Raj Kishore Prasad, J.
1. This appeal, by the defendants, is from the judgment of the learned Additional Subordinate Judge, then stationed at Daltonganj, decreeing the plaintiff's suit for recovery of money based or, a hathchitha (Ext. 2) executed by one Motilal, on behalf and as Mukhtarkhas of defendant 2, appointed by her under Ext. 1.
2. Mr. Kailasb Roy, who appeared for the appellants, has attacked the findings of the trial Judge on several grounds, The points, which emerge from his argument, may be summarised as below :
1. That there was no necessity, no negotiation and no advance, and, therefore, Ext. 2, the hathchitha as well as Ext. 1, the special power of attorney, are both forged and the present suit has been falsely instituted at the instance of P.W. 7;
2. That the loan, even if advanced on the basis of Ext. 1 under Ext. 2 was illegal and, not binding on the defendants, because
(a) It was borrowed on behalf of defendant 2, the certificated guardian of her then minor sons, defendants 3 and 4, without the sanction of the Court, which appointed her;
(b) Ext. 2 was executed not by defendant 2 herself, but on her behalf and as her Mokhtarkhas, by Motilal, but defendant 2 could not legally delegate her power of borrow, as a certificated guardian, even to any Mokhtarkhas;
(c) There was no enquiry, nor any legal necessity for the loans borrowed under Ext. 2 so as to bind defendants 3 to 5, the sons of defendant 2;
3. No decree, even if any, can be passed against defendants 3 to 5 so as to make them personally liable, and, as such, it should be confined only to the assets, if any of defendant 1 in the hands of defendants 3 to 5.
3. Two other arguments, which arise out of the reply of Mr. Ramanugrah Prasad, who appeared for the plaintiff-respondent, are :
4. That the appointment of defendant 2 as a certificated guardian of defendants 3 and 4 was illegal, and,
5. That the appointment of defendant 2 as a certificated guardian of defendants 3 and 4 was illegal; and,
6. That, even if the answer to the above question be in the affirmative, defendants 3 to 5, the sons of defendant 2, were liable under the Hindu law for the loans under Ext. 2.
4. In order, however, to see how this suit has arisen, it is necessary to go back a little into the family history of the defendants and their connection with the plaintiff. The plaintiff is the widow of Mangilal Sarangi who carried on money lending business as a registered money lender at Daltonganj. According to the plaintiff, the defendants carried on arhatdari and other business in the name of their firm--Firm Ramlochan Ram Lakshmi Prasad -- defendant I, which was an ancertral joint family business of the defendants, and borrowed money from the plaintiff's husband, Mangilal, from time to time for necessities connected with the said ancestral business of the defendants. Lakshmi Prasad, husband of defendant 2, died on 25-3-1945 (Ext. A) leaving behind his widow, defendant 2, and his minor sons defendants 3 and 4. Defendant 5 is a posthumous son of Lakshmi Prasad. On 10-4-1945, defendant 2 made an application (Ext. 9) under the Guardians and Wards Act, 1890, for her appointment as the guardian of the person and property of her then minor sons, defendants 3 and 4. On 1-6-1946, defendant 2 was granted the certificate (Ext. O) by the Judicial Commissioners, Ranchi, appointing her the guardian of the persons and properties of her then minor sons, defendants 3 and 4.
5. Admittedly, one Motilal was the Munib of the defendants' firm. Defendant 2, on 6-5-1948, executed a registered power of attorney, the original of which is Ext. A, and its copy in the register of power of attorney is Ext. 5, in favour of Motilal. This general power of attorney was revoked on 21-9-1951 by defendant No. 2 by her petition (Ext. C) filed on that day before the District Sub-Registrar, Palamau, at Daltonganj, and this fact is noted in the register of power of attorney (Ext. 5) as well as in Ext, A.
6. The plaintiff's case is that in spite of the previous transaction between the defendants and her husband, the latter was not willing to advance more money to defendant 2, and, therefore, on the intervention of P.W. 7, at the request of defendant 2, plaintiffs husband Mangilal agreed to advance her more money on her executing a special power of attorney (Mokhtarkhas) and, accordingly, defendant 2 on 24-12-1950, executed an unregistered special power of attorney (Ext. 1) in favour of Motilal, in whose favour the registered general power of attorney had already been executed on 6-5-1948 and which was still in force. It is alleged that thereafter, Motilal on behalf of and as Mokhtarkhas of defendant 2 borrowed money from the plaintiff's husband, Mangilal, from time to time between 26-12-1950 to 13-2-1951 to the extent of a total sum of Rs. 10,600/-and also paid back sums of Rs. 600/- on 5-1-1951 and Rs. 2,900/- on 5-2-1951 and for the remaining sum of Rs. 7,100/-, which remained due, a hathchitha (Ext. 2) was executed by Motilal Munib, on behalf of and as Mokhtarkhas of defendant 2, in favour of the plaintiff's husband, Mangilal. Mangilal died on 22-6-1952, and the sum due on the hathchitha (Ext 2) not having been paid by the defendants, the present suit was instituted on 21-9-1953 for recovery of Rs. 7,100/- the principal amount due under Ext. 2 besides interest thereon.
7. Defendant No. 1, the firm of the defendants, did not appear and file any written statement and contest the suit. Defendants 2 to 4, however, appeared and filed a joint written statement on 24-4-1955 and contested their liability to the plaintiff. They denied to have carried on arhatdari business in the name and style of defendant 1 or to have borrowed any money from the plaintiffs husband. They denied the genuineness of Exts. 1 and 2. They further alleged that the suit had been instituted by the plaintiff in collusion with Shamalram Seth (P.W. 7), who used to make pairvi on behalf of defendant 2 in a money suit against Chotanagpur Bank, which ultimately came up in appeal to this Court, as will appear from its judgment (Ext. K).
It was further alleged in paragraph 11 of the written statement that P.W. 7, Shamalram, used to obtain the signature of defendant 2 on stamped papers and several blank papers beforehand for being used in appeal in the High Court, and, therefore, if taking advantage of the signatures of defendant 2 on such blank papers any Mokhtarkhas has been prepared, the document is not binding on her and other defendants. It was further alleged that the ancestral business of the defendants never existed after 1947, and, therefore, the money even if borrowed from the plaintiff was never utilised for the benefit of the defendants, and, as such, they were not bound by the same. In short, the defendants denied the entire transaction and seriously challenged the genuineness of Ext.
1. They also challenged the Khata Bahi of the plaintiff (Ext. 3) and, the Rokarbahi, the entries in which were Exts. '4 to 4 (h), as not having been kept and written in the ordinary course of business and, as such, they said that they were unreliable.
8. The learned Additional Subordinate Judge, after a consideration of the evidence, oral and documentary, of both sides, came to the conclusion that Exts. J and 2 were genuine and Motilal had the power of authority to borrow money on behalf of defendant 2, and, that he actually took the loan; and the defendants had been benefited by the said loan, and, therefore, they were liable for the claim of the plaintiff. He, accordingly, decreed the plaintiff's suit.
9. I will now proceed to consider the arguments in the order in which they are mentioned above.
10. Re: (1) Mr. Roy has very strongly urged that the entire case of the plaintiff that there were previous transactions between the plaintiff's husband, Mangilal, and defendant 2's husband, Lakshmi Pra-ead, and after his death with defendant 2, and that from time to time advances were made by the plaintiff's husband to defendant 2 for carrying on her ancestral business, and, that, therefore, there was negotiation and advances from time to time, was a tissue of lies from the beginning to the end, because there was no such business for which any money was needed, in that, there was no ancestral business of the defendants after 1947, and, therefore, there was no necessity for either any negotiation or borrowing any money at all as alleged by the plaintiff. Mr. Roy very vehemently challenged the genuineness of Ext. 1, the special power of attorney, and also the plaintiff's books of account (Exts. 3 and 4 series) and submitted that this false suit has been instituted at the instance of P.W. 7 and in collusion with him the plaintiff has manufactured Ext. 1. He seriously commented on the omission of the plaintiff to examine herself and also to examine Motilal, or, Aditya Pra-sad, the scribe of Ext. 1. He also contended that it had not been established that the advances alleged to have been made by the plaintiff's husband to defendant 2 through Motilal had been advanced to her.
11. The fact that there were previous transactions between the husbands of the plaintiff and the defendant 2 is established on the evidence. P.W. 1 is the son-in-law of the plaintiff, and, he had been living with the plaintiff's husband, and, therefore, he had knowledge about the previous transactions between the husband of the plaintiff and the defendant 2. He has said that Lakshmi Prasad used to take loans from Mangi Lal. P.W. 1 proved Ext. 3, Khatabahi, of the plaintiff in the writing of Mangi Lal, her husband, and the several entries in the Rokar Bahi (Exts. 4 to 4/h). The entries in the Rokarbahi of the plaintiff are written in the handwriting of Mangilal. The first two entries in Ext. 3 show that a sum of Rs. 87/- was taken on 24-11-1950, and a sum of Rs. 1,500/- was taken on 11-12-1950, which are English equivalents of Hindi dates given in the Bahis, by defendant 2 from Mangi Lal, the husband of the plaintiff. The corresponding entries of these two items are also to be found in the Rokar Bahi, the entries wherein are Exts. 4 series. Ext. S and the Rokar Bahi satisfactorily prove that there were previous transactions between the plaintiff's husband and defendant 2's husband as well. They further establish the existence of the firm, defendant 1, in 1950, which breaks down their defence in paragraph 5 of their written statement that their firm, defendant 1, ceased to exist after 1947, which fact was also stated by defendant 2 in her evidence when examined as D.W. 8.
12. Exts. 6 and 6 (a) also prove previous transactions between the parties. Ext. 6 is a letter dated 31-12-1946, from the firm, defendant No. 1, to the plaintiff's husband Mangilal in which it is mentioned that the account sent by Mangilal to the defendants had been received by them and verified with their Bahi Khatas and the balance struck therein is correct. Ext. 6 (a) is a similar letter of 7-11-1949. These two letters have also been relied upon by the respondent in another connection, but their genuineness has been challenged by the appellants, but as I shall shew hereinafter there can be no doubt about their genuineness.
13. In my opinion, therefore, Ext. 3, Rokar Bahi, Exts. 6 and 6 (a), besides the oral evidence on behalf of the plaintiffs, establish beyond doubt that there were previous transactions between the parties from a long time.
14. The next question then, is : Are Ext. 3 and the Rokar Bahi, entries wherein are Exts. 4 series, genuine ?
15. I have examined these two documents very carefully and also seen some of the items with Mr. Roy as pointed out by him, and feel satisfied that they are genuine and have been kept in the ordinary course of business, and, they have not been manufactured for the purpose of the present suit, as alleged by the defendants. The reasons are these :
16-17. (His Lordship considered the evidence in this respect and proceeded).
18. It was, however, argued by Mr. Roy that it will appear from Ext. 3 that the payment in discharge of the first two debts of Rs. 87/- and Rs. 1,500/- taken by the defendants on 24-11-1950, and 11-12-1950, respectively on two different dates were mentioned in the Khata at one time. He also, in this connection, referred to the admission of P.W. 1 that "Transactions carried on for 8 days used to be noted in the rokar at one time", and, relying on this statement he argued that the Rokar and Khata Bahis both were not written and kept in the ordinary course of business. As rightly observed by the trial Judge, that appeared to be the system which was followed by Mangilal in maintaining his account book, and, the system may be defective, but, when this was the system that was followed, it could not be said that the account books on that ground were not maintained in regular course of business.
The real document is the Rokar, and, the entries from there are carried to the Khata Bahi. When, therefore, Rokarbahi is genuine, and, the entries therein are genuine, the simple fact that three items paid on three different dates have been carried over from the Rokar Bahi to the Khata Bahi on one date but mentioning the different dates and the different payments will not go to show that the Khata Bahi for that year is not genuine, or, that it was not written and kept in the ordinary course of business. Item of Rs. 1,500/- is mentioned no doubt at one place, but against it the different dates and different items paid on the different dates are also mentioned in the Khata Bahi. I would, therefore, hold that the Khata Bahi was also written and kept in the ordinary course of business and that it is genuine.
19. It was also argued that there is nothing to show that the Khata Bahi (Ext. 3) and the Rokar Bahi for that year, the entries wherein are Exts. 4 series, were filed before any Income-tax officer, notwithstanding the fact that P.W. 1 admitted in his cross-examination that "Mangilal used to pay income-tax", and, that "he used to maintain only one set of Rokar and Khata. These account books used to be changed every Diwali". No doubt, there is nothing in these two Bahis to show if they were filed any time before the Income-tax Department, but that fact alone will not show that these account books, as observed by the trial Judge also, were not maintained in the regular course of business. Further, it would have been very easy for the defendants to prove that these documents were manufactured by producing the assessment orders of the Income-tax Department in order to show that the plaintiff filed the Khata and Rokar Bahi for 2007 Samvat, but they were different from the Khata and Rokar Bahis in question. The defendants, however, did nothing of the kind.
20. Moreover, if the defendants were certain, as they asserted in the written statement and the evidence, that the several entries in respect of the transaction in suit in Exts. 3 and 4 series were not genuine, they could have easily established that fact by production of their own account books which defendant 2 used to file in the Guardianship case in the Court of the Judicial Commissioner. D.W. 8 (defendant 2) admitted in her cross examination that "My son submits accounts yearly before the Judicial Commissioner. I cannot say since how long such accounts are being submitted. My son knows it". Obviously, she is referring to her major son, defendant 3, because amongst her sons, is the only person who is major. No step was taken by the defendants to call for their account books from the Court of the Judicial Commissioner which they filed for the period 1950-51 in the Court below. Nor did she examine her major son, defendant No. 3, to say at least, that the transactions in suit are not shown in the account books which he filed on behalf of his mother, defendant 2, in the Court of the Judicial Commissioner. It was argued by Mr. Roy that copies of such documents are not granted, but certainly there was nothing to prevent the defendants from calling for their account books through the court below from the court concerned.
21. Mr. Roy, in support of the non-production of the account book referred to above by the defendants, relied upon a Division Bench decision of this Court, in Monan Bikram Shah v. Deonarain, AIR 1945 Pat 453, in which it was held that it is open to the plaintiff to refrain from producing any documents which he considers Irrelevant; and, if the defendant wants the Court to draw an adverse inference from their non-production, he should call upon the plaintiff to produce those documents; only if the plaintiff did not produce those documents after being called upon to do so, the Court would he justified in drawing an adverse inference against him.
Mr. Roy submitted that the same principle should apply to the present case, because the defendants refrained from producing those account books, because they considered them to be irrelevant. I do not think that such an argument is open to the defendants, because it cannot be said that those account books were irrelevant in the circumstances of the case. In my opinion, therefore the omission of the defendants to get their account books for the relevant period from the court of the Judicial Commissioner to falsify Exts. 3 and 4 series is certainly a circumstance which can be taken against them in this connection.
22. D.W. 8 (defendant 2) admitted that bahikathas used to be maintained in respect of the business of her husband and were kept in the gola, but she said that a fire broke out there, and it was not known whether the account books were burnt or somebody removed them. Mr, Roy, therefore, relied on this statement and submitted that in these circumstances it was not possible to produce the account books of the defendants' business. He also referred to the evidence of P.W. 4 who admitted in his cross-examination that "the fire might have broken out in 1948".
P.W. 7 also, no doubt, admitted about the fire in the shop of the husband of defendant 2. but he said that Motilal had set fire in the shop with the consent of defendant 2 as he told him about it but he admitted that he did not lodge any information in the police station. This statement of P.W. 7, of course, cannot be accepted. The fact that fire broke out in the shop of the defendants may be taken as a fact, but this circumstance may explain for not producing the account books of the business, but I cannot understand how it can explain the omission on the part of the defendants to call for their account books from the Guardianship case.
23. Exts. 3 and 4 series, as I said before, were proved by P.W. 1, and, his evidence was also supported by P.W. 7 who said that the entire Rokar bahi as also the khata bahi, Ext. 3, were in. the writing of Mangi Lal whose writing he knew.
24. For the reasons given above, and for those given by the trial Judge, I hold, in agreement with him, that Exts. 3 and 4 series are genuine and reliable documents.
25. The case of the defendants that their business ceased in 1949, and not in 1953, as alleged by the plaintiff, is obviously false, Exts. 3 and 4 series establish beyond doubt that during 1950-51 the defendants' firm, defendant 1, was in existence and had not ceased. The fact that the defendants' business was closed in 1953 is supported by the evidence of P.W. 4 also. He stated on 13-9-1959 that it is now closed for the last two years. To the same effect is the evidence of P.W. 5 and P.W. 7. This case of the plaintiff that the business of the defendants was closed in 1953, as deposed to by her witnesses, is no doubt denied by the witnesses examined on behalf of the defendants, such as, D. Ws. 3, 4, 6 and 9, but I am not prepared to accept their evidence in preference to Exts. 3 and 4 series which establish that the firm had not closed in 1949 but was in existence and was running in 1950-51 also. Mr. Roy, in this connection, laid particular stress on the evidence of D.W. 9 who alleged to be a tenant of defendant 2,
He proved' Exts. H and I. D. W. 10 proved the kerayanama (Ext. )), Ext. I is an account book of defendant 2 regarding her house rent. Ext. J is a Kirayanama executed by defendant 2 in favour of D.W. 9 on 15-1-1949, and Ext. H is the signature of defendant 2 on this kerayanama (Ext. J). Relying on these documents, it was contended by Mr. Roy that they proved that the business of the defendants had ceased to exist in 1949 after the destruction of the gola by fire, as there is a definite mention in the kirayanama (Ext. J) that the business of defendant No. 2 had been closed. D.W. 9, who proved Ex. H, admitted that he did not see defendant 2 writing Ext. H on the kirayanama (Ext. J). It has rightly been pointed out by the trial Judge that no period has been mentioned in the kirayanama in order to make it elastic. These documents are not at all impressive, and, J agree with the trial Judge that Ext. J, the Kirayanama like the account book (Ext. 1), was also manufactured for the purpose of the present suit, and, therefore, no reliance could be placed on them.
26. Mr, Roy strongly relied also on the report dated 11-3-1954 of the Inspector of Sales Tax in order to show that he reported that since April or May, 1949, the business of Lakshmi had been closed. Mr. Prasad objected to this report being used on the ground that it was inadmissible because Mr. B. K. Sahay, the Inspector of Sales Tax, who submitted the report had not been examined and this report had not been proved. I think the objection is valid. Exts. L and L(1) are orders dated 3-5-1954 of the Sales Tax Department to shew that during 1949-50 and 1950-51 the firm, defendant No. 1, was not assessed to any Sales Tax. But in my opinion, they support the plaintiff's case that the firm, defendant No. 1, was in existence, otherwise, as rightly observed by the trial Judge, there was no fun in holding licence till 1954.
27. For the reasons given above, and, for those given by the trial Judge. I, therefore, hold that the defendant's business did not cease in 1949, as alleged by them, but in 1953. as alleged by the plaintiff. and that during the material period, that is, 1950-51. the defendants' business was still continuing, and, the firm, defendant No. 1, was in existence and it had not ceased to exist earlier as falsely alleged by the defendants.
28. Having found that the defendant's firm, defendant 1, was in existence during the year 1950-51, which is the material period for the purpose of the present suit, and, having also further found that the defendants had, on behalf of their firm, defendant 1, previous dealings from a long time, and certainly from before 1946, as will appear from Ext, 6, with the plaintiff's husband, Mangilal, the next question which arises for consideration is, what was the nature of the defendants' business?
29. On the evidence of P.W. 1, the defendants' firm dealt with arhatdari business of the firm, defendant 1, (sic) was of Gur, grains etc. P. W. 6 stated that in arhatdari-business one gets commission on the articles deposited and sold from the arhat. P.W. 0 further stated that Lakshmi Prasad, husband of defendant 2, had this business, but he also used to make purchases. It will further appear from the evidence of defendant 2 (D.W. 8) that after the death of her husband, Lakshmi Prasad, her business slowed down, and, it took about a year or two to dispose of the articles kept in her gola.
Mr. Ram Anugrah Prasad, on the part of the plaintiff, submitted that the nature of the business carried on by the defendants' firm, defendant 1, was that the Byaparis used to bring their goods and deposit them for sale with the firm of defendant 2 at the rate fixed by the constituents (Byaparis) of the firm, and, the husband of defendant 2 used to get commission on the sale, and, he had also sometimes to pay the price of the goods to Byaparis before their actual sale by him and also to make purchases some time for his firm. Mr. Prasad submitted that this was the nature of the arhatdari business of the defendants' firm, defendant 1.
30. It is not disputed that certain arhatdari transaction consists of ostensible sale by A to B of a double option of becoming either the purchaser from A or the seller to him of certain goods at a future date at the price fixed. As observed by Justice Macleod of the Bombay High Court, in Ch-hogmal v. Jalnarayan Kanyialal 20 Ind Cas 882, the legal relationship between client and adatia is that of a vendor and purchaser, whether the contract is written or oral or whether an order is send by telegram and accepted by the adatia.
There is this additional incident to the contract, that the adatia is entitled to charge commission and brokerage in addition to the price. If the client sends goods for the due date the adatia is responsible for the price whether, he has covered himself or not. While considering the question whether a contract by cutcha adatia agency is or is not a wagering contract within the meaning of Section 30 of the Contract Act, Lord Justice Warrington of the Privy Council, in Sohhagmal Gianmal v. Mukund-chand Balia, AIR 1926 PC 119 :53 Ind App 241, observed :
"There is no dispute that as regards cutcha adatia transactions the course of business and the relative positions of the parties are as follows: When a cutcha adatia enters into transactions under instructions from and on behalf of his upcountry constituent with a third party in Bombay he makes privity of contract between the third party and the constituent, so that each becomes liable to the other, but also he renders himself responsible on the contract to the third party. The does not ordinarily communicate the name of his constituent to the third party, but be informs the constituent of the name of the third party. The position, therefore, as between himself and the third party, is that he is agent for an unnamed principal with personal liability on himself. His remuneration consists sole-ly of commission, and he is in no way interested in the profits or losses made by constituent on the contracts entered into by him on his constituent's behalf.
31. Although the above case may not apply Entirely to the present case, because the above case was or Bombay and the present one is of Bihar, but it appears to me that very much similar was the position in the present case also.
32. But that apart, the contention of Mr. Prasad that for carrying on the arhatdari business, Lakshmi, and, after his death, his widow, defendant 2, needed money from time to time is supported by the evidence on the record, and seems to be correct (His Lordship considered the evidence and proceeded.)
33. In view of these considerations, therefore, I hold that money was needed from time to time for carrying on the arhatdari and other businesses! of the defendants, on behalf of their firm, defendant 1, and, whenever money was required, ^it was borrowed by defendant 2 from the plaintiff's husband, Mangilal, even before the transactions in suit. The contention of Mr. Roy, therefore, that no money was needed for carrying on this arhatdari business has no substance. On the other hand, the contention of Mr. Prasad that money was needed for the defendants' business from time to time even before is supported by very reliable and convincing evidence, and, as such, it must be accepted.
34. The crucial question, however, is, was any money needed, as alleged by the plaintiff for the business of defendant 1, by defendant 2? On this question, the case of the plaintiff is, as will appear from the evidence of P.W. 7, that defendant No. 3 approached him and told him that she was in need of money, and, although she had previous transactions with Mangilal, the plaintiff's husband, he was not advancing more money to her, and, therefore, she requested him to help her. P.W. 7 then approached Mangilal, and, he said that as she was getting old and she might die any moment, he was not willing to advance money.
But. Mangilal, on being requested again by P.W. 7, agreed provided a khas mukhtarnama was executed in favour of Motilal, the admitted Munib of the defendants, who held a registered power of attorney already. Defendant 2 then told P.W. . 7 that she was in need of Rs. 5.000/- this time, and, that she would go on borrowing from time to time according to her need. It is said that thereafter? defendant 2 executed the special power of attorney (Ext. 1) in favour of Motilal and it was made over to Mangilal and then dealings between them started on the basis of this document.
35. Another question in this connection, which has been raised, is, why should defendant 2 approach P.W. 7, and why not she should approach Mangilal herself ? On this question, we have got the evidence of D.W. 8 (defendant 2) herself. She stated that she observed parda, and, she did not appear before everybody. She admitted further that she did not observe any parda from Shamal Ram (P.W. 7), as he used to visit his place in the life-time of her husband. She also admitted that Shamalram (P.W. 7) was doing pairvi on her behalf in her suit against Chotanagpur Bank, in one of which the defendants were the plaintiffs.
She further admitted that she lost the suit, and, she filed an appeal in the appellate court through P.W, 7, and, that he was also in charge of her appeal in the High Court which was decided on 10-12-1953, as will appear from the judgment (Ext. K). We, therefore, find that P.W. 7 enjoyed the confidence of defendant 2, and, therefore, it was not unnatural for defendant 2 to approach P.W. 7, specially because P.W. 7 also had monetary transactions with Mangilal from whom he also used to borrow money whenever; necessity arose for his firm.
36. Having thus found that the plaintiff's case that defendant 2 needed more money for carrying] on the business of her firm, defendant 1, is true, let us now consider, if the defence, that there was no negotiation, no settlement and 110 advance of the loans in question, is correct?
37. The plaintiff's case on this point is to be found in paragraph 3 of the plaint. In paragraph 3, the plaintiff avers that the previous borrowings by the defendants for carrying on their arhatdari and other business in the name of their firm defendant, from the plaintiff's husband from time to time, was squared up by payment by defendant 2, through her Munib, Motilal, on the 12th Aghan Sudi, 2007. Samvat, which would correspond to December 1930, long after the death of Lakshmi Prasad, the last sole owner of the firm, defendant No. 1, and, the husband of defendant 2. This is supportetd by the khata-bahi (Ext. 3) and also by the Rokar-bahi for 2007 Samvat.
38. On the question of negotiation, settlement, advance of the loans, and, the execution Ext. 31, the witnesses examined on behalf of the plaintiff are P.W. 1, the son-in-law of the plaintiff, and, P.W. 7, who was then admittedly the pairvikar of defendant 2. P.W. 1 stated that the talk for taking loans, had taken place five to sevan days before the execution of the power of attorney (Ex. 1). He further stated that, besides the parties, he himself and Motilal, and, none else was present at that time, as the talk had taken place at the hou.se of Mangilal in a room inside where the plaintiff was also present. P.W. 1 further stated that on enquiry defendant 2 said that she would require in all about Rs. 15,000/-, and would repay it gradually. P.W. 7 however, stated that defendant 2 came to Mangilal for negotiation two or four days before the execution of the document, and, at that time, Manku Lal Seth, Ramnandan Jain were also present, besides four or five other persons, at the house of Mangilal.
Mr. Roy argued, in the first place, that Manku Lal Seth and Ramnandan Jain, who were present at the time of the negotiation, spoken of by P.W. 7, have not been examined; and, in the second place, that this evidence of P. W. 7 contradicts the evidence of P.W. 1, because according to P.W. 1, these persons were not present at all. Mr. Prasad, however, in reply, contended that there was no contradiction in the evidence of P.Ws. 1 and 7. in that, P.W. 1 speaks of a negotiation which took place five to seven days' before the execution of the power of attorney (Ext. 1) whereas P.W. 7 speaks of a negotiation which took place two or four days before the execution of the document, and, therefore, these two negotiations took place on different occasions and they did not refer to one and the same negotiation, as there was no evidence that there was One and only one negotiation for the loan. In my opinion, this contention of Mr Prasad seems to be correct, and, therefore. I do not find any contradiction Sin tile evidence of P.Ws. 1 and 7.
39. In this connection, it was also argued that the plaintiff had not also examined herself, although she was also present at the time of the negotiation as deposed to by P.W. 1. It was further contended that P.W. 1 definitely stated that the plaintiff and the son of P.W. 1 would not be examined in the suit, although it was admitted by P.W. 1 that he was not present when the suit was filed, but his son was here and he was looking after the affairs of the plaintiff and the plaint was drafted under his instructions. In my opinion, the non-examination of the plaintiff, or the son of P.W. 1, or even Manlcu Lal Seth or Ramnandan Jain, spoken of by P.W. 7 will not make the plaintiffs case false or unreliable. This fact alone is not sufficient to throw out the plaintiff's case, when P.W. 1 and P.W. 7 have both been examined, and, there is no reason to reject their evidence.
If it is borne in mind that at the time of the transactions in question, P.W. 7 was admittedly, as admitted by defendant 2, D.W. 8. in her evidence, looking after her case against the Chotanagpur Bank, it becomes at once apparent that he was enjoying the utmost confidence of defendant 2. In my opinion, therefore, on the evidence of P.W. 1 and P.W. 7, it has been satisfactorily established by the plaintiff that there was negotiation for the loans in question, and, that there was settlement thereof, before the execution of the special power of attorney (Ext. 1) by defendant 2 in favour of Motilal and of the hath-chitha in question (Ext. 2) by Motilal, as khas Mo-khtar-am of defendant 2 in favour of Mangilal. The plaintiff's case, therefore, on this point is true, and, it has rightly been accepted by the court below.
40. It was veiy strongly urged that when there was already a registered power of attorney in favour of Motilal, as will appear from Ext. 5, and it was in force, and, it had not been revoked, what was the necessity of the execution of Ext. 1, the special power of attorney in favour of Motilal, for the transactions in question, by defendant 2 ?
41. The general power of attorney (Ext. 5) executed by defendant 2 in favour of Motilal, her Munib, was acted upon, as will appear from Ext. 6(a) in which Motilal has described himself as Mo-khtar-am, and, therefore, the denial of D.W. 8 that the power of attorney was not acted upon is false. It is true that this power of attorney was in force at the time when Ext. 1 was executed, but from the evidence on the record it appears that there were good and convincing reasons for Mangilal to have this special power of attorney (Ext. 1) executed by defendant 2 in favour of her Munib and Mokhtar-am Motilal before advancing further money. It will appear from the evidence of P.W. 7 that in the suit brought by the Chotanagpur Bank against defendant 2 on the basis of a bundi executed by Motilal, the suit was contested by defendant 2 obviously because she denied the authority of Motilal to take loans and to execute such hundis.
For this reason, as rightly observed by the trial Judge, Mangilal, being a man of business, took this extra precaution of getting special power of attorney executed by defendant 2. Another reason was that under the general power of attorney (Ext. 5), Moti-Jal had no power to borrow money on behalf of defendant 2 except inter alia as metioned in paragraph 5 of the general power of attorney (Ext, 5) to manage all works of firm Ramlochan Ram Lakshmi Prasad and keep accounts of it. In these circumstances, if defendant 2 wanted to borrow more money, and a larger amount than what she used to borrow before, naturally she being a pardanashin lady could not go to Mangilal every time to borrow money and execute any document and for this reason it was considered desirable by Mangilal to have special power of attorney executed in favour of Motilal who was her trusted Munib and admitted Mokhtar-am to look after her affairs.
Another reason seems to be that this time defendant 2 wanted a sum of Rs. 5000/- to begin with and thereafter more and more money up to the extent of Rs. 15,000/-, as deposed to by P.W. 7 and P.W. 1, and these sums were more than any sum which she or her husband had borrowed from Mangilal before, as will appear from Ext. 3, Exts 4 series Exts. 6 and 6(a), and, therefore, that also seems to be the reason why Mangilal took this extra precaution. P.W. 7 in his evidence, already referred to before, has also given the reasons why Mangilal got Ext. 1 executed. P.W. 7 stated that when approached by him Mangilal said that defendant 2 was getting old and she might the any moment and, therefore, he was not willing to advance money but when P.W. 7 persisted then Mangilal agreed to advance more money provided defendant No. 2 executed a khas Mukhtarnama in favour of Motilal. It was argued by Mr. Roy that defendant 2 on her statement was 50 years old but on the estimate of the court below she was only 40 years old, and, therefore, it could not be said that she was old. I don't think there is any substance in this contention. Even if defendant 2 was 40, certainly she was getting older and not getting younger and, therefore, the apprehension of Mangilal could not be said to be unjustified. Moreover, Ext. 1 itself mentions the necessity of executing it. Ext. 1 recites :
"But on account of being a Pardanashin lady it is impossible to personally enter into monetary transactions. Therefore, I, the executant appointed my Munib Babu Motilal Sahu as my Mokhtarkhas".
By Ext. 1, defendant 2 appointed Motilal her mukh-tarkhas only to "enter into monetary transactions" with the plaintiff's husband. D.W. 8, on her own evidence and as also contended by Mr. Roy, was a Pardanashin lady, and, therefore, it cannot be said that Mangilal did not act wisely, in getting Ext. 1 executed by defendant 2 in favour of her Munib Motilal. The trial Judge has rightly observed that as a matter of fact, the special power of attorney (Ext. 1) was not at all necessary, and, a suit could have been instituted on bahi-khata, but as Mangilal was a man of business he took this extra precaution, and, he got this Ext. 1 executed and kept it with himself.
42. For the reasons given above, and, for the reasons given by the trial Judge, it is clear, therefore, as to why Mangilal insisted on getting Ext. 1, the special power of attorney, executed in spite of the fact that the defendants had monetary transactions with the plaintiff's husband from long before, even from the time of the husband of defendant No. 2.
43. The next question is, if Ext. I is genuine? On this question, on behalf of the plaintiff, P.W. 1 and P.W. 7 have been examined. Ext. 1 has been scribed by Aditya Prasad, who was the scribe also of the general power of attorney (Ext. 5). D.W. 8, defendant 2, admitted that she knew Aditya, and, she had no enmity with him. She. in her evidence, called him "Aditya Bhaia." There is no reason, therefore, as to why Aditya Prasad who enjoyed the confidence of defendant 2 would be a party to any fraud alleged to have been committed by Mangilal by getting Ext. 1 scribed by him.
44. It was argued that the plaintiff did not examine Aditya Prasad. In my opinion, it was for the defendants to examine him in order to show that Ext. 1 was a forgery as alleged by them. Aditya Prasad was on good terms with the defendants as admitted by D.W. 8, and, therefore, it was not expected that the plaintiff could have possibly examined him on her behalf. In my opinion, the non-examination of Aditya Prasad by the defendants is certainly a circumstance against the defendants and not against the plaintiff.
45. Ext. 1 was attested by P.W. 7, Jawahir Sao, Badri Sao Halwai and Ram Bilas Tewari. Out of these attesting witnesses, the plaintiff examined only P.W. 7. It was argued by the defendants that the plaintiff should have examined the other attesting witnesses also including Motilal to show that Ext. 1 was genuine. In my opinion, it was not necessary to examine all the attesting witnesses, when one of them had geen examined, and he proved satisfactorily that Ext. 1 was not a forgery. If the defendants thought that Ext. 1 had not been executed by defendant 2, it was their duty to examine the other attesting witnesses including her Munib, Motilal, to show that Ext. 1 was not executed by defendant 2 in his favour. In my opinion, therefore, the non-examination of the other attesting witnesses is not a ground for suspecting the genuineness of Ext. 1.
It was also argued that the plaintiff should have examined Motilal Munib, because on the evidence of D.W. 8, he was no longer in her service. The case of the defendants as deposed to by D.W. 8 that Motilal used to work in the firm as weighman as long as her husband, Lakshmi Prasad, was alive, and, that he was never a Munib in the firm, and, he never, worked a$ Munib of the firm, defendant 1, has rightly been rejected by the court below. The-trial Judge, after a consideration of the evidence, oral and documentary, particularly Ext. 5, the general power of attorney, came to the conclusion that the defence that Motilal was only a weighman and not a Munib of the firm, defendant 1, and, that he left the services of the defendants about six months after the death of Lakshmi, husband of defendant 2, is not true.
This finding has not been challenged before me by Mr. Roy on the part of the appellant, and, in my opinion, he has wisely not attempted to do so, as there is very convincing oral evidence of disinterested witnesses, such as P. Ws. 4, 5, 6, 7 and 8, besides Exts. 5, 6, 6 (a) and C to establish beyond doubt that Motilal was the Munib of the defendants' firm, defendant 1, and that he was the most trusted servant of the defendants, both in the life-time of Lakshmi Prasad and, also after his death, of defendant 2. P.W. 7 stated that Motilal was still working for defendant 2 in this suit and that he came to court and did Pairvi. There is, therefore, no doubt that Motilal was looking after the suit and was working for the defendants, and, therefore, he was under their thumb.
It further appears from the evidence of D.W. 1, for instance, that Motilal was with the defendants till 1953. D.W. 4, further, stated that Motilal used to visit defendant 2 some times when he was called by her to collect, her outstanding dues. D.W. 4, who was also a Munib of defendants' firm from 1942-48, admitted that he suggested Motilal to defendant 2 as he knew the debtors and was in a position to collect dues. It is clear from the above evidence that Motilal was on the side of the defendants. In these circumstances, in my opinion, it was not the duty of the plaintiff, but of the defendants, to examine Motilal, their admitted Munib. to establish, if they could, that Ext. 1 was a forgery, and, that he was never the Munib of the defendants' firm, defendant 1, and he never transacted any business on behalf of the defendants. The defendants have deliberately kept him back and not examined him in support of their case. The non-examination of Motilal by the defendants is certainly a very strong circumstance against them which cannot be ignored. P.W. 1 and P.W. 7, one of the attesting witnesses of Ext. 1 have very satisfactorily proved the execution of Ext. 1 by defendant 2. and, there is no reason to reject their evidence. On the admission of defendant 2, D.W. 8, herself the genuineness of Ext. 1 is established beyond doubt.
46-48. It was urged by Mr. Roy that according to D.W. 8, defendant 2, she put her signatures on blank papers including stamped papers and handed them over to Shamalram (P. W. 7) for doing pairbi in the High Court, and, those blank papers had been used in collusion with P.W. 7 for 'fabricating Ext. 1, because of the signatures and writings of defendant 2 on those papers. (His Lordship after going through the evidence, rejected this contention and proceeded :)
49. The contention of Mr. Roy, in this connection, therefore, that the present suit had been Instituted at the instance of P.W. 7 must be rejected as not supported by any reliable and convincing evidence; rather it is negatived by the evidence adduced on behalf of the plaintiff and on the admission of defendant 2, D.W. 8, herself.
50. It was also argued by Mr. Roy that, on the evidence of D.W. 8, she was a pardanashin lady, because she stated that she observed parda and did not appear before everybody, and, therefore, it should have been satisfactorily established that the transaction in question, evidenced by Ext. 1, had been explained to her, and, that she understood the same. In support of his argument Mr. Roy relied on a decision of the Privy Council in Mirza Sajjad Husain v. Nawab Wazir Ali Khan, 39 Ind App 156, in which it was held that in the case of a transaction by a pardanashin woman, the onus was upon the party who wanted to enforce the transaction to show that the transaction had been explained to her and that she understood it. In the present case, in Ext. 1 itself, defendant 2 has stated in her execution portion -- the entire of which she admitted to be in her pen -- that she got the contents read over and explained to her. Jawahar Sao and Ram Bilas Tewari, two of the attesting witnesses have also mentioned in their signature portions that defendant 2 got the contents of Ext. 1 read over to her These two persons, who were admittedly present at the time Ext. 1 was executed, as they signed as attesting witnesses, have not been examined by the defendants to prove that actually the contents of Ext, 1 were not read over and explained to her.
51. No doubt, D.W. 8 denied that she had executed Ext. 1, and admitted only her signatures and writings in the execution portion, but she did not deny the statements in her execution portion on Ext. 1 that the contents of the document had been read over to her and explained to her. D.W. 8 did not state in her evidence either that the said statements in her admitted execution portion on Ext. 1 were false, or that she wrote out the same without understanding it and knowing its implication or that she wrote out the same, although she understood its implications simply because it was dictated by P.W. 7. On her evidence, D.W. 8 was not an illiterate lady, because she admitted that she could write herself if somebody dictated letter by letter to her. It is unbelievable, therefore, that she would write the execution portion, which appears on Ext. 1, even at the dictation by P.W. 7, unless the document (Ext. 1) was written out from before and the contents thereof were read over and explained to her, and, she understood its implication.
52. The contention of Mr. Roy, therefore, that the contents of Ext. 1 were not read over to defendant 2, nor explained to her, nor did she understand the same, before executing it and putting her signature on it, has no substance, as it is negatived by Ext. 1 itself, and, therefore, it must be rejected.
53. It was further argued that Motilal had his own business, and he had also a licence of tobacco warehouse, as will appear from Exts. D to D(9), and also fr.om the evidence of D.W. 1, D.W. 3 and D.W. 4, and, therefore, it was unnatural that he would have agreed to work or work at all as Mukhtar-khas of defendant 2. (His Lordship considered the evidence and proceeded:) The contention of Mr. Roy, therefore, that Motilal had his own business, and, therefore, he was not expected to act as Mokhtarkhas of defendant 2, or to carry on the work of the firm, defendant 1, has no force, and, as such, it must be rejected.
54. P.W. 7 stated also that when the money was advanced to defendant 2 on his intervention, the ware-house was there, but the money was advanced for arhatdari and not for the ware-house, as ao capital was required for this business.
55. For the reasons given above, and, for those given by the trial Judge, I would, therefore, hold, in agreement with him, that Ext. 1 is a genuine document and that it was executed by defendant 2 in favour of Motilal and was handed over to the plaintiffs husband, Mangilal, and, the transactions in suit started on the basis of the same.
56. Having found that Ext. 1 is a genuine document and that the transactions in suit started on the basis of the same, the next question, which arises, is, were any advances made by Mangilal to defendant 2 through Motilal, her Mokhtarkbas, between the 26th December, 1950 to the 5th January 1951, as evidenced by Exts. 2, 3 and 4 series?
57-59. (His Lordship considered the evi-i dence and continued).
60. For the reasons given above, therefore, I hold that advances were made from time to time between the material period by the plaintiff's husband, Mangilal, to defendant 2 through Motilal, her Munib, and Mokhtarkhas, as evidenced by Ext, 2, and supported by Exts. 3 and 4 series. The plaintiffs claim, therefore, based on Ext. 2 is correct, I would, therefore, answer the first! contention of Mr. Roy in the negative by holding that there was necessity, there was negotiation, there were advances by Mangilal to defendant 2 from time to time as and when required by her and that Exts. 1 and 2 are both genuine, and, the suit had not been instituted at the instance of P. W. 7.
61. Re: (2) (a): D. W. 8 admitted that she had applied through her brother to the Judicial Commissioner, Chotanagpur, Ranchi, for permission to take loan for carrying on business, it and when necessary, but it was refused. P. W. 7 also admitted that no permission was shown to Mangi-lal in his presence either when the negotiation was carried on or when the special power of attorney was executed, and, he further said that he did not know if Mangilal demanded it. It is not disputed, therefore, that the loans in question borrowed by defendant 2, as evidenced by Ext. 2, were without the sanction of the Judicial Commissioner, Chotanagpur, who had appointed her guardian of the person and property of her then minor sons, defendants 3 and 4. The only question is, what is the effect of not obtaining the Court's sanction on the loans in suit?
62. On the above question, the relevant provisions of the Guardians and Wards Act, 1890, (Act VIII of 1890), are Sections 27 and 29, which are in the following terms:
"27. Duties of guardian of property. -- A guardian of the property of a ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and, subject to the provisions of this Chapter, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property."
"29. Limitation of powers of guardian of property appointed or declared by the Court. Where a person other than a Collector, or than a guardian appointed by a will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court -
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor."
63. Section 27 deals with the duties of a guardian of the property of a minor appointed under that Act, under Section 27, a guardian of the property of the ward is bound to deal therewith as carefully as a man of ordinary prudence would deal with it if it were his own, and, subject to the provisions of Chapter III, which deals with duties, rights and liabilities of guardians and under which Sections 27 and 29 occur, he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property.
Section 29 imposes certain limitations on the powers of the guardian of property appointed or declared by the Court under this Act. Section 29 provides that the guardian of the property shall not without the previous permission of the court mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the ward, or, lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor.
Section 30 of the Act provides that a disposal of immovable property by a guardian in contravention of either Section 29 or Section 28, which is not material for our purpose, is voidable at the instance of any other person affected thereby. From the above provisions of the Act, therefore, it is plain that there is no limitation on the power of a guardian of a property to borrow loan as such and for such borrowing no previous permission of the Court is necessary, provided, however, that such loan is for the benefit of the minor or protection or benefit of the property of the minor.
64. On the part of the plaintiff, Mr. Prasad contended that Section 29 does not apply to the case of a loan contracted by the guardian, and for this no previous permission of the Court is necessary. In support of his contention, he relied on a Bench decision of the Calcutta High Court in Anil Kumar Das v. Probhabati Mitra, AIR 1940, Cal 532, in which it was held that the restrictions contained in Section 29 of the Act and the provisions of Section 30 do not apply to a mere borrowing of money by a guardian. If I may say so with respect, the above decision represents the correct position in law. Section 27 clearly provides that a guardian of the property of a ward may subject to the provisions of the Act do all acts which are reasonable and proper for the realisation, protection and benefit of the property.
In the present case, I have found that the plaintiff has succeeded in proving that her husband made adequate enquiries and satisfied himself for the necessity of the loan, and, as he had previous monetary transactions with the defendants, he advanced the loan in question for the arhatdari business which was the ancestral joint family business of the defendants. Mr. Roy relied on a Bench decision of the Bombay High Court in Maharana Shri Ranmalsingji v. Vadilal Vakhat-chand, ILR 20 Bom 61, in which it was held that the Guardians and Wards Act, 1864, which was then in force, gave no power to a guardian to bind his ward by personal covenants, and, that a minor cannot be bound personally by contracts entered into by a guardian which do not purport to charge his estate, It was also held that a guardian is not an agent on the part of his ward within the meaning of Section 19 of the Limitation Act, arid, therefore, the guardian has no authority to acknowledge a debt on behalf of his ward so as to give the creditor a fresh start for the period of limitation.
This latter view, however, was overruled subsequently by a Full Bench of that Court in Annapagauda v. Sangadyapa, ILR 26 Bom 221, In my opinion, the case relied upon by Mr. Roy has no application to the present case, because here defendant 2 did not make any personal contract. She borrowed the money from the plaintiffs husband as the certificated guardian of her minor sons for necessities of the business of the minor which was their ancestral business.
65. For the reasons given above, I would, therefore, hold that the fact that the loans were taken by defendant 2 without the previous permission of the court, which appointed her the guardian of the person and property of her minor sons, will not invalidate the loans in question, as to such a case Section 29 of the Act does not apply.
66. Re: (2)(b): It was then argued that defendant 2 had no power to delegate her powers of a guardian for the purpose of taking loans to another person, and, therefore, in the present case the delegation of her power to Motilal under Ext. 1 was illegal and consequently the loans taken by Motilal on behalf of defendant 2 and her Mokhtarkhas were illegal and not binding on the defendants 3 to 5. In support of his contention, Mr. Roy relied on a decision of the Privy Council in K. S. Bonnerji v. Sitanath Das, 35 Cal LJ 320: AIR 1922 PC 209. In that case, it was held that trustees or persons holding property in a representative capacity cannot delegate their powers by a general or special power of attorney.
In the above case, a document was executed by Bhupendra Sri Ghosha, purporting to act on behalf and as attorney of his father, Protap Chandra Ghosha, by which a garden was granted to the respondents under a mokurari lease, and, on the execution thereof they entered into and remained in possession of the property. It was not proved in that case that Bhupendra Sri Ghosha had any power of attorney executed in his favour so as to authorise him to execute the impugned lease on behalf of his father, Protap Chandra Ghosha, as his attorney. In these circumstances. Lord Buckmaster, who delivered the opinion of the Board, at p. 326 (of Cal LJ): (at p. 212 of AIR), said:
""Their Lordships, therefore, have considered what the position would be supposing such document had, in fact, been proved, and had been shown to be a special power purporting to authorise dealings with the trust estate, and they are of opinion that even in that event it could not have availed the defendants. The reason for this is plain. In whatever capacity Protap held the land in question, the capacity must have been representative one. It was said that he was not in the strictest language a trustee; but be it so, his position was none the less a representative one, and it being plain that he never negotiated nor considered, nor knew of the lease until after it had been executed, if what was done, was done by virtue of a power of attorney, it could only have been because the power had delegated the representative authority that he possessed to a third party. The duties of Protap, however, they may be defined, were in their nature fiduciary, and fiduciary duties cannot be made the subject of delegation."
67. In reply to the above contention of Mr, Roy, it was argued by Mr. Prasad for the plaintiff-respondent that the above case of the Privy Council can have no application to the present case, because here it was not a case of a trustee under the Indian Trusts Act, 1882 (Act II of 1882). He also contended that even under the Trusts Act, the trustee can, under certain circumstances, appoint an agent to carry on his work. He further argued that here defendant 2 did not delegate her discretion and power to borrow money to Motilal; she only appointed him her special attorney to bring the money when required by her from Mangilal and to execute documents for that loan on her behalf, and, as such, the borrowings on the basis of Ext. 1 on behalf of defendant 2 and as her special attorney, by Motilal were perfectly legal and binding on the defendants.
67a. In support of his above contention, Mr. Prasad relied on two decisions of the House of Lords in Speight v. Gaunt, (1883) 9 AC 1 and Learoyd v. Whitelay, (1887) 12 AC 727.
68. Before, however, I examine the abovementioned decisions relied upon by the learned counsel for the parties in support of their rival contentions, it would be useful to read here Section 47, with its Explanation, of the Trusts Act. Section 47, with the Explanation attached to it, omitting the illustrations, which are not material for our purpose, is to the following effect:
"47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation.
Explanation.--The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section."
69. Mr. Prasad particularly relied on the above Explanation to Section 47 of the Trusts Act and submitted that the present case was covered by the Explanation, even if the present case be governed by the Trusts Act.
70. In the present case, defendant 2 was the natural guardian as well as the certificated guardian of her minor sons. In either case, therefore, she was in the position of a trustee on behalf of her minor sons, although she was not a trustee appointed under any trust deed, and, therefore, in my opinion, the present case is governed by Section 47 of the Trusts Act, but, as I will show hereinafter, the Explanation to Section 47 applies here, and, even otherwise, Ext. 1 was not hit by Section 47, Trusts Act, and, on this ground, the borrowings under Ext. 2 cannot be said to be illegal.
71. Here Motilal was appointed a special attorney (Mukhtear-khas) under Ext. 1 by defendant 2 to "enter into monetary transactions" with Mangilal, as she was a Paradanshin lady, and, therefore, she authorised Motilal to borrow money and execute documents therefor on her behalf. Motilal was to do an act merely ministerial, and, it did not involve any independent discretion being exercised or any decision being taken by him. The decision to be taken and the discretion to be exercised, as to when, and how much money would be required to be borrowed rested only with defendant 2 herself. It was only after de-fendant 2 had decided the amount to be borrowed that Motilal, as her proxy or attorney, was to go to Mangilal and bring the money from him on executing the required document.
This act of Motilal was simply an act of ministerial nature, requiring no exercise of any discretion whatsoever on his part. Defendant 2 herself had already negotiated and settled with Mangilal, through P. W. 7, that she would borrow money to the extent of Rs. 15,000/- and would take such amount as would be required from time to time to which Margilal had agreed. No further negotiation for or settlement of any loan was necessary. In these circumstances, in my opinion, the Explanation to Section 47 would apply, and, Ext. 1 cannot be considered to be a delegation of her duty or office by defendant 2 within the meaning of Section 47 of the Trusts Act, and, accordingly, Ext. 1 is not hit by it,
72. Even under the certificate of guardianship (Ext. O), defendant 2 was authorised "generally to do and perform all acts which may be necessary to the due discharge of the trust vested" in her, and, the only limitation placed thereby on her powers was that she "shall not sell or mortgage any part of the estate belonging to the minor" nor shall she ''grant any lease for a term exceeding five years without the express sanction of the Court previously chained." In this view of the matter, defendant 2 was perfectly justified in appointing as her special attorney, Motilal to enter into monetary transaction with Mangilal and to borrow money from him, as and when she required it according to her discretion. The appointment of Motilal by defendant 2 as her special attorney or proxy was in the regular course of business and it was necessary for the proper management of the ancestral business of the minors.
Such a delegation was perfectly authorised by Section 47 itself. Section 47 authorises a trustee to delegate any of his duties even to a stranger inter alia if such delegation is in the regular course of business or the delegation is necessary, or the instrument of trust so provides. Here, defendant 2 was not prohibited in express terms under Ext. O from appointing her attorney or proxy for doing a ministerial act on her behalf. On the other hand Ext. O, by necessary implication, authorises her to do all acts which may be necessary for the due discharge of her duties and to discharge the trust vested in her.
In the present case, on the facts mentioned before and on the evidence discussed above, it cannot be said that the delegation of the power to actually borrow the money from Mangilal after signing the documents, if and when required by defendant 2 for carrying on the ancestral joint family business of the defendants* family, was not in the regular course of business or was not necessary at all, when on her own evidence, defendant 2, D. W. 8, was a Pardanashin lady.
73. The Privy Council decision relied upon by Mr. Roy has no application to the present case; firstly, because the special power of attorney has been established in the present case, and secondly, because in that case, it appears from the judgment itself, and from the observation of Lord Buckmaster, quoted before, that Bhupendra Sri Ghosha, the son of Protap Chandra Ghosha, had executed the lease purporting to act on behalf and as attorney of his father Protap Chandra Ghosha, and, the latter never negotiated, nor, considered, nor, knew about the lease until after it had actually been done. Here, however, there is reliable and definite evidence that defendant 2 herself negotiated and settled the terms of the loan with Mangilal through P. W. 7, and, that everything was done at her instance and with her knowledge.
74. In the first case, (1883) 9 AC 1, relied upon by Mr. Prasad, it was held that a trustee investing trust funds is justified in employing a broker to procure securities authorized by the trust and in paying the purchase money to the broker, if he follows the usual and regular course of business adopted by ordinary prudent men in making such investments. In that case, the noble Lords of the House of Lords held that the employment of the broker was proper and not inconsistent with the duty of the respondent as trustee. In the second case, (1887) 12 AC 727, decided by the House of Lords, the earlier decision of the House of Lords in (1883) 9 AC 1, just mentioned, was followed, and. Lord Watson, in his learned address to the noble Lords of the House of Lords, observed that "whilst trustees cannot delegate the execution of the trust, they may ..... avail themselves of the services of others wherever such employment is according to the usual course of business."
75. For the reasons given above, I, therefore, answer the question under consideration in the negative by holding that defendant 2 could legally delegate her power to borrow money from Mangilal by appointing Motilal as her Mokhtaikhas under Ext, I, and, therefore, the money borrowed by defendant 2 through her Mpkhtarkhas, Motilal, under Ext. 2 was legal, and, as such, binding on the defendants.
76. Re: (2) (c): Mr. Roy contended that the sons of defendant 2 could not be made liable even under the Hindu Law, unless it was established that there was enquiry by the creditor, and, that the loan advanced was for legal necessity. In this connection, he relied on the leading case of Hun-oomanpersad Pandey v. Mt. Babooee Munraj Koonweree, 6 Moo Ind App 393. Their Lordships of the Privy Council observed that a bona fide creditor should not suffer when he has acted honestly and with due caution, but is himself deceived. In that connection, the Right Hon. the Lord Justice Knight Bruce, who delivered the judgment, at page 424, observed:
"Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably-credited necessity is not a condition precedent to the validity of this charge, and they do not think that, under such circumstances, he is bound to see to the application of the money."
In reply to this contention, Mr. Prasad relied on another decision of the Privy Council, in Niamat Rai v. Din Dayal, ILR 8 Lah 597: (AIR 1927 PC 121) in which it was held that the manager had authority to raise money, not only to discharge debts arising out of the family business, but also money needed to carry it on, and, that it was a matter for his decision whether the money necessary should be raised by mortgage or a sale, and whether it was better to raise money to continue a business which latterly had not been profitable, or to close it down; it would be unreasonable to expect a lender or purchaser to go into questions of that kind.
77. In my opinion, in the present case, as I have already held, it has been very satisfactorily established by the evidence of P. Ws. 1 and 7 that there was an enquiry by Mangilal before agreeing to advance the money to defendant No. 2. It is also established by the documentary evidence, such as, Exts. 6, 6(a), 3 and the Rokar Bahi, wherein are exhibit 4 series that even in the time of the husband of defendant 2 money used to be borrowed by him for carrying on the arhatdari business of the defendants' firm, defendant 1, and, after his death, defendant 2 also borrowed money from Mangilal from time to time for carrying on the arhatdari business of the firm, defendant 1.
In view of the previous dealings and borrowings by defendant No. 2, and before her by her husband, from the plaintiffs husband it cannot be said that Mangilal was not satisfied that defendant 2 in the particular instance was acting for the benefit of her minor sons and their ancestral business. It has also been established that money was needed to carry on the business of defendant 1, because in her application (Ext. 9) made to the Judicial Commissioner for her appointment as the guardian of her minor sons, she had definitely stated that the local banks had ceased transactions, and, therefore, difficulties had arisen, and, the whole arhatdari business, which was the sole business of the family, had been brought to a stand-still, because hundis, cheques, could no longer be issued and received due to the death of the managing proprietor, late Babu Lakshmi Prasad, the Husband of defendant 2. Ext. I, the special power of attorney itself, mentions the necessities for executing that special power of attorney in favour of Motilal, who was appointed for borrowing money from Mangilal for the Arhatdari business according to necessity.
The fact that the business' latterly had not been profitable, and, it had to be closed down in 1953, is not sufficient to show that the loans were not needed when they were taken to carry on the business of the firm, defendant 1. It would be unreasonable, as observed by the Privy Council in ILR 8 Lah 597: (AIR 1927 PC 121), to expect a lender to go into questions of this kind, in my opinion, therefore, there can be no doubt that the money borrowed under Ext. 2 was for legal necessity of the joint family of the defendants, and, that defendants 3 to 5, who are the sons of defendant 2 had been benefited by the loans taken by defendant 2 from Mangilal through Motilal, under Ext. 2, and, as such, they were liable.
78. For the reasons given above, I would, therefore, answer the contention under consideration in the negative by holding that there was enquiry into the necessities of the loans; there was legal necessity for the loans in question; defendants 3 to 5, had been benefited by the loans contracted under Ext. 2, and, as such they were bound, even under the Hindu Law apart from defendant 2 then being the certificated guardian of defendants 3 and 4, by the loans contracted by defendant 2, because she was admittedly the mother and natural guardian of her minor sons, who all along with defendant 2 constituted a joint Hindu Mitakshara family, and, therefore, the loans in question would be deemed to have been contracted by her as the karta of the family. It was certainly a prudent' act on her part not to mortgage, or, sell or encumber in any other way any property of her minor sons, defendants 3 to 5, but to continue the business of the family by only raising unsecured loans, as used to be done also in her husband's life-time.
79. Re. (3): It was conceded by Mr. Ramanugrah Prasad that defendants 3 to 5 would not be personally liable for the decree passed in favour of the plaintiff, but they would be liable only to the extent of the assets of defendant 1, which may be in the hands of defendants 3 to 5. In view of this concession, I would, therefore, answer this question in the affirmative by holding that defendants 3 to 5 would not be personally liable for the decree, passed in favour of the plaintiff-respondent, and, that their liability would be confined only to the extent of the assets, if any, of defendant 1, which may be in their hands.
80. Re. (4): It was not disputed by Mr. Roy, rather it was the case of the defendants themselves, that defendants 3 and 4 who were minors at the time when the application by defendant 2 was made for her appointment as guardian of their property were members of a Mitakshara joint Hindu family: Relying on this fact, Mr. Prasad argued that the appointment of defendant 2 as guardian of the pro-perty of defendants 3 and 4 was illegal, because there can be no appointment of a guardian of the property of a minor member of a joint family. In support of his contention, he relied on a decision of the Privy Council in Gharib-Ullah v. Khalak Singh, ILR 25 All 407, in which it was held that a guardian of the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family, such interest not being individual property, and therefore not property with which a guardian, if appointed, would have anything to do. He particularly relied on the observation of Sir Arthur Wilson, who pronounced the opinion of the Board, at page 410, where it was observed that :
"It has been well settled by a long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family. And in their Lordships' opinion those decisions are clearly right, on the plain ground that the interest of such a family is not individual property at all, and that therefore a guardian, if appointed, would have nothing to do with the family property. And applying these observations to the present case their Lordships think that the mortgages under consideration were not mortgages by the guardian, assuming the mother to have been a guardian, but mortgages by the family entered into by the karta of the family with the concurrence of Jangli, the only other adult member of the family, if indeed he was an adult."
81. The above decision of the Privy Council was referred to by Costello, J. sitting singly, in In re Bijaykumar Singh, ILR 59 Cal 570 : (AIR 1933 Cal 502). In the Calcutta case, however, the only question was whether under its inherent jurisdiction, the High Court had power to appoint a guardian of a minor member of a family governed by the Mitakshara school of Hindu Law. and, this question was answered in the affirmative, and, the Privy Council case, above mentioned, was explained and distinguished. The contention of Mr. Prasad seems to be correct. Section 17(1) of the Guardians and Wards Act. 1890, itself provides that "In appointing or declaring the guardian of a minor, the Court shall, subject to the provisions of this section, be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be, for the welfare of the minor". The court, therefore, has to take into consideration the law to which the minor is subject. In the present case, admittedly defendants 3 and 4, as defendant 5 was not then born, were minor members of a joint Mitakshara Hindu family in which the share of each of them! was undefined and unspecified.
82. I would, therefore, answer the question under consideration in the affirmative by holding that a guardian of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family, because the interest of a member of such a family is not an individual property at all, and, that, as such, in the present case, the appointment of defendant 2 as guardian of the property of her then minor sons, de-fendants 3 and 4, was illegal.
83. Re. (5): As regards this question under consideration, even if the appointment of defendant 2 as guardian of the property of her minor sons defendants 3 and 4 was illegal, she was undoubtedly under the Hindu Law the natural guardian of her minor sons, defendants 3 to 5, and, as such, as already held, while discussing Mr. Roy's contention under question No. 2(c), under the Hindu Law, the loans in questions having been borrowed by defendant 2, the mother and natural guardian of defendants 3 to 5 will be deemed to have been borrowed by her as the karta of the joint family consisting of herself and her sons, defendants 3 to 5, and, these loans being for legal necessity and for their benefit was perfectly legal, and, binding on defendants 3 to 5.
Mr. Prasad, however, on this question, reinforced his argument by further contending that the joint family business of Lakshmi Prasad was also joint family business in the hands of his sons, defendants 3 to 5, after his death, and, therefore, the loans having been, taken for this joint family business was binding on this ground also on the defendants 3 to 5. Mr. Roy has not disputed, rather admitted, that the business of the joint family in the life-time of Lakshmi Prasad, father of defendants 3 to 5 was: joint family business, and, therefore even after his death, this joint family business, which came in the hands of the defendants became their ancestral joint family business.
This legal position is also supported by Section 234(1) of the 12th Edition of Mulla's Hindu Law, at page 346. In Hindu Law, a business is a distinct heritable asset. Where a Hindu dies leaving a business, it descends like other heritable property to his heirs. If he dies leaving a male issue, it descends to them. In the hands of the male issue, it becomes joint family business, and, the firm which consists of the male issues becomes a joint family firm. In these circumstances here also the firm, defendant 1, was the joint family business of defendants 3 to 5, and, therefore, loans contracted by defendant 2, for the said business, being for legal necessity, was binding OB defendants 3 to 5.
84. In view of the above considerations, after having considered and rejected all the objections raised by Mr. Roy to the decree appealed from, I would, therefore, affirm the judgment and decree of the court below subject to the modification indicated under Point No. 3, and, hold that the plaintiff's suit in any view of the matter has rightly been decreed. The decree under appeal, however, will not personally bind the defendants 3 to 5.
85. The result, therefore, is that subject to the modification indicated above, the appeal fails and is dismissed, but in the circumstances of the present case, I would direct that each party should bear its own costs of this Court.