JASRAJ BASTIMAL Vs. SADASHIV MAHADEV WALEKAR

JUDGEMENT

(1.) The plaintiffs sued to recover the principal and interest due on a promissory note dated the 17 March 1918 for Rs. 784. The defendant's pleader said that the defendant was a minor having been born on the 4 January 1899 his mother having been appointed his certificated guardian. The following issues were raised: (1) Whether the defendant was a minor; (2) whether the promissory note was passed during his minority; (3) if so, can it be enforced. The plaintiff swore that the defendant, when the promissory note was passed told him that he was 21 or 21| years old. He was conducting a shop and filed suits in his own name. In cross examination he said: " The defendant has a mother. I did Hot inquire if his mother had obtained a certificate. I did not consult his mother for this debt." On that evidence the Judge came to the conclusion that; the defendant was a minor at the date of the suit, and that, therefore, the promissory note could not be enforced. The question whether the defendant was estopped from raising the defence of minority was considered, and the learned Judge came to the conclusion that the cases cited with regard to transfers of immoveable property by minors representing that they were majors would not apply, but that this case was governed by the cases quoted on pages 418 and 419 of Gour's Hindu Code. Relying on them the Judge held that the Court could not order recovery of the money lent even on the ground of fraud practiced by the minor by misrepresenting that he was a major. It seems doubtful whether the Judge considered the question whether Section 115 of the Indian Evidence Act applied, and whether the defendant was estopped from proving the truth that he was a minor.

(2.) But it was held in Dadasaheb V/s. Bai Nahani (1917) 19 Bom. L.R. 561 that Section 115 of the Indian Evidence Act was applicable to the case of a minor and that the defendant having by direct declaration intentionally caused the plaintiff to believe that he was a major, was precluded absolutely from denying the truth of that assertion. No doubt that was a case relating to immoveable property. But the rules of evidence are exactly the same with regard to suits relating to promissory notes. If it is proved that the defendant represented to the plaintiff that he was a major, and the plaintiff acting on that representation lent money on the promissory note, then the Court is entitled to consider the question whether in a suit on the promissory note the defendant is stopped from pleading his minority. That of course would depend upon the evidence and facts of the case, so that the decree dismissing the suit must be set aside. The case must go back to the Judge to find (1) whether the defendant represented to the plaintiff at the time the promissory note was, executed that he was a major, (2) whether the plaintiff lent money on the promissory note relying on that representation, and (3) whether the plaintiff had any I means of knowing that that representation was false.

(3.) We may refer to the case of Gurushiddswami V/s. Parawa (1919), 22 Bom. L.R. 49. in which reference was made to Dadamheb V/s. Bai Nahani (1917) 19 Bom. L.R. 561 We held that as there was evidence that the defendant was not deceived by what the plaintiff had told him, the plaintiff was not estopped from pleading minority. It may be deduced from that decision that the Court approved of the decision in Dadasaheb V/s. Bai Nahani, and that if the defendant had been deceived by what the plaintiff had told him there would have been an estoppel.