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Birjmohun Lal And Ors. v. Rudra Perkash Misser
Factual and Procedural Background
The plaintiffs sued the defendant for Rs. 5,800 as principal and Rs. 2,081 as interest on ten rokas (promissory notes) executed between 14 December 1885 and 16 March 1886. Nine of the rokas were executed by the defendant and one by Sital Prosad Misser, who was the defendant's am-mukhtar (general agent).
The defendant answered the suit raising four defences: (1) he was a minor at the time the rokas were executed; (2) he had signed blank sheets which he handed to Sital Prosad and in fact received only Rs. 2,000 of the alleged Rs. 5,800; (3) the plaintiffs' claim on five of the rokas was barred by limitation; and (4) Sital Prosad had no authority to borrow money or pay interest on his behalf. The Subordinate Judge found in favour of the defendant on all these pleas. The plaintiffs appealed against those findings, contending the Subordinate Judge's findings were wrong. The opinion at hand is the appellate court's consideration of these contentions and the lower court's findings.
Legal Issues Presented
- Whether the defendant was a minor (not having attained majority) at the time of execution of the rokas, by reason of appointment of a guardian or the Court of Wards having charge of his estate, such that he lacked capacity to enter binding contracts.
- Whether the defendant in fact signed blank sheets and received only Rs. 2,000 (and therefore whether the rokas evidenced the full loans claimed).
- Whether the plaintiffs' claims in respect of five of the rokas were barred by the law of limitation.
- Whether Sital Prosad Misser was duly authorized (expressly or impliedly) to borrow money and to pay interest on the defendant's behalf, and whether any such payment was binding on the defendant (including by ratification).
Arguments of the Parties
Defendant's Arguments
- He was a minor at the times the rokas were executed (relying on provisions of Section 3 of the Indian Majority Act (IX of 1875) and precedent).
- He signed the rokas on blank sheets and handed them over to Sital Prosad, and personally received only Rs. 2,000 of the alleged Rs. 5,800.
- Claims on five of the rokas are barred by limitation.
- Sital Prosad had no authority from him to borrow money or pay interest on his behalf.
Plaintiffs' Arguments
- The Subordinate Judge's findings in favour of the defendant were wrong and should be set aside (i.e., the plaintiffs contended that the defendant was of full capacity and liable on the rokas).
- The plaintiffs relied on documentary endorsements on the rokas and oral evidence to show payment of interest and that the loans were in fact advanced and received on the defendant's account.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Rudra Prokash Misser v. Bhola Nath Mukherjee, I.L.R. 12 Cal. 612 | Stated the principle that when a guardian has once been appointed to a minor under Act XL of 1858 the disability of infancy continues until age 21 (whether or not the original guardian continues to act). | The court treated the case as a legal precedent for that principle but held it was not binding against the plaintiffs because they were not parties to that suit; moreover, the defendant failed to prove the factual basis (i.e., appointment by a Court of Justice of a guardian under Act XL of 1858) necessary to apply that precedent in the present case. The court also observed the question whether a Collector appointed under section 12, Act XL of 1858 can be regarded as a "guardian" within Section 3 of the Majority Act had not been considered in that precedent and the court did not feel bound by it on that point. |
Court's Reasoning and Analysis
The court addressed the issues seriatim and applied statutory provisions and factual analysis strictly as recorded in the record.
1. Minority / Majority: The defendant admitted he was nineteen years and four months old when the rokas were executed. He relied on Section 3 of the Indian Majority Act (IX of 1875) and the cited precedent to contend he remained a minor because a guardian had been appointed by a court. The court required the defendant to prove that a guardian had in fact been appointed by a Court of Justice under Act XL of 1858. The only evidence produced were two returns by the Collector of Monghyr (Exhibits C1 and C2) which recited that on 1 September 1873 the Judge of Bhagulpore directed the Collector to take charge of the estate under section 12, Act XL of 1858. The court held that such recitals by another officer were not legal evidence of the Judge's order; the order itself or an attested copy should have been produced. Further, even if the Collector had been directed to take charge of the estate under section 12, that appointment did not, in the court's view, amount to appointment of a guardian of the person and property within the meaning of Section 3 of the Majority Act. The court explained that the guardian referred to in Section 3 must be the guardian the Judge can appoint under Section 7 of Act XL of 1858, whereas a Collector directed to take charge under section 12 is authorized to appoint managers and guardians, and the Collector himself is not a Court of Justice. The court also noted that the defendant's estate had been released by the Court of Wards on 6 December 1885, before the execution of the first of the rokas, and that Section 3 of the Majority Act confines the disability to the period the Court of Wards retains charge. On these bases the court concluded the defendant was not a minor between 14 December 1885 and 16 March 1886 and was sui juris and competent to contract.
2. Execution of the ROKAs and Receipt of Money: The court found that the defendant executed nine of the rokas (a fact not denied by him) and that he received the full amounts described in them as well as Rs. 200 paid on the roka of 15th Falgoon 1293 (executed for him by Sital Prosad). The court disbelieved the defendant's assertion that he had signed blank sheets and only received Rs. 2,000. The evidence showed the defendant came in person with Sital Prosad and received money on all but one occasion, the amounts were written on the notes near the signatures in what appeared to be the same hand, and Exhibit X was the single exception. The court held that even if the defendant had given authority to Sital Prosad to obtain the money and the agent did not give it to him, the defendant would still be liable for amounts paid to the agent on the defendant's account with his assent and at his instance. The court also noted the loans were used for legitimate purposes connected to the defendant's affairs (High Court case expenses, government revenue, and a family ceremony).
3. Limitation and Payment of Interest: The court considered whether the suit was time-barred with respect to five rokas. It observed that if payment of interest on 15th Falgoon 1293 was proved, the suit would not be barred for any of the rokas. The court accepted the plaintiffs' evidence (endorsements on the backs of the rokas and oral testimony, notably by Sital Prosad) as sufficiently proving payment of interest on the first five rokas. The Subordinate Judge's suggestion that endorsements had been rubbed or fumigated to create an appearance of oldness was rejected: the appellate court considered at most one or two endorsements smudged and did not see that this affected their authenticity.
4. Authority of Sital Prosad and Ratification: The court addressed whether Sital Prosad was "duly authorised" to make payments. Citing Section 20 of the Limitation Act, the court observed that the provision does not require an agent to be authorized in writing and that authority may be implied. The court found that Sital Prosad was authorized to borrow money for the defendant (based on conduct, the defendant's admission that Sital Prosad was his am-mukhtar and manager, the absence of any am-mukhtarnama produced by the defendant, and the agent's statement the document was left in his zemindari serishta). The court therefore held Sital Prosad was authorized to pay interest, which the plaintiffs proved had been paid; additionally the court found evidence of the defendant's awareness of the payment and subsequent ratification (receiving the balance of Rs. 200 from Sital Prosad and signing another note for Rs. 200 with knowledge that interest had been paid). Consequently, the payment bound the defendant and the limitation defence failed.
5. Final Assessment: On the combined outcome of the above findings the court concluded the Subordinate Judge's findings in favour of the defendant were incorrect on all points.
Holding and Implications
Holding: The court set aside the Subordinate Judge's findings and decreed the suit in favour of the plaintiffs for the full amount claimed, with costs.
Implications:
- Direct effect on the parties: The defendant is held liable to pay the full sums claimed by the plaintiffs (Rs. 5,800 principal and Rs. 2,081 interest as sued for) and the plaintiffs are awarded costs.
- Statutory and evidentiary lessons reflected in the opinion: (a) an alleged appointment of a guardian by a court must be proved by producing the order or an attested copy rather than by recital in another officer's return; (b) a Collector's taking charge under section 12, Act XL of 1858 was not treated as equivalent to appointment of a guardian for purposes of Section 3 of the Majority Act in this case; (c) endorsements and oral evidence can be sufficient to prove payment of interest so as to defeat a limitation defence; and (d) agency may be established by conduct and ratification and need not be in writing for the purposes discussed.
- No new binding precedent was proclaimed by the court in this opinion; the court explicitly declined to regard the earlier case (Rudra Prokash Misser) as determinative here because the defendant failed to prove the factual basis required to apply that decision against these plaintiffs and because the particular question about the Collector's role had not been addressed in that precedent.
1. The plaintiffs sue the defendant for the sum of Rs. 5,800 due as principal and for the sum of Rs. 2,081 due as interest on ten rokas or promissory notes, nine of which were executed by the defendant, and one of which was executed by one Sital Prosad Misser, the am-mukhtar or general agent of the defendant, between the 22nd Aughran and 26th Falgoon 1293 Fusli, i.e., the 14th December 1885 and 16th March 1886.
2. The answer of the defendant is (1) that he was a minor at the time of the execution of these rokas; (2) that he signed the rokas on blank sheets of paper, which he handed over to Sital Prosad, and that he himself received only Rs. 2,000 out of the Rs. 5,800 alleged to have been paid to him on them; (3) that the plaintiffs' claim on five of these rokas is barred by limitation; and (4) that Sital Prosad had no authority from him to borrow money or pay interest on his behalf.
3. The lower Court has found all these pleas in favour of the defendant, and the plaintiffs now appeal and contend that the findings of the Subordinate Judge are wrong.
4. We proceed to deal with his findings seriatim, and, first, with his finding that the defendant was a minor at the time of the execution of these rokas.
5. It is admitted that the defendant was nineteen years and four months old at the time of the execution of the rokas, but it is said that, notwithstanding this fact, he was then a minor in consequence of the provisions of Section 3 of the Indian Majority Act (IX of 1875) which prescribe that any person of whose person or property a guardian has been or shall be appointed by any Court of Justice shall not attain his majority until he shall have completed the age of 21, and a decision of this Court, Rudra Prokash Misser v. Bhola Nath Mukherjee I.L.R. 12 Cal. 612, has been cited in which the question of the majority of this very defendant was at issue and in which it was decided that he did not attain his majority until the age of 21. But the present plaintiffs were not parties to that case, and therefore we cannot regard the decision in the case of Rudra Prokash Misser v. Bhcla Nath Mukherjee I.L.R. 12 Cal. 612 as more than a legal precedent for the principle that when a guardian has once been appointed to a minor under the provisions of Act XL of 1858, the disability of infancy will last till the age of 21, whether the original guardian continue to act or not. To enable this ruling to be used as evidence against the plaintiffs in this case, it is incumbent on the defendant to prove in this case the facts on which that decision was passed, and this the defendant has failed to do. He has not, in our opinion, in any way proved that any guardian of his person or property ever has been appointed by a Court of Justice under the provisions of Act XL of 1858. It has no doubt been said that a guardian of his property was appointed by the Judge of Bhagulporeon the 1st September 1873, inasmuch as on that date the Judge of Bhagulpore ordered the Collector (presumably of Monghyr), under section 12, act xl of 1858, to take charge of the defendant's property. But, in the first place, there is no legal evidence in this case of the Judge of Bhagulpore's having passed any such order. The evidence on this point consists of two returns submitted by the Collector of Monghyr to the Commissioner of Bhagulpore, the first of which is without date and the second of which is dated the 20th March 1886, and which have been marked Exhibits Cl and C2, respectively. In these it is recited that on the 1st September 1873 the Judge of Bhagulpore directed the Collector, under section 12, act xl of 1858, to take charge of the estate in question. But, strictly speaking, this is not legal evidence of the Judge having passed any such order. If he did pass such an order, the order itself, or an attested copy of it, should have been produced, and not merely a recital by another officer that such was the case, there being nothing to show how that officer became cognizant of the alleged order of the Judge.
6. In the second place, we do not think that, even if the Collector was appointed by the Judge under section 12, act xl of 1858, to take charge of the defendant's property, it can be said that a guardian of his property was appointed within the meaning of Section 3 of Act IX of 1875. We think that the guardian there referred to must be the guardian of the person and the administrator of the property of a minor which the Judge has power to appoint under the provisions of Section 7.1 of Act XL of 1858. It is to be observed that in section 122 of act XL of 1858 the Collector is not styled the guardian of the person or property of the minor, whose property he is appointed to take charge of; but, on the contrary, he is authorized to appoint some other person or persons to be the manager of the property and the guardian of the parson of the minor. Now, there is no evidence whatever in this case to show that any such manager or guardian of the defendant's property or person was appointed by the Collector by virtue of the order of the Judge passed on the 1st September 1873, and if there had been, this would not have brought the defendant within the purview of Section 3 of the Majority Act, for the Collector is not a Court of Justice. We of course have not failed to notice that in the case of Rudra Prokash Misser v. Bhola Nath Mukherjee I.L.R. 12 Cal. 612, the Collector has been spoken of as the guardian of the defendant's property, but the question as to whether a Collector appointed under section 12, act xl of 1858, can properly be styled the guardian of a minor's property seems never to have been raised or considered in that case. We therefore do not think that this point can be held to have been decided in that case, and hence we do not feel ourselves bound by that decision on this point.
7. Then, it has been said that the defendant was a minor, because his estate was at one time under the jurisdiction of the Court of Wards; but it is clear from the terms of Section 3 of the Majority Act that the disability of minority only continues as long as the Court of Wards retains charge of the minor's property, and no longer; and it is admitted and shown in this case that the defendant's property was released by the Court of Wards on the 6th December 1885, i. c, before the execution by the defendant of the first of the series of rokas sued on in this suit.
8. For these reasons we think that between the 14th December 1885 and the 16th March 1886, the defendant in this case was not a minor, but sui juris, and competent to enter into a binding contract.
9. Then, turning to the facts of the case, we feel no doubt that the defendant executed nine of the rokas now sued on (which indeed he does not deny) and got the full amount of the consideration mentioned in them, as well as the Rs. 200 paid on the roka of the 15th Falgoon 1293, which was executed for him by his admitted general agent and manager, Sital Prosad, who swears he executed it with the defendant's authority. We entirely disbelieve the defendant's statement that he signed blank sheets of paper and entrusted them to his agent Sital Prosad, who handed him over only Rs. 2,000 for them. The evidence adduced on behalf of the plaintiffs shows that the defendant came in person with Sital Prosad and got the money himself on all occasions but one, and the notes themselves, except Exhibit No. X, show that the amounts of the loans are written on them just above or below the signatures, evidently by the same hand as affixed the signatures to them. On this point the defendant says: -
" In some blank chittis I sent through Sital Prosad, I noted the amount to be borrowed, in others not."The rokas, however, show that this was done on all the rokas, except Exhibit X, signed by the defendant himself. This being so, we cannot believe that the defendant did not get the money. But even if he did not when he gave Sital Prosad authority to get the money from the plaintiffs for him, as he says he did, if his agent did not give it to him, he is liable to the plaintiffs for the amounts paid to his agent on his account with his assent and at his instance. There seems no doubt that the money was borrowed partly to meet the expenses of a case the defendant was carrying on in the High Court, partly to pay the Government revenue due on the defendant's estate, and partly to defray the expenses of the murhan ceremony of his brother.
10. There remains the question, as to whether the suit is in any way barred by limitation. It is admitted that if the payment of interest on the 15th Falgoon 1293 is proved, then the suit is not barred with regard to any of the rokas. Now, we feel no doubt that the interest on the first five rokas was paid, as alleged by Sital Prosad. We see no reason to discredit the endorsements on the back of the rokas. The Subordinate Judge says they have all been rubbed or fumigated so as" to give them an appearance of oldness." In our opinion one or at the most two only of the endorsements on the rokas appear to have been rubbed or smudged, and we do not think this smudging gives them any appearance of oldness, nor can we see what effect it has had on them. We therefore see no reason for suspecting their authenticity on this account. On the whole, we think that the payment of the interest in question is sufficiently proved by these endorsements and by the oral evidence adduced by the plaintiffs.
11. The next question is whether Sital Prosad was "duly authorised" to make such payment. It is to be observed that Section 20 of the Limitation Act does not require the agent to be authorized in writing, and we think that an agent may impliedly be so authorized. Undoubtedly Sital Prosad was authorised to borrow money for the defendant. This is clear we think from Sital Prosad and the defendant's conduct, as well as from the fact that while defendant admits that Sital Prosad was his am-mukhtar and manager, he does not produce his am-mukhtarnama to show how his authority was limited: Sital Prosad says it was left in his zemindari serishta. We therefore consider that Sital Prosad must be held to have been authorised to make the payment of interest, which is proved by the evidence to have been a condition precedent to the plaintiffs making any further loans to the defendant. In addition to any implied authority, there is, we think, ample evidence to show that the defendant was aware of the payment immediately after it was made and that he ratified it by receiving the balance of the Rs. 200 from Sital Prosad and by signing another note for Rs. 200 with the knowledge that the amount due for interest had been paid by Sital Prosad out of the amount borrowed by him on his (the defendant's) account. We, therefore consider that the defendant is bound by the payment of interest made on his behalf on the 15th Falgoon 1293 by Sital Prosad. The suit is consequently not barred by limitation in respect of the first five rokas, and the defendant is accordingly liable to pay the full amount for which he has been sued in this suit.
12. For these reasons we set aside the findings of the Subordinate Judge in this case on all points, and decree the suit in favour of the plaintiffs for the full amount claimed by them with costs.
1 Certificate of administration to whom to be granted.
[Section 7: If it shall appear that any person claiming a right to have charge of the property of a minor is entitled to such right by virtue of a will or deed, and is willing to undertake the trust, the court shall grant a certificate of administration to such person. If there is no person so entitled, or if such person is unwilling to undertake the trust, and there is any near relative of the minor who is willing and fit to be entrusted with the charge of his property, the court may grant a certificate to such relative.
Court may appoint such person guardian.
The Court may also, if it think fit (unless a guardian has been appointed by the father), appoint such person as aforesaid, or such relative or any other relative or friend of the minor to be guardian of the person of the minor. ] 2 When the estate consists of land, Court may direct Collector to take charge of estate.
[Section 12: If the estate of the minor consist, in whole or in part, of land or any interest in land, the Court may direct the Collector to take charge of estate, and thereupon the Collector shall appoint a manager of the property of the minor and a guardian of his person, in the same manner and subject to the same rules in respect of such appointments and of the duties to be performed by the manager and the guardian, respectively, so far as the same may Be applicable, as if the property and person of the minor, were subject to the jurisdiction of the Court of Wards.]
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