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Gurushiddswami Vs. Parawa Dundaya Narendra - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number First Appeal No. 256 of 1916
Judge
Reported in(1920)22BOMLR49
AppellantGurushiddswami
RespondentParawa Dundaya Narendra
DispositionAppeal dismissed
Excerpt:
.....sale, inasmuch as the defendant who was her brother-in-law and who must be presumed to know her age was not deceived by what the plaintiff had told him as to her age;;(2) that though the court had a discretion to direct the plaintiff to restore the consideration money under section 41 of the specific belief act, 1877, yet it would not do so unless there were very strong circumstances in the case to enable the court to find that there was an equity in favour of the defendant;;(3) that, therefore, the sale should be set aside, and that the defendant was not entitled to refund of the consideration money in the absence of any such equity in his favour. - - beyond that the plaintiff was the widow of his deceased brother and it is not an unfair presumption to make against the defendant..........there must be very strong circumstances in the case to enable the court to find that there is an equity in favour of the defendant. in the case of thurstan v. nottingham permanent benefit building society [1902] 1 ch. 1 : [1903] a.c. 6, referred to in mohori bihee v. dharmodas ghose (1908) 5 bom. l.r. 421 : i.l.r. 30 cal. 539 by their lordships of the privy council and in which the judgment of romer l. j. is quoted, a mortgage in favour of the society was set aside, and the question was whether the society was not entitled to repayment of the advances; romer l. j. said: 'the short answer is that a court of equity cannot say that it is equitable to compel a person to pay any moneys in inspect of a transaction which, as against that person, the legislature has declared to be void.' cases.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff sued to obtain a declaration that the Hale-deed passed by her on the 9th March 1903 to her deceased husband's brother was not valid, and to recover possession of the property described in the plaint with mesne profits for the year 1911-12 with future mesne profits and costs. The greater part of the evidence turned upon the question whether the plaintiff was a minor when she signed the sale deed. It cannot be disputed that she signed the sale-deed and admitted execution before the Sub-Registrar, and that it appears from the document that Rs. 2,400 was paid for the land. We have considered very carefully the evidence which was dealt with by the learned Subordinate Judge, and also the arguments adduced by Mr. Rao to show that the finding of the learned Judge was wrong, but there are many circumstances in the case which all point to the fact that the plaintiff was a minor in 1903.

2. The question arises whether she in now estopped because according to the defendant's case she represented herself as being a major when she must have known that she was a minor. It has been held by a Bench of this Court that a person can be estopped in such circumstances, but it was admitted in that case that the circumstances in which an estoppel would be allowed would be extremely rare. But in this case there is evidence that the defendant was not deceived by what the plaintiff had told him. He had made inquiries about plaintiff's age from other sources and from the plaintiff's father. Beyond that the plaintiff was the widow of his deceased brother and it is not an unfair presumption to make against the defendant that ha must have known perfectly well what the plaintiff's age was.

3. Lastly, the question arises whether under Section 41 of the Specific Relief Act we should direct the plaintiff to restore the consideration money. The Court no doubt has a discretion to do so, but there must be very strong circumstances in the case to enable the Court to find that there is an equity in favour of the defendant. In the case of Thurstan v. Nottingham Permanent Benefit Building Society [1902] 1 Ch. 1 : [1903] A.C. 6, referred to in Mohori Bihee v. Dharmodas Ghose (1908) 5 Bom. L.R. 421 : I.L.R. 30 Cal. 539 by their Lordships of the Privy Council and in which the judgment of Romer L. J. is quoted, a mortgage in favour of the society was set aside, and the question was whether the society was not entitled to repayment of the advances; Romer L. J. said: 'The short answer is that a Court of equity cannot say that it is equitable to compel a person to pay any moneys in inspect of a transaction which, as against that person, the Legislature has declared to be void.' Cases may arise in which the Court might come to the conclusion that there was an equity in favour of the person to be paid the money. But in this case we do not think that there is any such equity. The result must be that the appeal is dismissed and the decree of the lower Court confirmed with costs.

Heaton, J.

4. I concur.


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