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Indian Cotton Co. Ltd. Vs. Raghunath Hari Deshpande - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Reported inAIR1931Bom178
AppellantIndian Cotton Co. Ltd.
RespondentRaghunath Hari Deshpande
Excerpt:
- indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of sections 124-a, 153-a, 153-b, 292, 293, 295a of i.p.c., - 2. the defendant company contended that ramchandra martand was a major at the time of the execution of the lease, and therefore the lease was binding on him as well as his heirs, and even assuming that he was a minor, he ratified it by his conduct in recovering the rent from the defendant company, and that the lease, ex. the covenant may be a covenant for perpetual renewal, but the court will not give it.....patkar, j. 1. this is a suit brought by the plaintiff to recover possession of the land in suit on the ground that the property belonged to the joint family of the plaintiff and his uncle ramchandra martand who passed a lease on 28th july 1879, in favor of the defendant company for a period of five years when ho was a minor and therefore the lease was void, that at a partition between the plaintiff and his uncle the land in suit fell to the share of the plaintiff, and that the defendant when he was called upon to deliver possession refused to do so. 2. the defendant company contended that ramchandra martand was a major at the time of the execution of the lease, and therefore the lease was binding on him as well as his heirs, and even assuming that he was a minor, he ratified it by his.....
Judgment:

Patkar, J.

1. This is a suit brought by the plaintiff to recover possession of the land in suit on the ground that the property belonged to the joint family of the plaintiff and his uncle Ramchandra Martand who passed a lease on 28th July 1879, in favor of the defendant company for a period of five years when ho was a minor and therefore the lease was void, that at a partition between the plaintiff and his uncle the land in suit fell to the share of the plaintiff, and that the defendant when he was called upon to deliver possession refused to do so.

2. The defendant company contended that Ramchandra Martand was a major at the time of the execution of the lease, and therefore the lease was binding on him as well as his heirs, and even assuming that he was a minor, he ratified it by his conduct in recovering the rent from the defendant company, and that the lease, Ex. 12, was not for a period of five years only but created a permanent tenancy in favour of the defendants.

3. The learned Subordinate Judge held that the lease was not a permanent lease, that Ramchandra Martand was a minor at the execution of the lease and therefore it was void and did not confer any rights on the defendants, and that the subsequent conduct of Ramchandra Martand did not estop him from contending that the said tenancy was an annual one, and therefore passed a decree in favour of the plaintiff for possession of the land and mesne profits.

4. The first question arising in the appeal is whether Ex. 12, created a permanent tenancy in favour of the defendant company. The relative pertion of the lease has been correctly translated by the learned Subordinate Judge in his judgment as follows:

I have given the said survey-number to you at a rent for five years from 1879-80 to 1883-84. The agreement about it is that Rs. 25 are to be paid to me as rent for each year. And after the agreement has expired, if subsequently you require the land, I shall go on giving it to you on receiving money at the above (rate of) rent. I shall not give it to another. If I make any objections in this behalf the same arc void.

5. The learned Subordinate Judge held that Ex. 12 was a lease for five years with an agreement superadded to the effect that if the defendant company required the land after the expiry of five years the lessor would pass further leases to it as often as it might ask and for such period as it might please to have, without increasing the rent and without leasing it to any other person, and that as the defendant company had not obtained any such lease or leases' it must be regarded as hiving remained in possession as annual tenants holding over after th3 period of five years.It is urged on behalf of the appellant that the lease Ex. 12 created a permanent tenancy or at least a lease which will ensure during the life of the defendant company. On the other hand, it is contended that there was only one option of renewal after the fixed period, and that option not having bean exercised, the defendant company became an annual tenant after the expiry of the period, and reliance has been placed on the decision in the cases of In re Purmanandas Jeewandas [1882] 7 Bom. 109 and Manilal v. Nandlal [1919] 55 I.C. 610. The cases cited on behalf of the respondent do not apply to the lease Ex. 12 which provides that after the fixed period of five years the lessor shall go on giving the land to the lessee if he required it at the rent of Rs. 25. The provision for the grant of the renewal of the lease is not confined to a single renewal after the fixed period but to as many renewals of the lease as may be required by the lessee. In the case of Bai Sona v. Bai Hiragavri : AIR1926Bom374 , relied on behalf of the appellant, the lease stipulated that so long as the tenant went on paying the rent to the landlord, the landlord would not be entitled to get the demised premises vacated, and it was held that such a lease created a permanent lease and is not put an end to by the death of the lessee. The decision in Bai Sonar's case : AIR1926Bom374 is inconsistent with the decision in Vaman Shripad v. Maki [1879] 4 Bom. 424, where it was held that a lease of land whereby the lessee is given the power of holding the land as long as he pleases, is determined by the death of the lessee. In this conflict of judicial opinion the point will have to be referred to the Pull Bench in a proper case. In the present case there is no agreement whereby the lessee is given the power of holding the land as long as he pleases or as long as he paid the rent to the landlord. Ex. 12 is a lease for a period of five years with an agreement that the lessor would continue to give the land at the same rent of Rs. 25 should the tenant require the land.

6. In Halsbury's Laws of England, Vol. 18, para. 931, p. 460, it is laid down:

A lease for life or lives should be created by deed, and unless so created it is void at law; but in equity it is treated as an agreement for a lease, and the doctrine of specific performance applies to it. Consequently, if it is of such a nature that the Court would order specific performance, the lessee can obtain the grant of an effectual lease, or, without this being done, the informal lease is, for the purpose of any question arising in a Court which has jurisdiction to order specific performance, equivalent to a lease by deed. Cases of this kind occur when a landlord lets a house and agrees not to raise the rent as long as the tenant pays it regularly. Provided that the agreement is in writing, it operates as an agreement to lease for the life of the tenant, subject to regular payment of rent,and, for most purposes, is equivalent to a formal lease by deed for the tenant's life.

7. In para. 935 p. 463, it is stated:

The covenant may be a covenant for perpetual renewal, but the Court will not give it this effect unless the intention in that behalf is clearly shown; as, for instance, where the covenant expressly states that the lease is to be renewable for ever.

8. In Zimbler v. Abrahams [1903] 1 K.B. 577 it was held that the document, although it might have been intended to operate as a demise, might still be looked upon as an agreement for a lease capable of specific performance. In Kusel v. Watson [1879] 11 Ch. D. 129, it was held that an agreement by the lessor not to molest, disturb or raise the rent and to let the tenant have a lease at the same rent at any period the tenant may feel disposed, created a lease for the life of the tenant, but as the landlord was not interested in the property as a freehold but as a leasehold, the tenant was held entitled to an under lease for the residue of the term less one day if ha should so long live. The case of Abdulrahim v. Sarafalli A.I.R. 1929 Bom. 66, would be applicable to the present lease, and though the agreement in that ease was that the lessee was to remain in possession so long as ho pleased and so long as he paid the rent, the effect would be the same, for there is a stipulation in Ex. 12 that the landlord would go on leasing the land to the defendant at the same rent should the tenant require the land. The effect of allowing specific performance of the agreement at the instance of the lessee would be to create an interest in the lessee which would ensure during the lifetime of the lessee. It was held in Abdulrahim's case A.I.R. 1929 Bom. 66 that the lease was not to ensure as long as the defendant firm lasted, but the will of the firm could only be exercised by the manager in whose name the lease was passed. The defendant in the present case is a company incorporated under the Companies Act and is a corporate entity separate from its shareholders. Under Section 23. Companies Act 7 of 1913, from the date of registration a corporate body distinct from the members composing it comes into existence as a legal entity. In the case of a firm the word 'firm' is a collective name for the individuals who constitute the partners. Under Section 239, Contract Act, the persona who have entered into a partnership with one another are called collectively a 'firm,' and though suits may be brought by or against the firm in the name of the firm, the general doctrine that there is no such thing as a firm known to the law remains in forces: see Rampratab v. Gavrishankar A.I.R. 1924 Bom. 103 and Solomon v. Solomon & Co. [1897] A.c. 22. I think therefore that the lease Ex. 12 in the present case would ensure during the lifetime of the company. I do not therefore agree with the view of the lower Court that the defendant company not having obtained any renewal of the lease, they must be regarded as annual tenants. Ex. 12, in ray opinion, is a lease for five years with an agreement that the lessor would grant as many lessor at the same rent should the tenant require the land, and such an agreement if capable of being specifically enforced would create an interest in the land which would ensure so long as the company lasted.

9. The next point for consideration is whether Ramchandra Martand was a minor when ho executed the lease, Ex. 12. The plaintiff has not produced any extract from the birth register or any horoscope of Ramchandra Martand. The plaintiff relies on Ex. '31, the varshaphal, i.e., forecast of the events for 32nd year of Ramchandra. It states that 32nd year corresponding on second of the dark half of Bhadrapada of Shake 1816 corresponding to 17th September 1891. The date of Ramchandra Martand's birth therefore would be 17th September 1863, and on 28th July 1879, the date of the execution of the lease, Ex, 12, Ramchandra Martand would be about 16 years of age. The person who prepared the varshaphal, that is, the forecast of the events of 32nd year, has not been examined. So also Kashinath, the son of Ramchandra, who is alleged to have given the document to the plaintiff, is not examined. Having regard to the horoscopes of the plaintiff, his brother and other children in the family written on the reverse of Ex. 31 in the handwriting of Ramchandra Martand, I am not prepared to differ from the view of the lower Court that it is a genuine document.

10. The next document relied on behalf of the plaintiff respondent is Ex. 32, an extract from the register of the school, which is admissible in evidence to prove, the age according to the decision in Maharaj Bhanudas v. Krishnabai : AIR1927Bom11 . It shows that the plaintiff's uncle Ram chandra was ten years of age on 1st January 1874, and would lead to the inference that he was born in 1883.

11. The third document, Ex. 33, is an extract from the Government register of cash allowances as they stood on 1st November 1885. It contains an entry dated 31st October 1879, to the effect that a sanad was given to Ramchandra Martand minor by his guardian, his aunt Manubai, widow of Mahadeo Bhikaji. It is urged on behalf of the appellant that there is no evidence to show when the application for the sanad was made, and that though the applicant may be a minor at the time when the application was made, it would not necessarily follow that he was a minor when the sanad was handed over on 31st October 1879. The entry Ex. 33 is not conclusive but a legitimate inference can be drawn there from that on 31st October 1879, the guardian of Ramchandra Martand accepted the sanad on his behalf, and if Ramchandra Martand was a minor on 31st October 1879, he would clearly be a minor on 28th July 1879, when the lease, Ex. 12, was passed. Though the several documents produced by the plaintiff to prove the age of Ramchandra Martand are not individually conclusive, the cumulative effect of all the documents, in my opinion, is that Ramchandra Martand was a minor at the date of the execution of the lease.

12. It is urged on behalf of the appellant that even assuming that Ramchandra Martand was a minor on the date of the execution of the lease, he ratified it on attaining majority and reliance is placed on the receipt of rent by Ramchandra Martand on his attaining majority and particularly on the letter, Ex. 26, written by Ramchandra to the company on 1st June 1921, in which Ramchandra informed the company that they should pay the rent to him and not to the plaintiff Raghunath until ho gets a kararnama executed in his name. It is further urged that even though a contract by a minor is void, a conveyance stands on a different footing from a contract, and reliance is placed on the decision of Farran C.J., in Sadashiv v. Trimbak [1898] 23 Bom. 146 and that Ramchandra Martand ratified the lease on his attaining majority and reliance has been placed on the decisions in the cases of Hoy v. Thakur Ram Jiwan Singh [1905] 88 Cal. 368 and Gregson v. Rajah Sri Sri Aditya Deb [1889] 17 Cal. 223. Transfers of properties by minors, whether by way of sale, mortgage, lease or gift, are on the same footing as other contracts entered into by minors and are void: see Mohori Bibi v. Dhurmodas Ghose [1908] 30 Cal. 539, Bai Gulab v. Thakorelal [1912] 36 Bom. 622 and Dattaram v. Vinayak [1903] 28 Bom. 181 and Trevelyan on Minors, Edn. 6, p. 23. It is urged however on behalf of the appellant that Section 7, T.P. Act, would not apply to the lease, Ex. 12 passed in 1879, as the Transfer of Property Act, was extended to the Bombay Presidency in 1893, and that there is a substantial difference between a contract and a conveyance. It is unnecessary to go into the larger question argued on behalf of the appellant whether a conveyance stands on a different footing from a contract, and whether a conveyance passed by a minor before the Transfer of Property Act, came into force is void and whether it cannot be ratified by the minor when he attains his majority.

13. In the present case the lease was for a certain period of five years with an agreement that the lessor would continue leasing the land to the tenant, should he require the land, at the same rent of Rs. 25. The conveyance in the present case was only for five years, and the stipulation with regard to the continuance of the lease in future should the tenant require the land has not passed from the domain of contract into it hat of conveyance. A contract by a minor is void Under Sections 10 and 11, Contract Act, and cannot be ratified by the minor on his coming of age: see Trevelyan on Minors, Edn. 6, p. 204, and Mulla's Contract Act, Edn. 5, p, 73, where the case of Mt. Kundan Thin v. Sree Narayan [1906] 11 C.W.N. 135, cited on behalf of the appellant, has been criticized in view of the decision of the Madras High Court in Ramaswami Pandia thalavar v. Anthappa Chettiar : (1906)16MLJ422 , to the effect that a promissory note given by a person on attaining majority in settlement of an earlier one passed by him during minority for consideration then received is void for want of consideration. It is unnecessary in this case to consider the larger question argued on behalf of the appellant. On the one hand there is the view of Fulton, J., in Sadashiv v. Trimbak [1898] 23 Bom. 146 that a conveyance is preceded by a contract, and if the contract is void on the ground that it was entered into by a minor, the conveyance would necessarily be void apart from the provisions of Section 7, T.P. Act; and, on the other hand, there is the conflicting opinion of Farran, J., at p. 174, that, apart from the Transfer of Property Act, the Contract Act deals with contracts creating jura in personam and not with conveyance which create jura in rem, and also the view of the Allahabad and Madras High Courts in Munni Runwar v. Madan Gopal [1915] 38 All. 62 and Raghava Chariar v. Srinivasa Raghava Chariar [1916] 40 Mad. 808 that a sale or a mortgage in favour of a minor is valid on the ground that though persons incapable of contracting are incapable of transferring Under Section 7, T.P. Act, there is nothing to prevent minors being transferees of property and the view of Abdur Rahim, J., at p 319. That a sale effects a transfer of property while a mere contract for sale does not, and a transfer need not be founded on contract at all, and that the case of a completed transfer stands on a different footing from an executory contract. I do not think it necessary to pursue the matter further, as in this case the question relates to the agreement contained in Ex. 12 and not to a conveyance. There is however authority in support of the proposition that a conveyance passed by a minor after the Transfer of Property Act is void and there cannot be ratification of a transaction, which was void owing to the promisor possessing no contractual capacity at the time: see Arumugam Chetii v. Vellaichmi Thevar [1911) 37 Mad. 38.

14. In the present case, the interest of the defendant company to hold the land after the fixed period of five years is dependent on the validity of the agreement by Ramchandra Martand to go on leasing the land to the defendant at the same rent of Rs. 25 should the defendant company require the land. If the agreement is not capable of being specifically enforced on the ground that Ramchandra Martand was a minor at the time when he entered into that agreement, the basis of the defendant's title to retain the land disappears. In Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri [1911] 39 Cal 232 it was held that it was not within the competence of a guardian of a minor to bind the minor or the minor's estate by a contract for the purchase of immovable property, and that as the minor was not bound by the contract there was no mutuality and minor on reaching majority could not obtain specific performance of the contract. The minor's agreement, being void, cannot be specifically enforced. I think therefore that the agreement with regard to future leases after the period of five years is void and could not be ratified by Ramchandra Martand on his attaining majority.

15. In Gregson v. Rajah Sri Sri Aditya Deb [1889] 17 Cal. 223 the defendant was under a disability under the Incumbered Estates Act to enter into a lease and made an application to secure the Commissioner's sanction to the lease which went on during the period of incapacity and which was subsequently entered into by the defendant after he was free from the disability, and it was hold that the respondent was bound by the contract though its terms were to be ascertained by what passed when he was disabled from contracting. If Ramchandra Martand after his attaining majority had passed a registered document confirming the agreement embodied in Ex. 12 to grant subsequent leases should the defendant company require them, the matter would have been different. In Gregson's case [1889] 17 Cal. 223 the estate was in fact released from management, and the owner became free to manage the affairs as any other man, and he used his freedom to adopt the previous documents as binding on himself and he was compelled to act according to their tenor. The decision in Roy v. Thakur Ram Jiwan Singh [1905] 88 Cal. 363 purports to follow the decision in the case of Gregson v. Rajah Sri Sri Aditya Deb [1889] 17 Cal. 223, and if the decision is capable of being construed as allowing a person under disability, on being free from the disability, to ratify an agreement contained in a lease effected while under disability as in the case of a minor without passing a subsequent deed for consideration, I regret my inability to agree with it and must respectfully dissent from it.

16. It is lastly argued on behalf of the appellant that Ramchandra having executed the lease and admitted its execution before the Registrar must he presumed to have represented that he was a major, and therefore he and the plaintiff claiming under him are estopped from contending that he was a minor. It is unnecessary to go into the question whether a minor is estopped by reason of his re-presentation that he was a major at the time when he entered into the agreement, as this point was not raised in the lower Court, and there is no evidence to substantiate the allegation that Ramchandra Martand made the representation that he was a major at the time when he passed the lease Ex. 12. The decision of the Privy Council in Sadiq Ali Khan v. Jai Kishori A.I.R. 1928 P.C. 152 followed in Balalangowda v. Galigeppa A.I.R. 1929 Bom. 201 is opposed to the contention urged on behalf of the appellant.

17. On the whole therefore I think that the agreement in the lease Ex. 12, passed by Ramchandra Martand, is void and incapable of being ratified, and is not binding on the present plaintiff. The result therefore is that the decree of the lower Court must be confirmed and this appeal must be dismissed with costs.

Barlee, J.

18. This is an appeal from the decision of the First Class Subordinate Judge, Dhulia. The plaintiff in this case, Raghunath Hari Deshpande, sued for possession of land which had been leased by his uncle, Ramchandra Martand to the defendant company, the Indian Cotton Company Limited. The lease was executed on 28th July 1879, and purported to be for a period of five years with an annual rent of Rs. 25. The important part of the document is translated by the learned as follows:

I have given the said survey number to you at a rent for five years from 1879-80 to 1883-84. The agreement about it is that Rs. 25 are to be paid to me as rent for each year.. And after the agreement has expired, if subsequently you require the land, I shall go on giving it to you on receiving money at the above (rate of) rent. I shall not give it to smother. If I make any objections in this behalf the same are void.

19. The land remained in the possession of the company from that date. The plaintiff's father was the younger undivided brother of the lesser Ramchandra Martand. He died in 1917, and in 1918 the plaintiff sued his uncle for a partition, and on partition being effected, the lease land fell to his share. On 26th May 1921 the plaintiff sent a notice to the company, which is not on the record. On 1st June 1921 Ramchandra sent them a letter (Ex. 26), and informed them that they were in no way liable by the notice of his nephew Raghunath Hari Despande, since the kararnama was in his name, and that it was difficult for them to pay the amount unless and until Raghunath Hari got a kararnama executed in his name from them. On 6th June 1921, Raghunath sent another notice with which he forwards a copy of the decree showing that the survey number had fallen to his share. This appears to have boon the last letter in suit until 1925. In the meanwhile Ramchandra died in 1924. On 12th August 1925 the plaintiff sent Ex. 27 in which he claimed an increased rent of Rs. 700 annually. The company replied by Ex. 28 that they held the land under a lease, at an annual rent of Rs. 25, which provided that on the expiration of the term of five years they were to be allowed to use the land at the same rent so long as they required it, and they denied the plaintiff's right to increase the rent. On 24th December 1925, the plaintiff wrote again to the company (Ex 29), and asserted that at the time when the lease was executed Ramchandra Martand had been a minor, and that the lease was therefore not binding on him or his heirs or his undivided coparceners. On 10th May 1926 by Ex. 30 the company denied the truth of the statement that Ramchandra had been a minor at the date of the lease. This letter apparently ended the correspondence between the parties, and on 21st August 1926 the plaint was filed.

20. The lower Court has decided that the lease Ex. 12 passed by Ramchandra did not create a permanent tenancy in the defendant's favour; secondly, that at the time when the lease was granted the executant Ramchandra Martand was a minor and that it was not valid, and conferred no rights of permanent tenancy on the defendant; thirdly, that the plaintiff was not estopped from contending that the tenancy was an annual and not a permanent tenancy. In consequence the plaintiff was given a decree for possession and costs and an enquiry about mesne profits was directed.

21. The first question which must be decided in this appeal is the important question of fact whether the lessor Ramchandra Martand was a minor at the date of the lease. The evidence on the point is entirely documentary and consists of three documents. Ex. 31 is a varshaphal or document prepared at the commencement of the 32nd year of Ramchandra's age to show what events were likely to occur during that year. It was prepared in the year 1896. Ex. 32 is a school leaving certificate which purports to have been given by the Head Master of Dhulia School No. 2 to Ramchandra Martand. It states that at the date of entering the school ho was ten years of age having entered on 1st January 1874. Thirdly, we have Ex. 33, a copy of the register of cash alienations in the Khandesh Collectorate as they stood on 1st November 1885. It shows that on 31st October 1875 a sanad was issued to:

Ramchandra Martand minor his guardian as his aunt Manubai widow of Mahadeo Bhicaji;.

22. All these documents, if correct, go to show that Ramchandra must have been born in the year 1863, and that in 1879 on the date of the lease he cannot have been more then sixteen and was in consequence a minor.

23. It has been contended for the appellant company that the varshaphal his not been properly proved. It is not known who prepared it and Ramchandra's son who produced it has not been examined. It must be admitted that this document by itself would not be very satisfactory evidence of Ramchandra's birth. It is not shown that it was prepared from a horoscope made at or about the time of the birth by someone who had personal knowledge of that date, and it really amounts to no more then evidence that Ramchandra himself, in the year 1896, believed that he was entering his 32nd year. That it proves this is reasonably certain, for obviously it was a document which was in his possession and its contents must have been known to him. This is shown by entries in his own hand on the reverse side of it of the horoscopes of the plaintiff himself, his brother arid other children of the family. I take it then as evidence of Ramchandra's belief that he was born in the year 1863. It is valuable because the other two documents point to the same date and they are official documents and show what was the opinion as to his birth at a much earlier date Ex. 32 has been attacked because it is vague and it must be admitted that it merely proves that on 1st January 1874, Ramchandra appeared or was stated to be about ten years. But it is good evidence that he must have been a small Roy at the time and probably not more then ten or eleven. It is not likely that his parents or guardians can have made a mistake of more then a few months or at the outside of more then a year so the document is good evidence that he cannot have been more then 18 in August 1879. The same must be said of the last document, Ex. 33. It is in evidence that on 23rd October 1879, i.e. some months after the date of the lease, Ramchandra Martand was said to be or appeared to be minor or at least that he was believed to be a minor when application was made for the entry of his name, and that is unlikely to have been very long before the name was entered as has been suggested. None of these documents is of course conclusive; but their combined effect is, in our opinion, very strong as showing that in all probability Ramchandra was a minor at the time of the lease. How it happened that the company were willing to take a lease from a minor cannot now be ascertained. But, it was made so long ago as 1879, long before the Privy Council settled once for all that the contracts of a minor are void, and at a time when the general opinion was that they wore merely void able, so it is not improbable that the company, if they thought about the matter at all, were willing to take, this document as sufficient to give them a good title.

24. As at the date of the document Ramchandra was a minor, the learned Subordinate Judge has held that the agreement to renew the lease after the expiry of the term of five years was void. The contention put forward on behalf of the appellant is that the document, when read as a whole, amounts to a conveyance, that a conveyance by a minor is void able and not void, and that, this being so, it is binding on the plaintiff since it was ratified 1 by Ramchandra who allowed the company to remain in possession of the land for more then 40 years after the expiry of the term.

25. The learned Counsel relies on the cases of Zimbler v. Abrahams [1903] 1 K.B. 577, Kusel v. Watson [1879] 11 Ch. D. 129 and the Privy Council cases of Mahomed Musa v. Aghore Kumar. Ganguli A.I.R. 1914 P.C. 27 and Toolshi Pershad Singh v. Rajah Ram Narain Singh [1885] 12 Cal. 117 and the recent decision of this Court in Abdul rahim v. Sarafalli A.I.R. 1929 Bom. 66. The three Indian cases were cited to show that a Court is entitled to take into consideration the conduct of the parties to a lease and the surrounding circumstances as an aid to the determination of the problem whether a lease is permanent or not. The English cases are cited for the sake of analogy. The earliest of these cases is that of Kusel v. Watson [1879] 11 Ch. D. 129 in which one Self, who had a lease for a term of 80 years, agreed to let and Kusel agreed to take the property at yearly rent of 26 and Self agreed to let Kusel have a lease at and for the yearly rent of 26 at any period; and further agreed not to molest, disturb, or raise the rent of Kusel after he had laid out money in improving the premises. It was held that the document amounted to an agreement to lease the premise for the remainder of the lessor's term. In Zimbler v. Abrahams (5) the agreement was in these words:

I. have let. the house. at a weekly rental of 23s., and I agree not to raise Mr. Abraham's any rent as long as he lives in the house and pays rent regular. I shall not give him notice to quit.

26. It was held that this amounted to a demise for the lifetime of the tenant or an agreement to grant a lease for his lifetime. But neither of these cases is on all fours with that now before us; for in neither was any term mentioned. Here we have the recital of a term of five years, followed by an agreement to give a further lease, or to allow the tenant to continue in possession, and though the effect of the document may have been to give the tenant, the appellant company, a right to remain in possession for as long as it required the land, it cannot be said that the immediate demise was for more then five years. We cannot twist the terms of the document so as to make it say more then it actually says, and in my opinion it is not a permanent lease. The company's rights depended not on the demise but on the contract, and as the lessor was a minor the contract was void. In these circumstances, it does not seem to be worth while to discuss the question whether before the introduction of the Transfer of Property Act a conveyance by a minor was void or merely void able.

27. The next question in this case is whether the agreement could be ratified. The law is stated by Pollock and Mulla, on the authority of Arumugam Chetii v. Duraisinga Tevar [1911) 37 Mad. 38 and other earlier cases, as well settled that a minor's agreement cannot he ratified. The rule in the case of minors is the same as in the more usual case of ratification by a principal. Ratification relates back and is tantamount to a prior command, so it is essential that the person ratifying should be in existence at the date of the act: In re Empress Engineering Co. [1880] 16 Ch. D. 125, and legally capable of doing it. Mr. Coyajee relies on Mt. Kundan Bibi v. Sree Narayan [1906] 11 C.W.N. 135 and Roy v. Thekur Ram Jiwan Singh [1905] 88 Cal. 368, which followed the Privy Council case of Gregson v. Rajah Sri Sri Aditya Deb [1889] 17 Cal. 223. These authorities however do not appear to support the proposition put forward by the learned Counsel. In the first of these cases the Court was careful to show that there was a new contract made by the defendant after he came of age and the case was not decided on the point of ratification. The facts of the Privy Council case were these. The defendant zamindar, whose estate had been placed under management and who had become incapable of contracting in reference to it, agreed with the plaintiff that the latter should advance money on mortgage and should take a lease on part of the estate. After this agreement had been made it was submitted to the manager of the Incumbered Estates Department and sanctioned by him. An order was then made restoring possession of the estate to the zamindar and thus putting an end to his disability. Afterwards he carried on the transaction with the plaintiff and retained the benefit of the money paid by him but in the end did not complete the contract. Their Lordships held that the transactions were not void since (p. 231 of 16 I.A.):

It is quite competent to a person emerging from a state of disability to take up and carry on transactions commenced while he was under disability in such a way as to bind himself to the whole. The present defendant has done that and more then that. Not only has he taken, and. retained the benefit of the plaintiff's payments, but ho has since. exacted from the plaintiff a part of the consideration which was to move from him.. The defendant therefore is clearly bound by the contract, though its terms are to be ascertained by what passed when he was disabled from contracting.

28. The facts in the case of Roy v. Thekur Ram Jiwan Singh [1905] 88 Cal. 368 were similar, and the decision follows the Privy Council ruling. It is clear however from the last words, which I have quoted from the judgment of their Lordships of the Privy Council, that the defendant was held to be bound, not because after his disability ceased he had ratified the contract made whilst under disability, but because the contract was actually completed after his disability ceased. I can find nothing in these cases to show that the rule that an act of ratification must be one which the person ratifying could lawfully have done at the time, has ever been departed from.

29. The last point raised for the appellant is that Ramchandra must have made a false statement of his age and his sue cessor-in-title is in consequence estopped from pleading his minority. I need not discuss this as a question of law as the short answer is that there is no evidence that Ramchandra made any representation on the point, or that anything he said induced the company to enter into a contract. It seems to me to be improbable as I have said that they gave any attention to the matter. Had they done so, and considered it of importance, they would surely have required more satisfactory evidence then the mere word of a boy. For all these reasons I agree with the conclusion of the lower Court and would dismiss the appeal with costs.


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