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Myneni Pundarikakshayya v. Kondamudi Sreeramulu

Madras High Court

Aug 21, 1945

Judgment

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Factual and Procedural Background

The principal factual matrix concerns an adopted Hindu minor (the plaintiff) and transactions affecting his estate while still a minor. The adoptive father, Chelamaiya Chowdri, borrowed money from the defendant and executed promissory notes in his lifetime. After Chelamaiya's death, the adoptive mother (Sri Krishnamma) as de jure guardian renewed those promissory notes and executed additional notes on behalf of the minor. Sri Krishnamma died in November 1928. Thereafter the minor's natural father, China Seshayya, without any order of court, entered upon management of the minor's estate and is described in the opinion as a de facto guardian.

Between 1928 and 1931 the de facto guardian purported to renew promissory notes in the minor's name and, on 2 June 1932, conveyed immoveable properties belonging to the minor to the defendant for Rs. 14,873, of which only Rs. 75 was paid in cash; the balance was intended to be discharged by cancelling promissory notes purportedly executed by the de facto guardian and by payment to a third party, Gutta Punniah.

The plaintiff attained majority on 9 December 1937 and instituted this suit on 9 December 1940, challenging (a) the validity of the renewals of promissory notes signed by the de facto guardian, and (b) the validity of the conveyance of the minor's properties said to have been made in discharge of those debts. The Subordinate Judge dismissed the suit, holding that the de facto guardian could renew promissory notes to avoid suits by creditors. The plaintiff appealed; the defendant defended the conveyance and also pleaded ratification and sought a charge in respect of sums the defendant paid to Gutta Punniah. Certain concessions were made by the plaintiff's counsel on appeal (see below).

Legal Issues Presented

Whether a person who, without lawful authority, takes upon himself the management of a Hindu minor's estate (a "de facto guardian") can in law execute a promissory note in the name of the minor in respect of money borrowed for a necessary purpose and thereby bind the minor's estate.
Whether promissory notes executed by the de facto guardian could operate to extend the period of limitation in respect of debts contracted by the adoptive father and thus validate the conveyance executed in discharge of such debts.
Whether the conveyance to the defendant was ratified by subsequent events (including payments by the defendant to a creditor and matters in proceedings under the Madras Agriculturists' Relief Act).
Whether the defendant was entitled to a charge on the properties in respect of the amount he paid to Gutta Punniah.

Arguments of the Parties

Appellant (Plaintiff) — principal contentions

The minor's natural father, who acted as a de facto guardian, had no legal power to renew promissory notes executed by the de jure guardian (Sri Krishnamma) and had no power to convey the properties in discharge of those debts.
The Subordinate Judge erred in holding that the de facto guardian could renew promissory notes to avoid suits by creditors.
For purposes of the appeal, the plaintiff's counsel (Mr. Satyanarayana Rao) conceded that the original promissory notes executed by Chelamaiya Chowdri were for full consideration and that the debts were binding on the estate up to three years after the last renewals by Sri Krishnamma; and also conceded that the de facto guardian had administered the estate to the best of his ability.

Respondent (Defendant) — principal contentions

The defendant relied on the reasons of the Subordinate Judge for dismissal of the suit and contended that the renewals and conveyance were valid.
The defendant argued that the plaintiff had ratified the conveyance (a plea rejected by the Subordinate Judge and by this Court).
The defendant additionally contended that, in any event, he was entitled to a charge on the properties for Rs. 4,590-9-6 which he paid to Gutta Punniah (a claim accepted by the Court and granted as a charge with interest).

Other submissions (as recorded)

The learned Advocate-General suggested that the promissory notes signed by the de facto guardian might operate to create fresh obligations (i.e. fresh debts) and that the consideration for the sale deed could be the defendant's abstention from suing; both arguments were rejected by the Court as fallacious based on the deed and the law as applied.
The plaintiff's counsel relied on authorities, including Privy Council decisions, in support of limiting the scope of de facto guardian's power; the Court analysed those authorities in deciding the issues.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Hunooman (Hanooman) Persaud's case (1856)	Privy Council: a bona fide incumbrancer who takes a charge from a de facto manager honestly for saving or benefitting the estate is not affected by want of de jure title, provided circumstances would support such a charge had it come from both de facto and de jure manager.	The Court noted this decision and observed that subsequent Indian courts have treated it as authority that a de facto guardian can charge or sell immoveable property when required in the infant's interests. The Court nevertheless distinguished such powers from the power to execute negotiable instruments (promissory notes) in the minor's name.
Ramaswami Pillai v. Kasinatha Aiyar (1927; A.I.R. 1938 Mad. 226)	Expressed judicial inclination that a de facto guardian might not have power to convey an enforceable right in immovable property against the minor; referenced principles from Muhammadan law cases.	The Court recorded the decision as reflecting a conflicting view but noted matter was not res integra in that case; used it to show there are judicial expressions doubting de facto guardian's power to convey enforceable interests.
Mata Din v. Ahmed Ali (1912) : Imambandi v. Mutsaddi (1918)	Decisions under Muhammadan law regarding limitations on guardian's powers (referred to by Ramaswami Pillai).	Referred to as authorities whose principles were considered in previous discussions; used to contrast approaches but not applied to change holding about Hindu de facto guardians here.
Ramajogayya v. Jagannadhan (1887)	Held that a guardian can covenant on behalf of a minor so as to make the minor's estate liable for money borrowed for a necessary purpose (without creating an express charge), subject to the guardian's personal law.	The Court treated the majority rule in that case as settled law in the Presidency: a de jure guardian can borrow for necessary purposes and thereby make the estate liable. This distinction informed the Court's analysis about differences between de jure and de facto guardians.
Waghela Rajsanji v. Shekh Masluddin (1935)	Rule that a Hindu guardian cannot contract in the name of the ward so as to impose on him a personal liability.	The Court noted this principle and used it to underscore that even a de jure guardian cannot make the minor personally liable, only the estate; helped frame limits on what a guardian may achieve by contract or negotiable instruments.
Sudarsana Rao v. Dalayya (1939)	Case in which a de facto guardian entered into an agreement about maintenance and it was held binding on the minor's estate because the obligation derived from the minor's personal law.	The Court accepted the limited proposition from that case (that certain contracts, where the personal law imposes liability, can bind the estate even if made by a de facto guardian) but distinguished such contracts from executing promissory notes in the minor's name.
Krishna Chettiar v. Nagamani Ammal (I.L.R. (1943) Bom. 117)	Illustration that suits on promissory notes executed by guardians may be wrongly framed; liability arises on the debt, not necessarily on the instrument as an enforceable contract against the estate in the instrument form.	The Court used this example to state the correct procedural and substantive approach: suits should be on the debt and not treat the minor as personally liable on the instrument itself without amendment.
Seetharamayya Garu v. Satkiah (1856)	Earlier observation suggesting guardian could bind a minor in respect of a promissory note in proper circumstances.	The present Court (author of that earlier judgment) clarified that the prior statement was meant to assert that the minor's estate could be bound by the debt evidenced by a promissory note, not that the estate could be sued on the instrument as if it created a personal obligation of the minor.
Annamalai v. Muthuswami (1939)	Clarified that liability arises from the debt evidenced by the promissory note under the minor's personal law; the promissory note does not, by itself, create a contract binding the minor in the instrument form.	The Court quoted this passage to emphasize the doctrinal point that the liability is substantive and rooted in the minor's personal law, not in any fiction that the guardian's contract is the minor's contract.
Swaminatha Odayar v. Natesa Iyer (I.L.R. (1938) Lah. 313)	Held that a guardian could not impose a liability on a minor by executing a promissory note on his behalf, even for a necessary purpose; distinguished ordinary debt from negotiable-instrument liability.	The Full Bench later addressed and related questions; the present Court recorded that the Full Bench, when later considering a related issue, approved the view that a de facto guardian cannot in law sign a promissory note on behalf of the minor.
Satyanarayana v. Mallayya / Partap Singh v. Sant Kuar (1935) (Privy Council cited)	Privy Council held that a Hindu minor was not bound by an agreement entered into by a de facto guardian (case did not consider necessary-purpose transactions of the Hanooman Persaud kind).	The Court explained that the Privy Council decision did not consider contracts entered into for necessary purposes under Hunooman Persaud's reasoning and therefore was not directly applicable to this case's specific factual questions; it did not support extending promissory-note powers to de facto guardians.
Vembu Aiyar v. Subbiah Pillai (1939)	Held that a minor was not bound by an endorsement of payment made by his de facto guardian on a promissory note which the de facto guardian purported to execute in the minor's name.	Recorded as authority consistent with the view that promissory notes executed by de facto guardians cannot bind the minor's estate.
Nagindas Gokuldas v. Bhimrao Damu (Bombay Bench, 1915)	Expressed the opinion that a promissory note executed by a de facto guardian on behalf of a minor even for a necessary purpose cannot bind the estate.	Referred to as another decision directly contrary to the proposition that a de facto guardian can bind by negotiable instruments.
Chennappa v. Onkarappa (1939) (Full Bench)	Held that a de facto guardian is not the lawful guardian for the purposes of Section 21 of the Indian Limitation Act, 1908, and therefore is not an agent duly authorised to sign an acknowledgment of liability for limitation purposes.	The Court treated this Full Bench authority as directly bearing on the issue of whether promissory notes signed by the de facto guardian could extend limitation; it concluded they could not, and therefore the debts were barred at the time of the conveyance.

Court's Reasoning and Analysis

The Court began by identifying the central legal question: whether a de facto guardian, who has no lawful authority, can execute a promissory note in the name of a Hindu minor for a necessary purpose and thereby bind the minor's estate (para 1). The opinion proceeded in several connected analytical steps, each founded on prior authorities and a close reading of the instruments and chronology.

Distinguishing de jure and de facto guardians: the Court accepted the settled proposition that under Hindu law a de jure guardian (for example, a lawful father or mother or person appointed by court) can, where money is borrowed for a necessary purpose, render the minor's estate liable for the debt (as per Ramajogayya and related authorities). However, the Court emphasized that those powers are distinct from the question whether a de facto guardian can execute negotiable instruments in the minor's name (paras 8–11).
Evaluation of authorities on de facto guardians and negotiable instruments: the Court reviewed a line of decisions (Hunooman Persaud, Ramaswami Pillai (observations), Sudarsana Rao, Swaminatha Odayar, Vembu Aiyar, Nagindas Gokuldas, Partap Singh / Satyanarayana) and concluded that where courts have held that a de facto guardian cannot bind the minor's estate by executing a promissory note in the minor's name, those decisions were rightly decided (para 14). The Court distinguished cases where a de facto guardian entered into contracts that bound the estate because the liability derived from the minor's personal law (e.g., maintenance obligations) from the separate question of executing negotiable instruments.
Negotiable instrument versus substantive debt: the Court stressed the doctrinal point that a promissory note does not of itself create the substantive liability of the minor; liability arises from the debt evidenced by the instrument in accordance with the minor's personal law (quoting Annamalai). The Court reiterated that even if a de jure guardian may render the estate liable for debts contracted for necessary purposes, it does not follow that a de facto guardian may lawfully sign a negotiable instrument in the minor's name (paras 10–12).
Limitation consequences and Section 21: the Court relied on Chennappa v. Onkarappa (Full Bench) which held that a de facto guardian is not a lawful guardian for the purposes of Section 21 of the Limitation Act and thus is not properly an agent authorised to sign acknowledgments extending limitation (para 15). From this it followed directly that the promissory notes executed by the minor's natural father (the de facto guardian) could not extend the period of limitation; therefore the debts were barred at the time of the conveyance in June 1932.
Rejection of arguments that notes created fresh debts or that consideration was abstention from suing: the Advocate-General's submission that the fresh promissory notes created new debts or that the consideration for the sale deed was the defendant's abstention from suing was rejected. The Court found the debts remained the old debts and that the deed itself showed consideration was the discharge of promissory notes (para 17).
Conclusion on conveyance validity: applying the foregoing principles to the facts, the Court held that the de facto guardian had no authority to execute promissory notes on behalf of the minor; consequently there was no valid consideration for the conveyance to the defendant, and the conveyance could not bind the minor (para 17).
Ratification and scaling-down proceedings: the Court considered whether subsequent events (including the defendant's payment to Gutta Punniah and the plaintiff's application for scaling down under the Madras Agriculturists' Relief Act) amounted to ratification of the conveyance. The Court agreed with the Subordinate Judge that there was no ratification: the payment recorded in the scaling-down proceedings did not amount to ratification because the plaintiff, faced with a decree obtained by Gutta Punniah, was pursuing the statutory process to limit his liability and the validity of the conveyance had not been contested in that proceeding (para 18).
Remedy limited to charge for sums actually paid by defendant: while the conveyance could not bind the minor, the Court accepted that the defendant, having paid Rs. 4,590-9-6 to Gutta Punniah, was entitled to a charge on the properties in respect of that sum (para 19). The Court ordered a charge for that amount with interest from the date of payment and awarded mesne profits to the plaintiff at the rate found by the Subordinate Judge.

Holding and Implications

Holding:

APPEAL ALLOWED.

The Court's specific holdings were:

The de facto guardian (the minor's natural father) had no legal authority to execute promissory notes on behalf of the minor; consequently those promissory notes could not operate to extend the period of limitation and did not provide valid consideration for the conveyance to the defendant (para 17).
Therefore the conveyance executed by the de facto guardian in favour of the defendant did not bind the minor (para 17).
The plea of ratification by the defendant was rejected: the facts relied on (payment disclosed in scaling-down proceedings) did not amount to ratification of the conveyance (para 18).
The defendant was, however, entitled to a charge on the properties in respect of Rs. 4,590-9-6 (the sum he paid to Gutta Punniah) with interest at six percent per annum from the date of payment (paras 19 and 20).
The plaintiff is entitled to possession (decree for possession granted subject to the stated charge) and to mesne profits at Rs. 1,000 per annum from 1932 until possession is given (paras 19–20).
Costs: the plaintiff will be awarded two-thirds of his costs in the trial Court and in this Court (para 20).

Implications:

Direct effect on the parties: The conveyance to the defendant is ineffective to bind the minor; the defendant receives only a charge for the specific amount he paid to a third-party creditor (with interest); the plaintiff obtains possession and mesne profits and a costs award as ordered (paras 19–20).
On legal principle: the Court reaffirmed the distinction between (a) contracts entered into by guardians which, under the minor's personal law, may render a minor's estate liable (especially where for necessary purposes), and (b) the separate legal issue whether a de facto guardian can execute negotiable instruments (promissory notes) in the minor's name. The Court concluded that the authority to borrow for necessary purposes does not imply authority to execute negotiable instruments in the minor's name, and that prior Full Bench authority (Chennappa v. Onkarappa) precludes treating a de facto guardian as authorised to sign acknowledgments for limitation purposes (paras 14–16).

Note: This summary is based exclusively on the content of the provided opinion. No information has been added beyond what is explicitly stated in that opinion.

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1. The main question in this appeal is whether a person, who without lawful authority takes upon himself the management of the estate of a Hindu minor, can in law execute a promissory note in the name of the minor in respect of money borrowed for a necessary purpose and thereby bind the minor's estate. The person who without lawful authority takes charge of a minor's estate is commonly referred to as the de facto guardian and it will be convenient to use the expression in this judgment.

2. The appellant is the adopted son of one Chelamaiya Chowdri, who died on the 9th January, 1925. Chelamaiya Chowdri was survived by two widows and by his will dated the 20th November, 1924, he gave the junior widow, Sri Krishnamma, power to adopt a son to him. She exercised the power in favour of the plaintiff soon after the testator's death. The validity of the adoption is not in question. Sri Krishnamma died in the month of November 1928 and after her death the plaintiff's natural father, China Seshayya, entered upon the management of his estate. In Chennappa v. Onkarappa (1939) 2 M.L.J. 884 : I.L.R. (1940) Mad. 358 (F.B.), a Full Bench of this Court held that the Hindu law only recognises the father or the mother of a minor as his lawful guardian and that when both of them are dead there can be no dejure guardian without an order of the Court. China Seshayya had not been appointed the plaintiff's guardian by an order of Court and therefore he had no authority to manage the minor's estate.

3. On the 1st February, 1923, Chelamaiya Chowdri borrowed Rs. 3,000 from the defendant, who was his pleader. On the 23rd April, 1925, Sri Krishnamma, then the dejure guardian of the minor, renewed this promissory note. With interest the debt had by that time amounted to Rs. 3,802. On the same date she executed another promissory note in the name of the minor in respect of a further loan of Rs. 1,200. On the 23rd April, 1928, Sri Krishnamma executed a promissory note for Rs. 6,802-11-6 in renewal of the two promissory notes of the 23rd April, 1925. On the 22nd June, 1931, China Seshayya, the de facto guardian, purported to renew that promissory note. The debt then amounted to Rs. 9,251-11-6. It will be observed that this promissory note was executed more than three years after the date on which the de jure guardian had signed the last promissory note. The explanation of this is that the period of limitation expired during the Court vacation and the payee had the right of instituting a suit on the re-opening of the Court. The new promissory note was executed on that day in order to avoid a suit being filed.

4. On the 1st September, 1919, Chelamaiya Chowdri executed a promissory note in favour of one Gutta Punniah for Rs. 4,082-9-6. Chelamaiya Chowdri renewed this promissory note on the 27th August, 1922, by the execution of a fresh note. On the 12th July, 1925, and on the 8th July, 1928, Sri Krishnamma executed promissory notes in acknowledgment of the debt. On the 12th November, 1928, the de facto guardian purported to renew the promissory note of the 12th July, 1925, and on the nth November, 1931, he signed a fresh promissory note in the minor's name for Rs. 9,497-14-9 as a renewal of the promissory note of the 12th November, 1928.

5. On the 2nd June, 1932, the de facto guardian conveyed the immoveable properties in suit to the defendant for the sum of Rs. 14,873. Only Rs. 75 was paid in cash and this sum represented the cost of the stamp on the conveyance and the registration charges. The rest of the consideration was supposed to be satisfied by the discharge of the promissory note which the de facto guardian had executed in favour of the defendant on the 22nd June, 1931, the amount of the debt then being Rs. 10,207-6-6, and the payment of Rs. 4,590-9-6 to Gutta Punniah in part discharge of the promissory note which the-de facto guardian had executed in his favour on the nth November, 1931.

6. On the 9th December, 1937, the plaintiff attained his majority and on the 9th December, 1940, he instituted this suit. He averred that his natural father had no power to renew the promissory notes executed by Sri Krishnamma and no power to convey the properties in suit in discharge of these debts. The learned Subordinate Judge held that as the original debts were binding on the minor's estate, the de facto guardian had power to renew the promissory notes in order to avoid the creditors instituting suits against the estate. Consequently the Subordinate Judge dismissed the suit. He rejected a plea advanced by the defendant that the plaintiff had ratified the action of the de facto guardian in conveying the properties to him. The plaintiff contends that the Subordinate Judge erred in dismissing the suit. The defendant relies on the reasons given by the Subordinate Judge for the dismissal but says that he erred in rejecting the plea of ratification. The defendant further says that in any event he is entitled to a charge on the properties in respect of the Rs. 4,590-9-6, which he paid to Gutta Punniah. There were other questions raised in the trial Court but it is not necessary to consider them, because Mr. Satyanarayana Rao, on behalf of the plaintiff, has for purposes of the appeal conceded that the promissory notes executed by Chelamaiya Chowdri were executed for full consideration and that the debts were binding on the estate up to three years after the last renewals by Sri Krishnamma. He also conceded that the de facto guardian had administered the estate to the best of his ability.

7. We will now proceed to examine the reported cases which have bearing on the powers of a de facto guardian of a Hindu minor. In Hunooman Persaud's case1, which was decided in 1856, the Privy Council observed that under the Hindu law, the right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly for the purpose of saving the estate or for' the benefit of the estate is not, provided the circumstances would support the charge had it emanated from a de facto and de jure manager, affected by the want of union of the de facto with the de jure title. Since that judgment the Courts in India have consistently held that a de facto guardian can not only charge, but sell immoveable property belonging to a minor's estate when such action is required in the interests of the minor. It is true that in Ramaswami Pillai v. Kasinatha Aiyar (1927) M.W.N. 356 : A.I.R. 1938 Mad. 226, Kumara-swami Sastri and Curgenven, JJ., said that, were the matter res Integra, they would be inclined to hold that a de facto guardian had no power to convey a right or interest in immoveable property which the transferee could enforce against the minor and would have applied the same principles laid down by the Privy Council in Mata Din v. Ahmed Ali (1912) 23 M.L.J. 6 : L.R. 39 I.A. 49 : I. L.R. 34 All. 213 (P.C.) and Imambandi v. Mutsaddi (1918) 35 M.L.J. 422 : L.R. 45 LA. 73: I.L.R. 45 Gal. 878 (P.C.), which were decisions under the Muhammadan law. The matter, however, was not res Integra and therefore it was too late in the day to reopen the question.

8. In Ramajogayya v. Jagannadhan (1887) L.R. 14 I.A. 89 : I.L.R. 11 Bom, Ayling and Seshagiri Aiyar, JJ. (Wallis C.J., dissenting) held that no decree could be passed against a minor or his estate on a contract entered into on his behalf by his guardian under which covenant no charge was created on the estate, except in cases in which the minor's estate would be liable for the obligation incurred by the guardian under the personal law to which he was subject. Put in other words, the guardian could covenant on behalf of the minor so as to make his estate liable without creating any charge on the estate, provided that the money borrowed by the guadian was for a necessary purpose. The rule laid down by the Privy Council in Waghela Rajsanji v. Shekh Masluddin (1935) 68 M.L.J. 540; I.L.R. 58 Mad. 735 (F.B.), that a Hindu guardian cannot contract in the name of the ward so as to impose on him a personal liability was not, in the opinion of Ayling and Seshagiri Aiyar, JJ., intended to affect the Hindu law liability of the minor. Wallis, C.J., was of the opinion that a decree could not be passed against a minor on his attaining his majority or against his estate on a covenant entered into in his behalf by a guardian for his benefit. In that case the contract had been entered into by a de jure guardian.

9. The majority opinion in Ramajogayya v. Jagannadhan (1932) 56 M.L.J. 350 : I.L.R. 56 Mad. 879 has since prevailed in this Presidency and it can now be regarded as settled law that a de jure guardian can borrow money on behalf of the minor for a necessary purpose without expressly charging the estate and by the contract make the estate liable for the payment of the debt. The only case in which this principle has been applied by this Court where the contract was made by a de facto guardian is Sudarsana Rao v. Dalayya (1939) 2 M.L.J. 884 : I.L.R. (1940) Mad. 358 (F.B.). There a boy had been adopted by a Hindu widow to her deceased husband under a power given to her whereupon the boy's natural father without any order of Court entered upon the management of his estate. While so acting the de facto guardian entered into an agreement with the adoptive father's mother with regard to the amount to be paid to her for maintenance and it was held that the agreement was binding on the minor's estate, as under his personal law he was bound to maintain her out of the estate. The learned Judges did not discuss the question whether the powers of a de facto guardian differ in this respect from those of a dejure guardian. We will assume that a de facto guardian can enter into such a contract and thereby bind the minor's estate. It is quite another thing, however, to say that a de facto guardian can bind the estate by executing a promissory note in the name of the minor.

10. Admittedly in no circumstances can a de facto guardian make the minor personally liable. Even a dejure guardian cannot do this, but it has been recognised that a de jure guardian can, where there is necessity, make the minor's estate liable in respect of the debt evidenced by a promissory note executed by him and that by such an instrument he can extend the period of limitation, because he is in law the agent of the minor. There have been cases in which a suit has been filed against the minor's estate on the instrument itself, but this is wrong. The minor's estate can only be made liable on the debt. An example of this is to be found in Krishna Chettiar v. Nagamani Ammal I.L.R. (1943) Bom. 117, although it would appear that in that case there was a paragraph in the plaint referring to the binding character of the debt. Where the suit is merely on a promissory note a decree should not be passed without the plaint being amended. It has been suggested that there is an observation to the contrary in Seetharamayya Garu v. Satkiah (1856) 6 M.I.A. 393, because it was there said that the guardian of a Hindu minor could bind a minor in respect of a promissory note in proper circumstances. I delivered the judgment in that case and all that the Court intended to imply was that a minor's estate could be bound by the debt evidenced by the promissory note, not that the estate could be sued on the instrument.

11. The position was very aptly stated by Krishnaswami Aiyangar, J., in delivering the judgment in Annamalai v. Muthuswami (1939) 2 M.L.J. 884 : I.L.R. (1940) Mad. 358 (F.B.) when he said:

It is necessary to sound a note of caution against the error of thinking that the promissory note evidences a contract binding on the minor by force of the instrument itself. The liability does not arise on the instrument, but on the debt evidenced by it, and is enforced against the estate, not on account of the fiction that the contract of the guardian is the contract of the minor, but on account of the substantive principle of the personal law of the minor which creates the liability. It is scarcely necessary to add that the liability of the estate, though personal in the English law sense of the word, is not personal in the sense that the person of the minor even after majority can be arrested in execution. A personal liability arising out of the contract of the guardian is a liability of the minor's estate only.

12. In Swaminatha Odayar v. Natesa Iyer I.L.R. (1938) Lah. 313, a Bench of this Court (Reilly and Cornish, ]|.) held that a guardian of a minor could not impose a liability upon the minor by executing a promissory note on his behalf, even for a necessary purpose, and a distinction was drawn between the liability arising from an ordinary debt and that arising from a debt secured by a negotiable instrument. There, as here, the instrument had been executed by the natural father of a boy who had been adopted. The judgment in, that case was overruled by the Full Bench which decided Satyanarayana v. Mallayya (1935) 68 M.L.J. 540; I.L.R. 58 Mad. 735 (F.B.), but on another point. The Full Bench apparently approved of the view expressed in Swaminatha Odayar v. Natesa Iyer (1932) 56 M.L.J. 350 : I.L.R. 56 Mad. 879 that a de facto guardian cannot in law sign a promissory note on behalf of the minor.

13. In Vembu Aiyar v. Subbiah Pillai (1939) 2 M.L.J. 884 : I.L.R. (1940) Mad. 358 (F.B.), Kuppuswami Ayyar, J., sitting alone, held that a minor was not bound by an indorsement of payment made by his de facto guardian on a promissory note which the de facto guardian purported to execute in the minor's name. A Bench of the Bombay High Court in Nagindas Gokuldas v. Bhimrao Damu (1915) 18 M.L.J. 216 : I.L.R. 39 Mad. 915 also expressed the opinion that a promissory note executed by a de facto guardian on behalf of a minor even for a necessary purpose cannot bind the estate of the minor.

14. We are of the opinion that the cases in which it has been held that a de facto guardian cannot bind the minor's estate by a promissory note executed by him in the minor's name have been rightly decided. He could only bind the minor by such an instrument if the personal law of the minor allowed him to do so. The ancient texts do not, of course, contemplate such a situation and it is not suggested that authority has been conferred by custom. It is one thing for a de facto guardian to borrow money for a necessary purpose and quite another thing to sign a negotiable instrument on the minor's behalf. There is nothing in the judgment in the Hanooman Persaud's case3 or in any later case to support such a proposition. On the other hand, as we have shown, there are decisions directly to the contrary. A power to borrow does not in itself imply a power to execute a negotiable instrument in respect of the debt.

15. In Chennappa v. Onkarappa (1939) 1 M.L.J. 792 : I.L.R. (1939) Mad a Full Bench of this Court held that a de facto guardian is not the lawful guardian within the meaning of Section 21 of the Indian Limitation Act, 1908, and therefore is not an agent duly authorised to sign an acknowledgment of liability. There is here direct authority for the statement that the promissory notes which the natural father of the plaintiff signed could not operate to extend the period of limitation, which means that when the conveyance was executed by the de facto guardian in favour of the defendant there were no debts binding on the minor's estate.

16. The learned Advocate-General has suggested that the promissory note signed by the de facto guardian operated to create fresh obligations; in other words, they evidenced fresh debts. The debts were not fresh debts. They remained the old debts and the de facto guardian could not continue them beyond the period of limitation by merely signing fresh promissory notes in the minor's name. The learned Advocate-General has also suggested that the consideration for the sale deed was the abstention from suing. This argument is equally fallacious. The deed itself shows that the consideration, except for the Rs. 75 paid for the stamp and the registration charges, was the discharge of one of the promissory notes executed by the de facto guardian and the partial discharge of another promissory note executed by him.

17. We hold that the minor's natural father had no authority in law to execute promissory notes on behalf of the minor and therefore there was no consideration for the conveyance to the defendant. We also hold that the de facto guardian could not extend the period of limitation in respect of the debts contracted by the adoptive father and consequently those debts were barred at the time of the conveyance. From whichever way the matter is viewed the conveyance cannot bind the minor. Before we pass on to the question of ratification we must refer to another argument advanced by Mr. Satyanarayana Rao on behalf of the plaintiff. It was based on the judgment of the Privy Council in Partap Singh v. Sant Kuar (1935) 68 M.L.J. 540; I.L.R. 58 Mad. 735 (F.B.). In that case it was held that a Hindu minor was not bound by an agreement entered into by a de facto guardian and it was suggested by Mr. Satyanarayana Rao that the rule applied in all cases, even where the contract was for a necessary purpose. Their Lordships were not considering a case where a de facto guardian had entered into a contract for a necessary purpose within the meaning of Hanooman Persaud's case (1938) M.W.N. 677. The contract in Partap Singh v. Sant Kuar (1932) 56 M.L.J. 350 : I.L.R. 56 Mad. 879 had no reference to such a situation and therefore the decision of their Lordships has no bearing on the present case.

18. The issue with regard to ratification was decided against the defendant by the Subordinate Judge without discussion, but we agree with his conclusion. Gutta Punniah had obtained a decree against the estate in respect of moneys which he had advanced to the adoptive father. The plaintiff then applied for the scaling down of the decretal debt under the provisions of the Madras Agriculturists' Relief Act. The sum of Rs. 4,580-9-6 had been paid by the defendant to him before that suit was filed and in the plaintiff's application for scaling down he had to mention this payment. It is said that this amounted to ratification of the conveyance. Obviously it could not. As a decree had been passed against the plaintiff in favour of Gutta Punniah the plaintiff was entitled to escape with the minimum payment allowed by the law of the land. Moreover the validity of the conveyance to the defendant was not in question in that case.

19. The defendant is on firm ground in asking that he be given a charge over the properties in suit in respect of the Rs. 4,590-9-6, which he paid to Gutta Punniah. Mr. Satyanarayana Rao has in fact accepted the justice of this claim. The defendant will be granted a charge on the properties in suit for this amount with interest at six per cent, per annum from the date of payment to Gutta Punniah. The correctness of a finding by the Subordinate Judge that the mesne profits amounted to Rs. 1,000 per annum has not been disputed. The plaintiff is entitled to mesne profits at this rate from the year 1932.

20. The appeal is allowed and a decree for possession granted subject to the charge on the properties in favour of the defendant in respect of the Rs. 4,590-9-6 with interest. The plaintiff will be paid mesne profits at the rate of Rs. 1,000 per annum until possession is given. The plaintiff will have two-thirds of his costs in the trial Court and in this Court.