1. On the 20th of July 1895 the plaintiff executed in favour of the defendant a mortgage over premises in Calcutta known as No. 15, Bolaram Ghosh's Street and 133, Cornwallis Street, to secure Rs. 20,000, and the present suit is brought to have the deed cancelled on the ground that at the time of its execution the plaintiff was an infant. On the evidence before me I have no hesitation in finding that the plaintiff was under the age of twenty-one on the 20th of July 1895, and as at that time his mother Jogendra Nandini Dasi was guardian of his person and property under an order of Court to that effect, it follows that at the date of the mortgage the plaintiff was under such incapacity as arises from infancy. By way of answer to this incapacity the defendant in the first place contends that the loan was induced by a fraudulent misrepresentation made by the plaintiff to the defendant's attorney Kedar Nath Mitter, to the effect that the plaintiff was of age, and that Kedar Nath Mitter was deceived by the misrepresentation, so that it is necessary to examine the facts relevant to this contention.
2. The plaintiff, who seems to have been a young man of extravagant and profligate habits came to Kedar Nath Mitter, an attorney of this Court, some time in the month of May 1895, with a request for a loan of Rs. 20,000 on mortgage of the property to which I have already referred. The upshot of the matter was that Dedraj, the local manager in Calcutta of the defendant, an up-country money-lender, expressed his willingness to advance the money on being satisfied as to the security. In the course of investigation of the plaintiff's title there came into Kedar Nath Mitter's hands a decree in a partition suit and an order for possession in which the present plaintiff was described as a minor, and thereupon Kedar Nath Mitter, according to his account of what occurred, asked the plaintiff to produce satisfactory evidence of his majority, with the result that the latter produced copies of two petitions presented by his mother, one praying for a grant of letters of administration, and the other for her appointment as guardian of the person and property of the plaintiff. In the former of these the plaintiff was described as being under the age of seven years, from which Kedar Nath says that he drew an inference which would place the plaintiff's birthday in July. Kedar Nath Mitter claims to have based this inference on what he calls a calculation; but if the mental process he describes ever had an existence, then I can only say it had no justification in fact or in reason.
3. Kedar Nath Mitter farther has sworn that the plaintiff was constantly asserting that he was born on the 4th Asser (the 17th June), but his testimony on this point is uncorroborated by any of the defendant's witnesses, and is absolutely contradicted by the plaintiff.
4. The next thing, according to Kedar Nath Mitter, is that as he still wanted evidence of the precise date of the plaintiff's birth, the astrologer Kalidas Acharji and Nando Lal Ghosh were produced, and made the declarations which form part of the evidence in the case. In addition to this Kedar Nath Mitter got from the plaintiff, as he says, 'for greater security in the interests of his client 'the declaration affirmed by the plaintiff on the 20th of July, the day of the execution of the mortgage. These are the facts on which the defendant relies in support of his plea of fraudulent misrepresentations. The plaintiff, on the other hand, contends that Kedar Nath Mitter was not in fact deceived by the misrepresentations contained in the declarations, and to establish that he relies on his conduct in the matter and also on a letter of the 15th of July 1895. This letter was written by Babu Bhupendranath Lose, who at that time was the plaintiff's mother's attorney, and was in these terms:
July 15th, 1895.
Babu Kedar Nath Mitter.
I am instructed by Srimati Jogendra Nandini Dasi, the mother and guardian appointed by the High Court under its Letters Patent of the person and property of Babu Dharamdas Ghose, that a mortgage of the properties of the said Dharamdas Ghose is being prepared from your office. I am instructed to give you notice which I hereby do that the said Dharamdas Ghose is still an infant under the age of twenty-one and any one lending money to him will do so at his own risk and peril.
Bhupendra Nath Bose.
5. This letter was on the same day handed to the witness, Lal Mahomed, Pressman, to be taken by him to Kedar Nath Mitter's office. Lal Mahomed swears that he took the letter to Kedar Nath Mitter's office, and there went into a room where Kedar Nath Mitter and another Babu were seated. He says that he handed the letter to this Babu who opened it, read it and then handed it to Kedar Nath Mitter, who in turn read its contents. The Babu, it is said, then signed the peon book, which was brought back by the messenger. No reply was sent to this letter, and on the 24th of July Bhupendra Nath again wrote to Kedar Nath Mitter as follows:
class 'RightAlign' July 24th 1895.
Babu Kedar Nath Mitter.
Re Dharamdas Ghose.
I warned you on the 15th of July instant that Dharamdas Ghose was and still is an infant, and that his mother my client Srimati Jogendra Nandini Dasi is his guardian. I understand that yesterday, notwithstanding the warning, one of your clients Jamnadas Brahmadutt through you got the said Dharamdas Ghose to execute a mortgage of his properties in Calcutta in favour of the said Babu Jamnadas Brahmadutt for Rs. 20,000 of which he did not pay Rs. 8,700, the remainder being distributed between the unhappy victim and the confederates of your client. I am instructed to call upon your client through you to cancel the said mortgage at once as otherwise my instructions are to take legal proceedings without further reference.
Bhupendra Nath Bose.
6. To this letter Kedar Nath Mitter replied denying the receipt of the letter of 15th July, and this led to a further letter from Babu Bhupendra Nath Bose.
class 'RightAlign' July 26th, 1895.
Babu Kedar Nath Mitter.
Re Dharamdas Ghose.
Your letter of the 25th, I am surprised on hearing from you that you did not get any writing from me on the 15th. I find from my peon book that my letter of the 15th was delivered to you, and the receipt is signed by one of your clerks whose name, as far as I can make out, is Nishi Kanto Ganguly.
As regards the rest of your letter it requires no reply.
Bhupendra Nath Bose.
7. On the 27th July 1895 Kedar Nath Mitter sent a reply in which he simply states that there was no clerk of the name of Nishi Kanta Ganguly. On that Babu Bhupendra Nath Bose sent to Kedar Nath Mitter the peon book in which there is the name which certainly appears to be Radha Nath Gooly or Gangooli; and I am further satisfied that there was a clerk of that name at the time in Kedar Nath Mitter's office and (notwithstanding Kedar Nath Mitter's denial) that it was his practice to sit downstairs. It will here be convenient to refer to a letter written on the 20th July 1895 by Nanda Lal Ghose to Kedar Nath Mitter in which he says:
As requested I have been to Babu Wooma Nath Ghose, the uterine brother of Hurry Das Ghose, and enquired of him whether he recollected the precise date of the birth of Dharamdas Ghose.
8. It further appears that there is an entry in Kedar Nath Mitter's day book, dated Tuesday, the 23rd July 1895.
Attending yesterday at No. 2, Badur Bagan's Lane, accompanied by Babu Nanda Lal Ghose, Behary Lal Mitter and Nitto Gopal Ghose, having an interview with Babu Wooma Nath Ghose, the uterine brother of Hurry Das Ghose, the deceased father of Dharama Ghose and enquiring of him about the age of Dharamdas Ghose.
9. Now Nando Lall Ghose's evidence was that their visits were in consequence of a letter received by Kedar Nath Mitter from Bhupendra Nath Bose, though no doubt on learning the dates he receded from this position. In the same way Kedar Nath Mitter gives the following evidence in reference to his visit: 'I wanted further enquiry because of the letter of Bhupendra Nath Bose. That made me curious to know what the other members said. I am sure of that.' Then when the date is shewn him he says: 'There must be a mistake in the date in the day book.' The importance of all this is that prior to these visits the only letter Babu Bhupendra Nath Bose had written was that of July 15th, the receipt of which Kedar Nath Mitter had denied, so that the position is this. It is sworn by the pressman that he delivered the letter: the peon book contains a signature which is the name of one of Kedar Nath Mitter's clerks, and he is a clerk whose practice it was to sit in Kedar Nath Mitter's room and was one of the attesting witnesses of the mortgage, Kedar Nath Mitter himself being the other. Radika Nath Ganguly, though still a clerk in Kedar Nath Mitter's employ, is for some reason, which has not been explained before me, not called to testify on this point; and both Kedar Nath Mitter and Nanda Gopal Ghose explain there conduct by reference to a letter which on the dates can only have been that of the 15th of July.
10. Against this positive testimony and weight of probability I simply have the evidence of Kedar Nath Mitter, a witness, whose evidence I am forced with regret to describe as unsatisfactory.
11. I here pass to a consideration of Kedar Nath Mitter's conduct in this matter.
12. The plaintiff is brought to him by Nitto Gopal Ghose who certainly does not answer the description Kedar Nath Mitter attributed to him of a 'well-to-do broker, 'but does seem to have had close relations with Kedar Nath Mitter and actually to have resided with him for four or five years. It is further clear that Kedar Nath Mitter dealt with the plaintiff, arranged for the loan, and secured a promise for payment to himself of Rs. 800 for his services at a time, when even, according to Kedar Nath Mitter's own case, he knew the plaintiff was an infant and that his mother was his guardian.
13. Then, when a question arose as to the plaintiff's age, does Kedar Nath Mitter make any inquiry of the plaintiff's mother or of her attorney Bhupendra Nath Bose or any member of the family with whom the plaintiff was brought up? That, apparently, is the last thing he would do, and instead he says that he consulted the witness Nando Gopal Ghose, an uncle, it is true, of the plaintiff, but a man who had been in hostile litigation with the plaintiff and his mother, who had employed Kedar Nath Mitter as his attorney in that litigation, and as to whom Kedar Nath Mitter is forced to admit he inferred that there must be bad feeling still existing between him and the plaintiff's mother.
14. The other person that he consults is apparently Kali Das Acharji, the astrologer. This man did not attend on his subpoena, and I therefore have had no oppurtunity of forming an opinion as to what passed between him and Kedar Nath Mitter. Then, I come to the statutory declaration which Kedar Nath Mitter got this young man to affirm, a declaration which contained more than one allegation that Kedar Nath Mitter must have known was beyond the plaintiff's knowledge. I do not intend to criticize this declaration in detail, suffice it for me to say that it was in my opinion a most improper one for Kedar Nath Mitter to have prepared, if the object was to obtain a clear statement from the plaintiff as to his age.
15. It must further be borne in mind that Kedar Nath Mitter actually conducted this matter in the way I have indicated, though he was acting as the defendant's attorney. Let me say here that I absolve the defendant from all personal responsibility for this, for it all was clearly done without his knowledge; still at the same time, as he seeks to rely on a fraud alleged to have been practised on Kedar Nath Mitter, his claim must necessarily be tested by reference to Kedar Nath Mitter's conduct. It is unquestionably within the power of the Court administering equitable principles to deprive a fraudulent minor of the benefits flowing from the plea of infancy, but one who invokes the aid of that power must come to the Court with clean hands, and must further establish to the satisfaction of the Court that a fraud was practised on him by the minor, and that be was deceived into action by that fraud. I can only say that in this case if has not been established to my satisfaction that these-requirements exist.
16. Kedar Nath Mitter's conduct has not been such as to predispose me in favour of the defendant's case, and a consideration of the circumstances to which I have referred does not lead me to the conclusion that Kedar Nath Mitter was deceived, and I accordingly hold that the circumstances of the case are not such as to nullify the plea of infancy.
17. It is right that I should here notice the argument that fraud and deceit are not necessary to the success of the defendant's plea.
18. This contention is based on Section 115 of the Evidence Act as interpreted by Ganesh Lala v. Babu (1895) I.L.R. 21 Bom. 198 in which it is no doubt said that, having regard to that section, proof of fraud on the part of the infant is not essential. The learned Judge in that case relies on the fact that in Sarat Chunder v. Gopal Chunder (1892) I.L.R. 20 Cal. 296 and in Mills v. Fox (1887) 37 Ch. D. 153 no suggestion is made of the exception of an infant from the doctrine of estoppel. Now in the first of these cases the individuals sought to be affected were not infants, and at the bottom of page 306 the following passage appears in the judgment of the Privy Council: 'The District Judge has held it to be proved that they had both reached majority at the date of the mortgage* * * * Accordingly it must be taken that they were of age to consent to the mortgage being granted or by their acts or representations to bar themselves from challenging it.' It seems to me with all respect that this passage shows that the case is no authority for the proposition it is supposed to justify, but inferentially negatives it.
19. The case of Mills v. Fox on the other hand, turned on special circumstances which do not allow of its being an authority for the broad principle laid down by the Bombay Court. Then it is further said by the learned Judge that Wright v. Snow (1848) 2 De G. & S. 321 establishes this proposition. The headnote to that case appears to me to go beyond what was actually decided, for the learned Judge, V. C. Knight Bruce, finds that it was not proved that plaintiff was a minor at the time of the transaction, while his remarks in the course of the argument point to the view that fraud is necessary though what amounts to fraud must depend on the circumstances.
20. That V. C. Knight Bruce did not regard fraud as unessential is, I think, made further apparent by the case of Nelson, v. Stacker (1859) 4 De G. & J. 458 in which being then Lord Justice Knight Bruce, he says: 'It appears to me, however, upon the whole of the evidence that the defendant's deceased wife is not shewn to have been defrauded or deceived by the defendant in any respect before their marriage. I believe that at the time of the marriage and previously to it before the instrument of settlement in question was signed by either of them and (sic)re it was prepared, she was aware of his minority, and the case- stands substantially on the same footing, so far as the parties to the present record are concerned, as if the fact of his infancy had been stated on the face of the settlement.' Nor does the matter rest there, for in the same case is to be found the clear statement of that most eminent Judge Lord Justice Turner that fraud is an essential element. It is enough for me to refer to that portion of his judgment which is contained on pages 465 and 466 of the report.
21. It appears to me, therefore, that the cases do not justify the proposition that fraud on the part of an infant is not essential. I think fraud operating to deceive must be found as a fact, and whether in any particular case there is such fraud must depend on its own particular circumstances.
22. This brings me to the plea of ratification which is based on the allegations contained in the defendant's further written statement.
23. It is a matter of surprise and regret to me that an attorney of this Court should have seen fit to act as Kedar Nath Mitter did in connection with this matter.
24. The draft purports to have been approved by one Nando, Gopal Roy, an attorney of this Court, but how he came to act for the plaintiff does not appear, nor has he been called by the defendant to explain his connection with the matter. In fact the further charge never was carried through, and I cannot regard the draft as being itself a ratification. At most the matter does not seem to me to have been more than an engagement to ratify in case the further advance was made. I therefore hold that this plea too has failed. Next I have to notice the contention based on Section 64 of the Contract Act which prescribes the consequences to arise from rescission of a voidable contract, it being common ground that I am bound by authority to regard the mortgage of an infant as voidable. The section provides that the party rescinding a voidable contract shall, if he have received any benefit thereunder from another party to such contract, restore such benefit so far as may he to the person from whom it was received. Now it is contended by Mr. Woodroffe that this provision entitles him to repayment of the money advanced even though it is not earmarked and cannot now be followed.
25. It is obvious that if this were the result of the section then the protection of infancy would practically he at an end. The money advanced has been spent, probably in useless or even vicious extravagance, and there is no benefit which the plaintiff is able or is bound to restore. Nor do I think that this is a case in which justice requires that the plaintiff should make compensation in accordance with the provisions of the Specific Relief Act, Section 38. The result is that there must be a declaration that the mortgage of the 20th July 1895 is void and inoperative, and it must be delivered up to be cancelled.
26. Though I should have been glad to relieve the defendant of the costs of the action I do not see how I can with propriety do so; they must, therefore, be paid by him on scale No. 2.