1. This appeal arises out of a suit originally instituted for the recovery of money alleged to be due upon two bonds. The suit was decreed so far as it related to one bond. The claim upon the other bond was dismissed The plaintiff appeals against the latter part of the decision.
2. The facts may be stated shortly as follows--The estate of one Raja Baikunth Narain Singh was under management under the Chota Nagpur Encumbered Estates Act 1876, from May 1888 till August 1907. Raja Baikunth Narain Singh was then alive and, during his life-time, in August 1899, his son Raja Radha Mohun Deb Singh executed of Rs. 7,500. After the estate had been restored and Government management had been withdrawn in the year 1907, the defendant in the present suit, who is the son of Raja Radha Mohun Singh, executed a bond which refers to the loan taken by Raja Radha Mohan Singh in 1899 and recites that 'a portion of that debt has been remitted and that the defendant promises to pay the remainder in instalments in a period of ten years.' This is the bond which has been sued upon in this case. The learned Subordinate Judge has held that the defendant is protected, on the ground that there was no consideration for the bond sued upon inasmuch as his father Raja Radha Mohun Singh was at the time he entered into the contract in 1899 incapable of entering into any contract which involved him in pecuniary liability. Section 3 of the Chota Nagpur Encumbered Estates Act was relied upon. The first argument that has been advanced before us is with reference to the wording of that provision which is to this effect: 'The holder of the property and his heir shall be incapable of entering into any contract which may involve them or either of them in pecuniary liability.' At the time when the contract was entered into, the holder of the property, Raja Baikunth Narain Singh, was alive. It is argued that Raja Radha Mohun Singh who entered into the contract did not legally become the heir until his father's death and that, therefore, at the time he entered into the contract, he was not the heir and was not protected by this provision. No doubt, it is correct shortly speaking, to say that no person can become an heir until after the death of his ancestor, but, on the wording of the provision itself, it seems impossible to attach that strict meaning to the word 'heir.' The provision is to the effect that the contract shall not involve them, that is, the holder and his heir or either of them in pecuniary liability. The provision, therefore, appears to contemplate the existence of an heir during the lifetime of the holder. We hold, therefore, that the provision did protect Raja Radha Mohun Singh at the time when he entered into this contract.
3. It is then argued that the contract was not void contract but was only voidable; and in support of this argument reference is made to Section 124 of the Act, which was added by a recent amendment which provides a special protection against promises made after possession is restored to the holder. It is argued that this would be unnecessary if the contract made during the management were void. In our opinion, it is impossible to say that the contract made by a person incapable of entering into a contract is not void. We hold, therefore, that the contract was void.
4. It is then contended that inasmuch as there was a new consideration for the contract entered into by the defendant, the contract was a good one, although there was no consideration so far as the recognition of the liability under the bond entered into by Raja Radha Mohun Singh was concerned. The consideration is said to be the remission of a portion of the debt and the permission to pay in instalments in a period of ten years. The new consideration, therefore, consisted merely of a promise to defer bringing a suit upon the void contract. We do not think that that amounts to a consideration.
5. It is then said that the bond entered into by Raja Radha Mohun Singh in 1899 was partly to provide for necessaries and reference is made to the fact that a part of the money is said to have been borrowed to pay for the sradh of his mother. Even if we were to hold that Section 68 of the Contract Act is applicable, we would be unable to say that this was a necessary during the life-time of Raja Radha Narain's father, Raja Baikunth Narain Singh.
6. The result, therefore, is that the appeal is dismissed with costs, one hundred and forty rupees.