A minor is bound by the consent of his guardian to abide by deposition given by opposite party on oath although given without the leave of the Court under Order 32, Rule 7, provided there is no fraud or negligence on the part of his guardian.

Choudhuri, J—This is an appeal filed by the Defendants' against the judgment dated 5-7-1949 passed by the Second Additional District Judge, Sagar, in Civil Appeal No. 19-B of 1947 arising out of Civil Suit No. 26-B of 1947 decided on 16-10-1947 of the Court of the Civil Judge, Class: II, Khurai.

2. The suit out of which this appeal arises; was brought by the Plaintiffs Munnalal and his sons Pannalal, Jamnaprasad, Gulabchand and Hemchand against the Defendants for the recovery of a sum of Rs. 1540/- primarily as compensation for fraud practiced by Defendant I and in the alternative for loans advanced on the pledge of ornaments. As against the claim-of the Plaintiffs, deft.1 made a counter-claim; for a sum of Rs. 960/- as a set off. The cause of action for the claim as well as the counterclaim was grounded on a contract of pledge of ornaments and loan advanced thereon.

3. A number of ornaments alleged to be of gold were pledged by Defendant 1 with Plaintiff 1 on different dates as security for advances made to Defendant 1. The aggregate sum of the loan was Rs. 813/- and carried interest at the rate of Rs. 9/- percent, per annum.

4. The case of the Plaintiffs was that the pledge of the ornaments was accepted on the representation made by the first Defendant that they were genuine articles of gold. As Defendant 1 failed to redeem the ornaments he was served with notices on various dates. It is alleged that on 16-11-1946 Defendant 1 went to the Plaintiffs and negotiated an agreement by which the ornaments were sold to the Plaintiffs for the sum of Rs. 1540/-. The same day, a notice was also served on the first Defendant at his request intimating the sale of the ornaments as the first Defendant had represented that the ornaments belonged to a third person. As a slightly larger sum was due under the loan transactions, it was agreed that some days later the parties would sell the ornaments at Sagar, and if any surplus amount was recovered from the sale of the ornaments it would be credited to Defendant 1 who also undertook to make up the deficiency should it occur.

5. It was further contended that in the fourth week of December 1946, Plaintiff 2 and Defendant 1 went to Sagar for the sale of the ornaments. The sale could not be effected as the purchasers said that the ornaments did not appear to be of good gold. Subsequently on 4-1-1947 at the instance of Defendant 1 the ornaments were melted in his presence. They were found to be spurious and hardly worth Rs. 200/-. In view of the above fraud, the Plaintiffs claimed a sum of Rs. 1540/- which was the price agreed between them. In the alternative the Plaintiffs claimed this amount as the debt due by the Defendants. Defendants 2 and 3 are sons of Defendant 1. They were impleaded on the ground that they were under pious obligation to pay their father's debts.

6. Defendant 1 denied that there was any express warranty or any agreement on 16-11-1946 to sell the ornaments to the Plaintiffs. He contended that when he went to the Plaintiffs in pursuance of their notice dated 18-11-1946, he was asked to tender payment. He went again the following day when some melted and alloyed gold was shown to him which he declined to accept. He therefore submitted that the pledged ornaments contained 25 tolas of gold, the rate of which was Rs. 100/- per tolas on 16-11-1946 when the Plaintiffs themselves purchased the ornaments. The price of these ornaments thus would amount to Rs. 2500/- and after allowing the Plaintiffs' dues of Rs. 1540/-, he made a counter-claim of Rs. 960/-.

7. Issues were framed on 12-8-1947 on the pleadings of the parties and the trial commenced on 7-10-1947. The evidence of the Plaintiffs' witnesses was recorded from day to day. When the hearing commenced on the third day i.e. on 9-10-1947 Munnalal (Plaintiff 1) and his son Gulabchand (Plaintiff 4) intimated their intention to offer a special oath to the first Defendant. They were asked to file an application proposing the form of o