1. We are invited in this rule to set aside a decree of dismissal in a suit for recovery of money. The petitioner took a bond on 2nd May 1905, executed by defendant 2 as the mother and guardian of defendant 1 who was at the time an infant. The bond recites that the father of the infant had borrowed paddy from the petitioners, that the price remained unpaid at his death, that the infant found himself unable to repay the money, that he begged the creditor to receive the sum in instalments, that the creditor out of compassion consented, and that accordingly the bond was given for Rs. 90 to be paid in nine annual instalments of Rs. 10 each. In the body of the bond the infant is described as the heir and successor of his deceased father and his mother is described as his guardian; the document recites that it is given by the infant as also by his mother. But the mother in putting her signature did not describe herself as the guardian of her infant son. It is admitted that some of the instalments were duly paid, but default was made with respect to the others, with the result that the creditor commenced the present action both against the mother and her son, who it appears, had attained majority before the suit was brought. The Court below has held that the infant cannot be held liable and has made a decree against defendant 2 alone on the ground that under the bond she made herself personally responsible for the repayment of the loan. The creditor now seeks to have the decree of dismissal against defendant 1 set aside. In our opinion there is no room for serious controversy that the Court below has taken an erroneous view of the liability of defendant 1.
2. It has been contended that as the mother did not, while putting her signature to the bond, describe hereself as the mother and guardian of the infant executant, she was personally responsible for repayment of the money. On the other hand our attention has been drawn to the circumstance that throughout the body of the document it purports to have been executed by the infant alone, which leads to the inference that the mother intended to execute the bond on behalf of her infant son. In our opinion the latter construction is obviously the correct interpretation of the bond. Ab was pointed out by Knight Bruce, L.J, in Hanooman Persad Pandey v. Mt. Babooee Munraj Koonweree . [1854-57] 6 M.I.A 393: “Deeds and contracts of the people of India ought to be liberally construed.
3. The form of expression, the literal sense, is not to be so much regarded as the real meaning of the parties which the transaction discloses.” In that case the mother of an infant had entered into various transactions apparently in her personal capacity. But their Lordships of the Judicial Committee held that the transactions were entered into in substance on behalf of her infant son and that consequently the liability of the infant under those transactions must be investigated. In this view no decree should have been made against defendant 1. She is however apparently satisfied with the decree which had been made against her and has not applied to this Court to have it set aside. Consequently the decree against her will stand. Wd are now concerned only with the liability of defendant 1. As regards him, it has been argued that as he was at the date of the execution of the bond an infant, no contract could be made on his behalf by his mother under which he became personally responsible, and in support of this view reference has been made to the cases of Maharana Shri Ranmal Singhji v. Vadilal Vakhatchand . [1896] 20 Bom. 61. and Bhawal Sahu v. Baij Nath Pertab Narain Singh . [1908] 35 Cal. 320. But the cases mentioned are clearly distinguishable. Here, as the recitals in the bond amply indicate, the debt had been contracted during the lifetime of the father of defendant 1. He was under a pious obligation to pay that debt and it could also have been recovered by the creditor out of the assets in his hand. Under the bond the mother entered into an arrangement with the creditor for repayment of his money in instalments convenient to the infant. It is impossible for us to hold that defendant 1 is not liable for repayment of the ancestral debt, the satisfaction of which was undertaken on his behalf by his mother under the bond mentioned. The view we take is supported by the decision in the case of Subramania Aiyar v. Arumuga Chetty . [1903] 26 Mad. 330..
4. The result is that the rule is made absolute and the decree of the Small Cause Court Judge set aside in so far as it dismisses the suit against defendant 1. The suit will stand decreed against defendant 1 with costs both here and in the Court below. We assess the hearing fee in this Court at two gold mohurs. The plaintiff is entitled to recover this sum from defendant 1 only to the extent of the assets of his father in his hands.
V.B/R.K
5. Rule made absolute.