B. MUKERJI, J.
(1.) This is an application in revision against a decision of the Munsif decreeing the plaintiff's suit in its entirety with costs and pendente lite and future interest. The learned Munsif, however, directed payment of the amount decreed to be made in instalments.
(2.) The plaintiffs sued for the recovery of a sum of Rs. 1869/5/6 on the basis of "bahi khatas". The suit had been filed against a father and his three minor sons; the father was Chhotey Lal and his minor sons were the three applicants before me. Chhotey Lal the father's defence, in the main, was that there was no contractual liability to pay interest on the sum, and further that he h
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ad made a payment of Rs. 587/1/9 and that by mistake the plaintiffs had given credit for only Rs. 87/5/9. The defence of the minors was a total denial of any liability; the minors clearly said that whatever may have been the liability of the father, they were not liable for the payment back of any amount.
(3.) One Rajrup Dube Vakil had been appointed guardian ad litem of the minors. At the trial Chhotey Lal stated that if Salik Ram plaintiff No. 2 stated on Gangajali (a special form of oath) that the plaintiffs had not received a sum of Rs. 587/1/9 in repayment of the loan but had only received the sum of Rs. 87/5/9 then the entire suit may be decreed against the defendants. Rajrup Dube, the guardian of the minors, also made a statement similar to the one which had been made by Chhotey Lal, Salik Ram took the oath according to the offer and stated that Chhotey Lal had only paid Rs. 87/5/9 and not Rs. 587/1/9, as alleged by him. The result was that the court below, accepting the statement of Salik Ram and acting under the provisions of Section 11 of the Indian Oaths Act (Act X of 1873), decreed the plaintiff's suit.
(4.) On behalf of the minors it was contended by Dr. Asthana that the minors could be bound only in regard to that part of the statement of Salik Ram which related to the question of fact. It was contended that it was npt open to the guardian to bind the minors in regard to the consequences which followed from the statement of Salik Ram Dr. Asthana strongly relied on the decision of this Court in Parbhu Dayal v. Jamil Ahmad, ILR 44 All 117 : (AIR 1922 All 160). In that case it was held by Tudball and Sulaimaa, JJ. that a statement of fact in respect of which a person deposed on special oath may be binding on the minors even though the otter to make the statement on special oath may have been made by the minor's guardian, without the permission or consent of the Court, yet the minors could not be held bound by the agreement in regard to the result of the suit. In the instant case the minors would be bound by the statement of Salik Ram to the effect that the defendant Chhotey Lal had paid a sum of Rs. 87/5/9 alone and not) Rs. 587/1/9, as was alleged by him. But, then, the further consequence which was to follow that statement of fact namely, the decreeing of the plaintiffs entire claim as against all the defendants, was something which could not be brought about as a result of the statement of the guardian in relation to the statement on special loath of Salik Rani.
(5.) An examination of the cases on this question, of this Court and other Courts, indicated that the reason why a statement of a guardian made on behalf of a minor to be bound by the statement of a person, bound the minors was that a guardian had the unrestricted right, unless of course he acted negligently or fraudulently, to offer what proof he thought was best in respect of the suit. The offer to be bound by the special oath of a witness in respect to a question of fact stood on the same footing as offering evidence in the case, so that the guardian could, in respect of this aspect of the matter, agree to bind the minors by the statement of a person on special oath. The consequences which followed from the statement had to be determined by the Court, because if the guardian let those consequences to be determined on the special oath of the witness, then he was traversing beyond the scope of offering evidence: he was in a sense agreeing to a settlement of the dispute in a particular manner, which a guardian could not do in view of the provisions of Order 32, Rule 7, C.P.C.
(6.) Certain cases were cited before me by Mr. Seth, viz., Chengal Reddi v. Venkata Reddy, ILR 12 Mad 483, Sheo Nath Saran v. Sukh Lal Singh, ILR 27 Cal 229 and Mahomed Mahmud Choudhry v. Behary Lal AIR 1930 Cal 463 in support of the proposition that the guardian could bind the minor in the manner in which he had bound the minors in this particular case. In the aforementioned decisions what was observed was that the offer of a guardian to be bound by the special oath of a witness administered under the Indian Oaths Act stood on a different footing from the agreement referred to in Order 32, Rule 7, C.P.C. The cases cited by Mr. Seth, in my opinion, were, all of them, distinguishable on the facts. But if I were called upon to say whether I felt myself bound by those decisions, I would, with very great respect of course, have said that I found some difficulty in agreeing to the general proposition and that is assuming that these cases laid down a general proposition that agreements made by a guardian, of a minor in respect of special oaths under the Indian Oaths Act would always stand on a different footing from agreements which fell under Order 32, Rule 7, C.P.C. But, fortunately I am not called upon to do.
(7.) Mr. Seth also relied on a decision of this Court in Deoraj Misra v. Abhai Raji, ILR 49 All 842 : (AIR 1927 All 584). This decision, in my opinion, was not applicable to the facts and circumstances of the case before me, and was, therefore, distinguishable. As I have said earlier, the decision that really applied to the facts and circumstances of the instant case was the one in ILR 44 All 117 : (AIR 1922 All 160) referred to by me earlier.
(8.) Lastly, Mr. Seth contended that this revision has really become infructuous, inasmuch as, the entire decretal amount has been paid up by the father. Dr. Asthana, however, was not Prepared to accept this. That being the position, I have no other option but to pronounce my decision in respect of this revision on the merits.
(9.) For the reasons given above, I allow this application in revision, set aside the decree of the court below as against the applicants, and send the case back to that court for determining' the following two questions, in the event of the decree not having been paid up by Chhotey Lal, the father :
(1) What was the amount which was to be decreed in favour of the plaintiffs, accepting that only a sum of Rs. 87/5/9 had been paid and not a sum of Rs. 587/1/9; and (2) Whether the minors were liable for the decree? Costs of this revision will be the costs in the cause