JUDGMENT

Boys, J. - This is a plaintiff's appeal arising out of a suit for damages for breach of contract and the refund of earnest money.

2. The plaintiffs' case was that they entered into certain contracts with the firm of Mansaram Murlidhar, defendant, for the purchase of sugar; that they paid the sum of Rs. 11,750 of the total earnest money on seven contracts, and that they received only certain small quantities of sugar on some of the contracts by means not apparently of actual physical delivery of the sugar, but of delivery orders; that the firm was now owned by Ramsaran, a minor son of Murlidhar, the last original proprietor who died in 1912, the said minor being represented by his certificated guardian Mt. Janki Kunwar; that the contracts were entered into between 15th March 1919 and 18th June 1919; that some of the contracts were actually signed by Ramcharan, a minor son-in-law of Mt. Janki Kunwar, the certificated guardian, and that some were signed by a munib, Sheolal, and that all the contracts were negotiated by the principal munib, Bhawani Shankar.

3. The defence began by a total denial of everything and the further case as set up may be broadly stated as follows: that the sugar business was a new business and that as such the certificated guardian had no power to start it; that in fact the certificated guardian never did start it but such acts as were done by Ramcharan, Sheolal and Bhawani Shankar were done without the authority of the proprietors of the firm and were done in their own interest; and, lastly, that the contracts were in any case wagering contracts and as such void, and the plaintiffs could not even ask for the return of their earnest money, supposing the payment of such to have been even proved.

4. The trial Court framed five issues:

(1) Whether Ramsaran is the solo proprietor of the defendant firm and whether he is a minor? Is the suit as framed maintainable?

(2) Whether the disputed contracts were entered into with any person duly authorized by the contesting defendants?

(3) Whether the disputed contracts are genuine or fictitious?

(4) Whether the disputed contracts are merely wagering contracts?

(5) Is the plaintiff entitled to damages? If so, to what amount?

5. The first issue is decided in the plaintiff's favour, that Ramsaran was the sole proprietor of defendant firm, and being a minor was properly represented by his mother as certificated guardian and the suit as framed was maintainable. No further contention has arisen before us in regard to this issue. Issue 2 the trial Court sub-divided into four subsidiary issues and on these it held, firstly, that the seven contracts were executed by Ramcharan and Sheolal; secondly, that Ramcharan, who was himself a minor could not act as an agent for the proprietors of the firm so as to bind them, and that Sheolal had no implied authority to start a new business; thirdly, that there was no evidence of ratification of these contracts by the certificated guardian, and fourthly that the defendants were not estopped from denying liability. Having decided these two issues as above the trial Court thought it unnecessary to decide issue 3 or 4, but proceeded to the decision of issue 5 and held that the plaintiff was not entitled to any damages and dismissed the suit.

6. After the first hearing of the case had proceeded to a certain length we thought it desirable that the two issues not decided by the trial Court should be decided as it appeared likely that they would eventually call for decision, and this has proved to be the case. We accordingly directed the trial Court to hear arguments afresh on these two issues and to record its finding. On the issue 3 the trial Court has now held that the contracts were genuine contracts, and on the issue that 4 they were not wagering contracts.

7. The grounds of appeal and the arguments thereon have raised before us what I think may be reduced to five main questions:

(1) Had the certificated guardian power to start these dealings i