1. The plaintiff sued to recover possession of a house which he bought under a registered sale-deed from defendants Nos. 1 and 2. The defendant No. 1 is the mother of the defendant No. 2. The defendant No. 2 pleaded minority. The lower appellate Court found as facts that the defendant No. 2 not being clearly a minor in appearance, represented to the plaintiff and so intentionally caused the plaintiff to believe, that he was a major and on the faith of that belief to part with her money, The learned Judge of first appeal is clearly of opinion that the belief was induced by the express declaration of the defendant No. 2 and that in all the circumstances it was a reasonable belief.
2. The question, then, is whether the learned Judge below was right in holding that the defendant No. 2 was now estopped from pleading minority and proving it. The point is directly covered by authority. It was held in the case of Ganesh Lala v. Bapu I.L.R. (1895) Bom. 198 that in precisely similar circumstances a person situated as the defendant No. 2 is situated here was estopped under Section 115 of the Indian Evidence Act, 1872. We have been referred to numerous decisions in the Calcutta High Court which take a somewhat different view of the scope of Section 115 as well as to a large number of English decisions commencing with Johnson v. Pye (1665) 1 Sid. 258 and covering more than a century and a half. We are not, however, prepared to dissent from the decision of this High Court in Ganesh Lala v. Bapu. We are not prepared so to contract the meaning of 'a person' in Section 115 as to exclude from its connotation all persons declared under the Indian Contract Act incompetent to contract. It is upon this ground and this ground alone, as far as we can see, that the Culcutta High Court was able to get over the difficulty occassioned by Section 115. The long current of authorities we have considered appears to us to reveal a constant confusion of thought between what is true estoppel and what may be the effect of fraudulent misrepresentation by a minor. We are not, however, concerned with any considerations proper to the latter point. Estoppel is a law of allegation and proof and if we are right in our interpretation of Section 115, then the defendant No. 2, being 'a person' within the contemplation of that section and having by direct declaration intentionally caused the plaintiff to believe that he was a major, is precluded absolutely from denying the truth of that assertion, that is to say, he might not plead-much less prove-that at the time the conveyance was executed, he was in fact a minor. The point is not, as seems too often to be assumed, what would be the effect upon such a transaction of minority as a fact, but it is this that if the law of estoppel be correctly and strictly enforced, the Court is not to know that the defendant No. 2. was in fact a minor at all. The whole trial must proceed upon the footing of that being true which he represented and caused the plaintiff to believe to be true, viz., that ho was a major. Fraudulent misrepresentation is upon a totally different footing. In the large majority of cases of fraudulent misrepresentation it is the party who has suffered by it who desires the truth to be known and to obtain relief on that basis. That of course is a doctrine wholly outside the law of estoppel proper and should never be confused with it. In our opinion the learned Judge of first appeal has correctly appreciated the law and we think that no sufficient grounds have been shown us for dissenting from the judgment of the Division Bench in Ganesh Lala v. Bapu where that law was clearly laid down and so disturbing the decree of the lower appellate Court.
3. We think that this appeal should be dismissed with costs.
4. I concur in the conclusions arrived at. Section 115 of the Indian Evidence Act must, in my opinion, apply unless the word 'person' occurring in that section is construed in some limited way so as to exclude minors. There is nothing in the section itself which suggests that there should be any limitation put upon the meaning of the word 'person' and when we turn to Section 118 a little further on, we find there the word 'person' is used in its ordinary comprehensive sense. So it is again in Section 122. We have, therefore, clear indications that in general the word 'person' when used in this Evidence Act is used in its ordinary sense and I think that it is used in that ordinary sense in the particular case of Section 115 also.