judge by the plaintiff, this decision was modified. The learned District Judge held that the loan of Rs. 2,060 borrowed by Sri Krishnamma had not been proved to be for necessity or for benefit of the estate. He was of the opinion that there was no evidence to show that the family expenses were for which the loan was taken and what the representation was to the lender regarding the family expenses. The sale, however, was held to be binding on the plaintiff to the extent of his father's debt which stood at Rs. 4,776 on the date of the agreement of sale. In view of these findings, the learned Judge directed that defendants 3 to 5 who were in possession of the property should pay to the plaintiff (Rs. 9,000 minus RS. 4776), Rs. 4224, with interest at six per cent. per annum from the date of the plaint and retain possession of the property, but in case they failed to pay the amount within two months from the date of the decree, the plaintiff would be entitled to recover the property on payment of Rs. 4,776 to defendants 3 to 5 with interest at six per cent. per-annum. Against this decision Second Appeal No. 1342 of 1944 was preferred to the High Court by defendant 1 claiming a dismissal of the suit, while the plaintiff preferred a memorandum of cross-objections for an unconditional decree for possession in his favour. The High Court set aside the judgment of the District Judge, dismissed the defendants' appeal and allowed the cross-objections preferred by the plaintiff. A decree in favour of the plaintiff for possession of the suit property was granted and as regards mesne profits the case was remitted to the trial Court for ascertaining the amount. This decision was arrived at in view of the Full Bench decision in the connected case. An argument was raised before the High Court that the transaction of sale should be upheld as a bona fide settlement of a disputed claim, This contention was repelled in view of the finding of fact of the lower appellate Court that the sum of Rs. 2,060 alleged to have been borrowed by the mother for repairing and reclaiming certain un-productive lands, had not in fact been so borrowed and that recital of the amount in the sale deed was introduced in consultation with the lawyer to make out a case that the borrowing was for a binding purpose.

85. It may be briefly mentioned that as regards the amount of the promissory note of Rs. 883-80 dated 17th August 1984, a suit was filed by the creditor. This suit was defended by Pundarikakshayya on grounds similar to those alleged by him in his plaints in the two connected cases. As the trial Judge found that the transactions were binding on the minor, he decreed the suit with costs, the debt being recoverable from the joint family property of Pundarikakshayya. Pundarikakshayya appealed against the decree in this suit to the District Judge. The learned District Judge in view of his findings already mentioned allowed the appeal and dismissed the suit with costs, This decision was maintained in second appeal by the High Court.

86. It will be convenient in the first instance to consider whether the Full Bench decision of the High Court impugned in civil Appeal No. XI of 1948 is correct, or whether there are any merits in the defendant's appeal.

87. The appellant's learned Counsel, who argued his case with great ability and fairness, contended that the Full Bench of the High Court of Madras was in error in holding that a de facto guardian had no power to execute a promissory note on behalf of his ward so as to bind his estate. He urged that the powers of a de facto manager to borrow money for necessities and for purposes which were binding on the minor's estate were in no way different from the powers of a natural guardian and that both the natural guardian and the de facto manager of the estate of a minor (or the so-called de facto guardian) had power to charge the estate, to sell it, or to incur a simple debt and bind the minor's estate provided the power was exercised rightly in case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it in the particular instance was the only thing to be regarded, and that the touchstone of the binding character of the loan on the minor's estate was necessity and not the authority of the person who incurred the debt, provided that person was not an utter stranger. For his contention the learned Counsel placed considerable reliance on Hunootnanpersaud Panday v. Mt. Babooee Munraj Coonweree, 6 M.I.A. 393. Particular emphasis was laid on the following passage at pp, 412 and 413 of the report:

"Upon the third point, it is to, be observed that uncle the Hindu law, the right of ft bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto, with the de jure title. Therefore, had the Ranee intruded into the estate wrongfully, and even practised a deception upon the Court of Wards, or the Collector, exercising the powers of a Court of Wards by putting forth a case of joint proprietorship in order to defeat the claim of a Court of Wards to the wardship, which is the case that Mr. Wigram supposed, it would not follow that those acts, however wrong, would defeat the claim of the incumbrancer. The objection, then, to the Ranee's assumption of proprietorship, in order to get the management into her hands, does not really go to the root of the matter, nor necessarily invalidate the charge; consequently, even had the view which the Sudder Dewanny Adawlut took of the character of the Ranee's act, as not having been done by her as guardian, been correct, their decision against the charge without further inquiry would not have been well-founded. It would not have been accordant with the principles of the Hindu Law as declared in Coleb. Dig. Vol. 1, p. 302, and in the case of Gopee Churun Burral v. Mt. Ishwitree Lukhee Dibia, 3 S.D.A.B. 93 and as illustrated by the case cited for the appellant in the argument, against the authority of which no opposing decision was cited."

88. In this case, a loan had been taken to pay Government land revenue and to save the estate from sequestration. Similarly some other loans had been borrowed on simple bonds and on mortgages for necessary purposes. Though the Rani as the mother of the minor was his legal guardian, their Lordships did not limit their decision to that point but proceeded to observe that even on the assumption that the decision of the (Sudder Dewanny Adawlat that the Rani entered into possession of the estate wrongfully, was correct, the case of the cre-ditor could not be defeated without further enquiry into the accounts of the various loans incurred by her, Learned Counsel for the appellant forcefully urged that if a de facto guardian can mortgage an estate for purposes of necessity, a fortiori, he can incur a simple debt without charging the estate in a similar situation and for such debts he may execute a bond or a promissory note. We were pressed with the argument that in principle or in logic there could be no distinction between the powers of raising secured or unsecured loans by a de facto manages provided a case of emergency was made out. It was also argued that on the findings arrived at by the trial Judge the sale was unassailable as it was made to pay off the liabilities of the minor's adoptive father kept alive by the natural and the de facto guardian. It was contended that the promissory notes that were renewed by the de facto manager were renewed under circumstances which amounted to necessity, and these renewals were made to avoid the danger of a suit and attachment before judgment. If these contentions of the learned Counsel were sustained, then there can be no manner of doubt that the decision of the High Court has to be reversed.

89. For the respondent Mr. Sommayya, his learned Counsel, in a very careful argument supported the decision of the Full Bench. He contended that Hunoomanpersaud Panday's case 6 M.I.A. 393, did not lay down the proposition that a de facto manager under Hindu law could charge a minor's estate in case of need, that their Lordships of the Privy Council made certain obiter remarks to meet a contention raised by Mr. Wigram, the counsel appearing in that case, but that the decision of that case was not based on those remarks, but was based upon the finding that the mother was a legal guardian and was thus entitled to mortgage the minor's property for acts of necessity. It was argued that there was nothing in Hindu law which authorised a de facto guardian who was no better than an officious intermeddler to mortgage or sell a minor's estate or to incur loans on his behalf and bind the estate and that there was nothing peculiar in a Hindu minor which distinguishes his case from that of minor's under other systems of law, In all cases where a minor was left without a proper guardian it was the duty of the King or of the Courts to protect him and that the difficulties or hardships experienced by minors under all systems of law and belonging to different races and creeds were the same and that being so, there was no scope for the rule that so far as Hindu law was concerned, the minor's interest required to be looked after by kind relations and friends and that when these relations and friends entered into management of the minor's property they enjoyed the power to bind the minor with their acts. It was contended that under Muham-madan law, Bhuddist law and Christian law, the rule was that a minor's property could only be dealt with except by a person lawfully authorised and the same rule had application under Hindu law. The obiter remarks in Hunoomanpersaud Panday's case 6 M.I.A. 393, were subjected to some criticism and it was said that these remarks relate to a case of a manager of a joint Hindu family or concern a lawful guardian. They may also be extended to apply to cases of persons having some interest in the property but could not be extended to the case of a de facto guardian who is as the phrase indicates not a guardian in law. It was contended that on logical grounds the rule laid down in that case should not be extended to any transactions except mortgages. Reference was made in this connection to certain remarks in Norman v. Leedham, (1901) 2 A.C. 495. On the basis of the Privy Council decision in Waghela Rajsanji v. Shekh Masludin, 11 Bom. 51, it was argued that even a natural guardian could not make a contract which would bind a minor personally and similarly a de facto guardian possessed no such power of executing bonds and promissory notes. Reliance was placed on the following observations made in that cases:-

"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."

It was conceded that on the principles of section 63 Contract Act, a guardian could borrow on his personal covenant and as the lender can recoup himself from the minor's estate for necessaries supplied the guardian can also by the rule of subrogation recover the amount from that estate. Lastly it was urged that on the facts of the two cases the loans on which the conveyances in favour of the defendants were founded were not such as to bind the estate of the minor.

90. In order to judge the validity of the respective contentions of the learned Counsel, it is necessary to determine the exact scope of the decision of their Lordships in Hunoomanpersaud Panday's case 6 M.I.A. 393 and to discover whether it was based on principles of Hindu jurisprudence or was given on grounds of equity, justice and good conscience.

91. The decision in the case was given in the year 1856 and has since then been discussed and commented upon in a very large number of cases in the High, Courts in India. It has been construed as laying down the proposition that a de facto manager of a Hindu minor's estate) can by incurring debts charge his estate and can also dispose it of partially or wholly, provided the necessities of the minor require it. The reported cases may be few, but it can be said without hesitation that in numerous cases alienations, in the nature of mortgages or sales have been upheld on the basis of the above rule. Hypothecation bonds given by a de facto manager have formed the basis of decrees against the minor's' estate and cases can be discovered where moneys lent on foot of account books, bonds and promissory notes have been decreed against the minor's estate provided necessity for the borrowing qua, the minor was made out and some danger to his estate was averted. In a few cases some learned and eminent Judges have questioned this construction of Hunoomanpersaud Panday's case 6 M.I.A. 893 and have observed that that decision only laid down the rule regarding the powers of natural guardians or of qualified owners with authority, like Hindu widows, managers of joint Hindu families, or parsons in charge of Hindu mutts or religious institutions and that the decision could be said to have application to cases where a person having some interest in the property entered into management of the whole of the estate and effected alienation but that it could not be said to have laid down that a person who without any title entered into management of the minor's estate could incur loans and charge his estate with debts incurred for necessity. Reference in this connection may be made to Limbaji Ravji v. Rahi, A.I.R. (12) 1925 Bom. 499 [LQ/BomHC/1925/20] where it was held by Sir Normal Macleod C.J. and Crump J. that a Hindu step-mother who was acting as de facto manager of a minor had no power to effect, a mortgage or a sale of the ward's property. This decision was commented upon in Harilal Ranchhod v. Gordhan Keshav, A.I.R. (14) 1927 Bom. 611 [LQ/BomHC/1927/107] . The learned Judges held that the person who acted in that case as guardian had never been a de facto manager of the estate and had never assumed management of the property in the real meaning of the term. In these circumstances they thought that the matter of the correctness of the decision in Limbaji Bavji v. Rahi, A.I.R. (12) 1925 Bom. 499, [LQ/BomHC/1925/20] need not be referred to a Full Bench. Eventually, however, the question of the correctness of the decision in Limbaji Ravji v. Rahi, A.I.R. (12) 1925 Bom. 499 [LQ/BomHC/1925/20] was referred to a Full Bench in Tulsidas v. Vaghela Raisingji, A.I.R. (20) 1933 Bom. 15 F.B. Baker J. The point referred was whether under Hindu law a de facto guardian of a minor could validly sell the property of the minor to a third person for legal necessity. The Full Bench was presided over by Beaumont C.J. and Patkar and Barlee JJ. The learned Chief Justice took the view that the decision in Limbaji Bavji v. Rahi, A.I.R. (12) 1925 Bom. 499 [LQ/BomHC/1925/20] was correct and that a de facto guardian of a minor under Hindu law could not validly sell the property of the minor to a third person even for legal necessity. His Lordship arrived at the conclusion on the following grounds:

"So that the position on the authority appears to me to be that in the Hindu law texts there is nothing on the subject which is really relevant. The only alleged authority of the Privy Council dealing with the question under Hindu law is not really an authority on the point. The Courts of Calcutta and Madras have both come to the conclusion that a de facto guardian of a minor has the power claimed, and in so doing they considered that they were following the decision of the Privy Council. This High Court has come to a different conclusion, but, it seems, without having had the advantage of a full argument, and without considering the views of the other High Courts. In the present case we have had the advantage of excellent arguments on both sides and we have to determine which view is the right one. In my opinion we are not justified in overruling the decision of our own Court unless we are satisfied that it was wrong in principle or was opposed to authority which was binding on this Court. "

Dealing with the matter as one of principle, I apprehend that if a person claims the right to sell the property of another, he must establish his title so to do. In many cases the right to deal with the property of another may arise from the legal relationship between the parties. But it is certainly strange to suggest that such a power can be acquired by relationship which has no legal sanction. A so-called guardian de facto is not a guardian at all. He is merely a person who has assumed without authority to act as guardian, and it is a strange thing to hold that by such assumption he has acquired the right to deal with the minor's immovable property. That view of the matter was very clearly expressed by Lord Robson in delivering the opinion of the Privy Council in Mata Din v. Ahmad Ali, 34 All 2

13. In that case their Lordships were dealing with the question under Muham-madan law and it has been held since in Imambandi v. Haji Mutsaddi, A.I.R. (5) 1918 P.C. 11 that a de facto guardian cannot, under Mnhammadan law, sell an infant's property. But the passage to which I have referred seems to me to state a general proposition of law which is as applicable to Hindu law as to any other system.

Reliance was placed on certain remarks of Kumaraswami Sastri J. in Ramaswami v. Kasinatha, A.I.R. (15) 1928 Mad. 226, [LQ/MadHC/1927/51] to the following effect:

"Were the matter res integra, I would be disposed to hold that the observations of Lord Robson above quoted would be applicable equally to cases where the parties are Hindus as there is nothing peculiar to the Hindu system of jurisprudence which confers on a person who without authority assumes the office of guardianship any special powers."

The observations of Lord Robson in Mata Din v. Ahmad Ali, 34 ALL 213, to which reference was made are in the following terms:

"It is urged on behalf of the appellant that the elder brothers were de facto guardians of the respondent and as such were entitled to sell his property, provided that the sale was in order to pay his debts and was therefore necessary to his interests. It is difficult to see how the situation of an unauthorized guardian is bettered by describing him as a de facto guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minor's property, but be cannot thereby clothe himself with legal power to sell it."

The learned Chief Justice proceeded to observe:

"Mr. Divatia however says that under Hindu law a different rule should prevail. He says that in Hindu law the touchstone is necessity, and that once it is established that it is necessary in the interests of an infant that his property should be sold then anybody who is in fact managing the property is authorised to sell it. He is, I think, really seeking to draw an analogy between the position of a guardian of an Infant and that of a manager of a Hindu joint family. The conception of a Hindu joint family under which minors become interested at birth almost necessarily involves the idea of a manager with power to dispose of the property in a proper case. But the position of such a manager seems to me to be essentially different to that of a guardian of a minor. Whore there is no natural guardian available, the Court can appoint any person to be the guardian of a minor, and it is to be observed that if the de facto guardian in the present case had been appointed to act by the Court she would have had no power to make the sale in question without an order of the Court. It is indeed a strange conclusion that a power should be annexed to an office held without authority which would not be so annexed if the office were held under legal sanction. There is obvious risk of abuse in allowing unauthorized persons to deal with the property of minors."

92. Patkar J. agreed with the observations of the Chief Justice to the extent that there is no clear Hindu law text to enable the de facto guardian to alienate property, He proceeded to observe thus:

"The texts which have been referred to in the argument before us by Mr. Divatia are Mitakshara Ch. I, S. I, verses 27, 28 and 29 and Colebrooke's Digest of Hindu Law, Vol. I, pages 203 and 204. The texts in the Mitakshara have been construed by Banerjee J. in Mohanand Mondul v. Nafur Mondul, 26 Cal. 820 [LQ/CalHC/1899/62] as authorising alienation by a de facto manager of the property of the minor. The texts in Colebrooke's Digest were relied on by Nanabhai Haridas J. in Bai Amrit v. Bai Manik, 12 Bom. H.C.R. 79, as supporting alienation by the de facto manager. There is nothing explicit in those texts which would invest a de jacto guardian of a minor with the power to alienate the minor's property."

I am however impressed by the view taken by Lord Robson in Mata Din v. Ahmad Ali, 34 All. 213.

Those decisions of the Privy Council deal with Muhammadan law and are based on explicit and clear texts of Muhammadan law. With regard to Hindu law I feel difficulty in accepting the view propounded in the above two judgments of the Privy Council by reason of the observations in the case of Hunoomanpersaud Panday v. Mt. Babooee Munraj Coonweree, 6 M.I.A. 393. The principle enunciated in the judgment of the Privy Council is embodied in Section 38, T.P. Act. The decision in Hunoomanpersaud Panday's case 6 M.I.A. 393 has been treated in subsequent decisions of the Privy Council as relating to the powers of a manager for an infant heir, and the principles laid down therein have been extended to the alienations by the manager of a joint family, Sahu Ramachandra v. Bhup Singh, A.I.R. (4) 1917 P.C 61, to the alienations by a widow in possession of the estate not as a full owner, Kameshwar Persad v. Run Bahadur Singh, 8 I.A. 8, and to the authority of a shebait of an idol's estate held to be analogous to that of a manager for an infant heir, Prosunno Kumari Debia v. Golab Chand Baboo, 21 A 145, Konwar Doorganath Roy v. Ram Chunder Sen, 4 I.A. 52, Vidya Varuthi Thirtha v. Balusami Ayyar, A.I.R. (9) 1922 P.C. 1

23. The judgment has also been construed in the various High Courts as laying down that under Hindu law an alienation by a de facto guardian is not necessarily void and is valid if supported by a justifying necessity.... The case, therefore, stands, in my opinion, as follows : On general principles I agree that a de facto guardian should not have the power to alienate the property of a minor, I also agree that there will be inconvenience in the matter of sales or conveyances of property belonging to the minor and that it is desirable that before a de facto guardian purports to alienate property on behalf of a minor, he should get himself appointed as guardian under the Guardians and Wards Act. I have not to consider what the law on this point should be, but I am bound to ascertain the Hindu Law as laid down by the ancient texts and in the absence of texts as laid down by the decisions of the Privy Council. I think that the decision of the Privy Council in Hunoomanpersaud Panday's case 6 M.I.A. 393 has been considered consistently ever since that decision as supporting an alienation by a de facto guardian in case of necessity. I have referred to the decisions of the Calcutta High Court and the Madras High Court accepting that view. The same view prevailed in this Court till the decision in Limbaji Ravji v. Rahi, A.I.R. (12) 1925 Bom. 499 [LQ/BomHC/1925/20] . In Ramaswami v. Kasinatha, A.I.R. (15) 1928 Mad. 226, [LQ/MadHC/1927/51] though Kumaraswami Sastri J. observed that he would be disposed to hold that the observations of Lord Robson would be applicable equally to cases where the parties were Hindus as there was nothing peculiar to the Hindu system of jurisprudence which conferred on a person who without authority assumed the office of guardianship any special powers, yet he found that he was bound by the long series of decisions to the effect that in cases governed by Hindu law an alienation by a de facto guardian would be binding, if for necessity.

On these grounds I am not prepared to hold that an alienation by a de facto guardian, if for necessity, is necessarily void. I regret my inability to agree with my Lord the Chief Justice on this point, but I feel bound by the observations of the Privy Council in Hunoomanpersaud Panday's case 6 M.I.A. 393 as interpreted by the later decisions of the Privy Council and the decisions of the High Courts in India.

The conclusion reached by me is consistent with the views of Mr. Mayne and Sir Dinshaw Mulla in their treatises on Hindu Law.

93. The third Judge, Barlee J., expressed agreement with Patkar J., and said that:

"We must go back to the rule of Hunoomanpersaud Panday's case 6 M.I.A. 393, a case which was disturbed for the first time by this Court by the decision in Limbaji Ravji v. Rahi, A.I.R. (12) 1925 Bom. 499 [LQ/BomHC/1925/20] . The point decided in Hunoomanpersaud Panday's case 6 M.I.A. 393 was that an alienation by a mother, who was in charge of the property of an infant son was binding on that son after he came of age. But their Lordships of the Privy Council treated the lady as if she was merely a de facto manager though in fact according to Hindu law, she was the natural guardian and de jure manager. Strictly speaking, this decision might be termed obiter so far as the rights of a de facto manager are concerned. But their Lordshipg evidently did not look upon it as obiter and it has never been considered in that light from that time.... This being the state of affairs, I do not think that we are justified in perpetuating the view adopted in Limbaji Ravji v. Rahi, A.I.R. (12) 1925 Bom. 499 [LQ/BomHC/1925/20] . It is a very recent decision whereas the rule in Hunoomanpersaud Panday's case 6 M.I.A. 393, has been the law throughout India for sixty-eight or sixty-nine years, and is still the law in all other provinces of India."

The Full Bench by a majority on the rule of stare decisis held that a de facto guardian had power to alienate a minor's property in case of justifying necessity. They expressed the view that the decision could not be supported on any text of Hindu law or on general principles.

94. In Madras also the decision in Hunoo. manpersaud Panday's case 6 M.I.A. 393 was to a certain extent questioned in Seetharamamma v. Appiah, A.I.R. (13) 1926 Mad. 457 [LQ/MadHC/1925/422] by Odgers J. The learned Judge observed as follows:

"It has been argued at length for the respondents that a de facto guardian is unrecognized in the Hindu law. It may be at once said that, if there is such a recognition, I am satisfied that the recognition is more or less modern and possibly, to tome extent, the recognition, if it is legally recognised at all, has come about by necessity."

Viswanatha Sastri J., however, made the following remarks:

"It was argued before us that under the Hindu law, the father, the mother, and, failing them, the king, were the guardians of an infant; that no other relation was the guardian; that de facto guardians were no better than intermeddlers; and that alienations by de facto guardians were void as was laid down by the Privy Council in Imambandi v. Mutsaddi, A.I.R. (5) 1918 P.C. 11. That case related to a Muham-madan minor; their Lordships based their decision on Muhammadan law texts; and so far as I am able to see. I do not find reference in the judgment to any decided cases concerning Hindu minor. Alienations by de facto guardians of Hindu minors have come up very frequently before Courts, and our attention has not been directed to any decided case in which it has been held that such an alienation was per se void, apart from any question as to whether it was (or legal necessity or not.... I am clearly of opinion that the right of a de facto guardian to deal with the property of a Hindu minor has been recognised by Our Courts ever since the decision of the Privy Council in Hunoomanpersaud Panday's case 6 M.I.A. 393, provided the alienation was for necessity."

95. Recently in Patna, the scope of the rule laid down in Hunoomanpersaud Panday's case 16 M.I.A. 393, has been limit-ed and it has been observed that the decision in that case applies where a person in management of the estate has himself an interest in the property alienated and that the case is no authority for the view that a de facto manager was something more than an intermeddler to alienate the property of a minor, of Nrishingha v. Ashutosh, A.I.R. (25) 1938 Pat. 487 [LQ/PatHC/1937/211] . Manohar Lall J. made the following observations:

"Sir Sultan Ahmed then relied upon the case in Tulsidas v. Vaghela Raisngji Fulabhai, A.I.R (2) 1933 Bom. 15 F.B., in support of his contention for the view that there is something peculiar to the Hindu system of jurisprudence which confers special power on a person who without authority assumes the office of guardianship. The decision of the Full Bench was a dissenting decision where the learned Chief Justice took a contrary view. The other learned Judges have made observations which appear to be in support of the contentions of the appellant. The learned Judges were impressed by the observations of the Privy Council in Hunoomanpersaud Panday v. Mt. Babooee Munraj Coonweree, 6 M.I.A 393. I propose to show that the observations of the Privy Council do not mean what has been stated by the learned Judges to imply. In the case of Hunoomanpersaud Panday 6 M.I.A.393, the Privy Council definitely found 'that the acts of the Rani cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever description she gave to herself, or others gave to her; that she must be viewed as a manager, inaccurately and erroneously described as "proprietor" or "heir" and it was found that the case that the plaint makes is not that she intruded upon him (the complainant) and assumed proprietorship; the plaint itself says she had possession as guardian, that is, as managing in that character.' It must not be forgotten that their Lordships considered that the right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, far the purpose of saving the estate or for the benefit of the estate, is not affected by the want of union of the de facto with the de jure title."

In other words if that case be carefully examined, it will be found that the charge was created by a person who was de facto In possession with an apparent title either in himself or as the manager of another and in that capacity bad created a charge on the estate honestly and in the interest of that estate. [It is needless to observe that the Rani was the mother of the complainant (plaintiff) in that case.] I take the decision of the Privy Council to mean no more than what it says, namely, that the alienation validly made by the manager in actual possession of the estate for purposes binding on the estate is valid. The learned Judges in the Bombay case under consideration also relied upon the following observations of Mr, Mayne in his Hindu Law, Edn. 9, p. 297:

"Where the act is done by a person who is not his guardian but who is the manager of the estate in which he has an interest, he will equally be bound, if in the circumstances the step taken was necessary, proper or prudent."

It is noteworthy that the learned author uses the words "manager of the estate in which he has an interest." The observations of Sir Dinshaw Mulla in his Hindu Law, Edn. 7, p. 568 were also quoted:

"A de facto guardian is one who manages the minor's estate, such person not being a natural guardian nor a guardian appointed by the Court, and that a de facto guardian has the same power of alienating the property of the minor as a natural guardian."

Attention is also directed to the observations of Kumaraswami Sastri J. in Ramaswami v. Kasinath, A.I.R. (15) 1928 Mad. 226 [LQ/MadHC/1927/51] .

"In my opinion if the argument of the appellant was accepted, the Guardians and Wards Act would be considered to be abrograted. An honest money-lender or a person who honestly takes transfer of a minor's estate should be careful to see that the person who is making the transfer in question is either a legal and natural guardian or a guardian appointed by the Court or is a person who is actually managing the estate for the minor in which he has an interest. In the majority of cases there will be no difficulty to hold that such a manager is a de facto guardian. But, I strongly dissent from the view that wholly unauthorized persons should be given the powers to deal with the estate of a minor for his supposed benefit. I would hold that the observations of Lord Robson in Mala Din v. Ahmad Ali, 34 All 213 are of general application applicable to all subjects of His Majesty, be they Hindus, Mubammadans or Christians. In the present case, even if the view of the majority Judges in the Bombay High Court in the case which is considered is accepted to be good law, it does not help the appellant In the least. It is nowhere suggested in the evidence that defendant 3 was the manager of the estate of the minor, The minor, that is, defendant 4 had no estate to manage. She was never in possession of any estate."

96-100. The decision above cited brings out very clearly the view of those learned Judges who consider that the rule laid down in Hunoomanpersaud Panday's case 6 M.I.A. 393, should be limited to cases of natural guardians or to persons who have some kind of authority whether as joint owners, trustees or otherwise on the property itself but it does not apply to cases of relations or friends who assume management of a minor's estate in the absence of natural guardians but who have no interest themselves in the property. If this view of Hunoomanpersaud Panday's case, 6 M.I.A. 393 : (18 W.R. 81 P.C.), is accepted as correct, then it is obvious that the alienations in these two appeals cannot be upheld because they were made by the natural father of the plaintiff who was not his legal guardian and who himself had no interest of any kind in the alienated pro-perty. It seems to me however that this limited view of Hunoomanpersaud Panday's case, 6 M.I.A. 393 : (18 W.R. 81 P.C.), has been expressed only in a few instances. That decision has been accepted in a large number of cases in all High Courts in India as laying down the rule that a de facto guardian of a Hindu minor can alienate his estate in cases of necessity.

101. In the Bombay High Court in Bai Amrit v. Bai Manik, 12 Bom. H.C.R. 79, Nanabhai Haridas J. observed as follows:

"Bai Manik at the time of the sales above mentioned, was the only adult member of the family, and in management of the family property as such. She was, moreover, by Hindu law, the guardian of her late minor son and of her minor daughter-in-law, Bai Amrit, and competent in that capacity to deal with the family property for the benefit of the estate. It is true that she does not appear to have been appointed manager by the civil Court under Act XX [20] of 1864. But seeing that she was manager de facto of the family, her sales in that character of portions of the family property for valuable consideration, which, when Obtained by her, was actually applied to meeting family necessities, cannot, we think, be questioned. The Hindu law enables even a slave, a fortiori,therefore, a person in Bai Manik's position, to bind the family by contracts made under the circumstances found in this case. We must, therefore, disallow that portion of the plaintiffs claim which relates to the property in possession Of the co-defendants as purchasers."

Reference was made to Mitakshara, chapter I, * verses 27 to 29, and Colebrooke's Digest, vol. I, texts 191 to 193.

102. This view now stands affirmed by the Full Bench judgment in Tulsidas v. Waghela Raisingji, A.I.R. (20) 1933 Bom. 15 F.B.

103. In Madras in Arunachala Reddi v. Chidambara Reddi, 13 M.L.J. 223, of the year 1903, the matter was discussed by Sir Arnold White C.J. Later in Seetharamamma v. Appiah, A.I.R. (13) 1926 Mad. 457, [LQ/MadHC/1925/422] Hunoomanpersaud Panday's case 6 M.I.A. 393, was followed. It was conceded at the Bar that that was the view of the Madras High Court so far as judicial deci. sions were concerned.

104. In Calcutta the earliest reported case is in Ganga Pheshad v. Phool Singh, 10 W.R. 106 of the year 1868. The rule in Hunoomanpersaud Panday's case 6 M.I.A. 393, was applied to an alienation by a de facto manager of his brother's estate. In Mohanand Mondul v. Nafur Mondul, 26 cal. 820 [LQ/CalHC/1899/62] , Mac Lean C.J. and Banerjee J. held that de facto guardian could alienate the property of his ward and the rule was applied to the case of sales. Reference was made to Mitakshara, chap. I, Paras. 28 and 29. Sir Ashutosh Mookherjee and Newbould JJ. in Krishna v. Ratan, AIR (3) 1916 Cal. 840, held that a de facto guardian and manager of the property of a minor could effect a valid conveyance of his property and create a valid charge on it if it was one that a prudent owner will make for the benefit of the estate. At p. 434 the following remarks occur ;

"This view has been adopted and applied by the Indian Courts ever since the decision of the Judicial Committee was pronounced on 26th July 1856. In the decision of a Full Bench of the Sudder Court in the case of Goorooprosaud Jena v. Mudden Mohan Soor, (1856) Beng. S.D.A. 930, where the judgment was pronounced on 11th December 1856, apparently before the decision of the Judicial Committee reached this country, the same view was independently taken, and it was held that the benefit of the minor creating necessity was a test by which the legality of the transaction must be tried; the rule is that a party filling a fiduciary character, like that of a guardian, is authorised to perform any act which is manifestly for the infant's benefit. A similar view was adopted in Mohanani Mondul v. Nafur Mondul, 26 Cal. 820 [LQ/CalHC/1899/62] , where MacLean C.J. and Banerjee J. held that a de facto manager of an infant's estate has, in case of necessity or for the benefit of the minor, power to sell ' his property. In that case the Court further declined to accept the contention that the rule laid down by the Judicial Committee was restricted to cases of mortgage or other forms of partial alienation and was not intended to apply to cases of sale."

Subsequent decisions in that Court have not doubted the above proposition.

105. In the Allahabad High Court the view taken in earlier cases was that even in the case of Muhammadans a de facto guardian had power to make alienations. This view was set aside in Mata Din v. Ahmad Ali, 34 ALL. 213. In Adhar Chandra v. Kirtibash Bairagee, 6 I.C. 638, it was held that the powers of a de facto guardian are the same as that of a natural guardian and it was conceded by such an eminent counsel as Dr. Rash Behary Ghosh that that was so and that a de facto guardian could alienate a minor's property. In the Lahore High Court the same view has been taken. Reference may be made to Kundan Lal v. Beni Pershad, A.I.R. (19) 1932 Lah. 293 and Piare Lal v. Lajja Ram, A.I.R. (22) 1935 Lah. 437.

106. In Nokhelal v. Rajeshwari Kumari, A.I.R. (24) 1937 Pat. 141, [LQ/PatHC/1936/143] Tulsidas v. Waghela Raisingji, A.I.R. (20) 1933 Bom. 15 F.B. was considered and followed, though as I have already pointed out that in Nrishingha v. Ashutosh, A.I.R. (25)1938 pat. 487, [LQ/PatHC/1937/211] Manohar Lall J. construed this decision differently. The case of Hunoomanpersaud Panday 6 M.I.A. 393, has been followed in Nagpur and other Courts in India. Particularly reference may be made to a Full Bench decision of the Nagpur Court reported in Kesho v. Jagannath, A.I.R. (13) 1926 Nag. 81 F.B., which expressed an opinion contrary to the one expressed by Beaumont C.J.; Manohar Lall and Kumaraswami Sastri JJ.

107. In Kesho v. Jagannath, A.I.R (13) 1926 Nag. 81 F.B. of the report the following observations occur:

"In each of these three cases the person who actually made the alienation purported to act as guardian, and was treated in the judgment as the guardian and facto but not de jure. The decisions rested on the view that there difference between Hindu law and Muhammadan law in respect of the right to dispose of the property of a minor held by a person who is in fact acting as the guardian of the minor but without any right to do so; that according to the Hindu law, such a guardian even though self-constituted can alienate the property of the minor whom he has taken under his protection, provided only that the alienation is for the minor's benefit.

This appears to be a wrong statement of a correct principle, hut it was the position taken before the Bench in this case on behalf of the appellants. The reasons urged to support it are fully set out in the judgment of Kinkhede, A.J.C. in the last of the cases already mentioned in these words:

In my opinion...an alienation by a de facto guardian of a Hindu minor has not the same effect as an alienation by a de facto guardian of a Muhammadan minor. It has been laid down in Hunoomanpersaud Panday v. Babooee Munraj Koonweree, 6 M.I.A. 393 that under the Hindu law the right of a bona fide incumbrancer, who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances should support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto, with the de jure title. This view has been consistently accepted as a correct exposition of Hindu law in a series of cases of the several High Courts, of Bai Amrit v. Bai Manik, 12 Bom. H.C.R. 79, Mohanund Mondul v. Nafur Mondul, 26 Cal. 820 [LQ/CalHC/1899/62] ,Thayammal v. Kuppanna Koundan, A.I.R. (2) 1915 Mad. 659, [LQ/MadHC/1914/236] Jago v. Odal, 4 N.L.R. 20 and Sommarpuri v. Gopal Singh, A.I.R. (5) 1918 Nag. 18 decided by Stanyor A.J.C. on 28th April 1915 and quoted with approval in Vithu v. Devidas, A.I.R. (5) 1918 Nag. 20 by Mittra A.J.C. Under Muhammadan law a de facto guardian has no recognised position and is no better than an officious-intermeddler who as pointed out by their Lordships of the Privy Council in Mata Din v. Ahmad Ali, 34 All. 213 : (39 I.A. 49 P.C.) 'may, by his de facto guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it.' In the aforesaid case of Mata Din v. Ahmad Ali, 34 All 213 the point whether a sale by a de facto guardian if made for necessity or for payment of an ancestral debt affecting the minor's property and if beneficial to the minor was altogether void or voidable, was not decided by their Lordships of the Privy Council nor were the observations of their Lordships such as could apply to the case of the alienation by a de facto guardian under Hindu law. There is a fundamental distinction between the guardian under the two systems of jurisprudence. The actual structure of the Hindu society with its joint family system is a thing unknown to the Muhammadan society. Under the Muhammadan law a de facto guardian has no recognised position while the Hindu law gives to him a position identical to that acknowledged in a de jure guardian. In this respect as pointed out by Dr, Gour in his Hindu Code page 446, 2nd Edition 'the Muhammadan law offers no analogy but rather presents a contrast.... The one enquires who made the alienation, the other why it was made. This distinction between the two 'systems appears to have been ignored in a case in which an alienation by a Hindu de facto guardian was treated as ipso-facto void. Hussen v. Rajaram, A.I.R. (1) 1914 Nag. 75. That this is so is clearly pointed out by Stanyon, A.J. C. in Sornmarpuri v. Gopal Singh A.I.R. (5) 1918 Nag. 18 referred to above. I, therefore, respectfully record my dissent from the view taken in Hussen v. Rajaram, A.I.R. (1) 1914 Nag. 75 and prefer to follow the view taken in Sornmarpuri v. Gopal Singh, A.I.R (5) 1918 Nag. 18.

The 'structure of Hindu society, with its joint family system' certainly does differ from that of any other society in the world but that does not give any person the right to take charge of the property of any minor he may come across, just because he happens to be. Hindu, whether they are nearly or distantly related or not related at all, and 'thereby clothe himself with power to sell it." It is, however, correct to say that it as the existence of the joint family system among Hindus that makes all the alienations under consideration valid though they would be invalid if the minors had not been Hindus, because they were made not by their guardians but by the managers of their families. The fundamental mistake made in respect of Hunoomanpersaud Panday's case 6 M.I.A. 393 is in assuming that it defines the powers of a. guardian of a Hindu minor. It deals throughout with the powers of a manager, and the word'guardian'occurs in their Lordships' judgment only four times, twice in quotations from the judgment of the Sadar Diwani Adalat, once in a quotation from the plaint and once in their Lordship's summing up of their conclusions In the last place the word may have been used because it had been used all through the case in the Courts in India, or, if I may suggest it without disrespect, by a slip.

If there is any statement of the rule of Hindu law as to who is entitled of right to be the manager of a joint Hindu family, I have been unable to find it, but I take it that any adult member of the family, male or female,' is so entitled. If that is correct the person who actually executed the transfer in the present case, and indeed, in each of the five other cases mentioned except that of 1914 decided by Stanyon, A.J.C. was the manager of the family, de jure as well as de facto. If, as seems to have been assumed only for the purposes of the arguments in Hunoomanpersaud Panday's case 6 M.I.A. 393 a female cannot as of right be such a manager, even the mother of the only other member of the family who is a minor, then in this, as in all the other cases, the transfer was valid because it was made by the person who was the actual manager at the time, whether that person had a right to be manager or not, and it was for the benefit of the estate and necaessary for its preservation.

The answer I would give to the reference is, therefore, that the sale in this case by the Hindu widow who was managing the estate of her minor son and step-son of a part of the immovable property belonging to the estate for necessary purposes is valid and binding on her step-son."

108. It will be apparent from the examination of the decisions that it is not possible to reconcile all of them and still less the reasons on which they have been based. The matter has to be examined on principles of Hindu jurisprudence and on the true scope of the decision in Hunoomanpersaud Panday's case 6 M.I.A. 393. For this purpose, it is necessary to examine the original authorities on which the alleged obiter observations in Hunoomanpersaud Panday's case, 6 M.I.A. 393. (18 W.R. 81 P.C.) were based and to see whether a de facto manager of an estate who has assumed management of the estate of a minor has legal authority to bind it for necessity. It has also to be considered whether in respect of debts the Hindu system is different from the other systems of law.

109. Reference was made during arguments in Hunoomanpersaud Panday's case 6 M.I.A. 393 to Mitakshara, Chap. I, S. l, Paras. 27 to 30. These paragraphs are as follows:

"27. Therefore it is a settled point, that property in the paternal or ancestral estate is by birth, although the father have independent power in the disposal of effects other than immovables, for indispensable acts of duty and for purposes prescribed by text of law, as gifts through affection, support of the family, relief from distress, and so forth : but he is subject to the control of his sons and the rest, in regard to the Immovable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained, 'though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They, who are born, and they who are yet unbegotten, and they who are still in the womb, require the means of support, no gift or sale should, therefore, be made.

28. An exception to it follows: "Even a single individual may conclude a donation, mortgage, or sale, of Immovable property, during a season of distress, for the sake of the family, and especially for pious purposes."

29. The meaning of that text is this : while the song and grandsons are minors, and incapable of giving their consent to a gift and the like ; or while brothers are so and continue unseparated; even one person, who is capable, may conclude a gift, hypothecation, or sale, of Immovable property, if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as the obsequies of the father or the like, make it unavoidable.

30. The following passage-Separated kinsmen, as those who are unseparated, are equal in respect of immovables; for one has not power over the whole, to make a gift, sale or mortgage : must be thus interpreted: 'among unseparated kinsmen, the consent of all is indispensably requisite, because no one is fully empowered to make an alienation, since the estate is in common': but, among separated kindred, the consent of all tends to the facility of the transaction, by obviating any future doubt, whether they be separate or united; it is not required on account of any want of sufficient power, in the single owner; and the transaction is consequently valid even without the consent of separated kinsmen."

110. These quotations from Mitakshara are authority for the proposition that under the Hindu system even persona having no lawful authority can effect sale and mortgages and gifts of property belonging to others in certain emergent situations. This kind of power is wholly unknown in other systems of jurisprudence.

111. Reference was made in the Privy Council decision to Colebrook's Digest of Hindu law, vol. I, verses 189 to 193. Verse 189 is a text of Brihaspati to the following effect:

A housekeeper shall discharge a debt contracted by his uncle, brother, son, wife, servant, pupil, or dependents, for the support of the family during his absence.

It is here implied, that a debt contracted even by others for the support of the family, must be discharged by the housekeeper.

Verse 190 is a text of Manu and runs thus:

Should even a slave make a contract in the name of his absent master for the behalf of the family, that master, whether in his own country or abroad, shall not rescind it.

Verse 191 is a text of Narada to the following effect:

Whatever debt has been contracted for the use of the family by a pupil, an apprentice, a slave, a wife, or an agent, must be paid by the head of the family.

Verse 192 is a text of Vishnu to the following effect:

A debt of which payment has been previously promised, or which was contracted by any person for the the behoof of the family, must be paid by the housekeeper.

Verse 193 is a text of Catyayana to the following effect:

What has been borrowed for the benefit of the family, or during distress, while the principal was disabled, seized by the king, or afflicted with disease, or in consequence of a foreign invasion.

2. Or for the nuptials of his daughter, or for funeral rites, all such debts contracted by one of the family, must be discharged by the chief of that family.

Bhrigu has approved of the interpretation of this text as meaning that a debt contracted by a son, a slave, and the rest, even without the assent of the absent principal, for the maintenance of his family, that absent principal must discharge.

111a. Verse 194 is a text of Narada to the following effect:

A father must equally pay the debt of his son, contracted either by his own appointment, or for the support of his family, or in a time of distress.

It is clear from these texts that a debt that has been borrowed by a wholly unauthorized person, but who is connected with the family and interested in its welfare, in circumstances of distress and calamity or for emergencies or for maintenance of family or marriage, is binding on the principal, when that principal is a disabled person or is absent abroad or is in prison. These texts, though they are in conformity with the rule laid down in section 68, Contract Act, have a wider scope than enacted in the section itself. The principal becomes liable for the debts contracted by a number of unauthorized persons. Even the father is liable to pay his sons' debt if incurred for the maintenance of the family. The Muhammadan law and other systems of law to which reference was made by the appellant's learned Counsel do not warrant or justify payment of debts incurred by unauthorized persons.

112. Reference was also made by their Lordships of the Privy Council to the case of Gopee Churun Burral v. Mt. Ishwuree Lukhee Dibia, 3 S.D.A. Rep. 93. In this case it was held that money having been borrowed to discharge arrears of Government revenue by a person erroneously registered as proprietor of an estate, the rightful proprietor on coming into possession was liable for the debt as this was in conformity with Hindu law. Opinion of the Pundits was taken and they were of the opinion that Hindu law justified the payment of a debt by the rightful proprietor, though a wholly unauthorized person had incurred it to protect the estate. Their Lordships of the Privy Council by relying on this decision affirmed the view that a person totally unauthorized but in management of the estate could incur debts which were binding on the real proprietor provided the debts were incurred for the protection of the estate.

113. Reliance was also placed by their Lordships on the decision in Rajah Sahildeen Khan v. Brij Raj Singh, 6 S.D.A.R 64. In that case a surberakar in management of certain property alleged to belong to a minor, contracted a loan in order to pay off debts originally incurred on conditional sale of such property by (A), a former proprietor. On the suit of B, claiming to inherit from A, a decree was passed in his favour, and against the rights of the minor. The loan was incurred to pay off the decree by the surberakar. The minor was held liable for the repayment of the loan, it having been satisfactorily proved that the debt was incurred by the manager entirely for the benefit of the property.

114. These cases support the view that even an unauthorized person in management of the estate can incur a debt for the protection of the estate. As pointed out in the Nagpur Full Bench decision, under the Hindu system of jurispru-dence it is the necessity of the loan and the pressure on the estate that are the touchstones on which its validity and binding character on the minor's estate are judged, while in other systems of law its validity and binding character on the minor depends on the authority of the person incurring it.

114a. In Macnaghten's Hindu Law at p. 289, it has been said:

"Any bond which a mother, having contracted ft debt for the maintenance of her minor son, may have executed in the name of such minor son in favour of the creditor, is valid and binding according to the texts of Vrihaspati and other sages, cited in the Vivadaratnacara, Vivadachintamani, Dayatatwa, and other authorities."

114b. An authority in support of the view is that-

"A debt contracted before partition by an uncle, or a brother, or a mother, for the support of the family, all the parceners or joint tenants shall discharge.

A housekeeper shall discharge a debt contracted by his uncle, brother, son, wife, servant, pupil or dependants for the support of the family during his absence."

It seems to me therefore that the construction placed on Huuoomanpersaud Panday's case 6 M.I.A. 393 by Beaumont C.J. in Bombay, by Manohar Lall J. in Patna, and by Kumaraswami Sastri J. in Madras, in the cases above cited is based on an incomplete appreciation of that judgment and of the Hindu system of jurisprudence. Full significance of Hindu law text on the subject of debts does not seem to have been realised and the learned Judges were swayed by their own notions of that law in the light of other systems of jurisprudence. The decision in Hunoomanpersaud Panday's case 6 M.I.A. 393, is in accord with the spirit of Hindu jurisprudence qua payment of debts incurred in certain emergent situations or in regard to alienations of immovable property effected in similar circumstances. The joint family sys-tem, the limited powers conferred on a widow and on a Mahant are peculiarities of the Hindu system of jurisprudence. A deduction from these analogies is that a person not having full powers of disposition and hence not being fully authorised can in certain circumstances transfer property and confer a title absolute and indefensible on the purchaser though he himself does not possess that title. The pious obligation theory of Hindu law under which a son is bound to pay the debts of his father is another instance in point. So far as I am able to see, Hindu jurisprudence is based on principles of ethics and morality and whatever money has been taken or an act has been done which has benefited the real owner of the estate then that loan or act is not repudiated merely on the technical ground of want of authority in the person taking the loan or doing the act. The principle is that if the estate of a person whether a minor or absentee, or a joint proprietor, has been benefited by the act of a person who does not hold proper authority but who is in management of the estate then that act must be respected by the true owner and not repudiated merely on the ground of want of authority. In my judgment therefore the rule laid down in Hunoomanpersaud Panday's case 6 M.I.A. 893 regarding the powers of a de facto manager of a minor's estate is based on Hindu system of jurisprudence and in this matter is different from Muhammadan law and other systems of law. Moreover, this decision is now unquestionable even on the doctrine of stare decisis. As regards the scope of the rule, I have no manner of doubt that it has application to cases of relations and friends, who assume management of the property of a minor and who have some connection with the family and does not apply to utter strangers and intruders. Their acts of necessity performed to safeguard the minor's estate are binding on the minor's estate. It is not possible to hold as held by Manohar Lall J. that in Hunoomanpersaud Paaday's case 6 M.I.A. 393 the decision was based on the ground that the mother had interest in the property charged. The mother in the case had no proprietary rights in the property charged and the obiter observations quoted above were not based on the ground that she was the natural guardian of the minor. These observations were made to meet an argument addressed by Mr. Wigram in view of the finding of the Sudder Dewany Adawlat to the effect that the mother was unlawfully in possession of the minor's estate. It may also be noticed that though the case related to the validity of a charge created by the mother, yet an enquiry was ordered even qua the validity of unsecured debts. The total charge had been effected in the sum of Rs. 15,000. This amount comprised, inter alia, three debts in respect of simple money bonds. No distinction was raised in the Privy Council decision between secured and unsecured loans. The validity of the debts depended on the necessities of the minor's estate. The texts cited from Mitakshara and from Colebrooke's Digest relate to cases of simple loans. From 424, of the report in Hunoomanpersaud Panday's case 6 M.I.A. 893, the following passage may appositely be cited for this view.

"It is obvious that money to be secured on any estate is likely to be obtained on easier terms than a loan which rests on mere personal security; and that, therefore, the mere creation of a charge securing a proper debt cannot be viewed as improvident management; the purposes for which a loan is wanted are often future, as respects the actual application, and a lender can rarely have, unless he enters on the management, the means of controlling and rightly directing the actual application. Their Lordships do not think that a bona fide creditor should suffer when he has acted honestly and with due caution, but is himself deceived....

And their Lordships are of opinion that the validity, force and effect of the bond, as to all and each of the sums, of which the sum of Rs. 15,000 thereby purporting to be secured, is composed, depend on the circumstances under which the sums, or such of them at were advanced by the appellant, were respectively so advanced by him, legard being had also, in so far as may be just, to the circumstances under which the same were respectively borrowed."

115. Before concluding my observations about the scope of the decision in Hunoomanpersaud Panday's case 6 M.I.A. 393, I would like to make a few observations about the phrase "de facto guardian". In my opinion, it is a loose phraseology for the expression "de facto manager' employed in Hunoomanpersaud Panday's case 6 M.I.A. 893; their Lordships in different parts of the judgment used the words, guardian, curator and de facto manager. This phrase is certainly not known to any text of Hindu law, but it aptly describes the relations and friends who are interested in the minor and who for love and affection to him assume superintendence over his estate. A father may not necessarily be the guardian of an ' illegitimate child, but his de facto guardianship cannot be repudiated. Such is the case of the natural father of an adopted son, of Ganga Prasad v. Hara Kanta Chowdhury, 7 I.C. 234. A person who is not attached to the minor by ties of affection or other reasons of affinity and remains in charge of his estate | is in truth a mere intermeddler with his estate. In order to come within the scope of the rule in Hunoomanpersaud Panday's case 6 M.I.A. 893, it is necessary that there is course of conduct in the capacity of a manager.

116. In Gour's Hindu Code, Edn. IV, at p. 279 in Section 75 it has been laid down as follows:

"The following relations are the natural guardians of the person and property of a minor in the order mentioned below, namely :

(a) the father,

(b) the mother,

(c) the paternal relations,

(d) the maternal relations.

The father is, by reason of his patria potestas, unquestionably the most preferential guardian of all his minor children, legitimate or Illegitimate, male and unmarried female, and is, as such, entitled both to the custody of their person and property. This right, now clearly crystallized by the case-law, was but faintly adumbrated in the sacred texts."

In all Smritis the position of the father as the head and guardian of his minor children is taken for granted. But the mother's right to the guardianship of her minor children is of later growth, since the absolute dependence of woman in the ancient Hindu household, left no room for assigning her any duties for the protection of her own children, which was left to other male members. Her right may be said to have sprung into being by force of the jus naturals given effect to by the Courts and under the Mithila law, her right is in this respect even superior to that of the father. But, ordinarily, the father has the right paramount to the custody of his minor children, after whom the mother, the paternal relations, and the maternal relations come in varying degrees of right. But there is no shastric authority in support of their claim, which rests on the nearness of their relationship to the minor, and their presumed regard for him.

117. Their right of priority is an absolute one but other relations must derive their authority from the Courts. As pointed out by Mayne on Hindu Law (Edn. X) at page 299, the Hindu law vests the guardianship of the minor in the sove-reign as parens patriae (vide Manu, chap. VIII, placitum 27) (Macnaghten p. 25), necessarily this duty is delegated to the child's relations. Of these the father, and next to him the mother, is his natural guardian; any other relative must derive his authority from the Courts.

118. Section 19(b), Guardians and Wards Acs recognizes the priority in appointment of guardians to be assigned to near relations in the absence of the father and mother of the minor. In some decisions in this country, it has been laid down that paternal relations and maternal relations are also natural guardians and that a natural father of an adopted son has the same status. The matter was fully considered in a Full Bench decision of the Madras High Court in Chennappa v. Onkarappa, A.I.R. (27) 1940 Mad. 33 [LQ/MadHC/1939/317] F.B. The following observations from that judgment may appositely be cited:

"In support of this contention the learned advocate for the appellant has relied on a passage in the edition of Strange's 'Hindu Law" published in 1864, Edn. 4, and a passage in Macnaghten's "Principles and Precedents of Hindu Law" quoted in Kristo Kissor v. Kadermoye Dossee, 2 C.L.R. 583. The passage from Strange is at page 27 (a) and reads as follows:

The natural guardians of a minor, are, first his father, then his mother, elder brother, paternal relatives and maternal relatives."

The passage from Macnaghten is in these words:

"A father is recognised as the legal guardian of his children, when he exists; and when the father is dead the mother may assume the guardiahship. In default of her, an elder brother of a minor is competent to assume the guardianship of him. In default of such brother, the paternal relations generally are entitled to hold the office of guardian and failing such relatives, the office devolves on the maternal kinsmen, according to their degree of proximity; but the appointment of guardians universally rests with the ruling power."

The learned advocate would have it that these passages must be accepted as authoritative support for the proposition that the legal guardianship devolves upon the nearest paternal relative and in default of a paternal relative on the nearest maternal kinsmen. I am not prepared to accept this argument. I consider that it is contrary to principle and accepted authority.

It is common ground that the ancient texts of Hindu law do not provide for the management of a minor's property beyond stating that the guardianship shall rest with the king. The position of the king is now taken by the Court. Custom has, however, recognised that the father of a Hindu minor, and on his death the minor's mother, is entitled to the guardianship of the minor's estate. This has been accepted from time immemorial so universally that the right of the father or of the mother as the case may be cannot now be disputed, but it appears to be equally clear that custom has not extended that rule beyond mother. In the case of Kristo Kissor v. Kandermoye Dossee, 2 C.L.R. 583, Garth C.J. referring to the passage from Macnaghten which I have quoted said:

"We do not think that this passage means that all the persons therein mentioned have in turn an absolute right to take upon themselves the guardianship of a minor, without any permission or authority from the ruling power. If it did mean this, the authorities cited would not appear to support it.

Garth C.J. then went on to point out that Jagannatha, one of the authorities cited, after quoting from Manu this passage

The King should guard the property descends to an infant by the inheritance, until he returns from the house of his preceptor, or until he has passed his minority.

and from the Ratnacara this statement,

Wealth which descends to an infant by inheritance, and becomes the property of the minor, let the king guard : that is, let him protect it from the other heirs.'

had proceeded to add these observations of his own:

Consequently, the meaning is, let him (the king) act in such manner that other heirs may not take the whole; defrauding the infant who is incapable for nonage of conducting his own affairs; or the sense may be, let him commit the share of the minor in trust to any one co-heir or other guardian.

There is here authority that no one in the family is entitled as of right to act as the guardian of the minor. The right to act then depended upon the decision of the king."

119. The result is that relations under Hindu law have the right to be appointed as guardian by the Court. They are not in the position of utter stranger. The position therefore is that if such persons to whom the law including the statute shows preference in the matter of appointment of guardianship without formally getting themselves appointed by the Court, assume out of affection, charge of the estate of a minor and take upon themselves management of it, pay revenues, realise rents, locate tenants, maintain the minor and do all other acts of management and the Courts and other relations stand by and recognise them as such, should they be treated as officious intermeddlers with the estate. Can they not be aptly and appositely described as de facto guardians of minor's person and de facto managers of his estate It was the position of such managers that was recognised in Hunoomanpersaud Panday's case 6 M.I.A. 393 and their acts in the management of the estate, provided they were for the protection of the estate or for the benefit of the minor's estate, were recognised as valid, the test being necessity and not the authority that they possessed. Recently their Lordships of the Privy Council in Krishnamurthi Ayyar v. Krishnamurihi Ayyar, A.I.R. (14) 1927 P.C. 139, affirmed this view. This was a case where a natural father of a Hindu minor entered into an agreement that the adoptive mother would enjoy the property during her lifetime and it was held to be not effectual in law or by custom as affecting the rights of the adopted son after adoption.

There were conflicting decisions in India on this subject and their Lordships examined the matter on principle. The remarks relevant to the present enquiry are these:

"How can the consent of the natural father take any effect on the rights of the boy which only arise when his rights as a natural father are non-existent But if the father cannot do it by virtue of any power in himself, can he do it as guardian of the infant so as to bind him Farran J., who is an exponent of this view in the case reported at 11 Bom. 381, Ravij Vinayakrav v. Lakshmibai, was curiously misled by an undue veneration for Mr. Mayne. He quotes a sentence from Mr. Mayne's work as follows: He (the minor) will also be bound by the act of his guardian when bona fide and for his interest and when it is such as the infant might reasonably and prudently have done for himself if he had been of full age.' This quotation is from the third edition of Mayne's work, and as a universal proposition is obviously unsound. Accordingly, in the fourth edition, which was published soon after the date of the judgment in question, and in all subsequent editions, Mr. Mayne inserted between the words "guardian" and "when bona fide" the words "in the management of the estate", which turns an inaccurate proposition into an accurate one. But it is no longer of service to Farran J. in the matter in hand, for assuredly the natural father is not managing the estate of his child when the estate referred to is the estate which he will only get after adoption by another person. Therefore, reverting again to Lord Macnaghten's dictum, it seems impossible to ascribe any value to the guardianship power of the natural father to bind the son as to property in which he cannot have an interest until the time when the guardianship has ceased."

120. These observations bring out the distinction between the position of a de facto guardian so called and of such a person when in management of the estate. The result therefore is that if a natural father acting as guardian, is in actual management of the estate of the minor then his bona fide acts for the interests of the minor would be binding on the minor's estate.

121. The remarks above cited were made in connection with the case of a natural father who is not a lawful guardian under Hindu law. Reference may also be made to another recent decision of their Lordships of the Privy Council in Subrahmanyan v. Subba Rao, A.I.R. (35) 1948 P.C. 95. That was a case in which a question arose whether under Section 53-A, T.P. Act, a minor could be regarded as a vendor on a contract of sale of property made by his guardian. It was held that on the guardian's contract he could be held to be a vendor. The following observations made in that case support the view that I have expressed about the construction to be placed on Hunoomanpersaud Panday's case 6 M.I.A. 393:

"They submit that, having regard to that section and to the decision of their Lordships' Board in Mohori Bibee v. Dharmodas Ghose, 30 Cal. 539 a minor cannot be a person who contracts. It is clear that, if the mother and guardian had taken no part at all in the transaction, the respondent could not have entered into a valid contract to sell the land in suit to the appellants, but it is equally clear that such a contract could and did come into existence in the present case, and the question for decision is-was the person who contracted, within meaning of Section 53-A, the respondent or his mother

The position of a guardian under the Hindu law was considered by their Lordship's Board in the case of Hunoomanpersaud Panday's case 6 M.I.A. 393 and the following passage is to be found at page 412:

They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts done on behalf of another, whatever description she gave to herself, or others have to her

Thus the act of the mother and guardian in entering into the contract of sale in the present case was an act done on behalf of the minor appellant. The position of the minor under such a contract is discussed in the following passage, with which their Lordships agree, in Pollock and Mulla's Indian Contract end Specific Relief Acts, 7th Edition, P.70:

'A minor's agreement being now decided to be void, it is clear that there is no agreement to be specifically enforced; and it is Unnecessary to refer to former decisions and distinctions, following English authorities which are applicable only on the view now overruled by the Privy Council.'

The learned authors are here referring to the decision in the case of Mohori Bibee v. Dharmodas Ghose, 30 Cal. 539 already cited. They continue:

It is, however, different with regard to contracts entered into on behalf of a minor by his guardian or by a manager of his estate. In such a case it has been held by the High Courts in India, in a case which arose subsequent to the governing decision of the Privy Council, that the contract can be specifically enforced, by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it, and, further if it is for the benefit of the minor. But if either of: these two conditions is wanting, the contract cannot be specifically enforced at all.

In the present case neither of the two conditions mentioned is wanting, having regard to the findings in the Courts in India. It would appear, therefore, that the contract in the present case was binding upon the respondent from the time when it was executed. If the sale had been a completed by a transfer, the transfer would have been a transfer of properly of which the respondent, not his mother, was owner. If an action had been brought for specific performance of the contract, it would have been brought by or against the respondent and not by or against his mother.

Having regard to all the circumstances, their Lordships are of the opinion that the respondent is the person who mostly aptly answers the description of the transferor' in the sense in which these words are used in Section 53- A. It follows that he is debarred by the section from obtaining the relief claimed by him in the present action, which was rightly dismissed by the subordinate Judge."

The decision in Hunoomanpersaud Panday's case 6 M.I.A. 393, therefore, so far as it concerns the powers of a de facto manager under Hindu law, is supported by texts of Hindu law, by later decisions of their Lordships of the Privy Council, and by the rule stare decisis. The observations made by some learned Judges in a number of judgments doubting the above proposition and placing a different construction on it are in my judgment unsound.

In Ram Nath v. Sant Ram, A.I.R. (22) 1935 Lab. 820, Beckett J. felt the awkwardness of the application of the rule in Hunoomanpersaud Panday's case 6 M.I.A. 393, to a situation where a de facto guardian had transferred a reversionary interest of a minor and the act was a prudent one in the minor's interests. He thought that though the powers of a de facto guardian under Hindu law, were wider than under other systems, yet he had no power to dispose of a reversionary interest of the minor, though this may seem to be a prudent step at the time when it is taken. In expressing this view the learned Judge said as follows:

"It is still to be seen whether a de facto guardian has power to act in this way in what he conceives to be the interest of the minor. The powers of a de facto guardian are wider under Hindu law than under other systems ; but they have nowhere been very clearly laid down. He has the same powers as a de jure guardian to dispose of a portion of the ancestral estate in 1 order to avert a threatening calamity. This was laid down by their Lordships of the Privy Council in Hunoomanpersaud Panday's case 6 M.I.A. 393, which must be regarded as a standard authority on this point. I am unable to trace the passages from Colebrook's Digest which are mentioned therein as the edition is not given, but I have studied the passages of the Mitakshara on which the powers of a de facto guardian are said to be founded. These relate only to the management of an estate in being and it is clear that there must be some threatened calamity to the ancestral estate which can only be avoided by disposing of a part thereof. On the whole, I do not think that the powers of a de facto guardian should be extended in the absence of express authority, and I do not think they should be taken as including the power to dispose of a reversionary interest, though this may seem to be a prudent step at the time when it is taken."

With great deference to the learned Judge, it may be observed that it was not necessary to limit the powers of a de facto guardian in the manner suggested. They are already of a limited character. The limitations are germane to the rule itself. That case stood decided against the power of the guardian if the decision in Hunoomanpersaud Panday's case 6 M.I.A. 393 was rightly applied as explained in Krishnamurthi Ayyar v. Krishnamurthi Ayyar, A.I.R. (14) 1927 P.C. 139. The guardian de facto was not in management of the reversionary interest of the minor. He was not therefore de facto manager of the estate and obviously had no power to dispose it of. The true test to be applied in deciding cases of this character is one of necessity and not one of authority of the person doing the act.

122. In the light of the above discussion, the next question that falls for decision is whether a de facto guardian (manager) can also incur simple debts without charging the estate, and bind the minor's estate, though not making the minor personally liable for those debts provided those debts are incurred in situations and circumstances stated in Hunoomanpersaud Panday's case 6 M.I.A. 393. Contracts of loan entered into by the guardian, though they do not bind the minor's person, bind the estate by an indirect process. The guardian himself can be-come liable for those debts personally and entitled to reimbursement and indemnity from the minor if the debts are incurred for the needs of the minor. When the guardian himself has the right to reimbursement and indemnity from the minor, the creditor on the rule of subrogation would no doubt be entitled to proceed against the property of the minor. This rule is subject to two exceptions in which a lender has direct recourse to the minor's estate, where the contract is for necessaries supplied to or on behalf of the minor, Phalram v. Aiyubkhan, A.I.R. (14) 1927 ALL 55, [LQ/AllHC/1926/156] and, where the liability is one to which the minor is subject under Hindu law : Watkins v. Dhunoo Baboo, 7 Cal. 140. These exceptions are supported by judicial authority and on the principles of English law and in section 68, Contract Act. In these two circumstances the guardian may directly incur a debt on behalf of the minor and bind his estate. Recourse to the principle of subrogation is unnecessary in such cases. Section 68 Contract Act, runs as follows:

"If a person incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person with necessaries suited to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable persons."

Under this section it has been held that a loan taken to defend a litigation by the guardian can be realised from the minor's estate.

123. In Phalram v. Aiyub Khan, 49 ALL 62 a guardian had borrowed a loan on foot of a promissory note and the minor's estate was held liable on a suit based on the promissory note. The cause of action was held to be the loan itself and not the note. Similarly in Watkins v. Dhunnoo Baboo, 1 Cal 140 [LQ/CalHC/1975/220] , a contract of a guardian on behalf of a minor was held binding. In Sham Charan Mal v. Debya Singh, 21 Cal 872 [LQ/CalHC/1894/69] , a minor was held bound on the document having been registered on behalf of the minor and it was held that the bond could not be ignored and treated as non-existing. This was a case of a minor's own bond, These decisions were given under section 68, Contract Act.

124. As regards English law on the subject, reference may be made to Halsbury's Law of England (Hailsbam Edition), Vol. 17 page 1313. It is said there that certain things are necessary, such as food, clothing, medicine, lodging, cost of the funeral of a member of the infant's family, education of the infant, protection of the infant from legal proceedings and protection of his interests by instruments and legal proceedings, and that when a sum of money is advanced to an infant to enable him to provide himself with necessaries, he cannot give a binding security for it, nor draw or accept a bill in respect of it, but the lender stands in equity in the place of the supplier of the necessaries and accordingly can maintain an action for the money and his right in this respect is not prejudiced by the infant having given an invalid security for it. Lord Esher, Master of Rolls, in Walter v. Everard, (1891) 2 Q.B. 369 laid down the rule of law on this subject in the following terms:

"We have looked at the authorities in order that we may see whether, in an action upon a bond given by an infant for the payment of a premium for his a education in a trade, it is open to the jury to find that the consideration for the premium was the supply of necessaries to the infant, and whether, if the jury find that it was, the fact that the document was under seal will prevent the plaintiff from recovering. It is not true that you can sue an infant upon a bond given by him for the price of necessaries supplied to him with all the ordinary incidents of such an action. The plaintiff cannot simply put in the bond against the infant, and say, that bond is under your seal, and there can be no inquiry into the consideration given for it. We have to go back to the old authorities to see whether this is so The defendant's counsel contends that there is no instance of an infant having been sued upon such a bond. But the old books shew that such an action has been brought before - not, of course, very frequently, because it was not the common practice for an infant to execute an apprenticeship deed for the purpose of covenanting to pay the premium. As a general rule the premium was paid or to be paid by the infant's parents or friends, and they bound themselves to pay it, and in ordinary cases the master did not look to the infant, but to his friends who had made themselves responsible. But there are authorities of very great weight which shew that the infant can bind himself in such a case. The first authority is to be found in a passage in Coke upon Littleton. (His Lordship read the passage and continued:-) You cannot sue the infant upon his bond But, if the bond is what is called single bond-that is, if it is given only for the reasonable price of necessaries supplied to the infant, and there is no penalty, the infant can be sued upon to Why if an infant can be sued, as it is well settled that he can for the price of necessaries supplied to him should he not be sued for the same thing upon his bond which he has given for it. To say that he could not, would have been the height of technicality even in the most technical age of the English law. Again, Mr. Hargrave explains the matter in exactly the same way in his note to Coke upon Littleton. Has this view of the law been acted upon by the Court Ayliff v. Archdale, (1660) Cro. Eliz. 920 shews distinctly that it has. Then in Russel v. Lee, 1 Lev. 86, it was held, that an infant's single bill for necessaries was good, but not an obligation with a penalty. There reliance was placed on the above passage in Coke upon Littleton, and the case was a judicial declaration of the law in accordance with it. Again, in Keane v. Boycott, (1795) 2 H.B. 511, the same passage in Coke was cited with approval, and the decision amounted to a declaration that it was the law. So in Baylies v. Dineley, (1815) 3 M.L.S. 477 at p. 482 Bayley, J. recognised the law as laid down by Coke, and impliedly expressed his approval of it. It is true this is not a binding decision, but the authority is a very high one. Then, in Cooper v. Simmons, (1862) 7 H & N 707 at p. 719 Martin, B, gave a very elaborate exposition of the law, reviewing the authorities, and laying down the law in accordance with them. It comes in the result to this-that a bond given by an infant for the price of necessaries does not prevent the obligee from recovering that price from him, if the bond is a single one, and it is not relied on simply as a bond. In the same way an infant can be sued upon a covenant by deed for the price of necessaries, but the case must be treated just as if there had been no deed. The Court must inquire whether the things in question were in fact supplied to the infant, and whether, according to the ordinary rule, that which was supplied was necessary. The Court must do exactly what it would do if there were no deed, and what it certainly would not do in the case of an ordinary deed not given by an infant."

Fry L.J,, also dealt with this question and the it-following observations at page 325 may appositely be cited:

"Lord Coke says that, 'An infant may bind himself for his good teaching or instruction, whereby he may ' profit him self afterwards.' I think that 'teaching or instruction,' though it includes instruction in a trade, is not necessarily confined to that. I should be sorry to conclude that literary instruction likely to lead to the infant's success in a learned profession is not within the observations of Lord Coke; the interests of the State require that an infant should be able to bind himself for instruction of that kind."

Lopes L.J. added a few observations to the following effect:

"I will content myself with saying that a careful investigation of the authorities satisfies me that the law is this -that an infant can be sued upon his single bond - that is, a bond without a penalty - given for necessaries supplied to him, provided it is shown that the thing for the price of which the action is brought was a necessary, and that the charge made for it was reasonable. I am satisfied that this is the true result of the authorities."

In English law, however, the real estate of an infant cannot be bound by a contract, nor settled or alienated by his guardian or parent apart from statutory authority. It cannot even be alienated under the orders of the Court. The rule of Hindu law and statute law in India however is different on this point.

125. The decisions of different High Courts in India on this question may now be considered. In the Bombay High Court, the matter was considered in Nathuram v. Shoma Chhagan, 14 Bom. 562, where the father's cousin of a minor took possession of his estate after the death of his father. To defray the expenses of the funeral ceremonies of the deceased, he borrowed money from the plaintiff, who sued to recover the amount from the estate of the deceased. It was held that as nearest male relative and guardian, according to Hindu law, the father's cousin had authority to bind the estate in the hands of the minor so far as the loan was necessary to secure the proper performance of the funeral ceremonies of the minor's father. The contention was raised in that case that Narain Hargovan, the father's cousin, who was not the guardian, was personally liable and had no authority to bind the estate. Sargent C.J., and Telang J., held that he being the nearest male relative and guardian according to the Hindu law of the orphan minor, whose duty it was to provide for the funeral ceremonies of his deceased father, had the authority to bind the minor by a loan, supposing it to be necessary for the purpose, and reliance was placed on the case of Bai Amrit v. Bai Manik, 12 Bom. H.C.R. 79. The authority of this decision has never been questioned in that High Court so far.

126. In Madras there is considerable body of authority on this point. The matter is concluded by a Full Bench decision in Ramajogaya v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B., in which the decision of their Lordships of the Privy Council in Waghela Rajsanji v. Shekh Masludin, 11 Bom. 551, was considered. The first decision to which reference may be made is Kotta Ramaswami Chetti v. Bangari Seshama Nayanimvari, 3 Mad. 145 [LQ/MadHC/1965/405] . A polygar (zamindar in charge of an estate) incurred certain debts and estate of other persons included with his own was sued on for this debt. The bond given was a simple money bond and was executed by him as a de facto polygar. The issue in the case was whether the other defendants were liable for the debt under the bond and whether it could be recovered from Poliem estate. In deciding the case the learned Judges said as follows:

"In the view of the Hindu law, such debt, if binding on the family should be paid out of their common estate. The creditor could sue the family and in equity and good conscience, he would be entitled to have it, declared by a decree that the debt is charged on the estate, the debt does not become a charge until so declared by a Court of competent jurisdiction and so far it differs from a charge created by express contract. In Hunoomanpersaud Panday v. M.L. Koonweree, 6 M.I.A. 393, the case dealt with was one of an express charge and so it was in very many other cases. The principle, however, to be applied, whether in respect of an express charge in writing or by deposit, or of a loan of money to, or other debt created by a manager without such express charge, is the same. If such express charge be given it cannot bind those members of the family who are not parties to it unless the debt was contracted for proper necessary family purposes or benefit binding on the family; and, it it was not so contracted the express charge is not valid against those members who were not parties to it.

There is an exception when the lender or creditor has made due and proper inquiry but has been misinformed as referred to in Hunoomanpersaud Pandey's case 6 M.I.A. 393.

The same principle applies to simple loan or debt. In each case the manager acts as agent of the family and his acts are subject to the same consideration and question. In point of principle and law, the simple loan and the express charge require the same foundation to bind the family and the estate. But in point of security, it may be that the express charge is preferable security, in that way, viz., if the lender trusts to the mere debt, unsecured by pledged of property, he runs the risk of the property being alienated, before he can enforce his debt and of thereby losing the benefit of the security on any family property, whereas a specific charge created by writing, fixes the security as far as can be accomplished, and prevents, generally speaking, the alienation of the security to the prejudice of the creditor.

If the family estate remains unalienated or unpledged by the family, after the unsecured debt is created, it still remains to satisfy the creditor, if his debt is valid, against the family, even though there was no such express charge. Although the late polygar may not has been polygar de jure, yet his right having been admitted by Government, he was not a usurper who had forced himself into possession against the rights of others as in Chindambara Chetti v. Srimatu Muttu Vijia, 3 M.H.C.R. 260. From the observations in that case, it is pretty clear that the fact of absence of title would not be a bar to the claim of a creditor, who had advanced money even to the usurper for a purpose binding on the family. The question, therefore, is whether the debts sued for were incurred by the deceased polygar 'for the purpose of providing for some family need, performance of a religious duty, or for the benefit of the estate."

127. In Duraisami Reddi v. Muthial Reddi, 81 Mad. 458, Miller J. held that a bond executed by the guardian of a minor which only contains a personal covenant by the guardian to pay and does not charge a minor's estate will nevertheless be binding on the minor, if it is executed for a pre-existing debt binding on him. It was observed that a de facto guardian has the power to acknowledge a pre-existing liability and to keep alive a bond.

128. The whole matter was considered by a Full Bench in Ramajogayya v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B. The full Bench was presided by Sir John Wallis C.J. and Ayling and Seshagiri Ayyar JJ. The decision of the Privy Council in Waghela Raj-sanji v. Shekh Masludin, 11 Bom. 651: (14 I.A. 89 P.C.), was considered. The learned Chief Justice held that that decision precluded a guar-dian from imposing a personal liability upon the minor. It was observed that as pointed out in Maharana Shri Ranmalsingji v. Vadhilal Vakhatchand, 20 Bom. 61 at p. 70, the Privy Council decision did not affect the liability of the minor's estate under section 68, Contract Act to persons who have supplied him during mino-rity with necessaries suited to his condition in life. It was further observed that where a guardian himself borrows money for the necessities of the minor in such circumstances as to have him a right to reimbursement from the minor's estate, his creditor may in a proper case be subrogated to his rights, that in practically all the cases which were referred to it would 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, that no practical inconvenience would, therefore, result from giving full effect to their Lordship's express decision. The other two learned Judges disagreed with the Chief Justice and held, (a) that on a contract entered into on behalf of a minor by his guardian under which the guardian borrowed money but no charge was created on the minor's estate, no decree could be passed against the minor on his attaining majority except in cases in which a minor's estate would have been liable for the obligation incurred by the guardian under the personal law to which he was subject; and (b) that a decree could be passed against a Hindu minor for a debt contracted by his guardian for the marriage of his sister. It was observed that the Privy Councial decision in Waghela Rajsanji v. Shekh Masludin, 11 Bom. 551, intended to lay down that an onerous covenant cannot be imposed by the guardian upon the person or property of the minor. This was the view expressed by Woodroofe J. in Mir Sarwarjan v. Fakhraddin Mohamad, 34 cal. 168, and was accepted by Seshagiri Ayyar J. as the correct view as regards the Privy Council decision cited above. The Full Bench decision subsequently has been followed in Madras in Meenakshi Sundaram v. Ranga Ayyangar, A.I.R. (19) 1932 Mad. 696 [LQ/MadHC/1931/290] ; Venkata Jagannatha v. Venkata Kumara, A.I.R. (18) 1931 Mad. 140 [LQ/MadHC/1930/98] ; Sudarsana Rao v. Dalayya, A.I.R. (1944) Mad. 218 [LQ/MadHC/1943/252] ; Natesh Nattar v. Manicka Nattar, A.I.R. (25) 1938 Mad. 398 [LQ/MadHC/1937/402] and Satyanarayanyanamurthi v. K. Gopalan, A.I.R. (26) 1989 Mad. 891.

129. In Annamalai Chetty, Palni v. Muthuswami, A.I.R. (26) 1939 Mad. 538, [LQ/MadHC/1939/99] Sir Lionel Leach C.J. and Krishnaswani Ayyangar J. held that the true test for determining the binding character of a Hindu minor's estate for a simple contract debt incurred by his guardian is that laid down by the Privy Council in Hunoomanpersaud Panday's case 6 M.I.A. 394 and that under Hindu law the guardian has power to contract loans so as to bind the minor's estate for necessary purposes, the term " necessary purposes" being understood as comprising all that is necessary to meet the wants of the minor and of other members of his family who have claims either against him personally or against his estate, and that there is in this respect no difference in the test to be applied whether the money is obtained by pledge or sale of the property or by way of a simple loan. This decision was given on a Letters Patent Appeal against a decision of Yenkataramana Rao J. who had drawn a distinction between simple loans and loans borrowed on the security of property. The learned Judges on this part of the case observed as follows:

"That such a guardian has the power to borrow by, charging, mortgaging or even by selling the estate or a sufficient portion of it, for purposes termed necessary or beneficial according to that law, cannot at this time of the day be questioned. It is also settled that even in the absence of a proved necessity or benefit, an honest creditor can still recover the debt from the estate if he can show that in advancing the money he acted in the bona fide belief after due enquiry that the guardian was acting for such a purpose in incurring the debt. These principles, which are based as much on Hindu law as on general considerations of equity have been held to afford a test of the validity of similar transactions by other persons also who occupy analogous position. The manager of a joint family governed by the Mitakshara, female owners in possession of inherited property, the head of a mutt, and the Dharmkartha of a temple are among the class of persons whose powers are so limited. Indeed, it can be truly said that what the Judicial Committee said with regard to a guardian in Hunoomanpersaud Panday's case 6 M.I.A. 393 has become an integral part of the branch of the law relating to the borrowing powers of all qualified owners. In the case of alt such persons there exists in fact no difference in the test to be applied whether the money is obtained by pledge or sale of the property, or by way of a simple loan."

The decision of the Madras High Court in Ramanaihan v. Palaniappa, A.I.R. (26) 1939 Mad. 531 [LQ/MadHC/1938/359] was cited with apt proval. Therein it was said as follows:

"We find it difficult to appreciate an argument which denies to the guardian a power to contract a simple debt while conceding to him in identical circumstance a power to charge or even sell the estate in spite of the greater strictness with which the Hindu law regard transactions affecting immovable properties."

130. Following further observations were made in the Letters Patent Appeal judgment:

"To this proposition an answer was attempted. A sale or a mortgage, it was said, affects that portion only of the minor's estate which is involved in the particular transaction whereas a simple money loan might endanger the entire estate by reason of the possibility of a limitless expansion by way of accumulating interest. Even if this is a sound proposition, which we doubt, there is no reason why it should not equally apply to other limited owners whose position is analogous to that of the guardian. Such is not, however, the case. The evil, if any, is due not to the honest creditor who lends the money, but to the irresponsible guardian who negligently omits to take promt steps to to repay it. In this connection it is not to be forgotten that the creditor has to make out a necessity not merely for the loan advanced but also for the rate of Interest charged.

A trustee or an executor stands in a different position and to him the principles of the English law which prohibits him from binding the minor by a personal covenant are rightly applied : see Srishchandra Nandi v. Sudhirkrishna Banerji, A.I.R. (19) 1952 Cal. 182. To him however no less than to the guardian, the doctrine of subrogation is applicable. This doctrine is to be invoked in cases where there is no direct contractual liability enforceable against, the estate. Where the trustee or the executor does not sell or charge but merely contracts or covenants, the effect of the transaction is that it binds him personally and not the estate and consequently there is no direct recourse against the estate available to the creditor. But the law goes to this extent to his help that if the money is utilised for the benefit of the estate, he will be entitled to such rights of reimbursement as the borrower himself may have out of it.

It is necessary to sound a note of caution against the error of thinking that the promissory note evidences a contract binding on the minor by force of the instrument itself. The liability does not arise on the instrument, but on the debt evidenced by it, and is enforced against the estate, not on account of the fiction that the contract of the guardian is the contract of the minor, but on account of the substantive principle of the personal law of the minor which creates the liability. It is scarcely necessary to add that the liability of the estate, though personal in the English law sense of the word is not personal in the sense that the person of the minor even after majority can be arrested in execution. A personal liability arising out of the contract of the guardian is a liability of the minor's estate only."

In Sudarsana Rao v. Dalayya, A.I.R. (30) 1943 Mad. 487, [LQ/MadHC/1943/72] Wads-worth and Patanjali Sastri JJ. held that a contract made by the guardian of a Hindu minor to pay maintenance to the minor's paternal grandmother is binding on the minor and a decree can be passed against minor's estate in respect of such a contract. It was said that the decision of the Full Bench in Ramajogayya v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B., could not be taken to have been overruled by the decision of the Privy Council in Zamindar of Polavaram v. Maharajah of Pittapur, A.I.R. (23) 1936 p. 104. The following quotation from the judgment may be cited:

"It is no doubt true that the decree granted by this Court against the 'general assets' of the minor was based upon the decision of the majority of the Full Bench in Ramajogaypa v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B. and that it was vacated by their Lordships, But after a careful reading of the judgment of the learned Judges in Zamindar of Polavaram v. Maharajah of Pittapur, A.I.R. (23) 1936 P.C. 204, we are unable to discover any warrant for the view that the learned Judges found that the defendant could not be held personally responsible for the payment of the debt incurred by his guardian during his minority. This position, however, appears to have been conceded before their Lordships and it was held to follow as a corollary that the plaintiff could not get a decree against the 'general assets' of the defendant. We find it difficult to accept the suggestion that the brief pronouncement made on such a view of the matter presented to their Lordships was intended to overrule the Full Bench decision in Ramajogayya v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B."

131. In the Lahore High Court the same view has been taken. Reference may be made to Manohar Lal v. Ratan Singh, A.I.R. (17) 1930 Lah. 588.

132. So far as the Calcutta High Court is concerned, the leading case is that of Bhawal Sahu v. Baijnath Pratap Narain Singh, 35 cal. 320, where Brett and Holmwood JJ. expressed the opinion that the rule that a natural guardian cannot bind a minor by a simple contract debt is subject to modifications and that if it is for necessary purposes, then it binds the minor's estate. Reference may be made to the following observations at pp. 327 and 328 of the report:

"The rulings relied by the District Judge lay down that a guardian cannot bind his ward personally by a simple contract debt, by a covenant, or by any promise to pay money or damages, but this broad proposition is subject to the modification that the promise will not bind the minor unless it has been made merely to keep alive a debt for which the ward's property was liable : Subramania Ayyar v. Arumuga Chetty, 26 Mad. 330. Where the promise is to pay money which has been expended for necessaries the estate of the minor may be liable not on the promise but because the money has been supplied; Sundararaja Ayyangar v. Pattanathusami Tevar, 17 Mad. 306 and Act IX of 1872, Section 68."

133. In the Allahabad High Court the same view has been taken in Kandhialal v. Muna Bibi, 20 ALL. 135. In Patna in Suchit Chaudhuri v. Harnandan Singh, A.I.R. (20) 1933 Pat. 29, it was held that the guardian of a Hindu infant has power to contract loans on behalf of the minor for the latter's necessities and benefit.

134. On the decisions of the High Courts in India it seems, therefore, clearly well established that within the limited purposes laid down in Hanoomanpersaud's case 6 M.I.A. 393, the natural guardian of a Hindu minor can incur a simple money loan and bind the minor's estate, though otherwise he may not be able to bind him i.e., either by covenants or agreements, which do 'not fall within the rule laid down in Hunoomanpersaud's case 6 M.I.A. 893 and are either of an onerous character or are not entered into by a person in management of the estate for the protection of that estate or to safeguard any dangers to that estate. By implication these powers exist in him by reason of the provisions of Section 27, Guardians and Wards Act and are deducible from certain observations made in Hunoomanpersaud Panday's case 6 M.I.A. 393. The quotations already cited from that judgment lend support to this view.

135. It will not be convenient to consider the Privy Council decisions bearing on this point. The relevant quotation from the decision in Waghela Rajsanji v. Shekh Masludin, 11 Bom. 551, has been cited in an earlier part of this judgment. An onerous liability had been imposed by the covenant on the Talukdar during his minority by his guardian and it was held that it was not binding on him. In my judgment, the majority judgment of the Full Bench in Ramajogayya v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B., correctly interprets the scope of that decision, and it should not be widely construed as was done by Wallis C.J. who dissented from his colleagues. My Lord Sir Fazl Ali in the judgment just delivered has endorsed the opinion of Wallis C.J. With the greatest of deference to my brother, I venture to say that both on principles of Hindu law and decisions, it is rather late in the day to uphold the view that a natural guardian has no power to incur such liability and per force in every case he must charge the estate.

136. The next case is in Watson & Co. v. Sham Lal Mitter, 15 cal. 8. In that case a mother purchased for a minor son certain rights in land and also agreed to the enhancement of rent payable by the tenants. She contracted for enhancement of rent as guardian of her minor son. It was held that her agreement for the enhancement of rent acting in lawful capacity was binding on the minor's estate. This decision seems in accord with the view taken in Hunoomanpersaud Panday's case 6 M.I.A. 393.

137. In Indur Chunder Singh v. Radhakishore Ghose, 19 Cal. 607, the Privy Council held that the renewal of lease of land by a manager was not binding on the adopted son. It was observed that the kabuliyat executed by the mother on which the plaintiff's claim was founded did not purport to bind the estate of the deceased. There was nothing in the lease to show that it was taken for the benefit of the minor. Hunoomanparsaud Panday's case 6 M.I.A., was distinguished on the ground that in that case the mother was dealing with the estate of the minor, while in the present case the act was not committed as manager. The following observations bring out the distinction clearly:

"The contention that the minor and widow of Gopi Mohun Ghose 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.

But it was suggested that, under the terras of the will of Gopi Mohun Ghose, his mother and widow had power to bind his estate, and had done so, that the respondent, having succeeded to that estate, is bound by the act of his adoptive mother and grandmother as his guardians, done in the bona fide belief that it was beneficial to the estate.

Their Lordships are of opinion that this is not the claim made by the plaintiff's plaint. It does not make any claim against the estate, but makes a personal claim against Nrityashama Dasi, and the respondent whom it states she had adopted. While a liberal construction should be given to pleadings so as to give effect to their meaning to be collected from their whole tenor, they ought to be expressed with sufficient defi-niteness to enable the opposite party to understand the case he is called upon to meet, and their Lordships consider that neither in plaint, nor in the issue which cover a wider ground than the plaint, is the claim made against the estate of the deceased Gopi Mohun. Ghose. Indeed, if it was, and was sustained in that sense by the Subordinate Judge, it is difficult to see why the suit should have been dismissed against the widow and guardian. It is indeed now urged that the suit may be treated as a claim against the estate and against the heir, to the extent of assets received by him, but there is quite enough in the evidence to show that a claim so put would raise entirely pew issues both as to the extent of assets received and as to the extent to which the plaintiffs themselves were responsible for the renewal of the lease; that it would, in fact, be a new suit, and that it would be improper to allow such a change of case at this period of the litigation.

But, further, their Lordships are of opinion that upon the facts proved, the suit, even if treated as one against the respondent in regard to the estate, cannot be sustained.

The kabuliyat executed by the mother and widow of Gopi Mohun Ghose, on which the plaintiff's claim is founded, does not purport to bind the estate of the deceased. By it the lessees undertake themselves to pay the rents and interest on any arrears and to observe the obligations of the lease. The learned Subordinate Judge, while admitting that there is nothing in the lease to show that it was taken for the benefit of the respondent, says that that fact is immaterial when it is proved that the lease was really taken for the respondent, and that the lessees were in possession for his benefit; and he relies on the case of Hunoomanpersaud Panday, 6 M.I.A. 893 : (18 W.R. 81 P.C.) as an authority. 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 State, 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 Mohun 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 may be that, as between them and the infant, they might be able, in some circumstances, to show that the estate ought to bear the burden they had taken upon themselves, but that is not the question raised in this case, in which the plaintiffs seek to establish a direct relation between themselves and the estate of the infant and a liability on the part of the infant now that he is of age, and I of his estate, to fulfil the obligations entered into by the lessee in their own name."

138. Biswanath Prasad v. Chandra Narayan, A.I.R. (8) 1921 P.C. 8, is the next Privy Council decision touching this point. In this case the question arose as to the personal liability of a minor under a mortgage bond executed by the guardian. Their Lordships observed as follows:

"As regards the alternative claim for a personal judgment for the mortgage debt, it is to be observed that no such claim was made in the Courts in India. There is nothing in the evidence or in the judgments which 'would enable their Lordships to deal with such a claim. At the same time their Lordships think it desirable in this case that the plaintiffs should have an opportunity of bringing this matter before the High Court. If any such application is made, it will be for the High Court to consider whether any such claim is open upon the present pleadings and, if not, whether any amendment raising it should be made; and further, whether under all the circumstances the claim should be entertained at this stage of the proceedings. If the High Court should think it right to enter upon the consideration of 'this claim, all defences on the merits or arising out of 'the lapse of time must be open to the defendants, and the High Court should have power to impose any terms which it thinks just and to deal with the costs."

139. The last Privy Council decision is in Zamindar of Polavaram v. Maharajah of Pittapur, A.I.R. (23) 1936 P.C. 204, where it was held that where a mortgage deed by the guardian of a minor contains a personal covenant and a suit on the deed fails for want of proof of attestation of the deed but succeeds on an alternative claim of a vendor's lien on the suit property, a decree should not be granted against the general assets of the minor. A decree against the general assets of the minor was denied on the ground that the minor had no personal liability, but a decree was passed against the property that had been sold and which belonged to the minor. The suit succeeded on the basis of an alternative claim of a vendor's lien on the suit property.

140. The result of these Privy Council decisions is that they were really given on the facts of each case and they did not lay down any general proposition of law which ran counter to the decision in Hunoomanpersaud Panday's case 6 M.I.A. 893. Each case has been decided according to its own peculiar circumstances and the observations made therefore in these cases must be limited to the covenants that were under consideration therein. Nothing said in those cases detracts from the proposition laid down by the Full Bench of the Madras High Court in Ramajogayya v. Jagannadhan, A.I.R. (6) 1919 Mad. 641 F.B. and the decision correctly lays down the rule to the effect that a de jure guardian can borrow debts on simple contracts entered by him on behalf of the minor provided they fall within the limits laid down in Hunoomanpersaud's case 6 M.I.A. 393, This rule is fully supported by the principles underlying Section 68, Contract Act and the Hindu law texts above cited from Colebrooke's Digest, all of which relate to cases of simple loans. The rule is also consistent with the English law on the subject. It is immaterial whether the minor is sued directly on the bond, or is indirectly made liable by recourse to the doctrine of subrogation.

141. As regards the question whether the same rule is applicable to the case of a de facto manager of a minor's estate, there seems to be ground on which his case can be distinguished from that of a natural guardian. When the de facto guardian is the de facto manager of the estate according to the text-books writers on Hindu law, he enjoys the same powers and the same status as a natural guardian except, of course, in cases where the statute law of the country has intervened and has laid down the rule differently. The touchstone of necessity is the guiding principle in both cases. The view of the commentators on Hindu law is based on Hunoomanpersaud Panday's case 6 M.I.A. 393 and on the other Indian decisions in which observations have been made to that effect.

142. The next question is as to the forms of security offered by a guardian for the borrowing made on behalf of the minor. In my opinion, the form of security given does not affect materially the rights of a creditor. It may be a bond, a handnote or a promissory note If the borrowing is for the necessities of the minor, his estate is bound. He may give these documents in his own name, make himself personally liable and indicate that they have been executed for the minor's benefit. The creditor can then recover from the minor's estate. He may execute these on behalf of the minor and exclude his personal liability and except in the case of a promissory note the same result may follow.

143. The last question for consideration is whether a guardian can execute a promissory note on behalf of a minor and bind him on the note without making himself liable, no matter whether the guardian is de jure or de facto. In my opinion, this question should be answered in the negative. The note, however, can be used as-evidence of the debt or as an acknowledgement of a previous loan, provided the de facto guardian or the de jure guardian is entitled in law to acknowledge or renew a promissory note. The basis for my answer is to be found in Sections 4, 19, 32, 86, 43 and 118, Negotiable Instruments Act.

144. The first and essential requisite of a pro-missory note is certainty, i. e., certainty as to the person making the payment, the person to receive it, the time and place of payment, the conditions of liability and also the amount to be paid. The note must be payable at all events. When no time of payment is specified, it is payable on demand. The maker of a promissory note is bound to pay the amount at maturity according to the apparent tenor of the note and every party to a negotiable instrument is liable thereon, to the holder in due course until the instrument is duly satisfied. Even if the instrument is executed without consideration, the holder for consideration and every subsequent holder deriving title from him, may recover from him, from the transferor for consideration or any prior party thereto. It is obvious, therefore, that a promissory note by itself is an onerous kind of document and making a minor liable on such document would fall outside the purview of the rule of necessity laid down in Hunooman Per-saud Panday's case 6 M.I.A 393, and the minor on such a note may have to pay without having the opportunity of raising the defences allowed to him under Hunooman Persaud Panday's case 6 M.I.A. 393 or asking the lender to satisfy the conscience of the Court on those matters.

145. The decisions on the point may now be considered. In Bombay there are a few cases regarding promissory notes executed by certificated guardians. These are in Keshav v. Balaji, A.I.R. (19) 1932 Bom 460 [LQ/BomHC/1932/35] and Shankar v. Nathu, A.I.R. (19) 1932 Bom. 480 [LQ/BomHC/1932/40] . In both the cases promis-sory notes ware executed by certificated guardians. In one case the note was executed by the guardian against the directions of the Court. It was held, on the lines of the rule laid down in Waghela Rajsanji v. Shekh Masludin, 11 Bom. 551, that there was no liability of the minor on the promissory notes. It was further observed that the suits were not on the obligation of the debt but upon the promissory notes. The result of these decisions is that even if a promissory note is executed by a certificated guardian, no liability can be fixed to the minor on the note itself. But if an action is founded on the debt and the debt is for necessity, the minor's estate may be held liable.

146. The latest decision in that Court is in Nagmdas Gokuldas v. Bhimrao Damu, A.I.R. (30) 1943 Bom. 44 [LQ/BomHC/1942/49] ,in that case it was held that a de facto guardian could not pass a promissory note for an antecedent debt of the father of minor. The suit in that case was based on the promise contained in the note and not on the debt incurred or on the ground that the money had been supplied for necessary purposes, and it was observed:

"In the present case, it cannot be said that because the promissory note was passed for the father's debt, it created a charge on the estate. Moreover, the decision in Nathuram v. Shoma Chhagan, 14 Bom. 562, can be supported on the principle laid down inBhawal Sahu v. Barjnath Pertab Narath Singh, 35 Cal 320, that where the promise is to pay money which has been expended for-necessaries, the estate of the minor may be liable not on the promise but because the money has been supplied.... In the view we take it is not necessary to go into the question as to whether the decisions of the Madras High Court which would make the minor's property liable for a promissory note passed by the guardian for a pre-existing debt of the father are correct. In our opinion, even in such cases, the promissory note must be passed by a proper or lawful guardian and not by a de facto guardian who is in possession and management of the estate without being lawfully authorised to do so. Such a de facto guardian cannot create any obligation on the minor's estate by executing a bond which does not create a charge on the estate."

147. The Madras decisions on the question of promissory notes are not very clear. The first case to which reference may be made in this decision is Ramasami Mudaliar v. Sellattammal, 4 Mad. 375. That was a case of a widow's promissory note. It was held that it did not bind the reversioner's as a widow's estate was a life estate and any contract made by her could not bind the reversioner's after her death. The following observations were made:

"Prima facie, a note is merely a personal security and I cannot say that the plaint alleges such a state of facts as would, by operation of Hindu law, render it binding on the defendants."

148. In this case the widow had not acted as the representative of the estate and hence her act was not binding on the reversioner's. It was further said:

"A promissory note is evidence of a debt, and I conceive a suit on a promissory note made by a Hindu father would well lie against sons joined in the suit with the father as defendants on allegations that the debt was incurred for proper family purposes."

These observations lead to the conclusion that a suit may be brought on the debt itself both against the father and the son and the son would be liable. If the debt is of a binding character, then the promissory note can be tendered as evidence in support of the debt. The next decision is in Subramania Ayyar v. Arumuga Chetty, 26 Mad. 330. The mother of a minor executed as his guardian a promissory note in respect of a debt for which the son's share in the ancestral estate was liable at the time. On a suit being brought against the minor on the note, it was held that the defendant was liable on the note to the extent of his share in the ancestral estate. Prior to the execution of the note the members of the family had entered into an arrangement for a partition in accordance with which as between the members of the family the defendant was to be liable for the amount of the note. At the time of the execution of the note the defendant's share of the ancestral estate was liable in respect of the original debt. The Privy Council cases Waghela Rajsanji v. Shekh Masludin, 11 Bom. 551 : (14 I.A. 89 P.C.) and Indur Chundur Singh v. Radhakishore Ghose, 19 cal. 607 : (19 I.A. 90 P.C.) were distinguished on the ground that in these cases the guardian purported to act on behalf of a ward so as to impose a personal liability upon the latter, there being no pre-existing liability on the part of the ward at the time the guardian entered into the contract and that in the present case the effect of the guardian's contract was to keep alive a liability to which, at the date of the contract, the minor's share of the ancestral estate was already subject.

149. In Padma Krishna Chettiar v. Nagamani Ammal, A.I.R. (3) 1916 Mad. 677, [LQ/MadHC/1915/295] it was held that a negotiable instrument executed by the guardian of a Hindu minor for purposes binding on the minor is enforceable against the minor's estate though the instrument was not signed by the executant in his capacity as guardian and the minor was not personally liable on the instrument. Reference was made to certain provisions of the Negotiable Instruments Act, and then it was observed as follows:

"The Indian Legislature has not thought fit to lay down any general rules applicable to all cases of representation. The case of one person signing for another who is sui juris is not in pari passu with that of a person executing a document on behalf of another who is incapable of contracting."

It was further observed:

"As we are not hampered by any legislative provision regarding documents executed on behalf of a minor, we must be guided by the principles of Hindu law in deciding such cases. The true teat regarding the binding nature of a guardian's contract was laid down in the well known cases of Hunoomanpersaud Panday's case 6 M.I.A. 393.... The true principle is that where the validity of a transaction has to be looked at from two standpoints each of them should be regarded as supplementing the other. The doctrine of Hindu law is not to be ignored because a contract coming under its purview is also regulated by another provision of law.... Mr. Bhashyam Ayyangar sought to distinguish this case, Subramania Ayyar v. Arumuga Chetty, 26 Mad. 330, on the ground that the claim in it was for the debt evidenced by the note and not on the note itself. We do not think this distinction has any substance. Moreover, Para. 4 of the plaint in this case refers to the binding character of the debt. We must, therefore, hold that the estate of the minor is liable for the debt."

150. In Swaminatha Odayar v. Natesa Iyer, A.I.R. (20) 1933 Mad. 710, [LQ/MadHC/1933/159] Reilly and Cornish JJ. held that the guardian of a minor cannot impose a personal liability on the minor by executing a promissory note on his-behalf even for necessary purposes and distinction was drawn between the liability arising from an ordinary debt and that arising for a debt secured by a negotiable instrument. It was-observed that the special features of a promissory note distinguish it from a debt ordinarily incurred on behalf of a minor for necessary purposes, that a negotiable instrument is intended to be one which can pass from hand to hand, bearing its meaning on its face, as itself the basis and evidence of a money claim. Any qualification of the promise in a promissory note, such as that it is only to be enforced against a minor if necessity binding on the minor can be shown, is wholly foreign to the idea of a negotiable instrument. Cornish J. observed that the plaintiff had chosen to sue upon the promissory note and not upon the consideration and the only liability under the note was the personal liability of defendant 1. If the suit had been on the consideration, the case might have been different.

151. The correctness of this decision was considered by the Full Bench in Satyanarayana v. Mallayya, A.I.R. (22) 1935 Mad. 447 [LQ/MadHC/1934/454] F.B. The Full Bench was presided by Beasley, C.J. and Ramesam and King JJ. The judgment was delivered by Ramesam J. and it was observed as follows:

"But the decision in Meenakshisundaram Chetty v. Ranga Ayyangar, A.I.R (19) 1932 Mad. 696 [LQ/MadHC/1931/290] has been doubted in Swaminatha Odayar v. Natesa Iyer, A.I.R. (20) 1933 Mad. 710 [LQ/MadHC/1933/159] . In the latter case, the promissory note was executed by a person who was not the lawful guardian at all, but at p. 883, Reilly J. proceeded to observe:

How can any guardian impose a liability upon a minor by executing a promissory note on his behalf If a promissory note is to effect anything, it must create an unconditional personal liability.

The doubt seems to arise because of the fact that the payee of the note can succeed against the minor and his estate only if certain facts are established. This is true. But I do not think this fact makes the liability under the promissory note one other than an unconditional personal liability. What is meant by that phrase is that the liability mentioned in the note should not be made contingent on some event, for, if it is so made conditional or contingent upon the happening of) some event, it will not conform to the definition of promissory note. But so long as the form of the promissory note conforms to the definition of a promissory note under the Negotiable Instruments Act. it is not the less unconditional simply because when the matter goes to a Court of law and the defendant raises some defence, the plaintiff has got to establish certain facts before he can succeed against the minor. The truth is that in no transaction entered into by a guardian on behalf of a minor can the opposite party succeed, it is challenged, without establishing some facts such as that the transaction was for the benefit of the minor or some such other fact. That such a fact has got to be established does not, in my opinion, make the liability under the promissory note a conditional liability. On the doubt entertained by Reilly J., it follows that a promissory note on behalf of a minor is impossible. Such a view is opposed to the trend of all the decisions in the High Courts including the Full Bench decision in Ramajogayya v. Jagannadhan, A.I.R. (16) 1919 Mad. 641 F.B. I am unable therefore to agree with the doubt suggested by Reilly J. The actual conclusion in the case before him rested on the fact that the promissory note was not executed by a lawful guardian at all. Otherwise, that decision must be regarded as overruled.

It was suggested that in such a case the suit should be on the debt and not on the note. But this seems to be a merely verbal distinction and not one of sub-stance; Padma Krishna Chettiyar v. Nagamam Ammal, A.I.R. (3) 1916 Mad. 677 [LQ/MadHC/1915/295] . A note is only evidence of a debt. It is true that in the case of insufficiently stamped promissory notes parties are not allowed to fall back upon the debt where the debt and the making of the note were simultaneous. Such a principle is necessary to protect the interests of public revenue. It is not necessary to extend the principle beyond such a case. In my opinion, therefore, the plaintiff is entitled to a decree."

152. With great respect to the learned Judges of the Full Bench, it seems to me that the view expressed by Reilly J. was in accord with the provisions of the Negotiable Instruments Act and the learned Judges of the Full Bench were not right in holding that the liability remains an unconditional liability inspite of the fact that when the matter goes to a Court of law and the defendant raises some defence the plaintiff has got to establish certain facts before he can succeed against the minor. These remarks seem to me to be quite inconsistent to an action based on a promissory note simpliciter, say by the holder of it in due course. Defence of necessity is not a relevant defence in such a suit, the promise being that the amount will be payable on demand and on the face of the instrument. A promissory note on behalf of a minor may not be impossible provided it is given by the guardian making himself personally liable, because then it is his own note, but in view of the true nature of such a document it is not possible to hold that on the face of it a minor can be made liable. In my opinion, the view taken in Swaminatha Odayar v. Natesa, Iyer, A.I.R. (20) 1933 Mad. 710 [LQ/MadHC/1933/159] was the correct view and the Full Bench erred in holding otherwise. Moreover I cannot in principle see any distinction evolved by the Full Bench between the ease of a guardian de facto and a natural guardian.

153. In the Lahore High Court, there is no clear decision on the point that I have been able to trace, but there is a case of a promissory note given by a managing member of a joint Hindu family and it was held that such a note stands on a different footing than a promissory note ordinarily given under the Negotiable Instruments Act and that these promissory notes given by managing members are binding on other members provided necessity for the loans is made out: Gandumal v. Taj Din, A.I.R. (20) 1933 Lah. 99.

154. In the Allahabad High Court the matter was considered in Phalram v. Aiyab Khan, A.I.R. (14) 1927 ALL 55 [LQ/AllHC/1926/156] and it was held that for a loan taken by a guardian on behalf of a minor for purposes of some necessity or for the benefit of the minor's estate, the estate can be held liable, by reason of the promise made by the guardian because a money had been supplied for the benefit of the minor. It was said that this was in accord with the general principles of Section 68, Contract Act and it was further held that on equitable grounds the plaintiff was entitled to recover his money. A decree was made on the original loan and not on foot of the promissory note.

155. The result of the decision therefore is that a minor cannot be made liable under a promissory note executed in his name by the guardian, whether he is the natural guardian or the de facto guardian. A promissory note is a peculiar kind of document and by its very nature it imposes an onerous liability on the minor. On the note itself, therefore, a minor cannot be sued or a claim decreed against his estate. It is also clear that if the guardian has given a promissory note, making himself personally liable, then, he can be sued on the note and he can then seek reimbursement from the minor's estate and that otherwise the note can be used as evidence of the debt. There is no liability on the promissory note : the liability, if any, is aliunde of the note i, e., on the loan itself, if it is for the benefit of the estate or is given for a pre-existing liability that has been discharged by a fresh borrowing taken for the purpose and evidenced by the note. Unless there is a cause of action independently of the promissory note which can sustain the action, the minor cannot be made liable. No distinction, in my opinion, can be made in this respect between the case of a natural guardian or a de facto guardian. Both suffer from the same disability and the execution of the promissory note is outside the rule laid down in Hunoomanpersaud's case 6 M.I.A. 393.

156. As regards the question whether a de facto guardian can acknowledge a debt and keep it alive, the matter is now set at rest by Section 21, Limitation Act. At one time there was conflict of decisions on this question between the Bombay and Madras High Courts on the one side and the Calcutta High Court on the other. The statute has now enacted that it is only the lawful guardian who can acknowledge a debt and keep it alive.

157. Bakewell J. of the Madras High Court took the view that a de facto guardian is a lawful guardian under Section 21: vide Tiropayya v. Mallidi Ramaswami, 19 I.C. 362. This decision however was doubted in Ramaswami Pillai v. Kasinatha, A.I.R. (15) 1928 Mad. 226 [LQ/MadHC/1927/51] and was finally overruled by the Full Bench in Chennappa v. Onkarappa, A.I.R. (27) 1940 Mad. 33 [LQ/MadHC/1939/317] and it was held that a de facto guardian could not acknowledge a debt that is due from the minor and extend the period of limitation. The view expressed by Bakewell J. was also taken by a learned Judge in Patna, vide Gita Prasad v. Raghu Singh, A.I.R.(4) 1917 Pat. 510. This decision was also considered by the Full Bench in Chennappa v. Onkarappa, A.I.R. (27) 1940 Mad. 33 [LQ/MadHC/1939/317] . In an earlier case in Nagayya v. Narasayya, A.I.R. (25) 1938 Mad. 859, it had been held that the natural father of an adopted son is not his lawful guardian. As pointed out by Dalip Singh J. in Piara Lal v. Lajja Ram, A.I.R. (22) 1935 Lah. 437, a de facto guardian as opposed to a de jure guardian implies that there is no jural relationship between them and that there may be analogous rights and liabilities conferred by a particular law upon a de facto guardian. It is clear therefore that the natural father was not the lawful guardian of the plaintiff and had no power to extend the period of limitation in respect of the earlier promissory notes.

158. It has been held by their Lordships of the Privy Council in Amba v. Shrinivasa, A.I.R. (9) 1922 P.C. 135, that a natural father cannot have a deed registered on behalf of a minor and that such a registration is void, This decision is based on the provisions of the Registration Act, Sections 33 and 34. I am, therefore, of the opinion that the powers of a de facto and de jure guardian are the same except where by reason of statutory provisions a different result is apparent. Each case will have to be considered on its merits. For the purpose of the present case, it may be stated that in the matter of raising simple money loans, mortgages and sales or entering into contracts which are beneficial to the minor; their powers are the same but that in the matter of acknowledgement of debts and registration of deeds, their powers are different. The result therefore is that the Full Bench of the High Court of Madras has rightly held that he plaintiff's natural father as the de facto manager of his estate had no authority to execute a promissory note on his behalf so as to bind his estate on the note itself and thus furnish a valid consideration for the subsequent sale of minor's property.

159. The question now arises whether independently of the promisory note there was any consideration which could sustain the transaction of sale in favour of the defendant and whether this promissory note can be used in any other manner to uphold the sale transaction. The learned Counsel for the appellant contended that this promissory note could be used as an acknowledgement of the pre-existing debt that was binding on the minor's estate, the debt being of his father having been renewed by his mother This contention has to be repelled in view of the clear provisions of Section 21, Limitation Act. The. learned Counsel then urged that this promissory note validly discharged a pre-existing liability' and that the act of the guardian was done to save the minor's estate from the threat of an impending litigation and its results that the forbearance of the lender to bring a suit on the natural guardian's promissory note was sufficient consideration to uphold the sale. In my opinion, once the promissory note itself is ignored from consideration and it is held that the natural father had no power to renew the earlier note or to acknowledge the debt, then independently of the promissory note the creditor could not sustain any action against the minor's estate, on which a decree could be passed in his favour-That being, so, the sale deed bus been rightly held to be without consideration as against the minor. In substance what happened was that the natural father renewed and acknowledged a previous debt by means of the promissory note which forms part of the consideration for the sale. He did not possess any of the powers and hence the sale deed effected to meet a non-existing liability of the minor is obviously without consideration. The learned Counsel's efforts to spin out some other consideration and to read in the renewal of the promissory note a discharge of a previous debt or forbearance to sue were merely ingenious attempts to get round a difficult situation and are on the face of it fallacious. If the note is eliminated there is nothing left on which the minor's liability could be sustained.

160. I am further of the opinion that in the present case even on the admitted facts stated in the High Court's judgment, the act of the guardian was outside the rule laid down in Hunoomanpersaud Panday's case 6 M.I.A. 393. When the de facto guardian executed the promissory note of 1931 it was the fourth renewal of the earlier promissory note. Neither the natural guardian nor the de facto guardian took any steps to repay the loan. The interest on the promissory notes was mounting up and the act of the guardian in 1931 in renewing the promissory note was to the detriment, of the minor's estate. The natural father should have known by that time whether he could pay the debt out of the minor's income. He had then been in management of the estate for a considerable time. If there was income of the estate sufficient to repay the debt of the father, he should have discharged the promissory note out of that income. However, if he was of the opinion that there was no sufficient income to repay the debt then the only act that he could prudently do, was to sell a part of the estate to wipe out the liability. A mere renewal of this loan for another period of three years was certainly criminal to the minor's estate. The defendant (sic) the witness-box fully set out the circumstances under which he took a transfer of the minor's estate. Assuming what he said is true still the case does not fall within the rule laid down in Hunoomanpersaud Panday's case 6 M.I.A. 393. This is what the defendant stated in the witness box:

"Between January and March 1931, I sent ward to plaintiff's natural father and wanted him to pay Rs. 5,000 as a part-payment towards Ex. D-3, as I wanted that money for purchasing lands in another village under a contract already entered into. He and his clerk Rama Rao told me that they would sell paddy which they had in stock and pay me the said sum of Rs. 5,000 whenever I wanted. That contract fell through and the said amount was not paid to me. Then, Ex D 3 was renewed by the plaintiff's natural father China Seshayya executing Ex. D 2 at Tenali, in my house, on 22nd June 1931. It was executed beyond three years after the prior pro-note, for the Sub Court, Tenali, was closed from 18th April 1931 to 22nd June 1931, and the suit had to be filed in that Court. Even prior to 23rd April 1931, I sent word to him to come and pay the amount, and he said that the Court vacation had commenced and that he would come and settle within the vacation, but he did not do. So, I wanted to file a suit on the re-opening date of the Sub-Court; and apply for attachment before judgment of plaintiff's properties. For that, I got a list Ex. D-9 of his properties.... I did not file the suit, because on 21st June 1931, China Seshayya turned up with his clerk Rama Rao, and said that he would renew the debt, as he had no money to pay. Because I had information that he had executed or attempted to execute some mortgages, I was not willing to take a pronote; out he swore before me that he had not executed any mortgage and that within a short time after renewal, a would settle the claim. So, I took the renewal x. D-2."

We have already pointed out that there was relationship of counsel and client between the plaintiff's father and the defendant. Even the natural father of the plaintiff was engaging the defendant as his pleader. In cross-examination the defendant admitted that the plaintiff was us client till 1925. On the question of the filing of a suit the defendant deposed as follows:

"I did not issue a registered notice. I attempted only to file a suit (Ex. D-3). I did not purchase court fee stamps. As he sent word to me that he would come and settle the claim, I did not get a plaint drafted earlier. I could have indented for stamps and filed a suit in the evening of the re-opening date.... In 0.S. No. 51 of 1932,I deposed that between 1923 to 1932, they did not make any payments because I did not want payments.... I have deposed in 0. S. No. 51 of 1932 that in March-April, 1931, the plaintiff had sufficient money or paddy to pay me Rs. 5,000, whenever I demanded; and I stated so because China Seshayya told mo that he would pay whenever wanted. I had no personal knowledge that the plaintiff had money or paddy at that time to pay my debt. But I know personally that Chelamayya's family owned about 70 acres and also some outstandings; of the 70 acres, about 20 acres were dry and SO wet; and part of those 20 acres also has since been converted wet."

From these statements of the defendant it is quite clear that to the knowledge of the lender and the alienee there were funds of the minor in the guardian's hands out of which the debt could have been paid. He knew that the minor had sufficient income and that he was being promised payment out of that income. He made no inquiries. He merely relied on the statements of the natural father. He was not realising the money because he did not want to be paid. It seems it was a good investment for him in view of the rate of interest. In these circumstances this is not a case that falls within the rule laid down by their Lordships of the Judicial Committee in Hunoomanpersaud's case 6 M.I.A. 393. It is not a case of a bona fide lender who by looking into the necessities of the minor was getting promissory notes renewed but it is a case of a creditor who was keeping the money invested in the minor's estate as an investment for his own benefit, regardless of the consequences to the minor's estate of such indebtedness. It seems to me that neither the mother nor the natural father made any serious attempts to pay the loan of the father out of the income of the estate because of the regard for the defendant who was their lawyer and also wanted the money to remain invested on good rate of interest. There was no serious threat to the minor's estate by the lender when the promissory note was renewed or the sale was effect, ed. It is true...that a suit could have been filed on the last day of limitation, but no serious step has been taken to file it. No notice of demand had been given to the minor or to his guardian. No court fee stamps had been purchased and no plaint had been drafted. The view of the trial Judge that attachment before judgment was averted by this act of the guardian is obviously wrong. No Court could have issued such an order in respect of minor's estate particularly when the minor was incapable of alienating it. The threat of attachment before judgment was an idle one and could not affect the minor in any way.

161. For the reasons given above, I am of the opinion that the Full Bench decision must be sustained and the appeal dismissed with costs.

162. As regard the other appeal, the defendant is in a worse position than in the above case. As already indicated, on the basis of the guardian's promissory note no liability can be fastened to the minor. It has been held by the District Judge that there was no necessity for the sum of RS. 2,060 borrowed by the mother. The only question is whether the renewal of the promissory note by the de facto guardian could be held to be an act of necessity. As already noticed, the debt due by the father on the promissory note of 5th June 1923 was Rs. 1,465-3-5. On 16th April 1925, the widow executed a promissory note in the sum of Rs. 4,540-6-8, out of which Rs. 2,060 were not for necessity. The last promissory note given by the mother was on 6th April 1928. She died in June 1928 and on 21st September 1928, within three months of her death, the promissory note was renewed by the natural father. In this case I can find no necessity whatsoever for the renewal of this promissory note within six months of the earlier promissory note by the natural guardian. This seems to have been a wholly unwarranted act of the natural father. At the time of the renewal of the promissory note there was no threat of any kind to the minor's estate. The earlier promissory note given by the mother already existed. No satisfactory explanation has been given for the necessity for renewing the note on 19th September 1931 and the waiting till 1934 for the sale. The natural father may have done his best for the minor, but these acts of his (sic) an improvident character and are wholly aside the rule laid down in Hunoomanpersaud panday's, case 6 M.I.A. 393. It was argued by the learned Counsel for the appellant that by executing the sale deed in question the guardian bona fide settled a disputed claim, and that such a settlement by itself formed a good consideration for the sale deed. This argument has to be stated and rejected. The creditor got the whole of his money and relinquished no part of his claim and hence there was no question of give and take between the parties to support the point argued before us. Further in view of the finding of fact that the item of RS. 2,060 was without necessity, it is obvious that the contention could not be sustained. In my opinion, the High Court was perfectly right in dismissing the second appeal and I would also dismiss this appeal with costs.