RAGHBIR SINGH Vs. SMT. GIAN DEVI AND ANR.

JUDGEMENT

(1.) THERE being a conflict of judicial authority on the question whether a minor obtaining a loan by misrepresenting himself as a major is bound to restore the amount in equity, between two Full Benches, one of the Lahore High Court in Khan Gul v. Lakha Singh I.L.R. 9 Lab. 701, and the other of the Allahabad High Court in Ajudhia Prasad v. Chandan Lal : A.I.R. 1937 All. 610, the case has been referred by my brother Mehar Singh J., -for decision by a larger Bench.

(2.) THE indisputable facts which have been stated in the referring order may briefly be recapitulated. On January 29, 1949, Nathu Ram and Raj Pal minor, obtained an excise contract for the retail sale of opium and poppy -heads at Samrala. Some defaults having occurred, Raj Pal, who was then a minor, represented to the Appellant Raghbir Singh, that he was a major and also produced a medical certificate to support his statement. Raghbir Singh was induced to make a loan of Rs. 1,400 to enable Raj Pal and his partner Nathu Ram to discharge their liability for payment of an instalment. A promissory note (Exhibit P. 1), and also an agreement (Exhibit P. 3), were executed by Raj Pal for the return of the sum of Rs. 1,400 given on loan by Raghbir Singh Appellant. Having obtained this amount, Raj Pal and his partner were able to make the deposit of the instalment due from them. The minor, Raj Pal, having failed to discharge his obligation the Plaintiff brought a suit for recovery of a sum of Rs. 1,400 on basis of the promissory note (Exhibit P. 1), with interest at the rate of 12 per cent per annum. In defence, Raj Pal pleaded minority. Before the suit was decreed by the trial Court, Raj Pal died and was subsequently represented by his mother Gian Devi and his minor brother Jinder. Gian Devi preferred an appeal to the District Judge, who allowed the appeal. The second appeal to this Court came in the first instance before Grover J., who remanded the case to the trial Court for further inquiry on two points:

(3.) THE case of Khan Gul v. Lakha Singh, I.L.R. 9 Lab. 701, came before a Full Bench presided over by Chief Justice Sir Shadi Lai, and of which Broadway, Harrison, Tek Chand and Dalip Singh, JJ., were the other members. On a review of the case law, Sir Shadi Lal, in the leading judgment of the Court came to the conclusion that a minor who by falsely representing himself to be a major has induced a person to enter into a contract, is not estopped from pleading his minority to avoid the contract. On the other question referred to it the Full Bench, (Harrison J., dissenting) reached the conclusion that "an infant, though not liable under the contract, may, in equity, be required to return the benefit he has received by making a false representation as to his age". In the words of Sir Shadi Lai, at page 715: "The equitable jurisdiction is founded upon the desire of the Court to do justice to both the parties by restoring them to the status quo ante, and there is no real difference between restoring the property and refunding the money, except that the property can be identified, but cash cannot be traced." The learned Chief Justice derived support for this conclusion from the principle embodied in Section 41 of the Specific Relief Act, which empowers a Court to require a party seeking cancellation of an instrument to make any compensation to the other which justice may require. If an infant borrows a sum by making false representation and thereafter executes a pronote for this amount, the document would stand cancelled being a void instrument, but restitution is to be made under Section 41 of the Specific Relief Act. It is true that there is no specific prayer for cancellation of the pronote in the present case, but in pith and substance that is the plea which has been taken by the Respondent. It matters not whether the plea is taken in the form of an attack or as a shield in defence. The minor truly speaking on his own showing has been instrumental in bringing about a void contract and ought to be liable for restitution by payment of compensation. In Khan Gul's case, the Plaintiffs had asked for delivery of possession of property or in the alternative for a decree of Rs. 17,500, the consideration money, which had been paid to Defendant No. 1, who in a suit brought against him pleaded minority. The suit was decreed. Sir Shadi Lal, discussed the conflicting authorities of Leslie, Ltd. v. Sheill, (1914) 3 K.B. 607., 607, and Stocks v. Wilson, (1913) 2 K.B. 235, and reiterated the principle that a person should not be allowed to take advantage of his own fraud. In his words, "it would be sheer injustice if an infant would retain, not only the property which he has agreed to sell or mortgage, but also the money which he has obtained by perpetrating fraud." Chief Justice Sir Shadi Lal, rejected the distinction which has been created in the English authorities that the protection given by law to the infant "was to be used as a shield and not as a sword" -(vide Lord Kenyon in Jennings v. Rundall, 4 R.R. 680,. The granting of an equitable remedy should not depend upon a mere accident, namely, whether it is the minor or his adversary, who has taken the initiative in bringing the transaction before the Court.