Saraswati Debya and Another vs Mahamed Arif

Tottenham and Trevelyan, JJ.—The facts which it is necessary to state before determining the questions of law in this case are shortly as follows:

Two brothers, Beerbullub Deb and Chandra Kishore Deb, were owners of the land in dispute. They had inherited it from their maternal grandfather through their mother. In a proceeding under Act XL of 1858 their father was appointed their guardian, and without receiving the necessary authority from the Court, sold the property to the defendants, who are now in possession of it.

After this Beerbullub and Chandra Kishore, the former having attained majority, the latter being over 18 but under 21, and therefore according to law still a minor, conveyed this property to the plaintiff. Both the conveyance to the plaintiff and that to the defendants were made bond fide and for good consideration. There can be no question that the defendants have got no title.

The reported cases, the last of which is Harendra Narain Singh Chowdhry v. Moran ILR 15 Cal. 40 make it clear that an unsanctioned act of a certificated guardian in excess of the powers contained in Section 18 of Act XL of 1858 is void.

The question remains as to the plaintiffs'' title.

So far as Beerbullub''s share is concerned, there can be no doubt that the plaintiff is entitled to recover. Beerbullub was of age when he conveyed.

Chandra Kishore''s share is on a different footing. Chandra Kishore died before he attained 21 years of age. His heir was his father. The father neither ratified nor repudiated the act of Chandra Kishore.

It has been contended before us that the conveyance by Chandra Kishore was void and not voidable. This depends upon whether the law has in this respect been altered by the Indian Contract Act. Although there seems to be text-book authority for the proposition that under the Hindu law a transfer by a minor is absolutely void (see Mr. Chatterjee''s Tagore Lectures, p. 146), we prefer to follow the decisions of this Court in which it has been held that a transfer by a minor is voidable under the Hindu law. See Boiddonath Dey v. Ram Kishore Dey 13 W.R. 166: 10 B.L.R. 326 note; Doorga Churn Saha v. Ram Narain Doss 13 W.R. 172: 10 B L.R. 327 note; Rennie v. Gunga Narain Chowdhry 3 W.R. 10; and Hari Ram v. Jitan Ram 3 B.L.R. A.C. 426. Apart from the Contract Act, there is no doubt we think that this transaction must be held valid, as it was not avoided by the minor or his heir. See Doorga Churn Saha v. Ram Narain Doss 13 W.R. 172: 10 B.L.R. 327 note.

The question whether the Indian Contract Act has altered the law is not an easy one. There is no express provision declaring the contract of an infant to be void, but it is said that Section 2, Sub-sections (g) and (h), and Sections 10 and 11 have this effect. (See also Section 7 of the Transfer of Property Act.) In the case of Sashi Bhusan Dutt v. Jadu Nath Dutt ILR 11 Cal. 552 it was held by a Division Bench of this Court that a contract entered into with a minor is only voidable at the option of the minor. We have very carefully considered this decision, and as we are not prepared to say that in our opinion it is erroneous, we do not think it necessary to refer the question to a Full Bench. The question is one of some difficulty, but on the whole we prefer to follow the decision to which we have referred.

The result is that this appeal must be dismissed with costs.