Judgments The Chief Justice-This is an appeal from a judgment of a Full Bench of the Madras High Court1. The direct question raised for decision is about the power of a de facto guardian to alienate the property of a minor in consideration of a promissory note executed by such guardian in the name of the minor, under Hindu Law. The material facts are these. The respondent (plaintiff) is the adopted son of Chelamayya Chowdari who died on the 9th January, 1925, leaving him surviving two widows. The junior widow, Krishnamma, was empowered by the deceased to adopt a son to him and accordingly she adopted the respondent who was then about six years old. Krishnamma managed the estate of the minor after such adoption. On the 1st February, 1923, Chelamayya Chowdari had borrowed Rs. 3,000 from the appellant (defendant) who was his pleader. On the 23rd April, 1925, Krishnamma, then the de jure guardian of the minor, renewed this promissory note. By that time the debt with interest had amounted to Rs. 3,802. Othe same date she executed another promissory note in respect of a further sum of Rs.1,200 alleged to be due to the appellant for professional work done by him during the lifetime of Chelamayya. On the 23rd April, 1928, Krishnammi executed a consolidatory promissory note for Rs. 6,802-11-6 in renewal of the two previous notes. She died in November, 1928. Thereafter the respondent’s natural father China Seshayya entered upon the management of his estate. He was not appointed a guardian by any order of the Court and therefore had no legal title to manage thminor’s estate. On the 22nd June, 1931, China Seshayya professing to act as the guardian of the respondent purported to renew the promissory note in the name of the minor. The debt then amounted to Rs. 9,251-11-6. The promissory note was in these terms: “Promissory note, dated 22nd June, 1931, executed in favour of Kondamudi Gopala Rao’s son Sreeramulu, residing at Tenali by Myneni Chelamayya Chowdari’s adopted son Pundarikak-shayya, residing at Mynenivaripalem, hamlet of Dulipudi in Repalle taluk, being minor by natural father and guardian Mandava Ramaswami’s son China Seshayya, inhabitant of Sajjavaripalem now at Tenali. 9,251-11-6. The promissory note was in these terms: “Promissory note, dated 22nd June, 1931, executed in favour of Kondamudi Gopala Rao’s son Sreeramulu, residing at Tenali by Myneni Chelamayya Chowdari’s adopted son Pundarikak-shayya, residing at Mynenivaripalem, hamlet of Dulipudi in Repalle taluk, being minor by natural father and guardian Mandava Ramaswami’s son China Seshayya, inhabitant of Sajjavaripalem now at Tenali. The amount of principal and interest due up to 23rd April, 1931, under the promissory note executed on 23rd April, 1928, by Sri Krishnamma the minor’s adoptive mother, for herself and as guardian of the minor being Rs. 9,251-11-6 the interest that had accrued due on that sum from 23rd April, 1931, up to this day being Rs. 181-15-0 and the value of the stamps being As. 4 a total sum of Rs. 9,433-14-6 is due. On demand I shall pay you or your order this sum of nine thousand four hundred and thirty-three rupees, fourteen annas and six pies, with interest at Re. 1 per cent, per mensem. To this effect is the promissory note executed as of consent. (on four one-anna stamps). Myneni Pundarikakshayya, being minor- (Mark and left thumb impression of) Mandava China Seshayya, the natural father and guardian.” It was alleged that the note was renewed in June, 1931, as the period of limitation expired during the Court vacation when the payee had the right of instituting a suit on the re-opening of the Court and that the new promissory note was executed to avoid a suit being filed. On the 2nd June, 1932, China Seshayya conveyed the immoveable properties mentioned in the plaint to the defendant for Rs. 14,873. Only Rs. 75 were paid in cash and this represented the cost of the stamp on the conveyance and the registration charges. The rest of the consideration was supposed to be satisfied by the discharge of the promissory note of 22nd June, 1931, and by payment of Rs. 4,590-9-6 to another creditor. On the 9th December, 1937, the respondent attained majority and he instituted the suit on the 9th December, 1940. The rest of the consideration was supposed to be satisfied by the discharge of the promissory note of 22nd June, 1931, and by payment of Rs. 4,590-9-6 to another creditor. On the 9th December, 1937, the respondent attained majority and he instituted the suit on the 9th December, 1940. In order to enable the High Court to determine the points of law, it was accepted on behalf of the respondent that the promissory notes executed by the minor’s adoptive father were executed for full consideration, that the de facto guardian had administered the minor’s estate to the best of his ability and that in executing the promissory note of June, 1931, the de facto guardian did so in order to ward off a suit against the minor’s estate threatened by the creditor. The point directly to be decided in the appeal is whether a de facto guardian of a Hindu minor has power to pass a promissory note in the name of the minor so as to bind his estate and become consideration for a conveyance executed by the de facto guardian. It is conceded that except the promissory note or the debt covered by it there was no other consideration for the conveyance executed by the de facto guardian in June, 1932. The few Hindu Law texts which deal with the disposal of a minor’s property by some one else in case of necessity are collected in Colebrooke’s Digest, Vol. 1, page 302. As regards authoritative judicial decisions, the first was given in 1856 in Hunoomanprasaud Panday v. Mst. Babbooee1. As that decision is the foundation for all decisions of Indian High Courts, it is necessary to carefully notice the facts therein and the principles laid down by the Judicial Committee. Money was advanced to a Zemindar by the appellant’s father and as security for some of them the Raja had conveyed certain villages by way of usufructuary mortgage. After the death of the Raja, an adjustment of account was made by hison and heir and certain further bonds and mortgages were given. That son died, leaving him surviving as only infant son and a widow. The widow assumed the proprietorship of the estate of her late husband and the guardianship of the infant son. Her name was registered along with the minor in the Government records as owner. That son died, leaving him surviving as only infant son and a widow. The widow assumed the proprietorship of the estate of her late husband and the guardianship of the infant son. Her name was registered along with the minor in the Government records as owner. An adjustment of account took place between the infant’s mother and the banker. Certain family estates being in arrears of revenue and being in danger of sequestration, the banker paid to the local Collector revenue at the request of the infant’s mother. For this, three separate bonds were passed by the mother in favour of the banker. Further loans were taken and adjustmentwere made. On the final adjustment the minor’s mother gave a mortgage bond in favour of the banker and that transaction was the subject-matter of the suit which gave rise to the appeal. In that bond the mother was described as being possessed of the mortgaged property in proprietary right. When the minor (respondent) attained majority, he filed a suit in the Sudder Ameen’s Court to set aside the mortgage bond. In addition to the contention that the mother was purdanashin and, being ignorant, was imposed upon and deceived, the transaction was challenged on the ground that there was no valid authority in anyone to effect the transaction. The Sudder Ameen dismissed the suit, but on appeal the High Court reversed the decision, proceeding on the footing that the Ranee (mother) had conveyed the property as proprietor and as she had no title to convey the property, none passed to the banker. Although in the course of argument before the High Court it was contended, in the alternative, on behalf of the plaintiff that the Ranee was not competent under the Hindu Law to make such a bond, the High Court did not deal with this argument because according to the High Court the defendant had riot raised the plea that the transaction was effected by the Ranee acting as her son’s guardian. When the matter came before the Judicial Committee this point was specifically urged. Their Lordships held that the contention was covered by the second issue raised in the trial court and therefore it was open to the defendant to urge the alternative contention. When the matter came before the Judicial Committee this point was specifically urged. Their Lordships held that the contention was covered by the second issue raised in the trial court and therefore it was open to the defendant to urge the alternative contention. The Boarconsidered the validity of the transaction under headings 2 and 3 which were formulated in these terms: " Secondly, did it (High Court) take a right view of the relation in which the Ranee intended to stand to her son’s estate; and thirdly, did it consider the point whether the rights of these parties could wholly depend upon the question whether that relation was duly or unduly constituted?" They held that (he High Court had not taken the correct view as to the relation in which the Ranee meant to stand and substantially stood to the estate of her son and disposed of that contention as follows: "They consider that the acts of the Ranee cannot be reasonably viewed otherwise than as acts, done on behalf of another, whatever description she gave to herself, or others gave to her; that she must be viewed as a Manager, inaccurately or erroneously described as ‘proprietor’ or ‘heir’; and it is to be observed, that the Collector takes this view, for, whilst he remarks on the improper description of her as heir, or proprietor, he continues her name as ‘Surberakar’." Upon the third point they observed as follows: Under the Hindu Law the right of a bona fide incumbrancer who has taken from a de facto Manager a charge on lands created honestly for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a dejacto and dejure manager) affected by the want of union of the de facto with the dejum title. Therefore had the Ranee intruded into the estate wrongfully and even practised a deception upon the Court of wards .....it would not follow that those acts, however wrong, would defeat the claim of the incumbrancer. The objection to the Ranee’s assumption of proprietorship......does not really go to the root of the mattenor necessarily invalidate the charge." They noticed that in the plaint it was stated that the Ranee had assumed possession as guardian, i.e., as managing in that character. The objection to the Ranee’s assumption of proprietorship......does not really go to the root of the mattenor necessarily invalidate the charge." They noticed that in the plaint it was stated that the Ranee had assumed possession as guardian, i.e., as managing in that character. After first dealing with the actual factum of the deed of charge, they considered the question of consideration. They discussed the question of onus of proof and declined to lay down any general rule but observed that each case had to be considered on its own circumstances and merits. They expressed the opinion that the lender has to establish a prima facie case to show necessity or benefit to the estate. As the necessary materials to determine the question of necessity or benefit to the estate of the minor were not before the Board they remanded the case for further enquiry with the following observations: The power of the Manager for an infant heir to charge an estate not his own is under the Hindu Law a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded .... 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, witreference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate......It is obvious that money to be secured on any estate is likely to be obtained on easier terms than a loan which rests on mere personal security, and that, therefore, the mere creation of a charge securing a proper debt cannot be viewed as improvident management" In giving final directions for the remand they observed that the mortgage bond had been executed by the Ranee as and in the character of guardian of the infant. In respect of the actual liability to be ascertained, they observed as follows: "And their Lordships are of the opinion that the validity, force and effect of the bond as to all and each of the sums, of which the sum of Rs. 15,000 thereby purporting to be secured is composed, depend on the circumstances under which the sums or such of them as were advanced by the appellant, were respectively so advanced by him, regard being had also, in so far as may be just, to the circumstances under which the same were respectively borrowed. And their Lordships are also of the opinion that assuming the bond to be invalid and ineffectual, the appellant would nevertheless, be entitled to the benefit of any prior mortgage or mortgages paid off by him affecting the property comprised in thbond, if and in so far as such prior mortgage or mortgages was or were valid and effectual." It should be noticed that in this case although the mother was the natural guardian, the Judicial Committee decided the case not on that footing but oa the footing that there was a manager in fact of a minor’s estate. The observations therefore clearly cover the case of a de facto manager and are not confined to the position of a natural guardian only. These observations of the Privy Council, although made in respect of a mortgage, have been held applicable to cases of sales also. The principles enunciated in this case have been applied in the case of sales or mortgages by persons having a limited estate, like a Hindu widow or the manager of a joint Hindu family. The next case to be noticed in this connection is Waghela Rajsanji v. Shekk Masludin1. In that case the plaintiff was the creditor of the defendant’s father and the debt appeared to have been one for which the taluqdari family estate might be made liable. An account of the debt was made up in 1858 and instead of enforcing payment, the mother and guardian of the minor, who was then about eleven years old, conveyed a certain portion of the family land to the creditor. That transaction was challenged by the minor in 1868 on his attaining majority, but was held to be a bona fide one and within the range of her powers. That transaction was challenged by the minor in 1868 on his attaining majority, but was held to be a bona fide one and within the range of her powers. The question in:he Privy Council appeal arose because the family had claimed to hold th conveyed lands rent-free and the guardian conveyed them as rent-free, but the purchaser not being content with the assertion of the family (though it was in fact held as rent-free) took a covenant from the guardian to indemnify him in case the Government should enforce their claim to receive rent out of the estate. That covenant was framed so as to bind both the guardian and the infant, who was nominally by his guardian a party to the deed. There was no doubt that the covenant bound the guardian but the question of liability of the infant taluqdar on the covenant was raised. The lower courts had not applied their mind to this fact because they considered that the previous decision covered the matter. Obehalf of the respondent (plaintiff) in that case it was candidly admitted that in Indian law there was no rule which gave a guardian and manager greater power to bind an infant by a personal covenant than what existed in English law. The Board held that according to English law a guardian or manager had no such power and similarly in India also there existed no such authority in a guardian to give a covenant which would be binding on the minor or his estate. The third decision of the Privy Council is Mohoribibee v. Dhurmodas Ghose2. In that case it was held that a minor’s contract wanot voidable as it had been thought till then, but was void. The High Courts in India have considered the effect of these decisions in different cases. Numerous cases were cited at the Bar and they show that till the decision under appeal the view of the Madras High Court in respect of the power of a de facto guardian to pass a promissory note was not uniform. The Bombay High Court in Nagindas Goculdas v. Bhimrao Damu3, held that a de facto guardian had no power to pass a promissory note even for a necessary purpose so as to bind the minor or his estate. In this state of judicial decisions the liability of a Hindu minor’s estate may be considered under three heads. The Bombay High Court in Nagindas Goculdas v. Bhimrao Damu3, held that a de facto guardian had no power to pass a promissory note even for a necessary purpose so as to bind the minor or his estate. In this state of judicial decisions the liability of a Hindu minor’s estate may be considered under three heads. (1) Whether an alienation (mortgage or sale) of a minor’s immoveable property is permissible in case of necessity; (2) Whether there is liability for money borrowed for necessity and, if so, in what manner it could be so borrowed; and (3) Whether a negotiable instrument can be executed for or in the name of the minor so as to be enforceable against the minor’s estate. In my opinion, much of the apparent conflict of views will disappear if a de facto guardian is described as a de facto manager. In law there is nothing like a de facto guardian. There can only be a de facto manager, although the expression ‘de facto guardian’ has been used in text books and some judgments of courts. If that description is adopted (and I consider it to be the correct description of a person generally managing the estate of a minor without having any legal title to do so) the powers of a natural guardian are not brought into consideration in defining the position of such a manager. On first principles, it appears clear that a manager, who manages the estate of the minor because he finds inecessary to do so, although he has no legal title to handle the estate, must have his powers circumscribed by the limits of the necessity or benefit to the estate of the minor. The law has tried to find a solution out of two difficult situations. When a Hindu minor has no legal guardian, there will be no one who can handle and manage his estate in law, so that unless some one is deemed to have such authority the minor will not receive any income or return from his estates. The second point is that a person having no title cannot be permitted to intermeddle with the minor’s estate so as to cause a loss to the minor. Judicial decisions have tried to find a way out of these difficulties. It may be noted that these difficulsituations are not confined to Hindu minors only. The second point is that a person having no title cannot be permitted to intermeddle with the minor’s estate so as to cause a loss to the minor. Judicial decisions have tried to find a way out of these difficulties. It may be noted that these difficulsituations are not confined to Hindu minors only. Minors of all communities and everywhere have to face these difficulties. There appears to me no justification for treating the minors of different communities on different principles or to lay down different principles for the safety of the minor’s estate, unless the personal law of the minor justified such a distinction. Waghela Rajsanji v. Shekh Masludin1, was decided by the Judicial Committee on this line of reasoning. The principle of the minor’s estate being liable in case of necessity has been recognised by an Act in India in 1872 in section 68 of the Indian Contract Act which is applicable to all persons. Under that section it is provided that if necessaries were supplied to a minor his estate could be made liable for the same. The statement of law by the Privy Council in Hanoomanpersaud’s case2 has been followed in India for nearly a century and titles to properties have been created on that basis. Similarly loans taken for the necessity of a Hindu minor have been ordered by the Courts to be repaid out of the minor’s estate for several years past. It is unnecessary to have a discussion here on that question. Thathowever, will be no justification for extending the application of the principle of necessity to transactions which do not strictly conform to that test. I do not think that the Court can overlook the duty of safeguarding the miner’s estate against indiscriminate borrowings on the part of the guardian. As the minor cannot enter into a contract, I am reluctant to accept the argument that a de facto manager is the authorised agent of the minor and can therefore make his estate liable even in cases of necessity by making a contract in the name of the minor. That would be permitting a person without legal title to do something which the minor cannot himself do. Normally the creditor gives credit to the guardian, although he iaware that the loan is wanted for the minor’s estate. That would be permitting a person without legal title to do something which the minor cannot himself do. Normally the creditor gives credit to the guardian, although he iaware that the loan is wanted for the minor’s estate. He does not necessarily exclude the responsibility and liability of the guardian while he is conscious of his rights to recover the money for the minor’s estate. In my opinion it is therefore right to hold that when a loan is taken for the purpose of necessity or benefit of the minor’s estate by a de facto manager, he cannot effect a transaction so as to exclude his own liabiiiry. So far as the creditor is concerned, this involves no hardship because he can proceed against the de facto manager and make the minor’s estate liable on the principle subrogation. This does not hurt the honest de facto manager because he has got the neeessary facts and materials to show that the transaction was for the necessity of the minor or for the benefit of his estate. It does not adversely affect the minor’s interest because when a claim is made and the facts show that the transaction was for necessity or for the benefit of his estate and he has no claim against the de facto manager for maladministration, his estate should meet the obligation. Moreover, since 1856 appropriate Acts have been passed by the different Legislatures to enable the parties to obtain an order of the Court to safeguard the interest of the minor and protect the guardian also. In my opinionthsrefore, the law as it stands permits a de facto manager to borrow money for the necessity or the benefit of the minor’s estate, so as to make the minor’s estate liable for the loan when he can do so without making out a contract between the minor and the creditor In respect of borrowing money on the security of negotiable instruments, the same test should be applied but with greater strictness, because by giving a negotiable instrument in the name of a minor, a de facto manager is bringing into existence a contract between a minor and the creditor and which contract under the Negotiable Instruments Act creates rights and privileges in favour of third parties, e.g., presumption as to consideration, rights of holders in due course, etc. I do not see therefore how the test laid down in Hunoomanpersaud’s case1can authorise a de facto manager to make a negotiable instrument in the name of a minor. If a creditor chooses to accept a negotiable instrument made out in the name of the minor and on which the de facto manager is not liable, in my opinion, it is clearly void and unenforceable against the minor or his estate. If the lender files a suit on the debt (apart from the negotiable instrument) he will have to satisfy the conditions necessary to make the minor’s estate liable in respect of the transaction sought to be enforced by him, as mentioned above. This view’ reconciles the three principal decisions of the Judicial Committee on which the rights of the creditors ani liabilities of Hindu minors when the minor’s estate is dealt with by a de facto manager, are based. Applying those principles to the case before us, in my opinion, the Full Beneh decision of the Madras High Court under appeal is correct. The promissory note of June, 1931, is worded so as to exclude the de facto manager’s personal liability. It purports to be a note executed on behalf of the minor alone. It may be noticed that it is a distinct departure from the previous notes where the natural guardian had made herself personally liable on the notes also. In my opinion, the promissory note of June, 1931, is not binding on the minor in any way. The attempt of the applicant to rely on this note, not as a promissory note but as an acknowledgment of liability of the debt, mast fail on two grounds. Firstly, it is made by a person who is not authorised to give an acknowledgment under the Limitation Act. That right is limited to a natural guardian by section 21. Secondly this alleged acknowledgment was passed more than three years after the promissory note was passed by the natural guardian and although it may have been open to the creditor to file a suit on that previous note when the Court re-opened in June, that extension of time was only for the limited purpose of filing the suit and not for keeping the debt alive. The appellant contended that the promissory note of June, 1931, was passed by China Seshayya for legal necessity. The appellant contended that the promissory note of June, 1931, was passed by China Seshayya for legal necessity. The Full Bench of the Madras High Court decided the appeal on two admitted facts only, (1) That China Seshayya had managed the minor’s estate to the best of his ability, and (2) that in executing the note he did so in order to ward off a suit against the minor’s estate threatened by the creditor. The first statement only proves that the de facto manager had acted bona fide. That is no proof of necessity or benefit to the estate of the minor. The evidence led before the Subordinate Judge shows that the applicant was making preparations for filing a suit and had prepared a list of properties with a view to make an application for attachment before judgment. The evidence does not show that any notice of demand was served on the manager or any stamp papers were purchased or any plaint was drafted. Without adequate materials to establish that the manager was threatening to dispose of any property of the minor so as to defeat or delay the execution of any decree which may be passed in the intended suit against the minor’s estate (and for which there is not even a suggestion in the evidence on record), it is obvious that no Court would pass an order of attachment before judgment under Order XXXVIII, rule 5 of the Civil Procedure Code. The amount mentioned in the promissory note of 1928 included charges for the appellant’s work as a pleader, which do not appear to have been scrutinized by anyone. The appeal is decided against the appellant on the grounds mentioned above and it should not be deemed to be held that the above-mentioned two admitted facts before the High Court or the evidence led before the Subordinate Judge is considered sufficient to make out a case of necessity or proof of pressure on the estate so as to justify the revival of a debt. The result therefore is that when the conveyance of June 2, 1932, was executed in favour of the appellant there was no valid and enforceable debt owing to the appellant and the conveyance therefore cannot be supported as given for valid consideration or for necessity or for the benefit of the minor’s estate. The result therefore is that when the conveyance of June 2, 1932, was executed in favour of the appellant there was no valid and enforceable debt owing to the appellant and the conveyance therefore cannot be supported as given for valid consideration or for necessity or for the benefit of the minor’s estate. The sale therefore should be set aside, and the plaintiff restored to possession of the properties with mesne profits. The High Court has given relief in respect of the amount actually paid by the appellant and given the appellant a charge in respect of the same. The decree of the High Court is therefore confirmed and the appeal is dismissed with costs. Fazl Ali, J.-This appeal raises an important point of law, viz., whether a de facto guardian of a Hindu minor can in law execute a promissory note in the name of the minor in respect of money borrowed for a necessary purpose and thereby bind the minor’s estate. Once the law on this point is correctly determined, there will be no difficulty in applying it to the facts of this case, which will be stated later in so far as it is necessary to state them for the purpose of deciding this appeal. It may now be taken to be well-settled by a long course of decisions that a de facto guardian has, in case of necessity or benefit to the minor, power to charge, mortgage or sell the minor’s property. The earliest case which supports this view is the well-known case of Hanoomanpersaud Panday v. Mussumat Babbooee1, on which a large number of subsequent decisions are based. The question before the Privy Council in that case was whether the mortgage of a part of a minor’s estate by his mother (who was his natural guardian) was binding on him, but in view of certain contentions put forward on behalf of one of the parties suggesting that the status of the mother was no higher than that of a de facto manager, their Lordships observed: .... it is to be observed that under the Hindu law, the right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and dejure manager) affected by the want of union of the de facto with the de jure title."’ The view so expressed has been held in a number of subsequent decisions of the various High Courts to cover sales by a de facto guardian, on the ground that if the de facto guardian has the power to charge or mortgage the minor’s property, he must also have the power to sell it, in case of necessity or benefit to the minor. The rule enunciated by the Privy Council has also been extended in some cases to simple loans contracted by a natural or lawful guardian of a minor, whether under a simple bond or a promissory note. Some of these cases are: Krishna Chettiar v. Nagamani Ammal1, Ramakrishna v. Chidambara2, Duraisami Reddi v. Muthial Reddi3, Meenakshi Sundaram Chetty v. Ranga Ayyangar and another4 and Satyanarayana v. Mallayya5. In the last two cases, the guardian had executed simple bonds, but, in other cases, the liability of a minor on a promissory note was the subject of discussion. In all these cases, the test laid down in Hunooman Persaud Panday’s case6 formed the basis of the decision. These decisions however cannot be reconciled with certain other decisions in which the opposite view has been taken. In Maharana Shri Ranmalsinghji v. Vadilal Vakhatchand7, it was held that a minor cannot be bound personally by contracts entered into by a guardian which do not purport to charge his estate. This view was reaffirmed in Keshao v. Balaji8. In that case, a promissory note had been executed by the certificated guardian of a minor with the sanction of the Court, but it was held that it was not binding on the minor or his property. The same view was taken in Shankar v. Nathu9, in which case also a promissory note had been passed by a certificated guardian. In that case, a promissory note had been executed by the certificated guardian of a minor with the sanction of the Court, but it was held that it was not binding on the minor or his property. The same view was taken in Shankar v. Nathu9, in which case also a promissory note had been passed by a certificated guardian. These two cases were decided by a single Judge, but their decision was referred to with approval by a Division Bench of the Bombay High Court in Nagindas Gokuldas v. Bhimrao Damn10. There are thus two divergent series of cases, one favouring the view that it would be illogical to restrict the observations of the Privy Council in Hanoomanpersaud Panday’s case6 to mere mortgages and sales and not to extend it to simple loans contracted in case of necessity; and the other stressing the view expressed by the Privy Council in certain cases, in which it was held that no decree can be passed on the guardian’s covenant either against the estate of the minor or against his person. The two leading cases on the subject are:Waghela Rajsanji v. Shekh Masludin11 and Indur Chunder Singh v. Radhakishore Ghose12. In the first case, the mother of a minor as his guardian had conveyed a part of a talukdari estate in liquidation of certain debts due from the minor’s father. The property was described to be rent-free, but one of the covenants in the deed of conveyance was that in case the villages, which were the subject of the conveyance, should be assessed to Government revenue, the guardian and ward would be liable to pay to the purchaser the amount with costs. This liability was also charged upon every part of the talukdari estate. Upon these facts, it was held by the Privy Council that the covenant in question was not binding on the minor, inasmuch as a guardian could not contract in the name of the minor so as to impose on him a personal liability. In the course of their judgment, their Lordships observed as follows: “Now it was most candidly stated by Mr. Mayne, who argued the case on behalf of the respondent, that there is not in Indian law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English law. In the course of their judgment, their Lordships observed as follows: “Now it was most candidly stated by Mr. Mayne, who argued the case on behalf of the respondent, that there is not in Indian law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English law. In point of fact the matter must be decided by equity and good conscience, generally interpreted to mean the rules of English law if found applicable to Indian soceity and circumstances. Their Lordships are not aware of any law in which the guardian has such a power, nor do they see why it should be so in India. They conceive that it would be a very improper thing to allow the guardian to make covenants in the name of his ward, so as to impose a personal liability upon the ward, and they hold that in this case the guardian exceeded her powers so far as she purported to bind her ward, and that, so far as this suit is founded on the personal liability of the talukdar, it must fail.” In the second case, the facts were these:Upon the death of one Gopi Mohun Ghose, an ijaradar, his mother and widow, as managers under his will, remained in possession of the land leased. Subsequently a son was adopted to him by the widow and succeeded to his estate. The lease having expired, a renewal for five years was taken by the managers, but was surrendered before that period elapsed during the minority of the son, against whom on his attaining full age, a suit was brought by the lessor to recover three years’ rent of the renewed ijara. In these circumstances, the Privy Council held that the contract of the adoptive mother and guardian was not personally binding upon the adopted son, and the suit was accordingly dismissed. The relevant observations in that case were these: “The contention that the mother and widow of Gopi Mohun Ghose had power to bind the minor by contract was abandoned in the Court below and their Lordships are of opinion that such a contention could not be sustained.” Later, their Lordships distinguished the case of Hunoomanpersaud Panday1and, in doing so, made certain observations to which I shall revert later. These decisions can be explained with reference to their own facts, but the observations which I have quoted being of a somewhat general nature had to be considered in a number of cases. In some of the cases, it was suggested that the rule enunciated by the Privy Council was subject to certain exceptions based on Hindu law, and in Trevelyan’s “Law Relating to Minors”, the law on the subject was stated to be as follows: “Although a guardian may in certain circumstances sell or charge his ward’s property, he cannot bind his ward personally by a simple contract debt, by a covenant or by any promise to pay money or damages unless such promise be made merely to pay or keep alive a debt for which the ward’s property was liable.” The rule stated in the above passage was further extended in Ramajogayya v. Jagannadhan2. In that case, the following question was referred to a Full Bench: “Whether any decree and, if so, what decree can be passed against a minor or bis estate on a covenant entered into on his behalf by a guardian for his benefit, under which covenant no charge is made on the estate.” According to Wallis, C.J., who was one of the members of the Full Bench, the proper answer to the question was that a decree cannot be passed against a minor or his estate on a covenant entered into on his behalf by a guardian for his benefit. The other two learned Judges took a different view and held that the above statement should be qualified by adding the words: “except in cases in which the minor’s estate would have been liable for the obligation incurred by the guardian under the personal law to which he is subject.” The principle laid down in this Full Bench case was subsequently applied by another Full Bench of the Madras High Court to a case in which the mother of certain minor members of a Hindu joint family had executed a promissory note in renewal of an earlier promissory note by her which again was in renewal of a promissory note executed by the father of the minors. The Full Bench held that it was within the competence of a guardian by executing promissory notes to make a minor liable to the extent of the joint family property in his hands. The Full Bench held that it was within the competence of a guardian by executing promissory notes to make a minor liable to the extent of the joint family property in his hands. (See Satyanarayana v. Mallayya3) . So far as the de facto guardian of a Hindu minor is concerned, no direct cases were cited before us to show that he can bind the minor’s estate by executing a promissory note in respect of money borrowed for a necessary purpose. On the other hand, the reported cases that were cited lay down that he has no such power. In Nagindas Gokuldas v. Bhimrao Damu4, it has been held that although a de facto guardian of a minor can validly sell the minor’s property to a third person for legal necessity, the courts would not be justified in extending the rule so as to cover the case of a promissory note passed by a de facto guardian, even though it may be for an antecedent debt of the minor’s father. A similar view was expressed in Swaminatha Odayar v. Natesa Iyer5, in which Reilly, J., supported his decision by using the following argument: "An essential feature of a promissory note is that the promise to pay is unconditional. And a negotiable instrument is intended to. be one which can pass from hand to hand, bearing its meaning on its face, as itself the basis and evidence of a money claim. Any qualification of the promise in a promissory note, such as that it is only to be enforced against a minor if necessity binding on the minor can be shown, is wholly foreign to the idea of a negotiable instrument." This decision was followed in Saminatha Ayyar v. Subbiah Pillai1, but in Satyannrayana v. Mallayya2, although the reasons upon which Reilly, J., had based his decision were not approved, yet the correctness of the decision itself was not questioned. On the other hand, it was explained that the decision of the case before him rested on the fact that the promissory note was not executed by a lawful guardian at all. As I have already stated, the person who had executed" the promissory note in that case was a de facto guardian. On the other hand, it was explained that the decision of the case before him rested on the fact that the promissory note was not executed by a lawful guardian at all. As I have already stated, the person who had executed" the promissory note in that case was a de facto guardian. In the present case, a Full Bench of the Madras High Court has affirmed the view expressed in Swaminatha Odayar v. Natesa Iyer3, as will appear from the following observations in the judgment under appeal: " We are of the opinion that the cases in which it has been held that a de facto guardian cannot-bind the minor’s estate by a promissory note executed by him in the minor’s name have been rightly decided. He could only bind the minor by such an instrument if the personal law of the minor allowed him to do so. The ancient texts do not, of course, contemplate such a situation and it is not suggested that authority had been conferred by custom. It is one thing for a de facto guardian to borrow money for a necessary purpose and quite another thing to sign a negotiable instrument on the minor’s behalf. There is nothing in the judgment in the Hanoomanpersaud’s case1, or in any later case to support such a proposition. On the other hand, as we have shown, there are decisions directly to the contrary. A power to borrow does not in itself imply a power to execute a negotiable instrument in respect of the debt." It seems to me that the question which we have to decide in this case is really bound up with the larger question, viz., whether the guardian of a minor can bind the minor’s estate by a simple contract of loan entered into on his behalf in case of necessity. The cases to which I have referred clearly show that the law on the subject is in a state of great confusion. This confusion is, in my opinion due to an over-emphasis of the principles laid down in Hanoomanpersaud Panday’s case4, and the failure to apply the distinction pointed out by the Privy Council in Indur Chunder Singh v. Radhakishore Chose5, between the power of the manager of an infant’s estate to mortgage the minor’s property and his power to bind him by contract. In that case, after referring to the decision in Hanoomanpersaud Panday’s case4, the Privy Council observed as follows: " But in the present case the mother and widow of Gopi Mohun Ghose were not dealing with, and did not purport to deal with or affect his estate, but were incurring new obligations which it is now sought to transfer from them to the estate. It may be that, as between them and the infant, they might be able, in seme circumstances, to show that the estate ought to bear the burden they had taken upon themselves, but that is not the question raised in this case, in which the plaintiffs seek to establish a direct relation between themselves and the estate of the infant, and a liability on the part of the infant now that he is of age, and of his estate, to fulfil the obligations entered into by the lessees in their own name." The principles deducible from this statement which is to be read with an earlier statement where the Privy Council negative the contention that the mother and widow of Gopi Mohun Ghose had power to bind the minor by contract, seem to me to be these: (1) The manager of an infant’s estate can deal with the minor’s estate by way of mortgage, in case of need or for the benefit of the estate. (2) He cannot bind the minor by contract or under obligations and then transfer them to the minor’s estate so as to enable the creditor to establish a direct relation between himself and the estate. (3) In certain cases (which must presumably be cases of necessity or benefit to the minor), he might be able to show that the estate ought to bear the burden which he had taken upon himself. These propositions seem to be in consonance with the principles of Hindu law as well as general principles. A person who has to manage a minor’s estate must have the power in case of necessity or benefit to the minor, to deal with it in the manner best suited to the occasion in the interest of the minor. These propositions seem to be in consonance with the principles of Hindu law as well as general principles. A person who has to manage a minor’s estate must have the power in case of necessity or benefit to the minor, to deal with it in the manner best suited to the occasion in the interest of the minor. Such a power may extend to charging or alienating the properties of the minor in cases where no other course is open, and must vest in the manager by virtue of his position in order to enable him to manage the estate in a way beneficial to the minor. But it does not necessarily follow that he can make contracts on behalf of the minor so as to involve the minor and his estate in obligations or liabilites, and inasmuch as every contract of loan, if it is to bind the minor, must saddle him with liabilities, a power to enter into such a contract does not necessarily go with the power to deal with the estate. There may however be cases in which the minor’s needs have to to be met and in such cases, the third principle enunciated by the Privy Council can come into play, that is to say, the manager or guardian can show that the estate ought to bear the burden which he had taken upon himself. In such cases, by the principle of subrogation the creditor might be allowed to stand in the shoes of the guardian and invoke the latter’s right to re-imbursement out of the minor’s estate. That right must usually be subject to the state of accounts between the guardian and his ward. It has been held in a series of cases that an executor or a trustee cannot by borrowing money from a person make him creditor of the estate in his hands, even though the money was applied for the purposes of the estate. In Farhall v. Farhall1, Mellish, L.J., took it to be settled law that upon a contract of borrowing made by an executor after the death of the testator, the executor is only liable personally and cannot be sued as executor so as to get execution against the assets of the testator. In Farhall v. Farhall1, Mellish, L.J., took it to be settled law that upon a contract of borrowing made by an executor after the death of the testator, the executor is only liable personally and cannot be sued as executor so as to get execution against the assets of the testator. The principle enunciated in this case has been applied to the case of an executor or a trustee in a number of cases in this country also. [See Shailendranath Palit v. Hade Kaza Mane2, where some of these cases are collected]. The general rule however is subject to certain exceptions and, in a proper case, the executor or trustee may be entitled to be indemnified out of the estate in his charge. It is true that the case of a guardian stands on a somewhat different footing from the case of an executor or a trustee, but it will be more in consonance with general principles to bring his case under the rule enunciated above than to invent a special rule for him which is not supported by Hindu law or by any unimpeachable anthority. It it said that in Hanoomanpersaud Panday’s case3, the guardian had contracted loans by executing simple bonds, and yet the Privy Council nowhere suggested that those loans could not have been contracted by a guardian. But it is overlooked that the circumstances under which the bonds were executed are not fully set forth in the judgment of the Privy Council, and there is nothing there to show that the guardian did not make herself personally liable under the bonds. It is to be remembered that in that case, the mother of the minor claimed proprietary rights in the estate. It is also said that in the interests of the minor, the guardian should have ample powers to borrow on his behalf. It seems to’ me however that the interests of the minor would on the whole be better served by restricting the powers of the guardian than by unduly widening them. It is also said that in the interests of the minor, the guardian should have ample powers to borrow on his behalf. It seems to’ me however that the interests of the minor would on the whole be better served by restricting the powers of the guardian than by unduly widening them. The question as to whether the necessity for the loan exists or not is sometimes a very difficult and complicated question, and it appears to me to be dangerous to lay down in the case of simple loans, as has been laid down in some cases following the rule in Hanoomanpersaud Panday’s case3, that the minor’s estate is liable even though the money raised on loan was not applied to actual necessity, if the creditor had made bona fide enquiry about the necessity. In my opinion, the undue extension of the principle laid down in Hanoomanpersaud Panday’s case3 merely complicates rather than simplifies the law. As to the specific question raised in this case, it seems to me that the view expressed in the judgment under appeal is correct. According to section 4 of the Negotiable Instruments Act, a promissory note must contain an unconditional undertaking to pay a certain sum. Section 32 of that Act provides that, in the absence of a contract to the contrary, the maker of a promissory note is bound to pay the amount to the holder on demand. Section 117 provides for compensation to be paid in case of dishonour of a promissory note, and clause (e) of that section provides as follows: “The party entitled to compensation may draw a bill upon the party liable to compensate him payable at sight or on demand for the amount due to him, together with all expenses properly incurred by him. Such bill must be accompanied by the instrument dishonoured and the protest thereof (if any). If such bill is dishonoured the party dishonouring the same is liable to make compensation thereof in the same manner as in the case of the original bill.” Section 118 states what matters are to be presumed about a negotiable instrument and, according to it, one of the presumptions to be drawn is that every negotiable instrument was made or drawn for consideration. It seems to me that no guardian, much less a de facto guardian, who has assumed without authority the power to act as guardian can be allowed to involve the minor’s estate in liabilities which may follow by a strict application of the somewhat stringent provisions of the Negotiable Instruments Act. To give an undertaking on behalf of the minor that a certain sum will be paid on demand and that, in default of such payment, compensation will be payable is a somewhat onerous transaction, and, in my opinion, any contract which exposes the minor and his estate to the risks involved in such a transaction cannot be countenanced in law. The matter may also be looked at from another point of view. It has been pointed out in Swaminatha Odayar v. Natesa Iyer1, that any qualification of the promise in a promissory note, such as that it is only to be enforced against a minor if necessity binding on the minor can be shown, is wholly foreign to the idea of a negotiable instrument. A promissory note executed by a guardian on behalf of a minor is not a document containing an unconditional undertaking to pay a certain sum, because the undertaking is subject to two conditions. Firstly, that the note is to be enforced against the minor, if necessity is proved, and secondly that the amount is not payable except out of the estate of the minor, the creditor being thus unable to proceed personally against the guardian or the minor. It is clear that the negotiable quality of a mercantile instrument such as a promissory note will be greatly affected by reading these conditions into it; and also if any enquiry is permitted into the sufficiency of consideration, there is really no undertaking to pay a certain sum. It seems therefore to be doubtful whether such a document can be enforced as a promissory note. The questions remain as to whether it can be enforced as a simple bond or whether it can be used as evidence of a loan. These questions however appear to me to be merely academic, if the guardian cannot bind the minor’s estate by contracting simple loans. Now let us see what are the facts of this case. The questions remain as to whether it can be enforced as a simple bond or whether it can be used as evidence of a loan. These questions however appear to me to be merely academic, if the guardian cannot bind the minor’s estate by contracting simple loans. Now let us see what are the facts of this case. On the 2nd June, 1932, China Seshayya, the father of the respondent, who acted as a de facto guardian during his minority, after the death of his adoptive father and mother conveyed some of his lands to the appellant for a sum of Rs. 14,873. The consideration for this conveyance was made up of (1) a sum of Rs. 10,207-6-6 which was due to the appellant under a promissory note executed by China Seshayya in favour of the appellant on the 22nd June, 1931, (2) a sum of Rs. 4,590-9-6 which represented part of the amount due on another promissory note which China Seshayya had executed in the name of Gutta Punnayya on the 11th November, 1931 and (3) a sum of Rs. 75, which was spent on purchasing stamp for the conveyance and on registration. We are not concerned in this appeal with Gutta Punnayya’s dues, as the decree of the High Court, which has not been challenged by the respondent, has granted an equitable relief to the appellant in respect of the sum paid to Gutta Punnayya. We are only concerned with the dues under the promissory note of 22nd June, 1931. It appears that the father of the respondent owed some money to the appellant. For this, he had executed a promissory note in his favour on the 1st February, 1923. On the 23rd April, 1925, the respondent’s adoptive mother, Sri Krishnamma, renewed the above promissory note and also executed another promissory note in favour of the appellant for a sum of Rs. 1,200, which upon the findings in this case may be taken to have also been due by the respondent’s adoptive father. Subsequently, on the 23rd April, 1928, the respondent’s mother executed a promissory note in favour of the appellant for Rs. 6,802 and odd in renewal of the two promissory notes of the 23rd April, 1925. On the 22nd June, 1931, China Seshayya purported to renew that promissory note. Subsequently, on the 23rd April, 1928, the respondent’s mother executed a promissory note in favour of the appellant for Rs. 6,802 and odd in renewal of the two promissory notes of the 23rd April, 1925. On the 22nd June, 1931, China Seshayya purported to renew that promissory note. This pro-note was execut ed more than three years after the date on which the respondent’s mother had signed the last pro-note. It is however, common ground that the period of limitation expired during the Court-vacation, and the creditor had the right to institute a suit on the re-opening of the Court; and it has been found that the new pro-note was executed on the 22nd June in order to avoid the suit being filed. The pro-note which was executed by China Seshayya on the 22nd June, 1931, has been reproduced by my Lord the Chief Justice in his judgment. It is a peculiar document and is very different from the pro-notes which China Seshayya had executed in favour of the other creditor, Gutta Punnayya, and those whieh Sri Krishnamma had executed in favour of the appellant and Gutta Punnayya. In the promissory notes which were executed by Sri Krishnamma she made herself as well as the minor jointly liable. The promissory note of the 12th November, 1928, was executed by China Seshayya himself in favour of Gutta Punnayya, though he describes himself as a guardian in that note. On the other hand, the pro-note with which we are concerned purports to be a pro-note by the respondent, who is described as minor, but it bears the left thumb impression of China Seshayya who is described as his natural father and guardian. It was conceded before us that in the material part of the pro-note which says “On demand, I shall pay you or your order,” the reference is to the minor, and the liability for payment is stated to be his. It is well settled that a contract by a minor is void, and it was expressly held in Ma Hnit v. Hashim Ebraham Meter1 that a promissory note executed by a minor is also void. There can be no doubt that neither the respondent nor China Seshayya can be made liable on the pro-note of the 22nd June, 1931. It is well settled that a contract by a minor is void, and it was expressly held in Ma Hnit v. Hashim Ebraham Meter1 that a promissory note executed by a minor is also void. There can be no doubt that neither the respondent nor China Seshayya can be made liable on the pro-note of the 22nd June, 1931. This pro-note also cannot be treated as an acknowledgment in law, because China Seshayya, not being a lawful guardian, could not make a valid acknowledgment so as to extend the period of limitation under section 21 of the Indian Limitation Act. It follows that there was no valid debt due to the appellant, to justify the alienation on the 2nd June, 1931. It has been contended before us that as the pro-note of 22nd June, 1932, purports to discharge the dues under the prior pro-note, the minor was benefited by reason of the execution of the pro-note, and therefore he could be made liable. I cannot appreciate this argument. If the dues had become barred by limitation, the guardian could not have alienated properties to pay such a debt, even though initially the money had been borrowed to meet the necessities of the minor. Therefore, unless there was a valid and enforceable debt, the alienation could not be supported. In this view, the decree of the High Court must stand, and I agree with My Lord the Chief Justice that this appeal should be dismissed with costs. Mukherjea, J.-This appeal is directed against a judgment of a Full Bench of the Madras High Court2, dated August 21, 1945, and it involves questions of some importance relating to the rights of a de facto guardian, under Hindu law in the matter of alienating properties of the infant and creating contractual liabilities enforceable against the minor’s estate. The facts which are material for our present purpose may be shortly stated as follows: The plaintiff in the suit, out of which this appeal arises, is the adopted son of one Chelamayya Chowdari who died in January, 1925, without any issue and leaving him surviving, his two widows Rattamma and Krishnamma, of whom the junior widow Krishnamma was authorised by the last will of the deceased to take a son in adoption to him. The plaintiff, who is the natural born son of one China Seshayya, was born in the year 1919 and he was adopted as a son by Krishnamma soon after the death of Chelamayya. The estate of Chelamayya which vested in the minor plaintiff after his adoption, was looked after by his adoptive mother Krishnamma so long as she was alive and after her death, which took place in November, 1928, China Seshayya, tbe natural father of the plaintiff, took charge of the infant and his estate and began to manage the properties as a de facto guardian without obtaining any certificate of guardianship in respect of the same. The defendant, who is the appellant before us, is a Pleader practising at Tenali in the District of Guntur and admittedly he acted as the legal adviser of Chelamayya and conducted several litigations on his behelf during his lifetime. On 1st February 1923, Chelamayya executed a promissory note in favour of the defendant for a sum of Rs.3,000 only. After the death of Chelamayya, his widow Krishnamma for herself and as the natural guardian of her adopted son executed two promissory notes in favour of the defendant on 23rd April, 1925, one of which was for a sum of Rs. 3,802, being the principal and interest due on the earlier promissory note executed by Chelamayya on 1st February, 1923, and the other for a sum of Rs. 1,200 which was alleged to be due to the defendant as his fees for legal work done by him during Chelamayya’s lifetime. No payment, it seems, was made by Krishnamma towards either of these notes and on 23rd April, 1928, she executed a fresh promissory note for a sum of Rs. 6,802 in favour of the defendant both on behalf of herself as well as her infant son and by this promissory note the principal and interest due on the earlier notes were consolidated. Krishnamma died, as stated above, in November, 1928 and on 22nd June, 1931, there was a renewed promissory note purporting to be executed by the plaintiff through his natural father and guardian China Seshayya promising to pay the sum of Rs. 9,251-11-6 which was the principal and interest due on the note of April, 1928. Krishnamma died, as stated above, in November, 1928 and on 22nd June, 1931, there was a renewed promissory note purporting to be executed by the plaintiff through his natural father and guardian China Seshayya promising to pay the sum of Rs. 9,251-11-6 which was the principal and interest due on the note of April, 1928. The promissory-note is worded as follows: “Promissory note, dated 22nd June, 1931, executed in favour of Kondamudi Gopala Rao’s son Sriramulu, residing at Tenali by Myneni Chelamayya Chowdari’s adopted son Pundarikakshayya residing at Mynenivaripalem, hamlet of Dulipudi in Repalle taluk, being minor by natural father and guardian Mandaya Ramaswami’s son China Seshayya, inhabitant of Sajjavaripalem now a Tenali. The amount of principal and interest due up to 23rd April, 1931, under the promissory note executed on 23rd April, 1928, by Sri Krishnamma, the minor’s adoptive mother, for herself and as guardian of the minor being Rs. 9,251-11-6, the interest that had accrued due on that sum from 23rd April, 1931, up to this day being Rs. 181-15-0 and the value of the stamps being As. 4 a total sum of Rs. 9,433-14-6 is due. On demand, I shall pay you or your order, this sum of nine thousand four hundred and thirty-three rupees, fourteen annas and six pies with interest at Re. 1 per cent, per mensem. To this effect is the promissory note executed as of consent. (On four one-annas stamps)-, Myneni Pundarikakshayya being minor- (Mark and left thumb-impression of) Mandava China Seshayya the natural father and guardian.” Thus the promisor was Pundarikakshayya himself and being a minor the mark and left thumb impression of the natural father was given. On June 2, 1932, China Seshayya, as de facto guardian of the plaintiff, executed a sale deed in favour of the defendant, by which he transferred about 20 acres of land belonging to the plaintiff for (a consideration of Rs 14,873. Out of this a sum of Rs. 75 only was paid in cash for meeting the vendor’s share of the expenses of stamp papers. As regards the balance, the sum of Rs. Out of this a sum of Rs. 75 only was paid in cash for meeting the vendor’s share of the expenses of stamp papers. As regards the balance, the sum of Rs. 10207 annas odds was taken by the purchaser in satisfaction of his dues under the promissory note, dated 22nd June, 1931, mentioned above, and the remainder amounting to Rs.4,590-9-6 the vendee undertook to pay to one G. Punnayya in part satisfaction of the debt due to him on the basis of a renewed promissory note executed in his favour by the plaintiff’s natural father on November 11,1931. The plaintiff attained majority in 1937 and in December, 1940, he commenced the present suit against the defendant for recovery of possession, with mesne profits, of the properties conveyed to the latter by his natural father by the deed of sale executed on 2nd June, 1932. The allegations in the .plaint in substance were, that China Seshayya, the natural father of the plaintiff, was a mere intermeddler with his estate and had no legal authority to act as guardian after the plaintiff was given away in adoption to another family, that he was not competent to execute or renew any promissory note or to convey properties belonging to the plaintiff when he was a minor and that the transfer in question being made without any legal necessity or benefit to the minor and not being supported by any consideration was not binding on him. The suit was contested by the defendant wno contended inter alia, that the sale in his favour was for valuable consideration and was effected by the natural father of the plaintiff as his de facto guardian for legal necessity and was consequently binding on the plaintiff. It was further averred that the plaintiff after attaining majority ratified the transaction and was therefore, estopped from challenging its validity. The case was heard by the Subordinate Judge of Bapatla and by his judgment, dated 27th September, 1943, the learned Subordinate Judge dismissed the suit. It was held that the sale was supported by consideration and was binding on the plaintiff, though there was no ratification by the latter which would stop him from questioning its validity. The claim for mesne profits at the rate of Rs. It was held that the sale was supported by consideration and was binding on the plaintiff, though there was no ratification by the latter which would stop him from questioning its validity. The claim for mesne profits at the rate of Rs. 1,000 a year was not considered by the Subordinate Judge to be excessive but as the suit was dismissed in its entirety, the question of mesne profits was not at all material. Against this decision, an appeal was taken by the plaintiff to the High Court of Madras. The appeal came up for hearing in the first instance before Leach, C.J., and Rajamannar, J., but as in the opinion of the learned Judges the case involved an important question of Hindu law, namely whether a de facto guardian can make the minor liable on a promissory note executed by him in the minor’s name, the appeal was referred for decision to a Full Bench. In the order of reference it was stated by the referring Judges that the plaintiff’s Advocate accepted the position that the promissory notes executed by the plaintiff’s father were executed for full consideration, that the de facto guardian administered the minor’s estate to the best of his ability and that the promissory note executed on 22nd June, 1931, was for the purpose of warding off a suit against the minor’s estate which was threatened by the defendant. The appeal was eventually heard by a Full Bench consisting of Leach, C.J., Lakshmana Rao and Rajamannar, JJ., and by the judgment, dated 21st August, 19451, the learned Judges allowed the appeal and reversed the judgment of the trial Court. It was held that the natural father of the plaintiff, who was not his guardian de jure had no authority, in law, to execute promissory notes on behalf of the minor and, therefore, there was no consideration for the conveyance that was made in favour of the defendant. It was also held that the de facto guardian of the plaintiff could not extend the period of limitation in respect of debts contracted by his adoptive father and consequently these debts were unenforceable and not subsisting at the date of the conveyance. It was also held that the de facto guardian of the plaintiff could not extend the period of limitation in respect of debts contracted by his adoptive father and consequently these debts were unenforceable and not subsisting at the date of the conveyance. The High Court agreed with the Trial Judge that there was no ratification of the sale by the plaintiff after he attained majority and it held further that the defendant was entitled to a charge on the properties, covered by the conveyance, for a sum of Rs. 4,590, annas odds which he actually paid to G.Punnayya in part satisfaction of the debt due to the latter, under the terms of the sale deed, together with interest at 6 per cent, per annum from the date of payment. The result was that the plaintiff was given a decree for possession with mesne profits, of the properties in suit, subject to the charge mentioned above. Against this judgment the defendant obtained leave to appeal to the Judicial Committee of the Privy Council, but before the records were transmitted to England, Act No. 1 of 1948, was passed which enlarged the jurisdiction of this Court and in accordance with the provisions of that Act, the petition of appeal was lodged in this Court. The appeal has been argued before us with considerable ability and thoroughness by the learned Advocates on both sides and we are indebted to them for the assistance we received in arriving at our decision on the somewhat difficult points that are involved in this case. The whole controversy in this case centres round the point as to whether the conveyance which was executed by China Seshayya, the de facto guardian of the plaintiff, in favour of the defendant in satisfaction of the debts due on certain promissory notes executed in the name of the minor by the de facto guardian himself could be held to be binding on the minor. The arguments advanced by Mr. The arguments advanced by Mr. Raghava Rao, who appeared in support of the appeal, may be briefly summed up as follows: His contention is that under Hindu law the position of a de facto guardian does not differ from that of a guardian de jure and under the law laid down by the Judicial Committee in Hanooman Persaud Panday v. Mussamat Babbooee1, a guardian either de jure or de facto is competent, in course of management, to charge or alienate any portion of the minor’s properties for purposes of legal necessity or benefit to the estate. On the same principle, it is said, the de facto guardian can, in the interest of the minor, and to meet legal necessity, incur simple contract debts without charging any property and such debts would be binding on the minor’s estate. It is immaterial-the learned Advocate contends-whether such debt is evidenced by an ordinary money bond or by promissory note which is negotiable in law. In either case, the liability of the minor does not arise on the instrument itself but on the debt which is evidenced by it and if the debt was for legal necessity or benefit of the minor, the creditor can recover his dues from the estate of the minor. This being the position in law, it is argued, that the promissory note executed in the name of the plaintiff by the ‘de facto guardian in favour of the defendant on 22 nd June, 1931, which was the consideration of the sale created a valid debt binding on the minor’s estate, firstly because, it was given to the defendant to stave off a litigation which was threatened by the latter and which would have seriously jeopardised the interest of the minor, and secondly because it was binding on the minor being given in renewal of earlier promissory notes, the original debt being contracted by the plaintiff’s adoptive father during his lifetime. A large number of decided authorities were canvassed before us on both sides which are neither very clear nor uniform. Admittedly, there is no Statute law in India which would help us in such matters. The questions, therefore, would have to be answered with reference to the personal Jaw of the Hindus supplemented by rules of equity, justice and good conscience on matters where the Hindu law is altogether silent. Admittedly, there is no Statute law in India which would help us in such matters. The questions, therefore, would have to be answered with reference to the personal Jaw of the Hindus supplemented by rules of equity, justice and good conscience on matters where the Hindu law is altogether silent. The extent of authority of a guardian either de jure or de facto over the property of the minor has not been a specific subject of discussion by any of the Hindu Smriti writers. It is clear, however, that the ancient Hindu law did recognise the rights of a de facto manager of the family and even of an individual member who was not in the position of a ‘Karta’ to alienate family property or to contract debts in times of distress or to meet family necessities or to discharge some pious obligation. The idea apparently is that the necessity itself creates authority in the person who otherwise would have no authority to alienate a property belonging to the family or to contract debts on its behalf. Colebrooke in his Digest2 quotes a text of Narada which says “whatever debt has been contracted for the use of the family by a pupil, an apprentice, a slave a wife or an agent must be paid by the head of the family”. Another text which is ascribed to Catyayana runs thus: “Whatever has been borrowed for the benefit of the family or during distress or in consequence of foreign invasion; or for the nuptials of his daughter or for funeral rites all such debts contracted by one of the family must be discharged by the chief of the family.” These are really cases of what are known as implied agency in law. A more pointed reference to the case of minors occurs in Mitakshara. Immoveable property, according to Mitakshara, cannot be alienated even by the father without the consent of the sons. A more pointed reference to the case of minors occurs in Mitakshara. Immoveable property, according to Mitakshara, cannot be alienated even by the father without the consent of the sons. This is the general rule; but to this rule an exception is mentioned which is formulated in the following text which is ascribed to Vyasa: “Even a single individual may conclude a donation, mortgage or sale of immoveable property during a season of distress or for the sake of the family and especially for pious purposes.” Vignaneshwar’s comment upon this text is as follows: “While the son and grandsons are minors incapable of giving their consent to a gift and the like; or while brothers are so and continue unseparated, even one person, who is capable, may conclude a gift, hypothecation or sale of immoveable property, if a calamity affecting the whole family requires it, or the support of the family renders it necessary or indispensable duties such as the obsequies of the father or the like make it unavoidable1.” The texts undoubtedly relate to a case of joint propery where the de facto manager of the minor’s estate has also the interest of a co-owner, but as was observed by Banerjee, J., in Mahanand v. Nafur2 that by itself might not affect the question, because so far as minor’s interest is concerned, the right of the co-owner to dispose of it rests only on his power as manager. The materials such as these are undoubtedly scanty and the first definite and authoritative pronouncement of the law on this point is really to be found in the decision of the Judicial Committee in the well known case of Hanooman Persaud Panday v. Mussamat Babbooee3. This decision of the Judicial Committee has been the basis of all subsequent judicial pronouncements in India on the subject and as the learned Advocate for the appellant relies strongly upon this case in support of his contentions, it is necessary, I think that the facts and decision in this case should be examined with some care. The case arose out of a suit commenced by one Lal Inderdowun Singh to set aside a mortgage executed, in respect of certain properties appertaining to his estate, during his infancy, by his mother Rani Digambaree, who was defendant No. 2 in the suit, in favour of defendant No.1, the mortgagee. The case arose out of a suit commenced by one Lal Inderdowun Singh to set aside a mortgage executed, in respect of certain properties appertaining to his estate, during his infancy, by his mother Rani Digambaree, who was defendant No. 2 in the suit, in favour of defendant No.1, the mortgagee. There was prayer for recovery of possession of the property which the principal defendant possessed as mortgagee and also for mesne profits. The allegations in the plaint in substance were that Rani Digambaree managed the estate of the plaintiff as guardian during his minority and being a Purdanashin lady of no worldly experience was imposed upon by her servants and agents. The mortgage in question, it was said, was executed without any consideration and without her knowledge and authority and it was the result of fraud and misrepresentation practised upon her by the defendant money-lender. The defendant, in his answer, traversed these allegations and asserted his right as a mortgagee under the bond executed by the Rani which he averred was a valid document which could not be assailed by the plaintiff. It was also asserted that the plaintiff himself on attaining majority ratified the transaction. The first Court held in favour of the mortgagee and dismissed the plaintiff’s suit. On appeal to the Sadar Dewani Adaulat, the judgment was reversed and the relief claimed by the plaintiff was allowed except in so far as it was abandoned by him. The view taken by the Sadar Dewani Adaulat was that as the bond purported to be executed by the plaintiff’s mother in her capacity as proprietor of the estate and not in the capacity of a guardian of her son, which was the allegation made in the plaint, and as the defendant asserted his rights on the basis of the document thus executed by the Rani as proprietor of the estate, the only question in issue that arose upon the pleadings was whether the Rani was at all a proprietor or not. As that issue was decided in favour of the plaintiff and against the defendant mortgagee, the bond would not be binding on the plaintiff even if the Rani voluntarily executed the document and received consideration. This judgment was set aside on appeal by the Privy Council, and it was held by their Lordships that the view taken by the Sadar Dewani Adaulat was wrong. This judgment was set aside on appeal by the Privy Council, and it was held by their Lordships that the view taken by the Sadar Dewani Adaulat was wrong. It was held, in the first place, that pleadings of Indian litigants should be construed liberally and that the issue which was framed in the suit namely, “Whether the bond ought to have effect against the mortgaged villages” was sufficiently wide to raise a question as to whether a valid charge was created by the instrument irrespective of the fact that the Rani purported to execute it qua proprietor and not as guardian of her son. It was next pointed out by the Judicial Committee that the terms “proprietor” and “heir” were loosely used in the documents and that the Rani was really a manager and ‘Surberakar’ as she was described by the Collector and she never had any intention of asserting a title adversely against her son. In the third place, their Lordships held that “under the Hindu law, the right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and dejure manager) affected by the want of union of the de facto, with the dejure title. Therefore, had the Rani intruded into the estate wrongfully, and even practised a deception upon the Court of Wards.....it would not follow that those acts, however wrong, would defeat the claim of the incumbrancer.” This principle, their Lordships pointed out, was in consonance with the rules of Hindu law which were found embodied in several texts which were set out in Colebrooke’s Digest and was borne out by the decision of the Sadar Dewani Adaulat in the case of Gopee Churun Burral v. Mussammat Ishwuree Lukhee Dibia1. On the evidence adduced in the case their Lordships held that the Rani did really take possession of the estate as guardian of her son and acted in that capacity in creating the incumbrances. It was also found that the document in question was duly executed and attested and there was no want of authority or knowledge on the part of the Rani. It was also found that the document in question was duly executed and attested and there was no want of authority or knowledge on the part of the Rani. As regards payment of consideration, there was evidence to show that there were earlier bonds and transactions in satisfaction of which the security in dispute was created, and as prima facia these antecedent debts were binding on the estate, further investigation was necessary to find out how much, if any, the deed in question must stand as security for. The result was that the case was sent back for iurther enquiry and in sending it back their Lordships stated the general principles of Hindu law which should be applied to the final decision of the case in the following manner: “The power of the Manager for an infant heir to charge an estate not his own, is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded . . . 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. . . 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 his charge and they do not think that, under such circumstances he is bound to see to the application of the money.” The specific directions given in the concluding portion of the judgment were first, that the Rani should be deemed to have executed the mortgage bond which was the subject-matter of dispute in her character as guardian of the infant Inderdowun; secondly, that the validity of the bond as regards the different sums that entered into the composition of its total consideration would depend upon the circumstances under which each of these sums was advanced by the lender; and thirdly, even if the bond be invalid and ineffectual, the appellant would still be entitled to the benefit of prior mortgage or mortgages affecting the property which was or were paid off by him in so far as such prior mortgage or mortgages was or were valid and effectual. The principle enunciated in Hanooman Persaud Panday’s case has been followed since then in numerous cases by the Privy Council as well as by the High Courts in India and the principle has been applied to alienations by limited heirs like the Hindu widows, by managers of Hindu joint family and religious endowments and also by persons in charge of the estate of lunatics. The case itself related to a transaction by way of mortgage, but it cannot be disputed that the same principle applies to a sale, vide Krishandas v. Nathuram1. There is quite a number of cases decided by the different High Courts in India, where it has been held on the authority of the decision in Hanooman Persaud Panday’s case that the powers of alienation for necessity or benefit of the infant can be exercised by a de facto guardian as well; and so far as these powers are concerned, there is no distinction in Hindu law between a dejure and a de facto guardian. The cases of Mohanund v. Nafur2; Seetharamanna v. Appiah3, Tulsidas v. Vaghela4 and Kundanlal v. Bent Pershad5 may be referred to in this connection. Mr. Somayya on behalf of the respondent contends that such extension of the doctrine in Hanooman Persaud Panday’s case, is wholly unwarranted. It is true that in the case of Hanooman Persaud Panday, the mother of the plaintiff was his legal guardian and it was expressly held by the Judicial Committee that she acted as such in creating the incumbrances upon the estate of her minor son. Certain observations, however, in connection with the third point formulated in the judgment of the Privy Council, which I have quoted above, would go to show that in their Lordships’ opinion even a de facto manager of the minor’s estate, who has come into possession without any lawful title, would be competent to create a charge upon it if it was required to meet a family necessity or to avert a danger to the estate.‘In view of the actual decision in the case, these observations may perhaps rank as obiter. But having regard to the fact that the view expressed in these observations was stated by their Lordships to be sanctioned by the ancient Hindu law texts, and having regard to the long course of decisions in this country which have uniformly construed these observations to lay down a rule of Hindu law, it is not possible for us at his date to say that the view so long accepted is wrong and is not sanctioned by Hindu law at all. Mr. Somayya says that it is not enough to uphold a transaction as valid simply because it is supported by necessity, a legal competency in the transferor is also essential which the de facto guardian does not possess. I am not unmindful of the fact that it is scarcely possible to define the circumstances under which a man could be regarded as a de facto guardian with regard to the properties of a minor. Existence of near relationship between such person and the infant cannot be insisted upon as a matter of law; nor can the Court scan minutely the motives which actuated him in assuming the responsibilities of management except so far as such motives are manifested by outward acts. Existence of near relationship between such person and the infant cannot be insisted upon as a matter of law; nor can the Court scan minutely the motives which actuated him in assuming the responsibilities of management except so far as such motives are manifested by outward acts. It cannot be said also for what period of time he must act as manager before a person can be recognised as a de facta manager or guardian of a minor’s estate. Undoubtedly law should never encourage an officious intermeddling with the estate of a minor and if Hindu law has given a legal recognition to the de facto guardian, it has given it only in the interests of the minor himself. As the law stands at present, if a person is not what is called an ‘ad hoc’ guardian and does not pose as a guardian for a particular transaction only but is found to be managing the property of an infant in the same way as a de jure guardian would, he could be described as a de facto guardian, although he is neither a natural guardian nor a guardian appointed by Court. The dealings of such a guardian with regard to the estate of the infant would, in Hindu law, be not regarded as void altogether but would be voidable only; and the same tests would be applied in determining the validity of such acts as are applied in the case of a de jure guardian. To this extent and this extent only, a de facto guardian is to be treated as having the same position as a de jure guardian in Hindu law. It follows that a de facto guardian, who is not equipped with the requisite legal authority, is not competent to perform those acts which the law has prescribed for legal guardians only. Thus it has been held in several cases that a de facto guardian has no authority to acknowledge a debt on behalf of the minor under section 19 read with section 21 of the Indian Limitation Act and in my opinion this view is perfectly correct. Vide Bireswar v. Ambica1, Ramaswamy v. Kasinath2, Chennappa v. Onkarappa3. The de facto guardian is essentially a creature of necessity and he could claim no legal recognition beyond what necessity actually warrants. Vide Bireswar v. Ambica1, Ramaswamy v. Kasinath2, Chennappa v. Onkarappa3. The de facto guardian is essentially a creature of necessity and he could claim no legal recognition beyond what necessity actually warrants. In the case before us, the learned Advocate for the appellant does not dispute the position that although China Seshayya was the natural father of the plaintiff, he could not claim the rights of a legal guardian after the plaintiff was given away in adoption to another family. He was, therefore, a de facto guardian and it was conceded on behalf of the plaintiff in the Courts below that he looked after the affairs of the plaintiff and managed his estate to the best of his ability. The transaction that is challenged here is a sale of the minor’s property by the de facto guardian and if the defendant succeeds in establishing that the transfer was for legal necessity or benefit of the minor or that he made the purchase after proper enquiries and with a bona fide belief in the existence of pressing necessity, the sale would certainly stand, in accordance with the principle enunciated in Hunoomanpersaud Panday’s case. The purchaser, however, in the present ccse is not an outsider. He was himself a creditor of the family for the satisfaction of debts due to him the property was sold. The consideration for the sale except what was payable to G. Punnayya under the terms of the conveyance was the money due on the promissory note executed by the de facto guardian himself in the name of the minor in favour of the defendant on 22nd June, 1931. The main question for our consideration, therefore, is whether this promissory note created a liability which was valid and enforceable against the estate of the minor. If the debt was not legally subsisting at the time when the conveyance was executed and was not legally recoverable from the minor’s estate, obviously the sale cannot be upheld as valid. This leads us to enquire as to how far a guardian in Hindu law whether de jure or de facto can bind his ward personally by a simple contract debt, or by a covenant or promise to pay money without creating a charge on his properties, and to what extent, if any, such liability could be enforced against the estate of the minor. It seems that there is a good deal of diversity in the judicial opinion on this point and it is somewhat difficult to deduce any consistent rule of law from the large mass of authorities existing upon it. The conflict, it seems to me, is to some extent due to the difference in the interpretations that have been put upon the decision of the Judicial Committee in Waghela Rajsanji v. Shekh Masludin4. This case before the Judicial Committee arose out of a suit commenced by the plaintiff respondent to recover damages for breach of a covenant contained in a sale deed executed by the defendant’s mother as his guardian when he was only a boy of eleven. It appears that the plaintiff was a creditor of the defendant’s father and after the death of the latter, the defendant’s mother as his guardian executed a conveyance of certain family properties in favour of the plaintiff with a view to satisfy the debts due to him. The lands sold had been treated as rent free lands of the family all along and as a matter of fact, no rents were ever paid in respect of the same. The purchaser, however, as a measure of safety took a covenant from the guardian to indemnify him in case the Government demanded rents for these lands and the covenant was so framed as to bind both the guardian and the infant, who was nominally by his guardian, a party to the deed. There being a demand of revenue by the Government, the plaintiff instituted the suit for recovery of damages on the basis of this covenant and the claim of the plainttff was substantially allowed by the Courts below. On appeal to the Privy Council, the judgment was reversed and it was held by the Judicial Committee that it was beyond the power of the guardian to impose a personal liability on the ward. The material portion of the judgment which deals with this point stands as follows: “Now it was most candidly stated by Mr. Mayne who argued the case on behalf of the Respondent that there is not in Indian law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English law. Mayne who argued the case on behalf of the Respondent that there is not in Indian law any rule which gives a guardian and manager greater power to bind the infant ward by a personal covenant than exists in English law. In point of fact the matter must be decided by equity and good conscience, generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. Their Lordships are not aware of any law in which the guardian has such a power nor do they see why it should be so in India. They conceive that it would be a very improper thing to allow the guardian to make covenants in the name of his ward, so as to impose a personal liability upon the ward and they hold that in this case the guardian exceeded her powers so far as she purported to bind her ward and that so far as this suit is founded on the personal liability of the talukdar, it must fail.” This principle was affirmed by the Judicial Committee in the subsequent case of Inder Chunder v. Radha Kishore1; though on the facts of that case the point did not actually arise, it being found that the Kabuliyat containing the covenant for renewal was executed by the mother and grandmother of the infant in their own right and not in their capacity as guardians of the minor. On the strength of these pronouncements, it has been held in certain cases by some of the High Courts that a minor cannot be bound personally by contracts entered into by a guardian which do not purport to charge his estate. It is not that the minor is exempted merely from personal arrest and detention in execution of a money decree but no decree against him could he passed on the basis of a contract entered into by his guardian in execution of which his general assets could be attached and sold. The only exception that is admitted to this rule is when the debt has been contracted for necessaries supplied to the infant within the meaning of section 68 of the Indian Contract Act and in such cases the minor’s estate could be held liable. The decision of the Bombay High Court in Maharana Shri Ranmal v. Vedilal2 can be taken to be a leading decision on this point. The decision of the Bombay High Court in Maharana Shri Ranmal v. Vedilal2 can be taken to be a leading decision on this point. The same view was expressed by Wallis, C.J., of the Madras High Court in the Full Bench case of Ramajogayya v. Jagannadhan3, though the majority decision in that case was different. There is quite a large number of cases decided by the Madras High Court where it has been held that the Privy Council’s decision in Waghela v. Shekh Masludin4 cannot be taken to have laid down that under no circumstances whatever could the guardian bind the estate of the minor except by creating a charge. It has been pointed out that according to Hindu law there is power in the guardian to bind the minor’s estate if the circumstances indicate a case of necessity or benefit. There could be no distinction on this point between money borrowed by way of simple loan or obtained by pledge or sale of property; and a guardian could contract simple debts without charging the estate for necessary purposes of the infant or for his benefit and such liability could be enforced against the properties of the minor. This was the view taken by the majority of Judges in Ramajogayya v. Jagannadhan3. The same view was expressed in a number of casees decided by different Benches of the Madras High Court prior to the decision of the Full Bench, and in almost all the cases which have subsequently arisen, the High Court of Madras has taken this to be a correct statement of law; vide in this connection Subramama v. Arumugam1, Duraiswami v. Muthial2, Krishna Chettiar v. Nagamani3 Venkataswami v. Muthuswami4, Meenakshi v. Ranga5, Annamalai v. Muthuswami6, and Satyanarayana v. Mallayya7. The Patna High Court expressed its views almost in similar terms in Suchit v. Harnandan.8 As regards money borrowed on promissory notes, several variations are noticed by different High Courts in their judgments. Sometimes the notes are executed by the guardian in the name of the minor alone, sometimes they are executed by him by describing himself as a guardian of the minor, and in some cases he executes the note in his own name and also as a guardian of the minor. Sometimes the notes are executed by the guardian in the name of the minor alone, sometimes they are executed by him by describing himself as a guardian of the minor, and in some cases he executes the note in his own name and also as a guardian of the minor. In several Madras cases it has been held that the minor’s estate is liable if the debt evidenced by the promissory note was borrowed for necessity or for the benefit of the minor. The view which appears to prevail in Madras is that the claim can be considered as not made on the promissory note but on the debt evidenced by it. In Krishna Chettiar v. Nagamani3, the claim was evidenced by a promissory note signed by the mother not as a guardian. The money was borrowed for necessity of the minor. It was held that although the guardian had personally excluded her liability on the promissory note, the estate of the minor was liable. The Court considered that sections 28 and 29 of the Negotiable Instruments Act did not cover all cases of representation. This view, it seems was doubted in later cases, vide Ammalu v. Namagiri9 and Subramama v. Subbarayudu10. In Venkataswamy v. Muthuswamy4 Seshagiri Aiyer, J., expressly observed in his judgment that a good deal might be said in favour of the position that the Hindu law liability of minors should not be extended to cases under the Negotiable Instruments Act. In Swaminatha Odayar v. K.S. Natesan11, Reilly, J., made a distinction between the liability arising from an ordinary debt and that arising from a debt secured by a Negotiable Instrument and doubt was expressed by the learned Judge as to whether a guardian could at all impose unconditional liability upon the minor which is the essence of a Negotiable Instrument. In the later Full Bench case of Satyanarayana v. Mallayya12, these doubts were held not to be well-founded, though the decision of Reilly, J., was found to be correct on the ground that the promissory note in that case was executed not by a de jure but a de facto guardian. The implication of the Full Bench decision, therefore, is that a de facto guardian cannot impose any liability at all upon the infant by making a promissory note. The implication of the Full Bench decision, therefore, is that a de facto guardian cannot impose any liability at all upon the infant by making a promissory note. In Nagindas v. Bhimrao13, it was held by a Division Bench of the Bombay High Court that a de facto guardian cannot pass a promissory note even for necessary purposes which would be enforced against the minor’s estate; whether a de jure guardian was competent to do so was not decided. In view of these conflicting authorities, it is necessary, I think that attempt should be made to formulate as clearly as possible the principles of law which should be applicable to cases of this description. There could be no dispute that in the absence of any statutory provision, it is the personal law of the minor that determines the extent of power of the guardian to impose liabilities based on contracts upon the estate of the ward. I agree with the view taken by the Madras High Court that the Privy Council decision in Waghela v. Shekh Masludin14, cannot be taken to have laid down anything which goes contrary to this principle, and it certainly does not affect the liability of a minor which exists under Hindu law. It is to be noted that in Waghela’s case14 the covenant that was sought to be enforced by the plaintiff against the minor was a personal covenant of an extremely onerous character, and there could be no question of the minor being benefited by it in any way. Moreover, the promise of indemnity was given in this case by the mother of the infant personally and the infant also purported to have made the promise through his mother as guardian. Their Lordships pointed out that the mother would be liable on the document but not the infant who could not be bound by this contract. Moreover, the promise of indemnity was given in this case by the mother of the infant personally and the infant also purported to have made the promise through his mother as guardian. Their Lordships pointed out that the mother would be liable on the document but not the infant who could not be bound by this contract. The decision in Indur Chunaer v. Radha Kishore1, is, in my opinion, an authority only for the proposition that when the guardian enters into a contract in his own name and does not purport to act in his capacity as guardian of the minor, then, whatever the rights might be as between him and the minor’s estate, the other party cannot establish a direct relation with the minor’s properties on the basis of such contract, nor make the infant liable when he comes of age to fulfil the obligations created by it. Now, as regards the powers of a guardian under Hindu law, I have said already that the subject has not been dealt with specifically by any of the Hindu Smriti writers. There are discussions in the Mitakshara relating to authority of the manager of a joint family and the Judicial Committee has in a recent case observed that the decision in Hunoomanpersaud Panday v. Mussumat Babooee2 was apparently based on these Mitakshara texts, vide Benares Bank v. Hari Narayan3. Be that as it may be, at the present day the pronouncement of the Judicial Committee in Hunoomanpersaud Panday’s case would certainly have to be taken as an authoritative statement of Hindu law on the subject particularly because it has been accepted and acted upon by all the High Courts in India for a period of nearly one hundred years. In Hunoomanpersaud Panday’s case, their Lordships laid down that the manager of an infant heir could charge the estate only in case of need or for the benefit of the estate. The transaction in that case was by way of mortgage and it is difficult to say that their Lordships while they were using she word “loan” had in mind only the powers of the manager to create charge upon property as security for debt and not to borrow money on personal contract. The question, however, was neither specifically raised before nor was decided by the Judicial Committee. The question, however, was neither specifically raised before nor was decided by the Judicial Committee. It has been said in some of the Madras cases that it would be a great anomaly if a guardian is denied the power to contract a simple debt while he is competent in similar circumstances to charge or even sell a portion of immovable property belonging to the minor. This agrument, by itself, is not conclusive. Such anomalies, if they are to be called as such, do exist in many departments of law. The law cannot always proceed upon logic, and there might be various weighty reasons which account for such seeming inconsistencies. By way of analogy I may cite the case of an executor who can sell or mortgage property in course of administration of the estate but if he borrows money for the purpose of administration, he makes himself only personally liable and the creditor cannot proceed directly against the estate, vide Farhall v. Farhall4. But quite apart from this, it seems to me that as the whole object of conferring power upon the guardian to deat with the minor’s property is to protect the interest of the ward, there is no reason why the authority should be restricted to raise loans by creating mortgage or charge upon the property, although it may be more prudent in the circumstances of a particular case to borrow money on simple bonds. But while this much is conceded, it must be said at the same time that differences do exist between alienation of specific property belonging to a minor by the guardian and contracting of debts by the latter which creates only personal obligation; and these differences flow from the well established rules of law and procedure relating to enforcement of contractual rights. When a specific immovable property belonging to a minor is transferred by the guardian, the alienee can assert his right to that particular property on the strength of the transfer provided he can establish legal necessity or benefit to the minor. On the other hand, a creditor who advances money to the guardian of a minor, cannot claim to recover his money from the minor’s properties unless he gets an effective decree binding on the minor on the basis of the loan. On the other hand, a creditor who advances money to the guardian of a minor, cannot claim to recover his money from the minor’s properties unless he gets an effective decree binding on the minor on the basis of the loan. A minor is under the Indian Contract Act absolutely incapable of being a party to contract, vide Mohori v. Dhormodas1 and none but a party to a contract can be sued upon it Even if he is nominally a party to a contract through his guardian, no suit on the basis of such contract would lie against the minor and no decree could be obtained, in execution of which his general assest could be touched This was really what happened in Waghela’s case2. When, however, the debt is for necessaries supplied to the infant the creditor can always claim re-imbursement from the minor’s property on principles laid down in section 68 of the Indian Contract Act irrespective of the fact that the minor could not be made liable on the contract. When the guardian himself is party to the contract in his capacity as guardian, a suit can certainly be instituted against him and a decree obtained. But simply because the defendant is sued in his capacity as guardian the estate of the ward cannot be proceeded against in execution of the decree obtained in such suit in order to bind the minor’s estate, the minor must also be made a party to the suit properly represented. Now on what basis can a decree be made in such a suit making the minor’s estate liable for the money borrowed by the guardian? The minor being incapable of being a party to a contraet there could be no direct contractual liability established against him or his estate. But as the guardian was personally liable under the contract, he would be entitled to re-imbursement from the minor’s estate under the rule of Hindu law if the borrowing was for necessity or benefit of the minor. The creditor in such circumstances can invoke the equitable doctrine of subrogation in his favour and claim to be placed in the position of the guardian for enforcement of the latter’s right of re-imbursement against the minor’s estate. The creditor in such circumstances can invoke the equitable doctrine of subrogation in his favour and claim to be placed in the position of the guardian for enforcement of the latter’s right of re-imbursement against the minor’s estate. Instead of there being two suits, one by the creditor against the guardian and the other by the guardian against the minor, both the reliefs may be worked out in one and the same suit and thereby multiplicity of litigation could be avoided. This is the only proper way in which the Hindu law rights of the guardian in the matter of contractual debts for necessity or benefit of the minor could be given effect to in perfect consonance with the well established principles of the law of contract and the ordinary rules of procedure in personal actions. The application of this rule would be just and equitable to the minor also. As the creditor stands only on the shoes of the guardian and can claim the rights of indemnity which the latter can assert against the minor’s property it would be open to the minor to show that the guardian himself was in default and would not be entitled to any indemnity if accounts were properly taken. In England this principle is applied in case of an executor who is personally liable for the debts of the business but as a right of indemnity against the assets of the testator’s estate so far as they are authorised to be employed in the business. The creditor, on the other hand, has no legal claim against the estate but he is allowed in enquity to be subrogated to the executor’s right of indemnity while he retains his claim against the executor personally, vide In re Johnson. Shearman v. Robinson3; In re Frith. Newton v. Rolfe4. The position of a guardian is certainly different from that of an executor but there cannot be any objection to the application of the equitable doctrine of subrogation, where the guardian is personally liable on the contract but has, under the rules of Hindu law, a right of indemnity against the minor’s estate. This principle has been adverted to in some of the cases mentioned above but its full significance, it seems, was not appreciated. This principle has been adverted to in some of the cases mentioned above but its full significance, it seems, was not appreciated. When the guardian borrows money on a bond in his capacity as guardian but excludes his personal liability altogether, there could be no suit on such a bond against the minor’s estate, for, the guardian can claim indemnity when he is personally liable, and it is only by subrogation to the rights of the guardian that the creditor can have recourse to the minor’s estate. Whether the creditor in such cases, or when the minor alone is the ostensible contracting party, can ignore the bond altogether and proceed against the guardian on the original consideration is a question upon which different answers are possible depending upon the circumstances of different cases and I do not consider it proper to discuss all such matters for our present purpose. Whenever the guardian is or can be made personally liable for debt contracted on behalf of an infant, the creditor can claim to be subrogated to the latter’s rights of indemnity, and in that way may proceed against the minor’s estate; otherwise, the minor’s estate can be availed of only when the debt has been incurred for necessaries supplied to the infant. When money is borrowed on a promissory note, the provisions of the Negotiable Instruments Act would undoubtedly be attracted. A promissory note is payable unconditionally on demand and it has got some other special features, viz., there is a presumption that it was made for consideration and that the holder of it is a holder in due course. It has been suggested in some of the cases, which I have mentioned above, that if a promissory note executed by the guardian is to be read as an undertaking to pay out of the minor’s estate, then it would not be payable at all events and that would detract from the unconditional nature of the undertaking which is the essential thing in a promissory note If the liability of the minor’s estate in cases where the guardian is personally liable is based upon the doctrine of subrogation as I have attempted to show, I do not think that the special features of a promissory note would create any difficulty in the application of the principles which I have just now stated. If a promissory note purports to be executed by the minor, it could not possibly be the basis of a suit at all. If it is passed by the guardian who does not exclude his personal liability, the holder of the note can certainly have a decree against the guardian and if the minor is made a party to such a suit and the plaintiff or the guardian succeeds in proving that it was made for necessity, the creditor can avail himself of the guardian’s right of re-imbursement against the minor’s estate. As between the creditor and the guardian, the undertaking is certainly unconditional but that would not preclude the guardian from showing as against the minor that it was for necessity or benefit of the latter. When the guardian is the maker of the note and he excludes his personal liability, no suit, in my opinion, could be instituted either against the guardian or the infant as explained above; whether a suit would lie on the original consideration is another matter, and if it could be brought, the same principles would apply. The position therefore is that in case of contractual debts borrowed either on simple bonds or promissory notes, the creditor can have recourse to the minor’s estate indirectly on the principle of subrogation, when the guardian has the right of indemnity against the estate of the ward; and he would have the right of direct re-imbursement out of the properties of the infant, only when the debt is for necessaries supplied to the infant. In this way effect can be given to the personal law of the Hindus in respect of the liability of a minor’s estate for debts contracted by the guardian for legal necessity without infringing in any way the basic principles of the law of contract, and in this way alone, the different pronouncements of the Judicial Committee mentioned above can be consistently explained. The question whether the guardian is de jure or de facto would not be very much material in these matters. As I have said already, it is only in respect of transactions which are entered into for necessity or benefit of the minor that the de facto guardian has been given a recognition similar to that of a de jure guardian under the Hindu law. As I have said already, it is only in respect of transactions which are entered into for necessity or benefit of the minor that the de facto guardian has been given a recognition similar to that of a de jure guardian under the Hindu law. With regard to loans contracted by a de facto guardian, the same test and principles should be applied for imposing the liability on the minor’s estate as are applied in the case of a legal guardian. But as I have stated above, a de facto guardian cannot keep alive a debt by acknowledgment which only a de jure guardian can do. Applying these principles to the facts before us, it appears to me that the conclusion is irresistible that there was no valid and subsisting debt enforceable against the estate of the minor on the basis of the promissory note executed in favour of the defendant, at the date when the conveyance was executed. The date of the conveyance is June 2, 1932. The promissory note in favour of the defandant for the satisfaction of which the conveyance was executed is dated June 22, 1931, and it purports to be renewal of an earlier note made by Krishnamma, the plaintiff’s adoptive mother on April 23, 1928. At the date of the renewal, therefore, the earlier psomissory note was already time-barred. It is said that as three years from the date of the earlier note expired during the summer vacation of 1931, when the Civil Courts of Tenali were closed, the defendant had the right to institute a suit upon the promissory note when the Court re-opened. It has been found by the trial Court that the defendant was making preparations for filing a suit and had actually made a list of properties belonging to the plaintiff with a view to make an application for attachment before judgment just after the suit was instituted, it seems to me that this finding rests upon very slender foundation. It is admitted that no notice or a pleader’s letter demanding payment was at any time served by the defendant upon the plaintiff or his guardian. It is admitted that no notice or a pleader’s letter demanding payment was at any time served by the defendant upon the plaintiff or his guardian. It was certainly possible for the defendant to file a suit on the re-opening day if he so choose, but the facts found by the Subordinate Judge do not show that there was any such serious threat to avert which the execution of the promissory note was necessary in the minor’s interest. Be that as it may be, I am definitely of opinion that no suit on the basis of the promissory note, dated June 22, 1931, could have been successfully instituted by the defendant and a decree obtained which was capable of being enforced against the estate of the minor plaintiff. This promissory note was not passed by the guardian on behalf of the plaintiff. As has been stated it is the infant plaintiff who was made to execute the note through his natural father as guardian. No suit could be brought against the minor’s estate on the strength of such a promissory note except when the debt was for necessaries supplied to the infant which is certainly not the allegation of the defendant in the present case. It is said that the defendant might have ignored the promissory note and brought a suit on the original debt, which being the debt of plaintiff’s adoptive father, was binding on him. Assuming this was possible, there was still an insuperable difficulty in the way of the defendant. The original debt was long time-barred and the only way to keep it alive was to treat the promissory note on June 22, 1931, as an acknowledgment of the original debt. The minor himself could not acknowledge the debt, nor could be the natural father who was a mere de facto guardian. The result, there fore, is that there was no valid and enforceable debt owing to the defendant in existence at the date when the plaintiff’s natural father executed the conveyance in his favour on June 2, 1932. Obviously, it is neither necessary nor consistent with prudent management that a minor’s property should be sold for payment of a barred debt. If the defendant had actually threatened to institute a suit, there was little chance of the suit being successful. Obviously, it is neither necessary nor consistent with prudent management that a minor’s property should be sold for payment of a barred debt. If the defendant had actually threatened to institute a suit, there was little chance of the suit being successful. In these circumstances, I am of the opinion that the decree made by the High Court is a proper one; the sale should be set aside, and the plaintiff restored to possession of the properties with mense profits, subject to the charge in respect of the sum of money which the defendant actually paid to G. Punnayya. The appeal, therefore, stands dismissed with costs. ----- Appeal dismissed.