EDAVAN KAVINGAL KELAPPAN NAMBIAR Vs. MOOLAKAL KUNHI RAMAN

JUDGEMENT

(1.) THIS revision petition is by the 2nd defendant in S. C. S. No. 262 of 1953 on the file of the District Munsif of Taliparamba. This suit was laid against two defendants for the recovery of amounts due under a kuri started by the plaintiff. The first defendant bid at the kuri on 27-9-1951 for two tickets and was paid the amounts. The future subscriptions were not paid and the suit was for the recovery of these amounts. The 2nd defendant executed a voucher along with the 1st defendant the subscriber guaranteeing the payment by the subscriber, the 1st defendant.

(2.) THE 1st defendant contested the suit on the ground that he was a minor at the time when he joined the kuri and bid at the auction and therefore was not liable for the suit claim. The plea of the 2nd defendant was that he was only surety In respect of the 1st defendant's liability and that as the contract between the plaintiff and the 1st defendant was void he was not liable on the guarantee either. That the first defendant bid at the kuri and that the 2nd defendant executed the voucher (receipt) Ex. A-l are both matters of admission. The 1st defendant has also been able to prove that he was a minor on the date of Ex. A. 1 which was executed when the bid amount was paid. The learned District Munsif has for this reason dismissed the suit as against the 1st defendant. He has however decreed the suit as against the 2nd defendant on the ground that as under Ex. A. 1 he undertook to pay the amount though as a surety he was still liable to the plaintiff notwithstanding the contract with the primary debtor being void and not enforceable. It is this decree against him in these circumstances that is complained of by the petitioner.

(3.) SECTION 128 of the Indian Contract Act provides that the liability of the surety is coextensive with that of the principal debtor unless it is otherwise provided by the contract. If the section were literally applied there can be no doubt that the 2nd defendant would not be liable because the liability of a surety cannot be more extensive or of wider import than the liability of the principal debtor. There are decisions of the Bombay High Court taking this view, viz. Manju mahadeo v. Shivappa Manju, 42 Bom 444: (AIR 1918 Bom 197) (A) and Pestonji manekji Mody v. Bai Meherbai, 112 Ind Cas 740 at p. 747: (AIR 1928 Bom 539 at pp. 644-645) (B ). There is also authority to the similar effect in English Courts, vide Courts and Co. v. Browne Lecky, 1947-1 KB 104 (C ). On the other hand there is an earlier decision of the Bombay High Court in Kashiba v. Shripat Narshiv, ILR 19 bom 697 (D), which takes a different view. In this decision it was held that in such circumstances the obligation of the surety became primary and that the binding nature of the contract on the principal debtor was not the sine qua non for the enforceability of the obligations of the surety. A similar view has been taken in Chajju Singh v. Emperor, ILR 2 Lah 204: (AIR 1921 lah 79) (E) as also by the Nagpur High Court in Tikkilal v. Komaichand, ILR 1940 nag 632: (AIR 1940 Nag 327) (F ). There is however no decision of this court on this point. The point is not free from difficulty and in view of this conflict of decisions I consider that it is proper that this matter should be considered by a Bench. I favour this course particularly in this case because any decision of mine in this civil revision petition will not be open to appeal, I therefore direct the papers to be placed before my Lord the Chief Justice for this civil revision petition being heard by Bench. ORDER rajagopala Ayyangar, J.