RAMALINGA PADAYACHI Vs. SRINIVASALU NAIDU ALIAS BOORASAMI NAIDU

JUDGEMENT

(1.) These are two appeals under the Letters Patent against the judgment of Viswanatha Sastri J. in A.S. No. 602 of 1946, which was ati appeal preferred against the decree and judgment of the Court of the Subordinate Judge of Cuddalore in O. S. No. 36 of 1944. That was a suit for possession of properties which had belonged to the first respondent and which had been alicoated by the first defendant acting as his guardian when the first respondent was a minor. The first respondent alleged that the alienations were not binding on him. The impugned alienations were four sales of which we are concerned in these appeals with two only, viz, those covered by sale deeds, Exs. D-33 and D-1 dated 18-91936 and 20-11-1938 respectively. The properties in suit belonged to the joint family consisting of the plaintiff, first respondent and his father, one Sundararajulu Naidu who died on 29-12-1928. Sundararajulu Naidu is alleged to have left a will dated 29-12-1928 appointing the first defendant, a relation, as the guardian of his minor son, the first respondent, and his properties. The first defendant, it is common ground, managed the affairs of the first respondent during his minority. It was not disputed before us that the appointment of the first defendant as the testamentary guardian of the first- respondent was not valid in law, and therefore the status of the first defendant was only that of a de facto guardian. Both the alienations with which we are concerned in these appeals can be traced to a debt which was admittedly due by Sundararajulu Naidu under a promissory note, Ex. D-28, dated 4-2-1926, executed by him and the second defendant for a sum of Rs. 4200-2-3. This promissory note itself appears to have been in renewal of an earlier promissory note, but that is of no consequence. It was alleged, and it has been found, by both the trial Court and by the learned Judge on appeal, that in respect of this promissory note defendant 2 was only a surety, and it was the father of respondent 1 who was the principal debtor. After the father's death, a promissory not was executed by defendants 1 and 2 on 17-10-1930, Ex, D-29 for discharge of the amount due under Ex. D-28. In this promissory note, dcfendent 1 is thus described :

(2.) On the facts set out above, there appears to us to be no doubt as to the law to he applied, because it has been authoritatively enunciated by the Federal Court in-' Sriramulu v. Pundarikakshayya'. AIR 1949 F C 218 (A). The facts of the case before the Federal Court are substantially similar to the facts in the case before us. There the plaintiff was the adopted son of one Chalamayya. When he was a minor, his estate was being managed by his adoptive mother. She, as the de jure guardian of the minor, executed on 23-4-1925 a promissory note in renewal of an earlier promissory note which had been executed by Chalamayya himself in 1923 to the defendant. On the same date, she also executed another promissory note to the defendant tor the fees due to him for professional work done during the lifetime of Chalamayya. On 23-4-1928, she executed a consolidated promissory note in renewal of the two previous notes. She died in November 1928 and thereafter the plaintiff's natural father, China Seshayya, entered upon the management of the estate. He acted as the de facto guardian of the minor plaintiff. On 22-6-1931, Seshayya, professing to act as the guardian of the minor plaintiff, purported to renew the promissory note of 1928. On 2-0-1932, Seshayya conveyed immovable properties belonging to the minor to the defendant in discharge of the debt due under the promissory note and a sum of Rs. 4596-9-6 paid to another creditor. The plaintiff, after attaining majority, instituted a suit in which he attacked the validity of this alienation. It was held both bythis Court and by the Federal Court that a de facto guardian of a Hindu minor could not in law execute a promissory note in the name of the minor even in respect of a debt binding on the minor's estate's and a sale by such a de facto guardian in discharge of such promissory note executed by him would not bind the minor. In the face of this decision Mr. Ramachandra Aiyar, learned counsel for defendant 5, appellant in L. P. A. No. 15 ot 1951, could not, and did not, con-tend that the promissory note Ex. D. 32 was binding on the minor, nor that the sale to defendant 3 could be supported on the ground that it was in partial discharge of that promissory note. He. however, sought to sustain the validity of the sale on two" grounds. The first ground was based on Section 68, Contract Act, which runs as follows :

(3.) The second ground was based on the principle of subrogation. Certain passages from the judgments of the learned Judges in the decision of the Federal Court were relied upon by Mr. Ramachandra Aiyar. Kama C. J. observed (page 222) :