RAMAKRISHNA REDDIAR Vs. KASIVASI CHIDAMBARA SWAMIGAL (DIED)

JUDGEMENT

(1.) This is an appeal against the judgment of Mr. Justice Devadoss in S. A. No. 51 of 1922. The point for decision is whether a guardian of a Hindu minor can bind his ward by a personal covenant for sale of the minor's estate so that specific performance of the contract may be decreed against the minor. The learned Judge held on the authority of a Full Bench ruling in Ramajogayya V/s. Jagannadhan (1918) ILR 42 M 185 : 36 MLJ 29 (FB) that the minor can be bound. Before us it has been argued that that Full Bench ruling does not go so far as the learned Judge takes it, and I am of opinion that this contention is well-founded.

(2.) It may be taken for purposes of argument in this case that the proposed sale was for necessary purposes. The same was the case in the Full Bench ruling. The question referred to the Full Bench was "whether any decree, and if so, what decree can be passed against a minor or his estate on a covenant entered into on his behalf by a guardian for his benefit under which covenant no charge is made on the estate" and in answering this question full weight was given by the Full Bench to the decision of the Privy Council in Waghela Rajsanji V/s. Shekh Masludin (1887) LR 14 IA 89 : ILR 11 B 551 (PC) which was interpreted to mean that the guardian of a Hindu minor could not bind his ward by a personal covenant. That is how the learned Chief Justice begins his judgment, and he proceeds to lay down that the general proposition laid down by the Privy Council will not affect the liability of the minor's estate for necessary purposes, and he points out that in all the cases cited before the Full Bench the minor's estate could have been liable independantly of any contract by the guardian. He answered the question refered by saying that a decree cannot be passed against a minor or his estate on a covenant entered into on his behalf by his guardian for his benefit evidently drawing a distinction between a purpose of benefit and a purpose of necessity. The other two learned Judges were agreed that Waghela Rajsanji V/s. Shekh Masludin (1887) LR 14 IA 89 : ILR 11 B 551 (PC) meant that an onerous covenant cannot be imposed by the guardian upon the person or property of a Hindu minor, but laid down that where a Hindu minor's estate would be liable but for the interposition of the guardian, an undertaking by the latter of that liability would bind the estate, and that the Privy Council ruling in Waghela Rajsanji V/s. Shekh Masludin (1887) LR 14 IA 89 : ILR 11 B 551 (PC) did not affect the Hindu Law liability of a minor. They answered the question by saying that a decree can be passed on a contract by the guardian in cases where the minor's estate would have been liable under his personal law. I take this to mean that a guardian can bind a minor by contract or personal covenant only so far as his Hindu Law obligation will bind him, that when a contract by a guardian undertakes on behalf of the minor no more than the liability which the minor carries under his personal Hindu Law, that is, when the guardian's contract merely embodies that Hindu Law liability of the minor, it can be enforced against the minor; and that this is the sole exception to the general law that a guardian cannot bind the minor by a personal covenant. That this is their meaning is indicated by the statement of Seshagiri Aiyar, J., that his conclusion was the same as that of the learned Chief Justice, only that it was put in other words. So that the Full Bench case comes to this, that is, so far, and only in so far, as the contract by the guardian embodies the personal Hindu Law liability of the minor is it enforceable against the minor and in so far as it goes beyond that it comes under the general rule that a guardian cannot bind his ward by a personal covenant. The principle is clear : By such a restricted covenant the guardian is not laying on the minor any greater burden than he already has to bear under his personal law and therefore to enforce the covenant by the guardian is merely to enforce a liability which the minor has aliunde to carry.

(3.) Now in the case before us, in which it is sought to hold the minor liable for specific performance of a contract by his guardian to sell his property, it is obvious that the covenant goes beyond the personal Hindu Law liability of the minor. Hindu law does not compel him to discharge debts for necessary purposes by contracting to sell his property; it merely compels him to discharge the debts; it does not lay down the method in which he shall discharge or restrict him to any one method; it is not concerned with what method he adopts, provided the debts are discharged. It appears to me therefore that on this ground alone it must be held that the minor is not bound by the guardian's covenant in this suit. The minor's personal liability extends only to the discharge of the debt. He may choose his own method, by selling land or borrowing elsewhere by mortgage, by suffering decree in a suit. He cannot be forced by the law to adopt one particular method, nor is there any authority for that proposition in Ramajogayya V/s. Jagannadhan (1918) ILR 42 M 185 : 36 MLJ 29 (FB). In this view I do not think it necessary to consider at length most of the cases cited before us. I shall deal with those cases put forward by the respondent as indicating in his view that the general proposition deduced from Waghela Rajsanji V/s. Shekh Masluddin (1887) LR 14 IA 89 : ILR 11 B 551 (PC) is too wide and that a Hindu guardian may in certain circumstances bind his ward by a personal covenant which goes beyond the ordinary Hindu Law liability of the ward. These cases were Watson and Company V/s. Sham Lal Mitter (1887) LR 14 IA 178 : ILR 15 C 8 (PC), Krishnaswami V/s. Sundarappier (1894) ILR 18 M 415 : 5 MLJ 164 and Krishna Chettiar v. Nagamani Ammal (1915) ILR 39 M 915. In Watson & Company V/s. Sham Lal Mitter (1887) LR 14 IA 178 : ILR 15 C 8 (PC) a Kabuliat signed by the guardian agreeing to pay an enhanced rent for land was held binding on the ward. But this was really a case not of a contract, but of a compromise of itigation and I do not find it of such assistance here. Krishnaswami v. Sundarappayyar (1894) ILR 18 M 415 : 5 MLJ 164 is a ruling of a Bench of this Court in which it was held that a contract by a guardian of a Hindu minor for sale of his land was binding on the minor. It proceeded on the general ground that the English doctrine that specific performance cannot be decreed against a minor does not hold in this country; but the Privy Council has certainly laid down the contrary--see Waghela Raj-sanji V/s. Shekh Masludin (1887) LR 14 IA 89 : ILR 11 B 551 (PC) already cited and Mir Sarwarjan V/s. Fakhruddin Mahomed Chowdhuri (1911) LR 39 IA 1 : ILR 39 C 232 : 21 MLJ 1156 (PC). The case in Krishna Chettiar V/s. Nagamami Ammal (1915) ILR 39 M 915 held that a promissory note executed by a guardian of a Hindu minor for purposes binding on him is enforceable against his estate. But this, it appears to me, would come directly within the ambit of Rama-jogayya V/s. Jagannadhan (1918) ILR 42 M 185 : 36 MLJ 29 (FB) and is in fact decided on the very same line of argument. A very similar case is in Venkata-swami Naicker V/s. Muthuswami Filial (1917) 34 MLJ 177.