SHEKH MASLUDIN Vs. WAGHELA RAJSANJI

JUDGEMENT

(1.) IN this case the Appellant, who was the Defendant in the Court below, is the talukdar of Ahmeddbad, and the Plaintiff, who is the the Respondent - there has been, some change of title since, but throughout this judgment the Plaintiff will be referred to as a single person - brought a suit to enforce a covenant which was entered into in the year 1858 by the Defendant's mother and guardian on his behalf when he was a boy eleven years old. That covenant arose in this way. The Plaintiff was a creditor of Sewsangji, the Defendant's father, and the debt appears to have been one for which the talukdari family estate might be made liable. Under those circumstances, in 1858, an account was stated of the amount due to the Plaintiff, which was found to be Rs. 35,001. In lieu of enforcing that debt by decree and execution, he took a conveyance from the mother and guardian, Bai Ramba, of a certain extent of the family land - the exact extent does not matter now. The validity and propriety of that transaction was challenged by the Defendant after he came of age. It was the subject of a suit in the year 1868, and the result was to establish that the transaction was a valid one bond fide entered into by the guardian, and within the range of her powers. There is therefore no question in this suit as to the propriety or expediency of the sale of 1858; but the question is as follows. The family claimed to hold the conveyed land rent free, and the guardian conveyed it as rent free, and their Lordships must assume that it was valued on that basis. The purchaser was not content with the assertion of the family that in point of fact they paid no rent, though that seems to have been the fact, but he took a covenant from the guardian to indemnify him in case the Government should enforce their claim to receive rent out of the estate, and that covenant is framed so as to bind both the guardian and the infant, who was nominally by his guardian a party to the deed. That the covenant bound the guardian there can be no doubt, but the question is whether it could bind the infant talukdar. Unfortunately neither of the Courts below addressed themselves to this question, because they held that it had been already decided by the decree made in the prior suit.

(2.) LOOKING at the prior suit, their Lordships find that it was a suit to impeach the whole sale, on the grounds, first, that it was fraudulent, and, secondly, that it was beyond the powers of the guardian and manager. No question whatever was raised as to the validity of the guardian's covenant as against the infant. In fact it is impossible that that covenant could have come into question, excepting as a subsidiary argument to shew that the deed was an improper one, and then the curious result would be this: That the more clearly that covenant was void in law, the less would be the force of the argument founded upon it. In point of fact, neither in the pleadings nor in the decree in that suit can it be discovered that anybody paid any attention to the point which is now under consideration. Their Lordships, therefore, must hold that to be an open point in the present suit.

(3.) THAT however is not the whole of the covenant. By way of security for its performance the deed gives a charge upon the other talukdari estates, some specified wanta lands and giras lands, and the other property generally. Mr. Mayne reasoned on that in this way. He said the land was valued as rent free; if it had been valued as subject to rent, the creditor would have insisted on having so much more of the land; therefore family land is saved by valuing as rent free the land actually taken, and it was not only reasonable but within the compass of the guardian's powers to deal with the remaining family land of which she was manager, so as to make it a security to the creditor against his loss by the Government exacting rent. The argument is one which is worthy of great consideration, but their Lordships do not wish to pronounce any opinion on it or to subject it to any minute examination, because assuming it in favour of the Respondent to be a sound argument, they are clearly of opinion that so far as regards the talukdari estate - and that is now the only part of the case which they have not dealt with - an answer to it is to be found in the terms of the Ahmedabad Talukdari Act, Act VI of 1862.