MINOR SUYAMPRAKASAM ALIAS MEENATCHISUNDARAM, BY NEXT FRIEND AND MOTHER VALLI AMMAI ACHI Vs. MURUGESA PILLAI

JUDGEMENT

(1.) The question referred to us is "whether a minor cannot maintain a suit against an agent appointed by the guardian for the benefit of the minor's estate (a) generally, and (b) at least in respect of properties received by the agent and not accounted for to the guardian. "

(2.) The reference was really necessitated I do not gather that the learned Judges had much doubt about the point themselves-by the decision of a Bench of this Court in Ramanathan Chettiar V/s. Muthiah Chetty (1919) ILR 43 M 439 : 38 MLJ 247, which, in my opinion, applied itself to the wrong angle of view in looking at these matters. It is not a question of trustee de-son-tort; it is a question of a contract made by a minor with an agent to manage his property and a contract which no one can suggest is void though it may be voidable at the instance of the minor. It may be that the minor cannot be sued upon it; but here the minor is seeking to enforce his rights of property against a person who has undoubtedly had control of his estate and whom it is sought to make accountable for the estate and its funds which have passed into his hands. The English rule is perfectly clear; it has been clear, ever since the case of Dormer V/s. Fortescue 3 Atk 244 decided as early as 1744 by Lord Hardwicke, that in a position of this kind, the minor is entitled to call upon the agent to account.

(3.) I do not wish to say more, because my learned brother Ramesam in the Order of Reference has given his reasons for believing that Ramanathan Chettiar v. Muthiah Chetty (1919) ILR M 439 : 38 MLJ 247 is wrongly decided and can no longer be regarded as good law, and I am entirely of the same opinion. I think that this reference must be answered in the affirmative as regards both (a) and (b). Ramesam, J.