BATCHU VEERAIAH Vs. CHEPURI SARRAJU

JUDGEMENT

(1.) This second appeal has been referred to a Bench, under the impression that there is a conflict between Vainkuntarama Pillai v. Athimoolam Chettiar, JLR 38 Mad 1071: (AIR 1914 Mad 641 (2)) (A) and Hanumantha Rao v. Sitharamayya, ILR 1939 Mad 203: (AIR 19-39 Mad 106) (B).

(2.) The facts leading up to this litigation may be briefly set out. The father of the respondent (1st defendant) executed two promissory notes, Exs. A-1 and A-2 dated 19-5-1939 and 20-10-1939 respectively. On his death, his widow, i.e., the mother of the 1st defendant, renewed these two promissory notes by Exs. A-3 and A-5 elated 17-5-1942 and 20-8-1942 respectively as the minors guardian In 1945 the maternal grandfather of the 1st defendant renewed them again by Exs. A-4 and A-6 dated 16-5-1945 and 9-8-1945 respectively. A consolidated promissory note (Ex. A-7) was obtained by the plaintiff from the 1st defendant (i.e. the respondent) on 15-5-1948, in renewal of the prior promissory notes. On the foot of this promissory note a suit was instituted by the appellant in the Court of the District Munsif of Gurazala. One of the defenses to the suit was that as the promissory note was executed by the 1st defendant while he was a minor, it was not enforceable against him. The appellant filed a rejoinder stating that the 1st defendant represented himself to ho over 21 year of age and executed Ex. A-7 in his favour. The trial Court dismissed the suit upholding the first defendants objection. It also found that the story of the plaintiff that a misrepresentation was made to him was not true. On appeal, the dismissal of the suit was confirmed. This second appeal is by the aggrieved plaintiff against the judgment of the Subordinate Judge, Narasaraopeta.

(3.) In support of this appeal it is argued with great insistence by Sri N. Subramanyam that not Saving found that his client had known that the executing of the promissory note was a minor, the Courts below ought to have directed the minor to refund the .advantage he had received, on editable considerations. He also argues that ILR 38 Mad 1071: (AIR 5914 Mad 641 (2) (A) is in conflict with ILR 1939 Mad 203 :(AIR 1939 Mad 106) (B) and that the latter case supports the proposition that a Court has discretion to award compensation on the principle of Section 41 of the Specific Relief Ret.