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Judgment
Das, J.—In this suit the plaintiffs who are the respondents in this Court ask for judgment for Rs. 7,139-2-9 together with further interest as against the defendants first party. The learned Subordinate Judge by his judgment dated 11th April, 1925, has found in favour of the plaintiffs and the defendants first party appeal to this Court.
The original plaintiffs in this suit were the trustees of the estate of Pran Mohan Thakur. That estate has throughout been referred to as the Kanchangarh estate. I may mention that the trustees have now retired and the proprietors of that estate were substituted in the record of the suit as plaintiffs on 8th February, 1924. The defendants first party are the proprietors of Sribhaban estate and the defendant second party was the executor of Woogra Mohan Thakur and represented the estate known as Anandgarh estate. The parties are related to each other and they own as tenants-in-common a considerable zemindari; and in regard to purchases of tenancy rights by each of the estates and its consequent liability for rent as such purchasers to the other estates there came into existence mutual claims which each estate was entitled to enforce as against the other At all material dates the Sribhaban estate was under the management of the Court of Wards. An adjustment of account took place on 5th October, 1920, at a conference held at the house of the Collector of Bhagalpur.
It appears that, on the account books of the Court of Wards, Rs. 49478-0-41/2 was due to it from Kanchan estate and that it owed Rs. 61,067-15. If to Kanchangarh estate. The result was that on the books of account of the Court of Wards Sribhaban estate represented by the Court of Wards owed approximately Rs. 11,590 to Kanchangarh estate, but it appears that in 1323, the Anandgarh estate belonging to the defendant second party was leased out to Kanchangarh estate. It was ascertained that the defendants first party as represented by the Court of Wards had to get a sum of Rs. 596 from the Anandgarh estate which for all practical purposes was the same as the Kanchangarh estate from 1323 up to the date of the adjustment of the accounts. The Court of Wards thought it right that in fixing the liability of the Sribhaban estate to Kanchangarh estate the money due to the former from Anandgarh estate should be taken into account. Deducting, therefore, Rs. 5 6 due by Anandgarh estate to Sribhaban estate from Rs. 11,590 due by the latter to Kanchangarh, the Court of Wards came to the conclusion that approximately Rs. 11,000 was due by the Ward''s estate to the Kanchangarh estate; but it offered a sum of Rs. 9,000 to Kanchangarh estate in full settlement of all its liabilities, and it appears that on 5th October, 1920, Mr. S.C. Ghosh, the manager of the Kanchangarh estate, agreed to the settlement suggested by the Collector "subject to the approval of the trustees." It appears that Mr. Olair Smith who was the manager of the Sribhaban estate pointed out certain errors in the accounts in a letter dated 8th October, 1920. According to him after deducting the sum of money-due to Sribhaban estate from Anandgarh estate a sum of Rs. 4,614 was actually due by Sribhaban estate to Kanchangarh estate.
Whatever the position may be, another conference took place at the residence of the Collector on 30th October, 1920, and on that date the liability of Sribhaban estate to Kanchangarh estate was fixed at Rs. 9,000 with the consent of the Collector and the manager representing the Kanchangarh estate. A third conference took place on 31st March, 1921, and the accounts were again scrutinized with a view to discover the liability of the Sribhaban estate to Kanchangarh estate. It was decided that the liability should be fixed at Rs. 8,500. The plaintiffs rely upon the proceedings of the conference of 31st March, 1921, and the present suit is based on what was decided at that conference. It appears that subsequently Rs. 2,000 was paid to the plaintiff''s estate, and, as I have said, the plaintiffs sue to recover in this action the sum of Rs. 7,139-2-9 which is made lip of Rs. 6,500 as principal and the balance as interest. Mr. Pugh contends before us that we should not give a decree to the plaintiffs on the footing of the conference held at the residence of the Collector; but that we should ask the learned Subordinate Judge to take the accounts as between the three estates and fix the liability of one to the other. His argument is based upon the account which was before the Collector and which showed that there was a very large sum of money due by Anandgarh estate to the Sribhaban estate. It appears from that account, Ex. H-H(3) that whereas Rs. 56,588-12-0 was due to the Anandgarh estate from the Sribhaban estate, a sum of Rs. 88,404-1-1011/2 was due to Sribhaban estate from the Anandgarh estate, In other words, there was approximately a sum of Rs. 32,000 due by the Anandgarh estate to the Ward''s estate as a result of the mutual accounts existing between them Mr. Pugh''s argument is as follows: The Anandgarh estate is in point of fact the Kanchangarh estate and, therefore, it is inequitable that in fixing the liability of the Ward''s estate to the Kanchangarh estate the liability of the Anandgarh estate to the Ward''s estate should not be taken into account. Now it is quite true that the proprietor of the Anandgarh estate is one of the proprietors of Kanchangarh estate, but it is not correct to say that the Anandgarh estate is in fact Kanchangarh estate. Then it was contended that the proprietor of Anandgarh estate has leased out the estate to Kanchangarh estate. That is so; but that lease was in 1323 and in fixing the liability of the Ward''s estate to Kanchangarh estate the Court of Wards properly took into account what was due and owing by the Anandgarh estate to the Ward''s estate from 1323. There is, therefore, in my opinion no ground for taking the view that there was something inherently unjust in what the Court of Wards did in this matter.
It was then contended that this suit is not maintainable based as it is on a covenant entered into by the Court of Wards On behalf of the Sribhaban estate and reliance was placed on a decision of the Judicial Committee in Waghela Rajsanji v. Sheikh Masludin 11 B. 551 : 14 I.A. 89 : 5 Sar. P.C.J. 16 : 11 Ind. Jur. 315 (P.C.), In that case it was held by the Judicial Committee that a guardian cannot contract in the name of a Ward so as to impose on him a personal liability. But the facts of that case clearly show that there was no pre-existing liability resting on the minor. The widow acting as the guardian of her infant son entered into a contract with the plaintiff in that action by which she created a personal liability upon the minor and the Judicial Committee had no difficulty in holding that a guardian cannot enter into a covenant in the name of the minor so as to bind the minor by such covenant. This case has been considered in two cases which have been brought to our notice. In Subramania Ayyar v. Arumuga Chetty 26 M. 330, I Sir Arnold White, C.J., of the Madras High Court distinguished the decision of the Judicial Committee upon which Mr. Pugh relies. In the case in Madras the mother of a minor executed, as his guardian a promissory note in respect of a debt for which the son''s share in the ancestral estate was liable at the time., The suit was brought against the minor on the promissory note. The suit was contested. On the ground on which the present suit is being contested and reliance was placed upon the decision of the Judicial Committee to which I have already referred. In dealing with the point the learned Chief Justice said as follows:
In our judgment the defendant is liable on the note executed by his guardian to the extent of his share in the ancestral estate. * * * * *
At the time of the execution of the note the defendant''s share of the ancestral estate was liable in respect of the original debt. His guardian had authority to acknowledge this liability provided it was not barred by limitation: see the case of Sobhandri Appn Rau v. Sriramulu 17 M. 221. The Privy Counsel cases relied on by the appellant Waghela Rajsanji v. Sheikh Masludin 11 B. 551 : 14 I.A. 89 : 5 Sar. P.C.J. 16 : 11 Ind. Jur. 315 (P.C.): and Indur Chunder Singh v. Radhakishan Ghose 19 C. 507 : 19 I.A. 90 : 6 Sar. P.C.J. 185 (P.C.), are not in point. In these cases a guardain purported to contract on behalf of a Ward so as to impose a personal liability on the latter, there being no pre-existing liability on the part of the Ward at the time the guardian entered into the contract."
Their Lordships being of opinion that there was a pre existing liability on the part of the Ward thought that the decision of the Judicial Committee upon which reliance was placed before them had no application. In Jiwandas v. Janki 65 Ind. Cas. 53 : AIR 192 Nag. 98 : 18 N.L.R. 145, substantially the same view was taken. Their Lordships referred to the decision of the Madras High Court and did not express any dissent from that decision. In my opinion the decision of the Madras High Court is directly in point and I entirely agree with the conclusion in that case. I hold, therefore, that there being mutual accounts as between the Ward''s estate and certain other estates, it was within the power of the Court of Wards to adjust the accounts and to admit a liability on the part of the Ward''s estate. I should like to make it clear, however, that the present suit is not a suit to enforce a covenant entered into by the Court of Wards on behalf of the minor. It is a suit to realize a sum of money due to the plaintiffs from the defendants first party on the footing of adjusted accounts. The question resolved itself into this: Had the Court of Ward''s power to adjust the accounts as between the Ward''s estate and another estate? I have no doubt whatever that it is Intra vires the Court of Wards to adjust all accounts as between the Ward''s estate and the estates, In truth the question which as been argued before us by Mr. Pugh does not arise because the suit is neither in form nor in substance a suit to enforce a covenant entered into by the Court of Wards on behalf of the minor''s estate, It is a suit on the basis of adjusted accounts and as I have said the only question is whether the Court of Wards had power to adjust the accounts on behalf of the minor''s estate.
It was then contended that the Collector had no power to adjust the accounts on behalf of the Ward''s estate. I accept the view which has been put forward before us by Mr. Pugh that in regard to acts done in pursuance of statutory powers we must hold that whatever power is not given expressly or by necessary implication must be deemed to be prohibited; but in this case the point does not arise for the proceedings of the final conference show clearly that Mr. Clair Smith the manager of the Ward''s estate accepted the position that Rs. 8,500 was due by the Ward''s estate to the Kanchangarh estate. I mention this point because Mr. Pugh''s argument was that it was only the manager who has the right under the Court of Wards Act to do all acts in regard to the management of the Ward''s estate. I do not accept his argument wholly for, if necessary, it may be pointed out by reference to the various sections of the Court of Wards Act that the Board of Revenue is primarily liable for the management of the Ward''s estate and that the Board acts, in the management of the Ward''s estate, sometimes through the Commissioner and the Collector, and sometimes through the manager of the Ward''s estate. In this case it is established beyond doubt that the Board of Revenue expressly sanctioned the payment of Re. 8,500 by the Ward''s estate to the Kanchangarh estate so that we have in this case the approval of the Board of Revenue to that which was done by the Collector, The point which has been argued by Mr. Pugh before us is completely met by what was placed before us by Mr. Sen this morning, namely, the approval of the manager to what took place at the third conference held on 31st March, 1921.
It was lastly contended that the plaintiffs'' manager on his own showing had no power to enter into a settlement. As I have pointed out the Kanchangarh estate was at the time in the hands of the trustees and Mr. Chosh was the manager appointed by the trustees to manage the Kanchangarh estate Now Mr. Pugh relies upon a letter dated the 20th December, 1920, from the manager to the Collector of Bhagalpur. In that letter the manager does say as follows. They that is today the trustees, We now authorized me to accept the amount of Rs. 9,000 provided the manager, Court of Wards, Issuess cheque of Rs. 9,000 at once."
Mr Pugh who can be very technical at times, contends before us that here is a clear admission by the manager as to the limit of his authority and he argues that the manager admits that he had no power to enter into the settlement "unless the manager, Court of Wards issues a cheque for Rs. 9,0000 at once." Mr. Ghosh the manager is not a lawyer; but we know exactly from another letter which he wrote on Se 21st April as to what be actually meant That letter has been marked a Ex. 11. and is printed at page 55, part 3 of the paper book. In that letter he says:
Sir-In continuation of this office letter No. 14 dated 15th January, 1921, and subsequent reminder I beg respectfully to draw your special attention and ask the favour of your issuing the cheque without any further delay. The trustees agreed to Sept this amount though the account showed a very large sum due to them only onthe belief that the amount auctioned by be Collector would be forthwith paid. They would not have pressed me to trouble you had it not been for the fact that Barari Court of Ward''s estate is going shortly to be released and if the amount be not Said before the release of the estate, the Seesaw afraid, there may be roubks and litigation over the matter after wards, to avoid which they agreed to accept this similar sum on your intervention. Prompt orders are solicited.
It is obvious that the trustees authorized the manager to enter into the settlement not condition that the manager Court of Wards issues a cheque for Rs. 9000 at once but in the full belief that the cheque would be issued at once. In my opinion Sere is no merit in the last point taken by Mr. Pugh.
In my judgment the decision of the learned Subordinate Judge is right and must be affirmed. This appeal fails and must be dismissed.
In our opinion, the parties should have adjusted their accounts in this suit. The sole proprietor of the Anandgarh estate is one of the proprietors of the Kanchangarh estate and is no reason at'' all why the parties should not have sat round a table and adjusted all their accounts. The result is that it will now be necessary for the appellants to institute a suit as against the Anandgarh estate on the accounts as exist between them. In these circumstances we do not think that we should make any order as to costs either in this Court or in the Court below. The plaintiffs, however, will be entitled to recover the Court-fee paid by them on their plaint in the Court below.
Allanson, J.
I agree.