MANSARAM DAS Vs. AHAMAD HOSAIN PRADHAN

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage bond executed by defendant No. 2 on behalf of her son Monasharam Das defendant No. 1, who at the date of the mortgage was a minor. The mortgage was executed in favour of one Rahamatulla Prodhan, whose heirs the plaintiffs are. It is not denied that defendant No. 2 had executed the mortgage. But the defence was that, no consideration was actually paid for the bond. It appears that defendant No. 2 was the certificated guardian of defendant No. 1 under Act VIII of 1890. She applied to the District Judge for permission to raise a loan of Rs. 2,000 on mortgage from one Hossain patwari at an interest of Rs. 1.40 per cent. per month. The permission was granted; but Hossain subsequently being unable to advance the loan, the defendant Nov 2; again applied to the Judge for permission to raise the loan from Rahamatulla the father of the plaintiffs. This application was granted by the District Judge. Subsequently, it appears that the District Judge called upon the guardian of the minor (defendant No. 2) to state whether the mortgage had been executed or not, and on her failing to do so the Judge on the 8th March 1906 revoked the order granting permission to the guardian to execute the mortgage. The creditor Rahamatulla, it appears, had acted upon the original order of the District Judge granting permission to raise the loan from him, a copy of the order having been shown to him on behalf of the guardian. It may be observed that Rahamatulla was specifically named in the application for permission as the person in whose favour the mortgage bond was to be executed on taking the loan from him. But although the order revoking the permission was made, no notice was given either to the said Rahamatulla or even to the guardian. The guardian denies in her written statement that any such notice had ever been given to her, and her witness, Mohesh Chandra Barman, denies that any notice was served upon her. Rahamatulla appears to have acted bona fide in advancing the loan on the mortgage without any knowledge whatever of the order revoking the permission; although the order was passed before he advanced the money. It is unnecessary, however, to decide whether the order revoking the permission is effective as against Rahamatulla.

(2.) Assuming that the order was effective, the transaction stands in the same position as if there were no sanction by the Judge to the certificated guardian. The order was merely a voidable one under Section 30 of the Guardians and Wards Act at the instance of the minor, and the minor, who is now of age, can avoid the transaction only on restoration of the benefit received by him under the order. See the cases of Eastern Mortgage and Agency Company, Limited v. Rebati Kumar 3 C. L.J. 260 and Hem, Chandra Sarkar v. Lalit Mohan Kar 14 Ind. Cas. 515 : 16 C.W.N. 715 : 19 C. L.J. 537. There can be no doubt that the full consideration was paid. Apart from the oral evidence adduced on behalf of the plaintiffs, there are two receipts executed by defendant No. 2, the guardian, which show payments of the money on certain dates, namely the 11th April 1906 and 27th June 1906. These two receipts were registered and defendant No. 2 was identified by one Mohesh, who is an uncle of defendant No. 1 and lived in the same mass with him. There can be no doubt, therefore, that the money was actually paid by Rahamatulla to the guardian.

(3.) It is contended before us that it is for the creditor to show how much of the money was actually applied for the benefit of the minor and that he cannot get any decree for more than the amount so applied. No doubt it is for the plaintiff to show to what extent the money was applied for the benefit of the minor s estate. The guardian in her application to the Judge stated that there was urgent necessity for raising a loan of Rs. 2,000 for paying off the creditors of the estate; and as we have said, there is no doubt that Rs. 2,000 were actually advanced to her by the father of the plaintiffs.