Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Jaraomull (Jarawarmull) Marwari vs Mohadev Prosad Sahu on 30 March, 1909
Equivalent citations: 1 Ind Cas 724
Bench: Mookerji, Carnduff


1. The plaintiffs appellants are tradesmen in the town of Muzaffarpore and are dealers in cloth, gold, pearls, jewellery and other articles. The defendant is a zamindar resident in the same place and is admittedly a person of position and considerable income. The plaintiffs commenced this action for recovery of approximately Rs. 2,300 from the defendant for goods supplied during a period of more than two years from the 14th January 1902 to 18th October 1904. The defendant who at the time of the institution of the suit was an infant under the guardianship of a certificated guardian, resisted the claim substantially on two grounds, namely, first, that the transactions mentioned in the plaint were entirely fictitious, and, secondly, that as at the date of the alleged transactions, he was an infant, he was not liable to pay for the goods. The Courts below have found concurrently upon the first question in favour of the plaintiffs, and have held upon the evidence that the purchases were made from them for the benefit of the defendant. Upon the second question, they have held that the articles supplied could not be regarded as necessary expenses, and therefore the plaintiffs were not entitled to their value. The plaintiffs have now appealed to this Court, and on their behalf the decision of the District Judge has been assailed substantially on two grounds, namely, first, that at the time of the transactions, the defendant was not an infant, inasmuch as the first certificated guardian had been discharged, and, secondly, that even if he be regarded in the eye of law as an infant, the articles supplied were necessaries for which the plaintiffs were entitled to he paid.

2. In support of the first ground urged on behalf of the appellants, it has been pointed out that the defendant was born on the 8th November 1885, that one Bishen Deo was appointed his guardian under the Guardians and Wards Act of 1890, on the 20th November 1901, that on the 28th April 1903, Bishen Deo, upon his own application and with the assent of the present defendant, was discharged from the guardianship and that it was not till the 8th September 1905 that Chhatradhari, the present guardian, was appointed by the District Judge under Act VIII of 1890. On these facts, which are not disputed, it has been contended on behalf of the appellants that the defendant attained his majority on the 8th November 1903 and not on the 8th November 1906, and that consequently the appointment of the second guardian on the 8th September 1905 was ultra vires. In support of this position, reliance has been placed upon the cases of Patesri Partap Narain Singh v. Champa Lal 1891 A.W.N. 118, Yeknath v. Warubai 13 B. 285 and Birj Mohun Lal v. Rudra Perkash Misser 3 A. 598. On behalf of the respondents it has been argued on the other hand that if a guardian be once appointed or declared, the disability of the minor continues until the attainment of 21 years of age, although the guardian may die, be removed or otherwise cease to act, and in support of this proposition reliance has been placed upon the cases of Rudra Prakash Misser v. Bhola Nath Mukherjee 17 C. 944, Khwahish v. Surju Prosad 3 A. 598, and Gobardhondas Jadowji v. Harivalubhdas Bhaidas 21 B. 281. In our opinion, the contention of the appellants is clearly opposed to the plain language of Section 3 of the Indian Majority Act of 1875 as amended by Section 52 of the Guardians and Wards Act of 1890. Section 3 provides that every minor of whose person or property or both, a guardian other than a guardian for a suit has been or shall be appointed or declared by any Court of Justice before the minor has attained the age of 18 years, and every minor of whose property the superintendence has been or shall be assumed by any Court of Wards before the minor has attained that age shall be deemed to have attained his majority when he shall have completed his age of 21 years and not before. The language of this section fully supports the view taken in the cases of Rudra, Prakash Misser v. Bhola Nath Mukherjee, 17 C. 944, Khwahish, Ali v. Surju Prosad, 3 A. 598 and Gobardhandas Jedowji v. Harivalubhdas Bhaidas 21 B. 281, which is also supported by a recent decision of this Court in Gopal Chunder Bose v. Ganesh Chunder Srimani 4 C.L.J. 112 We are not prepared to adopt the view indicated in the judgment of Sir John Edge in Patesri v. Champa Lal 1891 A.W.N. 118, in which that learned Judge dissented from the decision of this Court in Rudra Prakash v. Bhola Nath 17 C. 944. We observe that reliance was placed by Sir John Edge upon the case of Birj Mohun v. Rudra Perkash, 17 C. 944, with reference to which it is sufficient to state that the language of Section 3 has been altered since that decision was given, and the words “every minor under the jurisdiction of any Court of Wards” have been replaced by the words “every minor of whose property the superintendence has been or shall be assumed by any Court of Wards.” The view, therefore, that the disability of the minor only continues so long as the Court of Wards retain the charge of his property, can no longer be maintained. We also observe with reference to the case of Patesri v. Champa Lal 1891 A.W.N. 118 that it was dissented from by the learned Judges of the Bombay High Court in Gobardhondas v. Harivalubhdas 21 B. 281. It is further worthy of note that as pointed out in Shivram Kondo v. Krishna Bai 31 B. 80, the earlier decision in Yeknath v. Warubai 13 B. 285, has been superseded by the decision of their Lordships of the Judicial Committee in Mungniram Marwari v. Gursahai Nand L.R. 16 I.A. 195; 17 C. 347. As regards the decision in the case of Nagar Das Vachraj v. Anandrao Bhai 31 B. 590, it is clearly distinguishable. It was ruled in that case that if an order made under the Guardians and Wards Act for the appointment of a Guardian is subsequently set aside, the period of minority is not extended to 21 years under Section 3 of the Indian Majority Act. This decision is based on the perfectly intelligible principle that if an order of Court which has been erroneously made or irregularly obtained, is subsequently revoked, the position is the same as if the order had never been made, or to use the words of Mr. Justice Wright in In re Newman (1899), 2 Q.B. 537; 68 L.J.Q.B. 961; 81L.T. 527; 48 W.R. 94; 6 Manson 381, the invalid order is rescinded ab initio and is treated as though never made, so that the party is restored to his original position. This principle has obviously no application to a case in which the guardian either dies, or is removed, or as in the case before us, voluntarily obtains his discharge. Upon a review then of the authorities, and upon an examination of the language of Section 3 of the Indian Majority Act, as amended by Section 52 of the Guardians and Wards Act of 1890, we feel no doubt that if a guardian has once been validly appointed or declared, the minority does not cease till the attainment of 21 years of age by the Ward, and it is immaterial whether the guardian dies, or is removed, or otherwise ceases to act. The first ground taken on behalf of the appellants cannot, therefore, be supported and must be overruled.

2.The second ground urged on behalf of the appellants is substantially to the effect that the case has not been properly tried on the merits, that the Courts below have proceeded on the assumption that the defendant is not liable for any articles which are not proved to be necessary to the support of life, and that the accounts show on the face of them that various articles of ordinary use were supplied, as also other articles required by a minor of the position in life of the defendant on the occasion of his marriage which took place in April or May 1903. We have carefully examined the judgment of the Subordinate Judge as also that of the District Judge, and are of opinion that the contention of the appellants is well-founded. The Subordinate Judge stated the question to be, whether the articles supplied could be treated as necessary expenses, and held that as most of the purchases were made at or about the time of the marriage of the defendant and as there was no reliable evidence to show that the things were required for the marriage, the plaintiffs were not entitled to recover. The District Judge proceeded on a somewhat different ground. He held that as many of the articles were supplied shortly after the marriage, they could not be treated as necessaries for the marriage, and further that as the arrangements for the marriage were in the hands of a person named Gajadhar with whom the plaintiffs had no dealings, they were not entitled to recover the price of the articles supplied. It is obvious that there has not been a proper trial of the question in controversy between the parties in either of the Courts below. As we have already stated, the alleged transactions extend over a period of nearly three years from January 1902 to October 1904, while the marriage of the defendant took place in April or May 1903. Apart from the question, therefore, whether the articles supplied immediately before or after the marriage could be regarded as necessaries, the question remains for consideration whether the other articles supplied during a period of fifteen months before the marriage and about eighteen months after that event, fall within the category of necessaries. It has been stated to us approximately that goods worth about Rs. 1,300 were supplied on the occasion of the marriage, and articles worth about Rs. 800 were supplied from time to time before and after the marriage. It is obvious that the matter has not been investigated with the fulness it deserved, and that neither of the Courts below has determined with reference to each article alleged to have been supplied, whether it was one in respect of which the plaintiffs were entitled to recover the value. It is manifest that in the interests of justice, the decision of the Courts below must be discharged and the case re-investigated. To enable the lower Court to do so, we shall lay down the principles upon which the enquiry ought to proceed.

3. Under Section 11 of the Indian Contract Act, every person is competent to contract who is of the age of majority according to the law to which he is subject. This section as interpreted by their Lordships of the Judicial Committee in Mohori Bibee v. Dharmedas L.R. 30 L.A. 114; 30 C. 539 provides that no person is competent to contract who is not of the age of majority according to the law to which he is subject; in other words, that a minor is not competent to contract and that, therefore, a minor’s agreement is void, Dattaram Govindbhai Guzar v. Vinayak Balkrishna Agashe 28 B. 181, Kamta Prasad v. Sheo Gopal Lal 26 A. 242. If, therefore, as previously indicated in Watkins v. Dhunnoo Babu 7 C, 160 a minor is a person incapable to contract within the meaning of Section 11, Section 68 of the Indian Contract Act becomes applicable to his case. Now Section 68 provides that if a person incapable of entering into a contract–we quote only so much of the section as is applicable to the case before us–is supplied by any person with necessaries, suitable to his condition in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such incapable person. There is no definition of the term “necessaries” in the Act. We may consequently turn to judicial decisions to determine its precise import. Now it was ruled by Baron Parke in Peter v. Flemming 6 M. & W. 42; 55 R.R. 495; 5 S.E.C. (O.S.) 33 that “from the earliest time down to the present the word ‘necessaries’ is not confined in its strict sense to such articles as were necessary to support life, but extended to articles fit to maintain the particular person in the state, degree and station in life in which he is; and, therefore, we must not take the word ‘necessaries’ in its unqualified sense but with the qualification as above pointed out.” This definition was adopted by the Exchequer Chamber in Ryder v. Wombwell L.R. 3 Exch. 20; 4 Kxch. 32, in which it was stated that the rule of law is clearly established that an infant is generally incapable of binding himself by a contract, that to this rule there is an exception introduced not for the benefit of the tradesman who may trust the infant, but for that of the infant himself, that this exception is that he may make a contract for necessaries; see also Walter v. Everand (1891) 2 Q.B. 369. To put the matter concisely, ‘necessaries’ means goods suitable to the condition in life of the defendant and to his actual requirements at the time of the sale and delivery; and whether an article supplied to an infant is necessary or not, depends upon its general character, and upon its suitability to the particular infant’s means and station in life. It must further be observed that as “necessaries” include everything necessary to maintain the infant in the state, station, or degree of life in which he is, what is necessary is a relative fact, to be determined with reference to the fortune and circumstances of the particular infant; articles, therefore, that to one person might be mere conveniences or matters of taste, may in the case of another be considered necessaries where the usages of society render them proper for a person in the rank of life in which the infant moves. The infant’s need of things may also sometimes depend upon the particular circumstances under which they are purchased and the use to which they are put. For instance, articles purchased by an infant for his wedding may be deemed necessary, while under ordinary circumstances, the same articles might not be so considered, see Jenner v. Walker 19 L.T.N.S. 398, in which it was ruled that wedding presents for the bride of the infant may be necessaries. To the same effect, are the decisions in Juggessur Sircar v. Nilambar Biswas 3 W.R. 217 and Makundi v. Sarabsukh 6 A. 417 a further question may also arise, namely, was the infant in actual need of the things purchased. Though an article may belong to a class of things that are unquestionably necessary, and though the particular article furnished may correspond in quality and price with the infant’s means, yet if it should turn out that the infant was already plentifully supplied with the thing purchased, it does not fall within the description of necessaries in that particular case. As observed by Lord Justice Lindley in Johnston v. Makroy 19 Q.B.D. 509, the true question is not a mere abstract one, whether the articles supplied were in their nature necessaries, put a practical question, whether they were necessaries for the defendant, that is necessary to him, and they could not be, if he already had plenty of them. An infant may, consequently, show that he was already fully supplied with similar goods, and it is immaterial whether the plaintiff knew it or not Burnes v. Joye 13 Q.B. D 410. It is thus incumbent upon one who sells goods to an infant to enquire into his circumstances so as to determine not only whether the thing sold is such an article as an infant of the station in life of the purchaser would require, but whether in the particular case, the purchaser had need of it, for if the infant did not require it, the seller cannot recover it. The reason for this rule is plain and was thus explained by Gebson, C.J., in Johnson v. Lymes 6 W. & Section 80; 40 Am, Dec. 542. “The rule of law is that no one may deal with a minor. The exception to it is that a stranger may supply him with necessaries proper for him, in default of supply by any one else; but the stranger’s interference with what is properly a guardian’s business must rest upon actual necessity, of which he must judge in a measure at his peril. When he assumes the business of a guardian for the purpose of present relief, he is bound to execute it as a prudent guardian would and consequently make himself acquainted with his necessities and circumstances. The credit which the infant’s necessities give him, ceases when these necessities cease, and as nothing farther is requisite when these are relieved, the exception to the rule is at an end.” We may further observe that the question as to what are necessaries, is a mixed question of fact and law. It has been ruled in England that it is a question for the Court to decide whether certain classes of expenditure are necessaries and what class or general description of articles are necessaries, and it is for the jury to determine whether the particular articles fall within any of those classes and whether they were actually necessary and suitable to the condition of the infant and were furnished under such circumstances as to authorise a recovery; the quantity, quality and value of what was furnished is of course a question for the jury; Peters v. Flemming 6 M. & W. 42; 55 R.R. 495; 5 S.E.C. (O.S.) 33, Maddox v. Miller 6 W. & Section 80; 40 Am, Dec. 542, Wharton v. Mackenzie 5 Q.B. 614; 64 R.R. 584. The person who seeks to recover for articles furnished to an infant on the ground that they were necessaries is bound to prove that the articles were in their nature necessaries suitable to the infant to whom they were supplied and were actually needed by the infant. But if there are special circumstances within the knowledge of the infant himself which make those articles not necessaries, he may prove them; for instance, that he was fully supplied with similar goods; Fordes v. Father Gill Peake 301; 3 R.R. 695. With reference to the observations made by the learned District Judge that as the arrangements for the marriage were in the charge of Gajadhur, the articles supplied could not be treated as necessaries, we may point out that the mere fact that an infant has a father, mother or guardian, does not prevent his being bound to pay for what was actually necessary for him when furnished, if neither his parents nor guardian did anything towards his care or support. The test to be applied is whether the articles supplied were needed for the use of the infant; Call v. Ward 4 W. & S.119.

4. The result, therefore, is that this appeal must be allowed, the judgment and decree of the District Judge set aside, and the case remitted to him for decision upon the question, whether the articles supplied were necessaries on the principles already explained. The accounts produced by the plaintiffs appellants must be carefully scrutinised and the case of each article or class of articles separately considered. If for the elucidation of any particular point, fresh evidence is found necessary, the District Judge will be at liberty to take evidence himself or to direct the Subordinate Judge to take it and to submit it to him for consideration. Costs of this appeal will abide the result.

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