John Beaumont, Kt., C.J.
1. This is an appeal from a decision of Mr. Justice Kania, which raises a point of law. The plaintiff is described as Madanlal Sonulal, a minor by his next friend Goverdhandas Mohanlal, and the defendants are The Great American Insurance Co., Ltd., a company incorporated in New York, United States of America, carrying on business in Bombay at Apollo Street, within the Fort of Bombay. The plaint alleges that the plaintiff is the sole surviving coparcener of a joint Hindu family carrying on joint family business at Devalgaum in the name of Surajmal Sonulal, and that the business of the firm is carried on under the superintendence of Goverdhandas Mohanlal, the plaintiff's sister's husband, with whom the plaintiff resides. Then it alleges that the firm in the course of its business effected an insurance against fire with the defendant company on certain cotton bales, and then it is alleged that on the actual date on which the final insurance was effected, which was by means of a cover note issued to the plaintiff's firm, the bales were burnt, and the plaintiff therefore sues to recover loss under the insurance. The defence raised in the written statement is in effect that there was collusion between the agent of the defendant company and the persons who effected the insurance, and that in fact the insurance was effected after the fire, and on that ground the defendants resisted their liability under the insurance. But the defendants did not plead that the plaintiff was a minor, and that on that ground the insurance policy was void. It appears, however, from what is stated in the learned Judge's judgment that when the issues were being discussed, the defendant's counsel, though stating that he did not plead infancy, nevertheless drew the attention of the learned Judge to the fact that on the plaint the plaintiff was a minor, and invited the Court to raise an issue as to whether the contract was void on the ground of the minority of the plaintiff, and the learned Judge accordingly raised such an issue. But at the trial the learned Judge came to the conclusion that it was not necessary to answer the issue, having regard to the fact that minority had not been pleaded. So far as the facts in dispute in the suit were concerned, the learned Judge came to the conclusion that the insurance was valid. He negatived the case of fraud and collusion set up by the defendant company, and gave judgment for the plaintiff. The insurance company has appealed from that judgment. They have not in this Court challenged the findings of fact. I gather that they are not satisfied that the true facts have been established, but they appreciate that in this Court, having regard to the evidence, they cannot successfully challenge the findings of fact. So that we have the case of a policy of insurance entered into by this company, premium paid and accepted, fire occurring, claim made, and the only answer raised is that the insurance is void because the plaintiff is a minor. It is somewhat startling to have such a point raised. If the contention of the defendants is right, it means that property of minors cannot be insured. A great many joint family businesses descend upon minors, and such businesses are in practice managed by some adult member of the family in the name of the minor, and if that member of the family cannot effect an insurance on behalf of the minor, the position is an extremely serious one, particularly if insurance companies are going to do what, according to my experience, at any rate of English offices, they generally do not do, but what is done by the defendant company in this case, namely, set up a purely technical defence to the policy. However, we have to consider the legal position. The defendants' case is founded on the well-known decision of the Privy Council, Mohori Bibee v. Dhurmodas Ghose in which their Lordships held that under the Indian Contract Act any contract by a minor is wholly void, the ratio decidendi being that the Indian Contract Act requires that parties to a contract should be persons competent to contract, and if one of the parties is a minor, he is not competent to contract, and therefore, no contract results. The provisions of the law which make a contract by a minor not binding were no doubt intended to be. for the benefit of the minor, and Courts in this country, when faced with a contract which has been carried out by or on behalf of the minor, the performance of which by the other party is then resisted on the ground of minority, have struggled hard to avoid holding the contract wholly void to the detriment of the minor. We were referred to Raghava Chariar v. Srinivasa Raghava Chariar I.L.R (1916). 40 Mad. 308, Sathurazu v. Basappa : (1913)24MLJ363 , Madhab Koeri v. Baikuntha Karmaker (1914) 4 P.L.J. 682, and Rose Fernandez v. Joseph Gonsalves I.L.R 1924 48 Bom. 673 : 26 Bom. L.R. 1035, as instances in point. It is not necessary, I think, to consider the principles on which those cases were decided, because in my view the answer to the defendants' contention in this case is a simple one. It is, in my opinion quite clear op the evidence that the contract was in fact made by Goverdhandas acting through his agent Trimbaksha, that is to say, it was the person acting as guardian for the minor who entered into the contract through the agent Trimbaksha. It is also, I think, quite clear from the evidence of Puranmal, who was, at the time of the contract, the agent of the insurance company and who gave evidence on behalf of the plaintiff, that he knew quite well that the business was owned by a minor, and that it was carried on by Goverdhandas, and of course the knowledge of that agent would be the knowledge of the defendant company. So that the defendant company knew F. that the business was carried on by a minor, and it hardly lies in their mouth to contend that with that knowledge they deliberately entered into a contract with the minor. I do not think they did that. I think they entered into a contract with Goverdhandas, the intermediaries who actually effected the insurance being Trimbaksha on behalf of Goverdhandas, and Puranmal on behalf of the insurance company. That being so, the contract sued upon is not a contract which was made by a minor, although it was made on behalf of a minor. Under Section 4(2) of the Guardians and Wards Act, I think that Goverdhandas was a guardian within the meaning of that Act, because 'guardian' is defined as a person having the care of the person of a minor or of his property, or of both his person and property, and I think the evidence here is that the plaintiff was living with Goverdhandas, who is his sister's husband, and that Goverdhandas had the care of the minor and his property. Under Section 27 of the Act, the guardian of the property of the ward is bound to deal with it as carefully as a man of ordinary prudence would deal with it if it were his own, and subject to the provisions of that Chapter (Chapter III), he may do all acts which are reasonable and proper for the realisation, protection or benefit of the property. It is, in my opinion, cleaf that Goverdhandas had authority to insure the minor's property against fire, and having insured that property, it is, I think, also clear that the minor, being a person for whose benefit the contract was made, and out of whose estate presumably the premium was paid, though I do not know that there is any direct evidence of that, the minor would be entitled to sue on the contract. That being so, I think the appeal fails, and must be dismissed with costs. Costs of two counsel allowed in the appeal. It is agreed between the parties that on the insurance company paying Rs. 7,000 towards the decree, the appellants are to be allowed to withdraw the security they have deposited, with Messrs. Daphtary, Ferreira and Divan,
Rangnekar, J.
2. I agree.