LATCHA RAO Vs. BHIMAYYA

JUDGEMENT

(1.) I think this is a case which must be heard by a Bench, as there is no authoritative decision covering the question raised in the case. The suit out of which the second appeal arose was instituted on foot of two promissory notes, Ex. A-1 dated 14-6-1947 for Rs. 1,500 and Ex. A-2, dated 10-8-1947 for Rs. 1,000/- executed by the defendant in favour of plaintiff. The defence to the suit was that the promissory notes were executed when the defendant was a minor and that the suit notes were not supported by consideration. The plaintiff relied on a fraudulent misrepresentation made by the defendant regarding his age and he also raised the contention that the amount was supplied for the necessaries of the defendant and his family. The trial court found that as admitted by the defendant only Rs. 250/- was received under the promissory notes by the defendant and that the balance of the consideration was not paid. It was also found that the defendant was a minor on the date of the execution of the promissory notes and that there was no fraudulent mis-representation regarding the age. On these findings, he dismissed the plaintiff's claim.

(2.) On appeal, the lower appellate court found that the defendant received full consideration under the promissory notes, that he was a minor on the date of the execution of the promissory notes and that there was a mis-representation by the defendant regarding his age on the date of the execution of the notes. It granted a decree against the defendant for the full amount applying Sec. 65 of the Indian Contract Act and held that as the agreement was discovered to be void the defendant should return the advantage received under Exs. A-1 and A-2.

(3.) The principal question for consideration in this second appeal is, assuming that the finding regarding the payment of the consideration is true whether the decree against the defendant granted by the lower court could be justified in law. Mr. Ramarao wanted to attack the finding regarding the payment of consideration and also the finding of the learned Judge that there was misrepresentation by the defendant at the time of the execution of the notes regarding his age. As I am referring the entire case before a Bench, no useful purpose would be served by going into the question whether there is any justification for upsetting the findings of fact arrived at by the lower appellate court. Sec. 65 of the Contract Act has no application because as pointed out by the Privy Council in Mohari Bibi v. Dhrama Dos Ghosh ' both the agreement and the contract contemplated by Sec. 65 must be between persons who are sui juris and has no application to the agreement by a minor. If Sec. 65 has no application, under the principles established in England in Leslie Limited v. Sheill no relief can be granted in favour of the plaintiff against the defendant. But, apart from equitable principles applicable to a situation like this which were established in England, we have the statutory provision in Sec. 41 of the Specific Relief Act which was applied in cases where the plaintiff sought cancellation of an instrument and if it was found that he had derived any advantage under the instrument he must return the advantage before he recovers the property in consequence of the cancellation of the instrument. Reading Sec. 41 in collocation with Sees. 38 and 39, it would appear that Sec. 41 would apply only to cases where at the instance of the plaintiff the instrument is cancelled, though the language of Sec. 41 by itself is wide enough to cover a case where the document is cancelled or declared void at the instance of the defendant as well. This was the view accepted by the Allahabad High Court in Ajudhia Prasad v. Ckandan Lal ' and also in Hanumantha Rao v. Seetharamayya '. There are obiter dicta in Hanumantha Rao v. Sectharamryya -. that the same principle might be applied even to the case of a defendant and this view was based largely upon the observations of Sir Shadi Lai C. J. in Khan Gut v. Lakha Singh ". This last mentioned case was subjected to severe criticism by Sulaiman C. J. in Ajudhia Prasad v. Chandan Lai '. There is, however no decided case which considers all the aspects of the question and decided whether in the circumstances relief could be granted under Sec. 41 of the Specific Relief Act in a case where the defendant impugns the document and establishes that it is void. It is also a point for consideration whether though Sec. 41 in terms does not apply there is any room for extending the principle underlying the Section to the case of the defendant. In England, since the decision in Leslie Limited v. Sheill. a more liberal view regarding the doctrine of unjust enrichment and the limitation under which it could be applied so as to grant restitution was taken. These are all matters which must receive consideration and there should be an authoritative pronouncement of this court on the question. So far as I am aware, this is the first case of its kind in this Court. I therefore, suggest that the matter may be placed before a Bench subject to the orders of the Hon'ble The Chief Justice.