Sm. Raj Coomary Dassee vs Preo Madhub Nundy and others

Jenkins, J.—This is an action brought by a puisne mortgagee for the purpose of realising his securities and the Defendants include all those who claim to be interested in the property either as prior or subsequent mortgagees, as well as the mortgagor''s representative. The only difficulty arising in the case is whether, at the date of two of the mortgages, the mortgagor was a minor, and, if so, whether any effect can be given to the mortgages executed by him during his minority. Benoy Madhub Nundy, the Mortgagor, is said to have been born in 1871, and on the 26th February 1879, a guardian of his person was appointed by the Court of the 24-Perganas, On the 8th of October 1890, he executed a mortgage in favour of Nundalal Mullick, since deceased, whose interest, if any, is now vested in the Administrator-General of Bengal, one of the Defendants to this suit. On the 6th December 1890, he executed another mortgage in favour of the Defendant Akhoy Coomar Deb. It will be seen that at the date of both these mortgages, Benoy Madhub Nundy was over 18 and under 21 years of age; and in opposition to the claimants under those mortgages, it is contended that the appointment of a guardian had the effect of extending the period of his minority to the completion of his 21st year, and that consequently the mortgages were invalid. In support of the mortgagees on the other hand, it is urged--1st, that the order was made without jurisdiction, and that, therefore, the mortgagor was not a minor when he executed the two mortgages; 2ndly, that there was a fraudulent representation by the mortgagor, ''by which those claiming under him are estopped; and 3rdly, that in any case the mortgages were not void, but only voidable, and that, therefore those claiming under the two mortgages are entitled to such relief as is indicated by sec. 64 of the Indian Contract Act. I will first consider whether or not the mortgagor was a minor at the time he created the mortgages of 1890, and the solution of this question depends upon whether a guardian was properly appointed of his person; for, if so then section 3 of the Indian Majority Act, 1875, applies, whereby it is provided that, on the 7th February 1879, a petition was presented to the Court of the District of 24-Perganas, praying that a certificate of guardianship of the person of the mortgagor, then an infant of 7 years and 3 months, might be granted to the Petitioner under the provisions of Act XL of 1858, and on the back of that petition is the following endorsement:-- " Let certificate issue as prayed," signed by the Judge, on the 7th February 1879. Now, in this state of things, it has been urged by Mr. Woodroffe and Mr. Bonnerjee, who have ably argued this case on behalf of those claiming under the mortgages of 1890, that the order appointing a guardian of the person alone was ultra vires inasmuch as Act XL of 1858 does not authorize, as they contend, the appointment of a guardian of the person except when a certificate of administration has been granted under the Act, and it is said that here there is no evidence of such certificate having been granted.

Even admitting that the Act XL of 1858 admits of this construction (though I wish to guard myself against being supposed to decide the point), still I think the objection is bad. It is admitted by Mr. Woodroffe that even, on his construction of the Act, an independent application for the appointment of a guardian of the person might be made, and it seems to me that unless it be shewn that the circumstances were such that the order could not properly be made, I ought, in accordance with illustration (e) to sec. 114 of the Indian Evidence Act, to presume the regularity of the orders.

I therefore hold that the mortgagor was a minor when he executed the mortgages of 1890. Then it is said that even if this be so, still there was such fraud on the part of the minor that in accordance with the principles of justice, equity and good conscience, effect ought to be given to his mortgages, as though he had been an adult. Now a charge of fraud must be strictly proved, and obviously none the less, because the person charged is dead, and so unable to answer the charge. It is not enough to show that the minor allowed the mortgagees to deal with him as though he were an adult, or that he purported to do that of which an adult alone is properly capable; but it must be established that there was fraudulent misrepresentation, a fraudulent allegation that a fact or state of things existed in the truth of which representation the person making it had no genuine or honest belief. It is said that the mortgagor did make a representation as to his ages to Nandalal Mullick.

Mohan Dey, who had been Nundalal Mullick''s cashier, states, that he was present at the execution of the mortgage, and heard no conversation. Afterwards, on being shown a document which purports to be a horoscope, he said, " I have seen that before. On the day the money was advanced, Nunda looked into it. Benoy brought it, opened it out and showed it to Nundalal. Nundalal said his doubts had been dispelled, and handed me the key. Benoy said nothing."

The representation as to age (if the horoscope was in fact shown to Nundalal) was true, but I am asked to assume that Benoy was asked whether a guardian had been appointed, or that he fraudulently concealed that fact.

I have some doubt whether the incident to which Mohan Dey deposes actually took place under the circumstances he alleges, but be that as it may, I do not think that the circumstances would justify me in assuming that there was a fraudulent misrepresentation made by Benoy in connection with the mortgages, and I cannot give Mr. Woodroffe and Mr. Bonnerjee''s clients any relief on that footing.

Then it is said that these mortgages were not void, but voidable with the result, that if, on the one hand, they were not rescinded when the mortgagor came of age, then they are valid and effectual in law, but that, if on the other hand, they were rescinded, then those claiming under the mortgages are entitled to the relief indicated by sec. 64 of the Indian Contract Act.

It is provided by sec. 7 of the Transfer of Property Act, that every person competent to contract and entitled to transferable property is competent to transfer such property; and it is provided by sec. 11 of the Indian Contract Act that every person is competent to contract, who is of the age of majority according to the law to which he is subject. It would not be an unreasonable construction to say that a minor is not competent to contract, and the reasonableness of that construction appears to me to be justified by the terms of sec. 68, according to which a minor--for there can be no doubt that a minor is among those to whom the section points--is a person incapable of entering into a contract, and by the general heading of Chapter V which describes the obligation of an infant in respect of necessaries supplied as a relation resembling those created by contract, and therefore presumably not actually created by contract.

If, again, the results arising from treating the age of a minor as voidable are looked at, they would seem to nullify at any rate to a large extent the plea of infancy, for it would at least be an open question whether a money-lender would not be entitled to recover at any rate principal of his loan under sec. 64, a result which can hardly have been intended. Still there are decisions of this Court in which it has been held that the contract of an infant is voidable and not void. The first decision is that of Shasi Bhusan Dutt v. Judu Nath Datt I. L. R. 11 Cal. 552, the judgment in which is as follows :--" The only point, as we understand, which is referred to us in this case is whether, having regard to sec. 10 of the Indian Contract Act, a minor, who is the obligee of a bond given for the value of certain goods, can sue upon it. The Munsif considers that he cannot, because the bond is void, as having been entered into by a party not competent to contract. We think this is a mistake. It is true that the language of the Indian Contract Act may have well led to the mistake; but we consider that the law here is the same as it is in England. A contract entered into with a minor is only voidable at the option of the minor." Now it is to be noticed that this case was decided without argument, and that the result could have been reached on other grounds.

The next case is that of Mahomed Arif v. Saraswati Debya I. L. R. 18 Cal. 259, where the same view was taken of a minor''s position. The learned Judges there say :-- "In the case of Shasi Bhusan Butt 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."

No reference seems to have been made in the course of the argument to sec. 64 and 68, still it undoubtedly is a decision that an agreement made by an infant is a voidable contract.

In this state of the authorities it would be impossible for me, sitting in this Court, to hold that a minor cannot make a voidable contract, though an infant is described as one incapable of entering into a contract. But even assuming that a mortgage executed by a minor is voidable either in the sense, that it is valid until it is rescinded, or in the sense that it is ineffectual until it is ratified, I am clearly of opinion that the mortgages of 1890 have no legal validity as such. It is not suggested that there was any affirmation by the mortgagor of either of these mortgages except that it was ingeniously argued by Mr. Bonnerjee, though without convincing me, that such affirmation was the just inference to be drawn from the fact, that while proceedings were taken to set aside Nundalal''s mortgage, his client was not similarly attacked. On the other hand there is a manifest intention on the part of the mortgagor to treat himself as not bound by those mortgages deducible from his having, when adult, executed mortgages, from which would spring rights inconsistent with those which he had purported to create by the mortgages executed during his minority. As to the argument based on sec. 64, it must be borne in mind, the present suit is one for realizing securities, and such rights, as might be created under sec, 64, would not be enforceable as between the co-defendants in the present proceedings, but in a suit for enforcement of those rights. I therefore hold that the two mortgages of 1890 are invalid, and there will be a declaration to that effect, and subject to that there will be the usual mortgage decree.