JAGON RAM MARWARI Vs. MAHADEO PROSAD SAHU

JUDGEMENT

(1.) The plaintiffs, appellants, are tradesmen in the town of Mozaffarpur and are dealers in cloth, gold, pearls, jewellery and other articles. The defendant is a zemindar resident in the same place and is admittedly a person of position and considerable income. The plaintiffs commenced this action for recovery of approximately Us. 2,300 from the defendant, for goods supplied during a period of more than two years from the 14 January 1902 to 18 October 1904. The defendant, who at the time of the institution of the suit was an infant under the guardianship of a certificated guardian, resisted the claim substantially on two grounds, namely, first, that the transactions mentioned in the plaint were entirely fictitious, and secondly, that as at the dates of the alleged transactions, he was an infant, he was not liable to pay for the goods. The Courts below have found concurrently upon the first question in favour of the plaintiffs, and have held upon the evidence that the purchases were made from them for the benefit of the defendant. Upon the second question, they have held that the articles supplied could not be regarded as necessary expenses, and therefore the plaintiffs were not entitled to their value. The plaintiffs have now appealed to this Court, and on their behalf the decision of the District Judge has been assailed substantially on two grounds, namely, first, that at the time of the transactions the defendant was not an infant, inasmuch as the first certificated guardian had been discharged, and, secondly, that even if he be regarded in the eye of law as an infant, the articles supplied were necessaries for which the plaintiffs were entitled to be paid.

(2.) In support of the first ground urged on behalf of the appellants, it has been pointed out that the defendant was born on the 8 November 1885, that one Bisun Deo was appointed his guardian under the Guardians and Wards Act of 1890 on the 20 November 1901, that on the 28 April 1903 Bisun Deo, upon his own application and with the assent of the present defendant, was discharged from the guardianship, and that it was not till the 8 September 1905 that Chhatradhari, the present guardian, was appointed by the District Judge under Act VIII of 1890. On these facts, which are not disputed, it has been contended on behalf of the appellants that the defendant attained his majority on the 8 November 1903 and not on the 8 November 1906, and that consequently the appointment of the second guardian on the 8 September 1905 was ultra vires. In support of this position, reliance has been placed upon the cases of Patesri V/s. Champa Lal (1891) 11 All. W.N. 118, Yeknath V/s. Warubai (1888) I.L.R. 13 Bom. 285 and Birj Molian V/s. Rudra Perhash (1880) I.L.R. 17 Calc. 944. On behalf of the respondent, it has been argued on the other hand that if a guardian be once appointed or declared, the disability of the minor continues until the attainment of 21 years of age, although the guardian may die, be removed or otherwise cease to act, and in support of this proposition reliance has been placed upon the cases Rudra Prokash V/s. Bhola Nath (1886) I.L.R. 12 Calc. 612 Khwahish V/s. Surju Prasad (1881) I.L.E. 3 All. 598 and Gordhandas v. Harivalubhdas (1896) I.L.R. 21 Bom. 281. In our opinion the contention of the appellants is clearly opposed to the plain language of Section 3 of the Indian Majority Act of 1875, as amended by Sec. 52 of the Gaurdians and Wards Act of 1890. Section 3 provides that every minor of whose person or property or both, a guardian other than a guardian for a suit has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of 18 years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age, shall be deemed to have attained his majority when he shall have completed his age of 21 years and not before. The language of this section fully supports the view taken in the cases of Rudra Prokash V/s. Bhola Nath (1886) I.L.R. 12 Calc. 612, Khwahisli V/s. Surju Prasad (1881) I.L.R. 3 All. 598 and Gordhan-das V/s. Harivalubhdas (1896) I.L.R. 21 Bom. 281, which is also supported by the recent decision of this Court in Gopal Chunder V/s. Gonesh Chunder (1905) 4 C.L.J. 112. We are not prepared to adopt the view indicated in the judgment of Sir John Edge in Patesri V/s. Champa Lal (1891) 11 All. W.N. 118, in which that learned Judge dissented from the decision of this Court in Rudra Prokash V/s. Bhola Nath (1886) I.L.R. 12 Calc. 612. We observe that reliance was placed by Sir John Edge upon the case of Birj Mohan V/s. Rudra Perkash (1989) I.L.R. 17 Calc. 944 with reference to which it is sufficient to state that the language of Section 3 has been altered since that decision was given, and the words "Every minor under the jurisdiction of any Court of Wards" have been replaced by the words "Every minor of whose property the superintendence has been or shall be assumed by any Court of Wards." The view, therefore, that the disability of the minor only continues so long as the Court of Wards retains the charge of his property, can no longer be maintained. We also observe with reference to the case of Patesri V/s. Champa Lal (1891) 11 All. W.N. 118 that it was dissented from by the learned Judges of the Bombay High Court in Gordhandas v. Harivalubhdass (1896) I.L.R. 21 Bom. 281. It is further worthy of note that as pointed out in Shivram V/s. Krishna-bai (1906) I.L.R. 31 Bom. 80 the earlier decision in Yeknath V/s. Warubai (1888) I.L.R. 13 Bom. 285) has been superseded by the decision of their Lordships of the Judicial Committee in Mungniram V/s. Mohunt Gursahai (1889) I.L.R. 17 Calc. 347 L.R. 16 I.A. 195. As regards the decision in the case of Nagardas Vachraj V/s. Anandrao Bhai (1907) I.L.R. 31 Bom. 590), it is clearly distinguishable. It was ruled in that case that if an order made under the Guardians and Wards Act for the appointment of a guardian is subsequently set aside, the period of minority is not extended to 21 years under Section 3 of the Indian Majority Act. This decision is based on the perfectly intelligible principle that if an order of Court which has been erroneously made or irregularly obtained, is subsequently revoked, the position is the same as if the order had never been made, or to use the words of Mr. Justice Wright in In re Newman [1899] 2 Q.B. 587, the invalid order is rescinded ab initio and is treated as though never made, so that the party is restored to his original position. This principle has obviously no application to a case in which the guardian either dies, or is removed, or as in the case before us, voluntarily obtains his discharge. Upon a review then of the authorities, and upon an examination of the language of Section 3 of the Indian Majority Act, as amended by Section 52 of the Guardians and Wards Act of 1890, we feel no doubt that if a guardian has once been validly appointed or declared, the minority does not cease till the attainment of 21 years of age by the ward, and it is immaterial, whether the guardian dies or is removed, or otherwise ceases to act. The first ground taken on behalf of the appellants cannot, therefore, be supported and must be overruled.

(3.) The second ground urged on behalf of the appellant is substantially to the effect that the case has not been properly tried on the merits, that the Courts below have proceeded on the assumption that the defendant is not liable for any articles which are not proved to be necessary to the support of life, and that the accounts show on the face of them that various articles of ordinary use were supplied, as also other articles required by a minor of the position in life of the defendant on the occasion of his marriage which took place in April or May 1903. We have carefully examined the judgment of the Subordinate Judge as also that of the District Judge, and are of opinion that the contention of the appellants is well founded. The Subordinate Judge stated the question to be, whether the articles supplied could be treated as necessary expenses, and held that as most of the purchases were made at or about the time of the marriage of the defendant, and as there was no reliable evidence to show that the things were required for the marriage, the plaintiffs were not entitled to recover. The District Judge proceeded on a somewhat different ground. He held that as many of the articles were supplied shortly after the marriage they could not be treated as necessaries for the marriage; and further, that as the arrangements for the marriage were in the hands of a person named Gajadhar with whom the plaintiffs had no dealings, they were not entitled to recover the price of the articles supplied. It is obvious that there has not been a proper trial of the question in controversy between the parties in either of the Courts below. As we have already stated, the alleged transactions extend over a period of nearly three years from January 1902 to October 1904, while the marriage of the defendant took place in April or May 1903. Apart, from the question, therefore, whether the articles supplied immediately before or after the marriage could be regarded as necessaries, the question remains for consideration, whether the other articles supplied during a period of fifteen months before the marriage and about eighteen months after that event, fall within the category of necessaries. It has been stated to us approximately that goods worth about Rs. 1,300 were supplied on the occasion of the marriage, and articles worth about Rs. 800 were supplied from time to time before and after the marriage. It is obvious that the matter has not been investigated with the fulness it deserved, and that neither of the Courts below has determined with reference to each article alleged to have been supplied, whether it was one in respect of which the plaintiffs were entitled to recover the value. It is manifest that in the interests of justice, the decisions of the Courts below must be discharged and the case re-investigated. To enable the lower Court to do so, we shall lay down the principles upon which the enquiry ought to proceed.