1. The question in this appeal is whether the plaintiffs-respondents can set up estoppel against the minor Bhimappa on the ground that he bad represented himself to them as a major when he with the widow Adiveva passed the sale-deed in their favour. The plaintiff respondent claimed on the strength of this sale-deed and the defendants-appellants on the strength of an award filed as a decree passed subsequently, when Bhimappa was admittedly a major. Both the lower Courts found that on the date of the sale-deed in favour of the plaintiff-respondent Bhimappa was a minor, but agreed that he was estopped from questioning the sale, and, therefore, decreed the claim. Defendant No. 1 appeals.
2. It is argued on behalf of the appellant that the view of this Court, differing from the other High Courts, that an estoppel can be pleaded by a minor must now be held to be overruled on the strength of the observations of their Lordships of the Privy Council in the very recent case of Sadiq Ali v. Jai Kishori : (1928)30BOMLR1346 . For the plaintiffs-respondents it is argued that the question was expressly reserved by their Lordships of the Privy Council as early as Mohori Bibee v. Dharmodas Ghose I.L.R.(1903) Cal. 539 and the consistent decisions of this Court from Ganesh Lala v. Bapu I.L.R(1895) . 21 Bom. 198 ; Dadasaheb Dasrathrao v. Bai Nahani (1917) I.L.R. 41 Bom. 480; Jasraj Bastimal v. Sadashiv Mahadev I.L.R(1921) . 46 Bom. 137 cannot be held to be overruled by the observations in the recent Privy Council case, Sadiq Ali Khan v. Jai Kishori, particularly as similar observations of their Lordships of the Privy Council are to be found in Mahomed Syedol v. Yeoh Ooi (1916) 19 Bom. L.R. 157.
3. This last, however, was a case from the Straits Settlement and their Lordships observed (p. 163):-
A case of fraud by the appellant on the subject of his age was set up, but it cannot be doubted that the principle recently given effect to in the case of R. Leslie Limited v. Sheill would apply, and such a case would fail.
4. In that case it was held by Lord Sumner and the other Judges that where a minor by fraudulently representing that he was of full age, induced the plaintiffs to lend him money, such an action by the plaintiffs to recover the amount of the advance on the ground that he had obtained it by fraudulent misrepresentation must fail, even though fraud was proved against the minor. On the present question, the other High Courts have differed from this Court: Dhurmo Dass Ghose v. Brahmo Dutt I.L.R(1898) . Cal. 616 on appeal I.L.R(1898) . Cal. 381 ; Khan Gul v. Lakha Singh A.I.R . (Lah.) 609 ; Vaikuntarama Pillai v. Authi' moolam Chettiar I.L.R(1914). Mad. 1071; Jagar Nath Singh v. Lalta Prasad I.L.R(1903) . All. 21 and Kumar Ganganand Singh v. Maharaja Sir Rameshwar Singh Bahadur I.L.R.(1927) 6 Pat, 388.
5. As for the observations of the Privy Council in the recent case of Sadiq Ali v. Jai Kishori cited for the appellant, the arguments are not reported, but the question was one of minority on which the two lower Courts differed. Their Lordships of the Privy Council agreeing with the trial Court held that the mortgagors were proved to be minors and the mortgage deed executed by them wag a nullity. They proceeded to observe as follows (p. 1352):-
The fact of minority being established at the date of the execution by the mortgagors of the deed founded on is sufficient for the decision of the case; such a deed executed by minors being admittedly a nullity according to Indian law, and incapable of founding a plea of estoppel,
6. I am unable to interpret this decision otherwise than as over ruling the view of this Court and as agreeing with the view of the other High Courts. By no ingenuity of argument can the view of this Court be reconciled with the judgment that a deed executed by minors is incapable of founding a plea of estoppel. Accordingly, in this view of the law, even if in Section 115 of the Indian Evidence Act the word ' person' includes minors, the general intention of adjective law of the Legislature as to the rule of evidence in this section must give way to the particular intention of substantive law in Section 11 of the Indian Contract Act: per Best C.J. in Churchill v. Crease (1828) 5 Bing. 177.
7. The appeal must be allowed, the decree of the lower Courts set aside, and the plaintiff's suit dismissed with costs.