TIKKI LAL JAITHU TELI Vs. KOMALCHAND

JUDGEMENT

(1.) THE plaintiffs sued the defendants for recovery of Rs. 987. Their case is that defendant 1 Gulabohand with the other defendants as sureties sold to them a half share in a house in Seoni for a consideration of Rs. 600 on 5th November 1932 under a sale deed (Ex. P-l) arnd placed them in possession thereof after receiving Rs. 150 on the date of registration and Rs. 50 on 6th May 1932, the balance remaining in deposit with them; defendant 1 and his sureties represented to the plaintiffs that defendant 1 was a major when the sale deed was executed, and acting on that representation the plaintiffs parted with Rs. 200 and became the purchasers. The plaintiffs allowed defendant 1 to remain in possession of the house as their licensee, but taking advantage of his possession he sold the house to one Hukumchand on 7th April 1937, and it was then that the plaintiffs learnt on enquiry that defendant 1 was a minor on the date of the sale in their favour and that a false representation was made to them that he was a major. The plaintiffs now realizing that the sale in their favour was void claim Rs. 200 paid by them to defendant 1 together with damages which they suffered on account of the transaction falling through, from all the defendants in the case. They claim Rs. 200 paid by them, Rs. 287 interest on Rs. 200 at 2 per cent, per mensem as provided for in the sale deed by way of damages, and Rs. 500 on account of difference in the sale price and the present price of the house. Rs. 987 is the amount of the claim. The plaintiffs assert that Rs. 200 paid as consideration under the sale deed was paid to defendant 1 to meet his marriage expenses and that he is bound to refund the same under Section 68, Contract Act.

(2.) DEFENDANT 1 admits that he was a minor on the date of the sale, but pleads that he thought he was a major and executed the sale deed under that belief. He wanted the plaintiffs to pay the balance and take possession, but they did not, with the result that he sold the house for Rs. 550 on 7th April 1937 to one Hukumchand. He admitted that he received Rs. 200 for his own marriage and pleaded that it cannot be regarded as a necessary of life under Section 68 and that the plaintiffs cannot recover the same on that ground. He also pleaded that the contract being void, the plaintiffs could not claim to recover anything under it. The sureties who are the other defendants in the case deny that they misrepresented the age of defendant 1 as above 18 and pleaded that they were not sureties for the defect in title and that as the original contract between the plaintiffs and defendant 1 was void, there could be no contract of suretyship regarding a void contract. They denied the damages claimed and stated that the claim was not leviable against them. It was also pleaded on behalf of defendant 1 that the plaintiffs' claim was barred by time.

(3.) THOUGH defendant 1 also misrepresented his age and claimed to be a major, he is not estopped from proving that he was really a minor on the date of the contract. This proposition is not disputed by the plaintiffs in this case. That being so, the plaintiffs cannot lay claim to recover anything from him on the basis of a contract which was admittedly void ab initio. Defendant 1 was incompetent to enter into any contract and as held in Gulabchand v. Chunnilal (1929) 16 AIR Nag 156 no cash payment made under such a contract is recoverable from him. I was asked to decree the claim for Rs. 200 admittedly received by defendant 1 under Section 65, Contract Act, and it was argued that in equity the plaintiffs were entitled to claim refund of what they paid to defendant 1 and that he should not be allowed to retain the benefit that he obtained by his own misrepresentation: Khan Gul v. Lakha Singh (1928) 15 AIR Lah 609 at p. 715, Appaswami Ayyangar v. Narayanaswami Ayyar (1930) 17 AIR Mad 945 and Asaram v. Ludheshwar (1938) 25 AIR Nag 335 were relied on. The case in Khan Gul v. Lakha Singh (1928) 15 AIR Lah 609 was referred to in Gulabchand v. Chunnilal (1929) 16 AIR Nag 156 and the view of Harrison J. was preferred to that of Shadi Lal C.J. and the suit for refund of money was dismissed.