পাতা:ব্যবস্থা-দর্পণঃ প্রথম খণ্ড.djvu/৬৯১

VYAVASTHA”-TAARPANA.. 56.9 matters of inheritance, marriage, caste, and religious usages only, and not in matters of eontract, of which nature the case in question appeared to be.” Macn. H. L. vol. I. pp. 106-108. The learned comriler has very ably impeached the above decision. Some of his arguments are as follows:– “It may be observed that, supposing the minor's estate not to be liable, there did not exist any necessity for the widow’s making a conditional sale. It may be assumed too, that, according to our own regulations, a mortgage would not be foreclosed against a minor, and that he would be allowed his equity of redemption on coming of age. It did mot, therefore, signify whether the term of the mortgage was near expiring or not. It was at the lender's own risk to take a mortgage, in which the borrower's interest might cxpire before expiration of the term.” The learned compiler then makes a brief inquiry as to the law of the case, and says that the law appears to be quite clear, when disencumbered of the commentary of Jawannatha, whose authority cannot be held to be oracular and incontrovertille in any instance, especially where it is opposed by texts of unquestionable weight and indubitable import. And after finishing the inquiry, he concludes thus : “It follows, that where, owing to a son's minority, the father's assets are taken in charge by another person, such person cannot legally apply any portion of the assets to the payment of the father’s debts; and that it is only where a person succeeds to property in his own right, that he is at liberty to pay the debts of the ancestor by means of such property. A guardian may, indeed, dispose of a portion to meet a necessity arising for the minor's subsistence; but no necessity can by possibility arise for disposing of any portion to pay the minor’s father’s debts, for he must cease to be a minor before he can be liable. Nor does there appear to be much of hardship in this rule. The provisions of the English law savour of much more hardship ; for, according to it, real estates are not subject at all to the payment of debts by simple contract, unless made by will. It may be, perhaps, but just, that the period for exacting payment should be postponed, until he comes to years of discretion susicient to enable him to realise the means of satisfying the creditors with the least detriment to himself, ” vol. I. 108—ll 1 . But his inquiry as to the law of the case appears however to be uscless when the court would not follow that law in matters of contract. As to his opinion “that where, owing to a son’s minority, the father's assets arc taken in charge by another person, such peson cannot legally apply any portion of the assets to the payment of the father's debts ; ” and that “a guardian may, indeed, dispose of a portion to meet a necessity arising for the minor's subsistence ; but no necessity can by possibility arise for disposing of any portion to pay the minor’s father’s delts, for he must ecase to be a minor before he can be liable,” it does appear to be equitable in every case; for, when a guardian is appointed not only to provide for his ward’s subsistence, but also take care of and save his property and to do every thing for his benefit, then, if the sale of a portion of the estate could liquidate the father’s debts and save the remainder, which, on waiting till the minor’s full age, would very probably be lost in satisfaction of the accumulating interest, the sale of such portion was certainly warranted by the necessity of saving the remaining estate and the minor from deprivation and ruin, and eonsequently it is the duty of a guardian to do so, as such an act would be evidently for the benefit of the minor. The learned compiler further