BATCHU RAMAJOGAYYA Vs. VAJJULA JAGANNADHAM

JUDGEMENT

(1.) The decision of the Privy Council in Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 Bom. 551 with reference to a personal covenant made on behalf of a Hindu minor by his guardian, that a guardian cannot be allowed to make covenants in the name of the ward so as to impose personal liability upon him, precludes us, in my opinion, from holding that a guardian has any such power in India. It was, however, pointed out in Maharana Shri Ranmalsingji v. Vadilal Vakhatchand (1894) I.L.R. 20 Bom. 61 at p. 70 that this ruling does not affect the liability of the minor s estate under Section 68 of the Indian Contract Act to persons who have supplied him during minority with necessaries suited to his condition in life. What are necessaries must depend on the facts of each case, and in the case of a Hindu, money advanced for the expenses of a marriage which the minor has to perform or to pay off a debt binding upon him, may be recoverable under this head from his estate. It was held in this case that a guardian has no power to acknowledge debts on behalf of the minor, but this part of the decision was overruled by a Full Bench in Annappagauda v. Sangadigyappa (1901) I.L.R. 26 Bom. 221 at p. 232 where Sir Lawrence Jenkins, C. J., pointed out that the fact that a guardian cannot impose a personal liability on his ward by contract does not prevent him from binding the ward by acknowledgments under Section 19 of the Limitation Act: "for an acknowledgment under the Act is fundamentally different from a fresh contract, though it may in some respects have similar results." Further, where a guardian himself borrows money for the necessities of the minor in such circumstances as to give him a right to reimbursement from the minor s estate, his creditor may in a proper case be subrogated to his rights as held in Sanka Kriehnamurthi v. The Bank of Burma (1911) I.L.R. 35 Mad. 692. In practically all the cases in this Court which are referred to in the order of reference or were cited before us, it will be found that the minor s estate could have been made liable under one of the first two heads independently of any contract by the guardian on his behalf. No practical inconvenience, therefore, would result from giving full effect to their Lordship s express decision, but, even if it were otherwise, we should be bound to follow it. That this rule is well settled appears to me to be assumed by the Privy Council in Indur Chunder Singh v. Radha Kishore Ghose (1892) I.L.R. 19 Cal. 507. I do not read the recent judgment in Imambandi v. Mutsaddi (1917) L.R. 45 I.A. 73 : 35 M.L.J. 422 as holding that a Mahomedan guardian can bind a minor s estate by contract except in the sense that the minor s estate will be liable for necessaries supplied by his agency, and that he can sell the minor s property in proper cases. The question under consideration in that case was the right of a de facto guardian to alienate the minor s property.

(2.) It was also argued that the decision in Waghela Rajsanji v. Shekh Masludin (1887) I.L.R. 11 B. 551 only established the illegality of covenants imposing personal liability on the ward in the sense of making him liable to arrest after attaining majority in execution of a decree obtained against him on such covenants. This contention is clearly untenable.

(3.) The High Court had passed a decree against the appellant, who was sued after attaining majority on a covenant made during his minority by his guardian, for Rs. 12,000 with interest to be recovered from the defendant s property generally as well as from him personally. The contention raised on appeal was that the covenant was not binding on him at all, and their Lordships upheld this contention and dismissed the suit altogether. Further the term personally liable is well understood in English Law, and has reference to the old classification of actions into personal, real and mixed. "Actions may be personal, as contradistinguished from real and mixed; the first being actions against the person only for damages, the second for recovery of real estate, the third for both." A.G. v. Lord Churchill (1841) 8 M. and W. 171, 192 : 151 E.R. 997. A man who was liable in the old personal actions of debt, covenant, trespass, etc., was said to be personally liable and is still so described after the abolition of these old forms of action and of the liability to arrest in execution. I think the answer should be that a decree cannot be passed against a minor or his estate on a covenant entered into on his behalf by a guardian for his benefit. Ayling, J.