P NAGALINGAPPA Vs. PVENGANNA

JUDGEMENT

(1.) IN these cases, it has been agreed that I should decide the point of the guardian's liability, as a preliminary point and that if I find for the appellant on that, the case for the respondent goes, in both these appeals. The Subordinate Judge has held the guardian personally liable in spite of Shet Manibhai V/s. Bai Rupaliba (1900) 24 Bom. 166, on the authority of a ruling of the Calcutta High Court, in Rajani Kanta Roy V/s. Manmatha Nath Nandi (1918) 46 I.C. 665, The contention for the respondent is that on the wording of Exhibit A, the guardians have personally bound themselves to pay. That Exhibit A (a hypothecation bond) contains a personal covenant to pay is true; it is executed by the executants "who are the guardians of the properties of the two minors," viz., so and so. The bond continues "we have agreed to pay," the guardians of the estate of minors Nagalingappa and Murugappa. IN my opinion, there is, on the wording of Exhibit A, no personal covenant, to repay by the executants, except as such guardians as aforesaid. Then it is said that there has been misrepresentation by the guardians. That representation was to the effect that the guardians had authority to execute Exhibit A, and is set out in the plaint paragraph 6. The Subordinate Judge decided that the guardians are personally liable on the failure of consideration or deceit and misrepresentation by stating that the money would be applied to the benefit of the minors estate. There is no evidence that it was not. The fact that the guardians were dishonest or rash in business does not conclusively prove that the money raised by Exhibit A was not employed, in the money-lending business, the family business of the minors, which ended in a loss. IN Shet Manibhai V/s. Bai Rupaliba (1900) 24 Bom. 166, it was pointed out that there could, in such a case, be only two representations : (a) that of agency as there was here, and which was true; (b) that there was power to bind the estate, which is a representation of law; neither of these will under the circumstances, support a suit on a warranty : sea Beatte V/s. Ebury (1872) 7 Ch. 777. The case relied on by the Subordinate Judge is Rajani Kanta Roy V/s. Manmatha Nath Nandi (1918) 46 I.C. 665. Neither Shet Manibhai V/s. Bai Rupaliba (1900) 24 Bom. 166 nor the English Law is discussed there. There is no statement of the reasons which led the Court to affirm the liabibility of the mother to repay personally. I prefer the English and Bombay authorities. For these reasons, I am of opinion that these appeals must be allowed as regards the personal liability of guardian Pompanna with proportionate costs here and below, i.e., appellant will receive and pay proportionate costs throughout.