Chikhuri Ram vs Gopal Narayan Ram and Others

Dawson Miller, C.J.—This is an appeal on behalf of the plaintiff against a decision of the Subordinate Judge of Arrah reversing a decree of the Munsif of the First Court at Buxar.

The plaintiff, who is the appellant before us, entered into certain transactions with Tribeni Ram, the defendant No. 4 in the suit. The transactions in question were the ordinary transactions between a customer and a tradesman, the plaintiff being the tradesman. The goods were supplied, principally cloth, and a certain amount of money was lent to the defendant No. 4. At the time when these transactions took place the other defendants in the suit, namely, those numbered 1, 2 and 3 were minors although they were living together jointly at that time. The three defendants are all the sons of Musammat Sahodra Kuer. The defendant No. 1 Gopal Narain Ram is her son by her first husband, now deceased. The second and third defendants, Ram Narain Ram and Sheo Narain Ram, are also her sons by her second husband, who is Tribeni Ram the defendant No. 4. In February, 1916, it appears that there Was an adjustment of the account existing between the plaintiffs and Tribeni Ram. The account was on bahi khata and a certain Pleader who had been employed both by the plaintiff and by Tribeni Ram was engaged to go through the account and make an adjustment. In the result, it was found that a sum of about Rs. 900 was due from Tribeni Earn. The plaintiff agreed to forego a sum of Rs. 300 reducing the amount due to Rs. 600 and the parties entered into a mortgage which is the subject of the present suit whereby a house belonging to the defendants Nos. 1, 2 and 3, the sons of Musammat Sahodra Kuer, was hypothecated to secure the debt due amounting to Rs. 600 under the bahi khata transaction. The mortgage was executed by Gopal Narayan Ram who is said to have been of age at that date and by Tribeni Ram purporting to act as guardian of the other two defendants his sons who were still minors. The property mortgaged was not the property of Tribeni Ram at all but was the separate property of the three sons of Sahodra Kuer they having inherited it from her as part of their maternal grandfather''s estate. The present suit was brought to enforce that mortgage against the first three defendants. Although Trebini Ram was made a defendant in the suit no relief is claimed against him presumably on the ground that he merely acted in the capacity of guardian of his sons, the second and third defendants.

The genuineness and validity of the bond was challenged by each of the defendants except Tribeni Ram who entered no defence at all. It was also pleaded that the defendants had not entered into any loan or cash transactions at all with the plaintiff or taken any things from his shop nor was there any reason for their doing so and they denied ail liability under the mortgage bond.

The learned Munsif before whom the case came for trial and before whom various issues were raised including an issue as to whether the mortgage-deed was genuine and for consideration found in favour of the plaintiff. He found that the goods had in fact been taken and the loans given to Tribeni Ram; that there had been an adjustment of account; that the bond in suit was genuine and for consideration and that the defendant No. 1 had attained his majority at the date when the bond was executed. He did not deal in terms with the question of whether the transactions under which the goods were supplied and the money lent to Tribeni Ram were for the benefit of the minors.

When the case went on appeal to the Subordinate Judge he came to the conclusion that no consideration had been proved for the execution of the bond by or on behalf of the first three defendants. The bahi khata which showed the transactions which formed the considerations for the bond had not been produced in evidence and although it was true that at the time when the bond was entered into there was a sum of Rs. 600 due from Tribeni Ram it was nowhere shown that the goods supplied or the money lent had in any way been supplied or lent for the benefit of the minors and in these circumstances, having found that all the first three defendants were minors at the date when the transactions took place be came to the conclusion that the bond was not binding upon them because the only consideration for executing the bond was the liability under the bahi khata which was not in any way binding upon the minors. He did not in terms differ from the learned Munsif in finding that the first defendant, Gopal Narayan Ram, was of age in February, 1916, when the bond was executed. He did, however, find that he was a minor at the date of the bahi khata transactions. He further came to the conclusion that it had not been proved that the bond was properly executed in the presence of two attesting witnesses. Upon this point I think the learned Subordinate Judge took a rather narrow view. One of the attesting witnesses was called and proved that the executants of the bond executed it in his presence and that he attested it, and the bond was produced and showed the signatures of the other attesting witnesses. The learned Subordinate Judge seems to have been under some confusion as to the exact effect of Section 68 and the following sections of the Indian Evidence Act which require execution of a document of this nature to be proved by one of the attesting witnesses. He said that, as a mortgage bond must be subscribed by two attesting witnesses under the provisions of Section 59 of the Transfer of Property Act, and as in this case only one attesting witness had proved it, that proof was wholly insufficient. I am inclined to think that there was some confusion in the learned Judge''s mind in finding that the requirements of the law had not been complied with in so far as proof of the execution of the bond was concerned. In the view I take of this case, however, it is unnecessary to consider whether the evidence of the attesting witness, who was called, when closely looked into was really sufficient to prove the due execution of the bond.

The plaintiff, in my opinion, must fail for this reason. It is nowhere shown that the goods supplied to Tribeni Ram or the loans taken by him were for the benefit of the other three defendants in the case who were minors at that time. They were not liable upon the bahi khata account. Had it been shown that the goods were purchased for their benefit or that the loans were taken for their benefit then it might be that they would have been liable as members of a joint family even though minors under the bahi khata account. In the present case there is an entire absence of evidence upon that most important question. It is contended, however, that the defendant No. 1, at all events, ought to be held liable upon the bond because at the time he executed it he was of age. Assuming, although it is not very clear from the learned Judge''s judgment whether he considered that the defendant No. 1 was of age or not, but assuming that he was of age at that time, then it seems to me that, in so far as he was concerned, there was in fact no consideration for the bond. The consideration alleged is the liability under the previous bahi khata account. It is quite clear to my mind that in the absence of any evidence showing that the defendant No. 1 had any liability under that account it cannot be said that the liability which was really a liability of his father Tribeni Ram was any consideration for entering into the mortgage-bond of February, 1916. It is well-established that a liability under a contract which is void on the ground that one of the contracting parties is a minor is no consideration for a fresh contract made by the minor on attaining majority. Several cases have been quoted in support of this proposition. I need only refer to Arumugam Chetty v. Vellaichami Thevan (1911) 37 Mad. 38 and Narendra Lal Khan v. Hrishikesh Mukherjee (1918) 46 I.C. 765. It would seem to follow, therefore, that where there is no previous contract by the minors at all but only by their father the liability of the father can be no consideration for fresh contract by the minor on attaining majority whereby he hypothecates his property to secure payment of a loan. Had it been shown that at the time the bond was entered into there was a genuine claim against the minors and had a suit against them been threatened, then this adjustment of account whereby the plaintiff accepted a smaller sum than that which was due and his undertaking not to sue the minors for the sum due might possibly have been a good consideration for the bond, but nothing of the sort has been proved in this case and, in so far as anything can be gathered from the terms of the bond itself, it simply recites that there were dealings between Tribeni Ram and the plaintiff on bahi khata and that on adjustment an amount of Rs. 600 was found due. There is not a word in it to show that the defendant No. 1 ever admitted that he was in any way liable in respect of the goods supplied to his father. If in fact the goods supplied were necessaries and for the benefit of the minors, then it seems to me that the plaintiff has only himself to blame in failing in this case to bring sufficient proof before the Court of that fact. There is no proof at all as to what the goods supplied were, or the circumstances under which they were supplied, and there is certainly no proof to show that there would have been any valid claim against the estate of the minors in respect of the bahi khata account. In these circumstances, although I have no doubt that the transaction is quite genuine as between the plaintiff and Tribeni Ram, I regret that I must come to the same conclusion as that arrived at by the learned Subordinate Judge and dismiss this appeal with costs.

Kulwant Sahay, J.

I agree.