ABDUL GAFFUR Vs. SONA BIBI

JUDGEMENT

(1.) The transaction giving rise to this litigation was as follows: The plaintiff, who was a minor at the time, had to receive about Rs. 1,000 from the Collector under the Land Acquisition Act. Amjad Ali, the ancestor of defendants Nos. 2--7, became the certificated guardian and Asraf Ali, the deceased defendant No. 1, the ancestor of defendants Nos. 8--11, stood surety for him to the extent of Rs. 1,000, the consideration most probably being that the guardian agreed to deposit with the surety the amount of Rs. 1,000 when drawn, so that the surety might consider himself safe. Soon after the certificate had been granted, the money was drawn and deposited with the surety who undertook to pay Rs. 60 annually as "profits" for the maintenance of the minor and to return the principal amount and profits within one year. The transaction is called a deposit but the agreement to pay profits and to return principal with profits signifies that it was intended that the money should be used by the surety. As the suretyship would subsist as long as the guardianship, the mention of one year as the term seems to have been made by the scribe to conform to the usual phraseology of a bond as the document was named. This explains why in 1902 the guardian sued for the profits only up to 1902 and not for the principal which had then fallen, due, and obtained a decree. The guardian died and the minor on attaining majority in 1907 at once brought this suit for the principal and for profits after 1902. Asraf Ali did not deny the bond, but pleaded that Amjad Ali had realised the amount by suit and out of Court, that the plaintiff had no cause of action and was barred by Section 43 of the Civil Procedure Code. The first Court gave a decree but the learned Subordinate Judge has dismissed the suit, holding that the plaintiff had no cause of action and even if he had one, it was barred by Section 43 of the Civil Procedure Code.

(2.) It has been argued in second appeal before us that the learned Subordinate Judge is wrong on both these points and we think the contentions are sound and must prevail.

(3.) The terms of the document are, quite clear and we are surprised that the learned Subordinate Judge was able to hold that it does not show that the money belonged to the minor. Assuming that these is some ambiguity in the first part of the document as to the ownership of the money, the fact of the stipulation for paying the whole of the profits for the maintenance of the minor taken with the facts of the guardianship, the surety ship, the Land Acquisition Collector s cheque clearly mentioned in the document, leave no doubt in our minds that the money belonged to the minor. The learned Judge says the stipulation for the support of the minor is not enough and the guardian might have lent his own money. This way of singling out one fact in a case and making surmises upon it independently of the surrounding facts is very apt to mislead and has in this case led to a grave miscarriage of justice.