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Mohun Bibi Vs. Saral Chand Mitter - Court Judgment

LegalCrystal Citation
Decided On
Reported in(1898)ILR25Cal371
AppellantMohun Bibi
RespondentSaral Chand Mitter
Cases ReferredDhanmull v. Ram Chunder Ghose
minor - fraudulent representation by minor that he was of age--mortgage--civil procedure code (act xlv of 1882), sections 42, 46, 53--plaint, amendment of. - jenkins, j.1. on the 14th november 1893 the defendant executed, in favour of luckhinarain singh, the original plaintiff in the suit, a mortgage of certain immoveable properties, which had devolved on the defendant under the will of his grandfather, and on the 20th february 1895 this suit was instituted, whereby it is prayed:(a) that the defendant may be decreed by this honourable court to pay to the plaintiff the sum of rs. 5,000, together with the interest due thereon, and the costs of this suit on some day to be fixed by this honourable court, and that in default thereof the right to redeem the said mortgaged premises may be foreclosed.(b) that the said premises may be sold, and the sale proceeds applied in and towards the repayment of the said sum of rs. 5,000, and the interest.....

Jenkins, J.

1. On the 14th November 1893 the defendant executed, in favour of Luckhinarain Singh, the original plaintiff in the suit, a mortgage of certain immoveable properties, which had devolved on the defendant under the will of his grandfather, and on the 20th February 1895 this suit was instituted, whereby it is prayed:

(a) That the defendant may be decreed by this Honourable Court to pay to the plaintiff the sum of Rs. 5,000, together with the interest due thereon, and the costs of this suit on some day to be fixed by this Honourable Court, and that in default thereof the right to redeem the said mortgaged premises may be foreclosed.

(b) That the said premises may be sold, and the sale proceeds applied in and towards the repayment of the said sum of Rs. 5,000, and the interest thereon, and the costs of this suit.

(c) That if the sale proceeds be not sufficient for the payment in full of the said amounts, the said defendant be decreed and ordered to pay to the plaintiff the amount of such deficiency.

(d) That for such purpose such directions may be given and such accounts may be taken as to this Honourable Court may seem necessary.

(e) For such further and other relief as the nature of the case may require.

2. Luckhinarain having died, the plaintiff Sreemutty Mohun Bibee, as his administratrix, was substituted in his place.

3. On the 1st February 1894 Kaliprosonno Ghose was appointed guardian on the allegation that the defendant was an infant, and on the 17th of April 1895 he put in a written statement, pleading infancy and submitting the matter to the Court.

4. This was the state of the record when the case came on for trial. On that occasion, however, it was stated that the defendant had reached the age of 21, and it was arranged that the guardian should be discharged.

5. Thereupon it was asked by the plaintiff whether the defendant intended to affirm his mortgage, and to this there was a reply in the negative.

6. On this the plaintiff contended that it was not open to the defendant to rely on his infancy, on the ground that the mortgagee had been induced by his fraud, and that, at any rate, the decision gave rise to such rights as are indicated by Sections 64 and 65 of the Indian Contract Act. It was further pointed out that until then there had been no avoidance of the mortgage, and leave was asked to file a supplemental written statement. The defendant objected, but I acceded to the application. In coming to this conclusion I was influenced by the fact that to refuse it would simply necessitate the institution of a fresh action without any advantage to the defendant, as I have given him all the time he required to meet the allegations of fraud; and next because this supplemental written statement was, so far as the plaintiff sought to rest on his mortgage, really in the nature of a replication seeing that there had been no prior avoidance of the mortgage.

7. In this state of things the following issues were raised:

1. Was the mortgage deed executed by the defendant ?

2. Was the defendant an infant at the date thereof ?

3. Was the plaintiff induced to lend the money under the circumstances alleged in the written statement ?

4. Apart from the question of fraud are the plaintiffs entitled to recover under the sections of the Contract Act (64 and 65) ?

8. There really can be no question that the defendant executed the mortgage, nor have I any doubt that at its date the defendant was under the age of 18 and consequently a minor. I accordingly decide the 1st and 2nd issues in the affirmative. In deciding the 3rd issue, I have to deal with a conflict of evidence of a most direct character going to the very heart of the matter in dispute.

9. There are, however, certain matters which are practically beyond question, and it will be best to state them, so as to see which of the conflicting cases best accords with the established facts. Those facts I take shortly to be as follows:

10. Some days prior to the mortgage, arrangements were made for an advance by Luckhinarain Singh to the defendant on the security of the property which has been actually charged. In the course of the negotiations there were produced to Luckhinarain the death certificate and affidavit which are alleged to have contained the false representation. The death certificate and affidavit were afterwards placed before Aushootosh Bose, a pleader of the Alipore Court, by Luckhinarain, who requested him to advise whether, having regard to them, money could be advanced. Subsequently, Aushootosh Bose, in accordance with instructions, prepared a draft and engrossed mortgage mentioned in the plaint. On the 14th of November 1893 Luckhinarain accompanied by Aushootosh and Gunput met the defendant and Hari Churn Mitter at the Sealdah Registry; the defendant signed the mortgage and the defendant, Luckhi, Aushootosh, and Gunput went upstairs and presented the deed for registration.

11. The registrar, who was a friend of the defendant's family, doubted whether the defendant was a major, nor were his doubts removed by the production of the affidavit of Achintanath Biswas, so the parties went downstairs and Hari, Luckhi, and Gunput went away in a garry, and after the space of an hour brought back the death certificate. The parties once more went before the Registrar, the certificate was handed to him, and he, apparently being satisfied as to the defendant's majority, registered the deed. On this 5,000 rupees in notes was paid into the defendant's hands and the parties again went downstairs, leaving the death certificate and the affidavit with the Registrar. Notes to the amount of Rs. 200 were handed to Aushoo and then Luckhinarain and Aushootosh left in a garry, leaving the others there. A few days after Saral went to the Registry and obtained the affidavit that had been left there.

12. The facts which I have so far stated are beyond dispute, and it will now be convenient to examine shortly the several versions of the plaintiff and the defendant as to what occurred over and above this.

13. According to Gunput's evidence Saral himself took part in the negotiations for a loan, and himself produced to the plaintiff the certificate and affidavit. After stating that Saral came with Suren Das to Luckhinarain 15 or 20 days prior to the mortgage, Gunput proceeds as follows:

21. 'Suren said to Luckhinarain Singh in defendant's presence: 'Here is Saral Babu; will you advance him the Rs. 2,000 on a promissory note, which you have promised to advance'; upon that Luckhinarain Singh said: 'The other day you told me something about his age; where are the affidavit and certificate of death of his father.' Saral thereupon produced two pieces of paper from his pocket and handed them over to Luckhinarain Singh, who read them and handed them over to me.' The witness then identified these two documents as being the death certificate and the affidavit. Gunput further describes how the two came again the next day, and that it was ultimately arranged that Rs. 5,000 should be advanced on mortgage. After this, according to Gunput, the defendant obtained a return of the death certificate and affidavit on his furnishing the copies which have been produced here. Gunput beyond this connects Saral with the transaction before its completion by stating that he handed to him a draft of the mortgage.

22. I now pass to the plaintiff's version of what happened at the Sealdah Office.

23. According to it the defendant was present in the Registry, and on the Registrar, Hem Chunder, expressing doubts as to his majority, produced the affidavit to the Registrar. Babu Hem Chunder being still in doubt, Hari Mitter was sent by the defendant to get the death certificate, and for that purpose went away with Luckhinarain Singh and Gunput, dropped them at their house, went on, and brought back the certificate, picking up Luckhinarain and Gunput on the way. Then it is said that it was on production of the certificate by the defendant to Hem Chunder that the deed was registered and the 5,000 rupees paid. It is admitted that after leaving the Registrar's room notes to the amount of Rs. 200 were handed to Aushoo, but it is sworn that this was to discharge the expenses in connection with the transaction, and Ashootosh's remuneration, amounting in all to Rs. 140, and that Rs. 60 was then and there repaid to the defendant. Beyond this it is absolutely denied that any payment was made by Saral.

24. The version put forward on the part of the defence is widely different. Saral swears that he knew nothing about the mortgage till the day before it was executed, that he took no part in the negotiations for the loan, and did not produce the certificate and affidavit, and he further disclaims prior possession of them or even knowledge of their existence. He further swears that he did not know, though he was present, why Hem Chunder declined at first to register the document, that he did not produce either the affidavit or certificate to Hem Chunder, that he did not know the nature of those documents when they were produced, or what the affidavit was when he went to the office afterwards and took it away, and he denies that he sent Hari Mitter for the certificate. On the other hand he states that, after leaving the Registry, he paid Rs. 2,000 to Luckhinarain, Rs. 1,100 to Gunput, and did not receive Rs. 60 or any other sum back in respect of the Rs. 200 paid to Aushoo. Then the question comes, which version am I to adopt. New I absolutely decline to believe Saral's disavowal of all connection with the certificate and affidavit. In the first place it is proved to my satisfaction that documents undistinguishable from these had been previously shown to Preonath Shastri on the occasion of Saral's obtaining a loan from him. Then I find it impossible to believe that the defendant did not know for what purpose those documents were produced to Hem Chunder. There can be no question that Hem Chunder did express his doubts as to Saral's age, and when it is borne in mind that he was a friend of Saral's family and was well acquainted with Saral himself, it is beyond my capacity to believe that Hem Chunder should not have said a word to Saral on the point, and that Saral remained in absolute ignorance of that which admittedly was going on in his presence. I find it equally difficult to accept his account of what happened when the affidavit was taken away from the Registry. He states that in consequence of Gunput's persuasion he accompanied him to get the affidavit; still he declares that, though it was he who went to the Registrar and asked for the document, he did not know what it was; that he only described it to the Registrar as 'the first document which was produced to you in connection with the loan'; that the Registrar told the clerk to get it; that it was handed to him folded, and that he did not open it. The purpose of this evidence is to support the defendant's theory of his ignorance and freedom from guile, but when I consider the improbability of the tale, and the fact that during the cross-examination of Gunput no suggestion was made of his having accompanied Saral on the occasion when the affidavit was taken away, I do not hesitate to say that the defendant's evidence on the point is undeserving of credit.

25. The conclusion to which I come is that the defendant was perfectly well aware of the purport of these two documents, and the purpose to which they were put in connection with the transaction. It is the defendant's case that he had nothing to do with the ease, and that Hari Mitter acted for him. Yet he does not call Hari as a witness, though he is a friend of the defendant's and was in Court during the trial. The evidence appears to me to demand the conclusion that Saral took part in the negotiations for the loan, and that he used the death certificate and affidavit fraudulently, being well aware of their falsity, for the purpose of inducing Luckhinarain to believe that he Saral, had attained his majority, and so of procuring from him the advance which was made.

26. After the best consideration I have been able to give I further come to the conclusion that Luckhinarain was deceived into making the loan by the defendant's fraudulent misrepresentation. In arriving at this conclusion I have not overlooked the arguments based on the rate of interest and on the assertion that Luckhinarain is a money-lender. But I cannot find in those circumstances anything to justify me in coming to the conclusion that the defendant's fraud had not its intended and natural result on Luckhinarain's mind. It has also been a prominent point in the defendant's argument in this connection that the advance was made on a first class security, but I am hound to disregard it as there is not a tittle of evidence in its support. As bearing to a certain extent on this part of the case I will here deal with the defendant's statement that he only got Rs. 1,700. The balance of Rs. 3,300 the defendant accounts for as follows:

27. He says Rs. 2,000 was paid to Luckhinarain: but as to the remaining Rs. 1,300 there has been a departure from the original suggestion. At first it was suggested that Rs. 300 was paid to Aushoo which would have left a balance of Rs. 1,000 for Gunput; later, however, the Rs. 300 dropped to Rs. 200, with a corresponding rise in the amount paid to Gunput, though Sital, who was called by the defendant, adhered to the original figure of Rs. 1,000, his evidence in this respect being consistent with the earlier rather than with the later account suggested by the defendant. Now, as to the Rs. 2,000, it is sworn by Saral that he paid that amount to Luckhinarain, and Sital's testimony is to the same effect. On the other hand Gunput and Aushoo, who were both there and must have seen the payment, if made, deny that it ever was made. As to Rs. 1,100 Gunput swears it was not paid; the defendant declares that it was; while according to Sital it was Rs. 1,000 that was paid to Gunput. Both the defendant and Sital agree in stating that Gunput went in a garry with them from the Registry to Lal Bazar, where change was obtained. This account naturally suggested the question why was it necessary to take Gunput to Lal Bazar for the purpose of changing the notes, seeing that even after the alleged payments to Luckhinarain and Aushoo there were notes to pay the sum Gunput is said to have received whether it was Rs. 1,100 or Rs. 1,000.

28. Saral's explanation is that Gunput was paid Rs. 1,000 when he got into the garry, but as he was to pay to Sital Rs. 25 and the coachman Rs. 10, Sital suggested that the Rs. 100 should be kept till the change was got. Sital, on the other hand, says that before the garry was driven away no money was given to Gunput, and that the notes were given to Gunput at Lal Bazar. While Gunput was in the box, for some reason or other, doubtless a very good one, no suggestion was made to him in cross-examination that he had gone to Lal Bazar, and it is a curious fact that, though Saral says that he informed his father-in-law of all this before he put in his written statement as guardian ad litem, still there is not a suggestion in the written statement of this alleged iniquitous conduct on the part of Gunput and Luckhinarain.

29. Mr. Hyde says that it was unnecessary to do more than plead infancy, and that is the explanation he gives.

30. I do not for a moment suggest that the silence of the written statement is in any sense conclusive, still I think it is a factor to which one may have regard in determining which version should be accepted in this conflict of testimony.

31. Apart, however, from this, I certainly would place credence in the testimony of Gunput and Aushoo, rather than of Saral and Sital. The last-named struck me as a most unsatisfactory witness, and when I bear in mind the accounts he gave of how Gunput had promised him the Rs. 25, and his mode of giving evidence, I am able to place little (if any) reliance on his statements. While as to Saral, not only did he, in my opinion, practise a deliberate fraud on Luckhinarain in the mode I have already indicated, but he has come here and given an absolutely false account of the part he took in the whole transaction. In a conflict of testimony he is not a witness on whom I would rely, and I decline to accept his account of what occurred. I accordingly hold that the Rs. 2,000 and Rs. 1,100 were not paid as Saral has suggested, and further that the Rs. 60 was paid back. So much for the facts of the case: I next have to consider what result should follow from those facts.

32. On the part of the defendant it is contended that, notwithstanding the defendant's fraud, infancy is a complete answer both to the claim for personal payment and also to the relief by foreclosure or sale on the mortgage. In support of this contention reliance is placed on Dhanmull v. Ram Chunder Ghose (1890) I.L.R. 24 Cal. 265 a decision of the Appellate Court by which, of course, I am bound.

33. It has not been suggested that in relation to this point the Indian differs from English law, and it is perfectly obvious that in England infancy affords a complete answer to that which before the Judicature Acts would have been called an action at law on the contract; and it is equally clear that a decree for personal payment on the contract expressed or implied in a mortgage could not be made against an infant however fraudulent he might be. The liability of a fraudulent infant to a decree for sale or foreclosure is however a perfectly different thing, and it is necessary to examine the case of Dhanmull v. Bam Chunder Ghose to see whether the learned Judges in that case were dealing with anything more than the right to a decree for personal payment against a fraudulent infant. From the report of the case it appears that it was a suit brought to recover the sum of Rs. 13,000 and interest due on a mortgage executed by the defendant on the 26th March 1886. The plaintiff alleged that the defendant at the time of execution represented himself to be of full age, and thereby induced the plaintiff to advance the mortgage money, and he contended that, in the event of the defendant establishing that he was a minor at the date of the mortgage, then his representations amounted to a fraud, and were wilfully made with a view to deceive the plaintiff, and that the plaintiff should in any event be held entitled to recover the money. The prayer of the plaint was for the usual mortgage decree and for a money decree. The defendant pleaded minority, and denied the alleged fraudulent representation.

34. The case was heard before Mr. Justice Norris, who found that the plea of minority was proved, but that the defendant falsely pretended, and allowed other persons in his presence and on his behalf to state to the plaintiff that he was of full age; that such statements were false to the knowledge of the defendant, and operated upon the plaintiff's mind, so as to induce him to advance the money. It was admitted at the Bar that if the plea of minority was established the plaintiff could not be entitled to a mortgage-decree, but it was argued that, if the case of false representations was made out, he was entitled to a money decree.

35. The learned Judge dismissed the suit, and from that dismissal there was an appeal which was heard and decided by the Chief Justice Sir Comer Petheram, Mr. Justice Prinsep, and Mr. Justice Pigot, who affirmed the decision of Mr. Justice Norris.

36. Now there can be no doubt that the facts of that case must be taken for all purposes to be the same as those of the present, but that does not necessarily make it conclusive; for it is clear that a case is not a precedent for any proposition that was neither consciously nor unconsciously in the mind of the Court. Now, according to the report of the case, it was admitted at the hearing before Mr. Justice Norris that, if the plea of minority was established, the plaintiff could not be entitled to a mortgage-decree. If that be so, it would be reasonable to suppose that both in the Court of First Instance and the Appellate Court the only point that was discussed and made matter of actual decision was whether the plaintiff could get a money decree in spite of the plea of infancy, seeing that the advance had been procured by the infant's fraud. A glance at the cases quoted, and a moment's consideration of the cases left unquoted, distinctly bear out the view that the argument of Counsel and the deliberation and decision of the Courts were limited in the manner I have indicated.

37. This too is apparent from the judgments that were delivered. For instance the learned Chief Justice says: 'No case has been cited before us, nor are we aware of the existence of any, in which a person has been held personally liable to pay a debt contracted by him during his infancy on the ground that he obtained the credit by fraudulent misrepresentations as to his age.' Mr. Justice Prinsep adopts the reasons and conclusions of the Chief Justice. Then, if one turns to the judgment of Mr. Justice Pigot, the same thing appears. He says: 'I think it is clearly established that the defendant was under age when he entered into the contract.' Then later, after stating that the suit must fail, he proceeds: 'Assuming it to be framed in tort an infant,' as Sir F. Pollock accurately says, 'could not be made liable for what was in truth a breach of contract by framing the action ex delicto. You cannot convert a contract into a tort to enable you to sue an infant.' If any doubts were left after reading this passage, it is removed by what appears in the concluding part of the judgment where the learned Judge says:

38. 'If we as a Court of equity as well as a Court of law were to allow the plaintiff to recover in this suit it would amount to restraining a defendant from setting up the plea of infancy in an action on contract by reason of his having made a fraudulent misrepresentation dans locum contractui; and in no case has this ever been done.' It appears to me clear that the learned Judges were simply considering the defendant's personal liability to a money decree, that being the sole question with which they were invited to deal. The high respect I entertain for the learned Judges who decided the case of Dhanmull v. Ram Chunder Ghose wholly precludes me from supposing that they ever intended to deal with the plaintiff's right to foreclosure or sale by virtue of his mortgage---a point on which there has been an undeviating course of decision from the time of Lord Cowper down to the present day, and a point which has been familiarized by the inclusion of Savage v. Foster in the 2nd volume of White and Tudor's leading cases in Equity. I refer to those decisions as being authoritative on this point, as it is apparent from the very case of Dhanmull v. Ram Chunder Ghose that the point is one which falls to be determined by this Court administering principles of equity in accordance with the decisions of English Courts.

39. No doubt the report of Dhanmull v. Ram Chunder Ghose records Counsel's admission that if the plea of minority were established the plaintiff could not be entitled to a mortgage-decree.

40. It may be that there was some special circumstances in the case that demanded such an admission, but it is obvious that, however that may be, it has no binding force, and in my opinion the plaintiff's right to a mortgage-decree is res integra so far as that case is concerned.

41. I have, therefore, to determine whether the defendant can rely on his infancy to the plaintiff's prayer for a mortgage-decree.

42. I was in the first place referred by the plaintiff to the second case of Ganesh Lala v. Bapu (1895) I.L.R. 21 Bom. 198 on the authority of which it was contended that the defendant would be bound apart from fraud by virtue of Section 115 of the Evidence Act. As, however, I find that there has been fraud, it is unnecessary for me to consider whether the principle there enunciated would govern this case.

43. There are, however, as I have already mentioned, a number of English cases which clearly establish that, in a Court of Equity, the disability of a party, whether arising from infancy or coverture, cannot be successfully used in defence of fraud, so that, if the Rule of English Equity applies, the defendant cannot avail himself of the plea of infancy. It is unnecessary to do more than refer to a few of the better known of these cases, such as Watts v. Cress-well 9 Vin. Abr. 415: 2 Eq. Cas. Abr. 515 decided by Lord Cowper, who held the Great Seal from 1714 to 1718; Savage v. Foster 2 Wh. & Tud. Eq. Cas. 678; Teynham v. Webb (1750) 2 Ves. Sen. 198 decided by Lord Hardwicke in 1750; Evans v. Bicknell (1801) 6 Ves. 174 (181) decided by Lord Eldon in 1801; Cory v. Gertchen (1816) 2 Madd. 40; Vaughan v. Vanderstegen (1854) 2 Drew. 363 Davies v. Hodgson (1858) 25 Beav. 177; In re Lush's Trust (1869) L. R. 4 Ch. 591; and Cahill v. Cahill (1883) L. R. 8 App. Cas. 420 (434), per Lord Blackburn, from which it is apparent that the principle is one which has prevailed for 180 years, and has met with the approval of the most eminent English Judges. It further has the support of so eminent a text writer as Lord St. Leonards (3 Sugden's Vend, and Purch. 428). Nor is the rule one peculiar to the English Courts, for a reference to Story and Kent will show that it is one recognized and acted on by the Courts of the United States. It is therefore fair to take the rule as an expression of that which is required by the principles of equity, justice and good conscience, and so a rule which should govern decisions of this Court. It may be said, however, that the special circumstances of this case forbid the innovation of the rule, and doubtless it is to that end that it has been more than once repeated in the course of the argument that Luckhinarain was a money-lender and the defendant an unfortunate young man entrapped into the transaction. I am at all times inclined to regard with suspicion this class of argument.

44. Even a money-lender, if such Luckhinarain was, is not beyond the pale of the law, and even in regard to him the justice of his claim must be judged by the evidence given in the case in which that claim is put forward, and not by any general appeal to the iniquities, real or imaginary, of those who follow his calling.

45. The Evidence Act prescribes that the judgment of the Court must be based upon facts declared by the Act to be relevant and duly proved, and it would be intolerable that Courts should decide rights upon suspicions unsupported by testimony.

46. Then, if the conduct and behaviour of the defendant is a matter for consideration, I fear it would be impossible for me to view him in the favourable light in which he has been painted. He might perhaps find apologists for his youthful extravagances and vices, possibly even for the fraud by which he secured the loan; but I think it would be difficult anywhere to find an excuse for his attempt to escape from the consequences of the fraud by the version which he has given this Court of his conduct---a version which I have been wholly unable to accept. Therefore, I confess that the defendant does not appear to me to be a fitting object of that sympathy which I have been invited to extend to him. On the contrary, I see no reason for withholding the application of the rule of equity by reason of those personal matters to which my attention has been called. There remains, however, another point taken on the part of the defendant which requires notice.

47. It is said that the result of the written statement is to convert the action from one on contract into one on tort based on deceit, and that the statute of limitation would afford a complete answer to an action based on deceit. To the argument so stated there would be the obvious answer that it is a misconception to treat the action as one in tort, for it is not and does not purport to be such. The plaintiff's right to succeed, notwithstanding the defendant's infancy, arises from the applicability of a principle of equity, which treats fraud as a bar to the plea of disability. The precise position was this.

48. The effect of the infancy was that the mortgage was voidable, not void, for that is the result of the decision of this Court by which I clearly am bound whatever my own views may be.

49. Accepting this as the law, the infant's right to elect whether he should affirm or repudiate the mortgage remained open until he attained his majority, and in this particular case it was not until after the infant attained his majority, which happened in the month of June, that the plaintiff could have known whether the defendant would by his repudiation render reliance on his fraud obligatory on the plaintiff. I may also further point out that even in the written-statement there is merely a plea of infancy, and a submission to the protection of the Court, and no allegation even of such a provisional repudiation as is open to an infant in relation to a voidable transaction.

50. But apart from this, the position is very clearly expressed by Lord Justice Turner in Nelson v. Stocker (1859) 4 De Gex. & J. 458, where he indicates the true question is whether the false representation is such a fraud as will take away the privilege of infancy.

51. It seems to me, therefore, that the answer to the plea of infancy could properly be introduced under the circumstances of this case by way of replication, to use the phraseology of English pleading, as the plaintiff was not bound have to assume in his plaint that it would be necessary for him to rely on the fraud of the infant. In any case, I do not think that Article 95 of the Limitation Act is, on the facts of this case, any answer to the plaintiff's claim.

52. Under the circumstances, therefore, I hold the plaintiff is entitled to succeed, but while I give her the benefit of the principles of equity, she must take her remedy subject to the qualifications those principles impose.

53. In the first place I will not allow any interest. Then, as I indicated in the course of the argument, I am not inclined to charge the infant with remuneration paid to Aushootosh Bose, but as it is not clear what part of the Rs. 140 was applied in payment of the expenses, and as the cost of an inquiry on the point would be disproportionate to the result, the simpler plan will be to disallow the whole of the Rs. 140. I understand the plaintiff is willing to accede to this course. The mortgaged property therefore will be a security for the principal advanced after deducting the Rs. 140 and costs, and there will be an account on that footing. There will, therefore, be the usual mortgage decree with interest at 6 per cent, on decree, with the qualification that the plaintiff will not be entitled to recover the principal sum or interest otherwise than out of the mortgaged property. Costs on scale No. 2 including reserved costs.

54. From this decision, and also from the order giving the plaintiff leave to amend his plaint, the defendant appealed.

55. Mr. Garth (Mr. Chakravarti with him) for the appellant. Although the power of making amendments under Section 53 of the Code of Civil Procedure is discretionary, the power in this case was exercised contrary to the proviso to that section. The conversion of this suit from a suit to enforce a mortgage into a suit for the recovery of money paid upon the footing of a false representation is the conversion of a suit of one character into a suit of another and inconsistent character. As regards the facts of this case my submission is that a mortgage by an infant, like a contract, is void, if the plea of infancy is raised. Luckhinarain deliberately blinded himself to the fact that the defendant was minor. He must shew that he took all prudent precautions which a man should take. If he cannot, a Court of Equity will not help him. The only question was whether the Registrar would be satisfied or not as to the minority. The plaintiff has failed to prove that Luckhinarain himself was deceived, or took any steps to prevent himself from being deceived. As long as he did not do so he cannot raise the plea of fraud. In this decree we are ordered to pay the money and there is no time fixed for payment. On the facts as given in Dhanmull v. Ram Chunder Ghose (1890) I.L.R. 24 Cal. 265 there was no misrepresentation.

56. Sir G. Evans (with him Mr. Dunne and Mr. Sinha) for the Respondent.---This is a case of deliberate fraud by a forged certificate and a false affidavit and would deceive any one. The affidavit was made by a friend and relative of the minor, Hari Babu, who was in the same office with him. The Registrar even was deceived by the certificate, and was satisfied that the boy was over age. He was as a matter of fact within 7 months of attaining his majority. As regards the case of Dhanmull v. Ram Chunder Ghose (1890) I.L.R. 24 Cal. 265 it is not necessary for this Court now to overrule that case. In that case in the lower Court Counsel gave up all claim under the mortgage, as they thought they would be entitled to a money decree only. The mind of the Chief Justice turned in that case upon whether a money decree could be given against the infant. Pigot, J., dealt with the case on the same lines. That case has been confined to a narrow point on account of the line taken by Counsel. They cited Ex-parte Unity Joint Stock Mutual Banking Association, (1858) 3 De G. & J., 63, to shew it was a debt, but did not cit(sic) analogous cases to shew how relief can be given, which is laid down in cases cited by the Judge in the Court below. If the infant is old and cunning enough to carry on a fraud he should be made liable---Watts v. Creswell 9 Vin. Abr. 414. Where fraud is practised by a married woman or an infant the protection thrown around them is taken away; but the Courts of Equity have not carried it so far as to make a money decree against them. A married woman's property is liable to be visited with the consequence of the fraud----Vaughan v. Vanderstegen (1854) 2 Drew 363; Sharpe v. Foy (1868) L. R. 4 Ch. App. 35; Hobday v. Peters (1860) 28 Baav. 354; In re Lush's Trust (1869) L.R. 4 Ch. App. 591 (596, 600). The only objection to a money decree is the question whether it is available against the person. The minor cannot now turn round and say, Luckhinarain ought to have thought the document was a forgery, but if a man has got no money you cannot make an order in a Court of Equity that he shall pay. The case of a married woman is stronger---Cahill v. Cahill (1883) L.R. 8 App. Cal. 420; Raj Coomary Dassee v. Preo Madhub Nundy (1897) 1 Cal. W. N. 453. It does not matter whether in this case the contract is void or voidable. The minor cannot take advantage of his own fraud.

57. The following judgments were delivered by the Appellate Court (Maclean, C.J., and Macpherson and Trevelyan, JJ.):

Maclean, C.J.

58. On the 14th November 1893 the defendant mortgaged certain property to one Luckhinarain, who has since died, his representative being the plaintiff in the suit, to secure a sum of Rs. 5,000 advanced by him with interest at the rate of 24 per cent, per annum. At the time the mortgage was given the defendant admittedly was a minor, but he would have come of age six or seven months later, if it had not been for an order of the 1st February 1894, which appointed a guardian of the person and property of the infant, the effect of which was to extend the period of minority to the age of 21. On the 20th February 1895 Luckhinarain, the mortgagee, instituted this suit to enforce his mortgage, and on the 17th April 1895 a written statement was put in by the guardian of the infant, and that written statement disclosed the fact that the defendant was an infant at the date of the mortgage in question. The case came on for trial, and on the 6th July 1897, as I understand, on the suggestion of the learned Judge himself, a question arose as to the amendment of the pleadings, it being suggested that if it turned out that at the date of the mortgage the defendant was an infant the plaintiff should be allowed to raise an alternative case to the effect that Luckhinarain had been induced to part with his money upon the fraudulent representation of the infant defendant. Mr. Justice Jenkins allowed the application for the amendment, and one of the points we have to decide is whether that leave was or was not properly granted. The case proceeded and the learned Judge found as a fact that the defendant was a minor at the date of this mortgage, that he represented and represented falsely to Luckhinarain, the intending mortgagee, that he was of age, and that the advance was made on the faith of that representation, and although the Judge in the Court below did not make a personal decree against the defendant for the repayment of the money advanced, he gave the plaintiff an ordinary mortgage decree. The defendant appeals from that decision.

59. The first point we have to consider is as to whether the learned Judge in the Court below was right in allowing the amendment which enabled the plaintiff to set up his alternative case. This point depends upon the construction of certain sections of the Code of Civil Procedure. It is urged by Mr. Garth for the appellant that, although the power of making amendments is discretionary under Section 53 of the Code, the power in this case was exercised contrary to the proviso to that section. That proviso says this: 'Provided that a plaint cannot be altered so as to convert a suit of one character into a suit of another and inconsistent character.'

60. It is urged by the appellant that the conversion of this suit from a suit to enforce a mortgage into a suit for the recovery of money paid upon the footing of a false representation, is the conversion of a suit of one character into a suit of another and inconsistent character. No doubt, in one sense, the original character of the suit was to enforce the mortgage, but the object of the suit was, after all, to recover the money. We must read the proviso with other sections of the Code, and particularly with Sections 42 and 45. Section 42 says: 'Every suit shall, as far as practicable, be so framed as to afford ground for a final decision upon the subjects in dispute, and so as to prevent further litigation concerning them,' while Section 45 says: 'Subject to the rules contained in chapter II and in Section 44, the plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly.' It seems to me that if the argument of the appellant were to prevail, it would virtually prevent an alternative case, which arises out of, and is immediately connected with, the same transaction, from ever being raised in the same suit. I do not think, looking at the sections of the Code I have referred to, that that was the intention of the Legislature, nor do I think that the alternative claim, which is set up, is inconsistent with the character of the claim originally made within the meaning of the proviso in question. Reading Sections 42 and 45 of the Code, the intention of the Legislature was that, as far as possible, all matters in dispute between the parties relating to the same transaction should be disposed of in the same suit, and I do not think that the proviso to Section 53 was intended to interfere with this. I therefore think that Mr. Justice Jenkins was perfectly right in allowing, in the manner he did, the amendment of the plaint.

61. Now I pass to the facts of the case, and in my opinion the plaintiff has succeeded in substantiating his story. The evidence shows that the defendant was desirous of raising money. He was a young man, apparently of dissolute habits, and being in want of money he approached Luckhinarain, whom for this purpose I will regard as a professional money-lender. I think the evidence shows that he went to him, and asked for the loan in question. Luckhinarain was suspicious as to the defendant's age, whereupon the defendant then and there produced an affidavit of a relative, which deposed to the date of his birth, and which, if true, would show that he was of age. He also produced what purported to be a certificate of the death of his father. The evidence shows to my mind that copies of these documents were made, and that the defendant took away the originals. The copies were then sent to the pleader who has given evidence in the case. The mortgage was settled by him, the mortgage was prepared, and ultimately, the parties concerned, the intending mortgagee, the pleader, the defendant and one or two others, went to the Registrar at Sealdah to have the transaction completed. There, according to my view of the evidence, the Registrar objected, entertaining a doubt as to whether the defendant was of age, and was not satisfied with the affidavit which had been produced. The evidence shows that Hari Mitter who was, to use the defendant's own language, his 'boon companion,' was sent to fetch the certificate, that he fetched the certificate, that upon that the Registrar was satisfied, the mortgage was executed, and the money handed over to the defendant. I think these facts have been made out by the plaintiff.

62. It has been urged that the appearance of the defendant was such as would induce any prudent man about to advance him money to hesitate doing so, his appearance being, it is suggested, such as to indicate clearly that he was a minor. In these cases, the appearance of the minor is a matter of considerable importance; but in the present case there is no evidence, or practically no evidence, upon this point one way or the other, so I dismiss that as an element in this particular case.

63. That being the history of the case, what we have to consider is did the defendant fraudulently represent to Luckhinarain, the intending mortgagee, that he was of age, and did Luckhinarain rely and act upon that representation I may here remark that Mr. Justice Jenkins regarded the evidence of the defendant as very unsatisfactory evidence, upon which he could place no reliance. It is clear to my mind upon the evidence that the defendant produced his affidavit and produced his certificate the affidavit being false and the certificate a forgery, with the express object of inducing Luckhinarain to advance the money, that Luckhinarain did advance the money upon the faith of the representation, which was certainly made, and which was certainly false, that the defendant was of full age.

64. It has been urged by Mr. Garth that a prudent man would have made further inquiries before advancing the money, and would not have been satisfied either with the affidavit or with the certificate. It occurs to one at once to inquire what further inquiries could he have made.

65. The mother of the defendant, even if she had been accessible, would have been the last person to whom either the defendant or Luckhinarain would have been likely to apply for any information; but the mother was a purdanashin lady, and was not accessible to Luckhinarain for the purpose of his making inquiries from her. It is also suggested that he might have gone to the mother's house and made inquiries of the servants there: but I am quite unable to accede to this suggestion. It is said that a minute examination of the certificate would have shown that it was a clumsy forgery: but it scarcely lies in the mouth of the defendant to say that. It must be borne in mind that the certificate deceived the Registrar, who had no interest whatever in the transaction.

66. I am not prepared to accede to the contention urged by Mr. Garth that if Luckhinarain had made further inquiries he would have ascertained that the representation made was untrue, for in my judgment, if a person makes a positive assertion, knowing it to be false, he cannot relieve himself of the liability arising from that false assertion by saying that the person to whom it was made need not have relied, or ought not to have relied, upon it. If he made the representation, and he afterwards alleges that the person to whom it was made did not rely upon it, he ought to show that the representation was not, in point of fact, relied upon.

67. I see no reason then, upon the question of fact involved in this case, to differ from the conclusion at which Mr. Justice Jenkins has arrived.

68. But then it is urged that even if, in point of fact, the defendant did make this fraudulent representation, upon the faith of which Luckhinarain parted with his money, seeing that at the time he was an infant, he is not liable to Luckhinarain in the present suit. There is not, so far as I can discover, any distinction between the law in India and the law in England upon this subject. In my judgment, there is a current of cases decided in the Courts of Equity in England, dating back for 150 years or more, which show that, in Equity, an infant cannot take advantage of his own fraud. I think it is of fraud. On the other hand, it cannot, I think, be allowed to be infringed upon by persons who, knowing of the infancy, must be taken also to know of the legal consequences which attach to it.' In my opinion the observations of Lord Justice Turner in the case of Nelson v. Stocker are very pertinent to the present case.

69. If in the present case, upon the facts, I had been satisfied that Luckhinarain, when he advanced this money, knew that, notwithstanding the affidavit and notwithstanding the certificate, the defendant was not of age, then I agree that he could not come into a Court administering Equity and seek successfully to make the defendant liable. But in this case, upon the facts, I conclude that Luckhinarain was deceived, and deceived by the course of conduct which the defendant adopted. I think the cases establish that, in a case like the present, the defendant, though at the time when he entered into the contract he was an infant, is not entitled to take any advantage resulting from his own fraud.

70. It has been strongly urged before us that the case decided by this Court some years ago, Dhanmull v. Ram Chunder Ghose (1890) I.L.R. (sic)4 Cal. 265 but only recently reported A report was made of this case when it was decided, but its publication was prohibited two of the Judges who decided it, and it could not therefore then appear in the (sic)orts.---Ed. is opposed to the view we take. As regards that case, I need only remark that what the Court decided there was that where an infant obtained a loan upon the representation (which he (sic) new to be false) that he was of age, no suit to recover the money could be (sic)aintained against him, there being no obligation binding upon the infant which could be enforced by action upon the contract, either in law or in equity, but that the defendant should not be allowed costs in either Court.

71. That case only dealt with the personal liability of the fraudulent infant. In the case before us, the learned Judge in the Court below has not made a personal decree against the defendant for payment of the money, but has made an ordinary mortgage decree, and there is no cross-objection by the respondent as to his not having been granted a personal money decree against the defendant. Speaking for myself, I am by no means satisfied that that case, (1890) I.L.R. 24 Cal. 265, was rightly decided.

72. But the decree here, as I pointed out, is a decree against the property which was pledged by the infant, and which has got into the hands of the mortgagee; the decree only goes to that, and therefore, in that respect, it is distinguishable from the case of Dhanmull v. Ram Chunder Ghose (1890) I.L.R. 24 Cal. 265.

73. I have now, I think, dealt with the various points which have been urged before us. I have dealt with the facts of the case and the law which to my mind is applicable to them. If, in this case, a money decree for personal payment had been granted, and we had differed from the view expressed in the case above mentioned, (1890) I. L. E., 24 Cal. 265, it would have been necessary to refer the case to a Full Bench; but inasmuch as there is the distinction I have pointed out in the decree in this case, and the point, which was decided in the other, no necessity arises for the adoption of that course. I think that Mr. Justice Jenkins was right and the appeal fails and must be dismissed with costs.

Macpherson, J.

74. I agree on all the points which have been disposed of by the Chief Justice.

Trevelyan, J.

75. I also agree, and I think that if the respondent had objected to there not having been a personal decree, we should, having regard to the arguments which have been placed before us, have had to refer the question to a Full Bench.

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