SUBRAMANIAM CHETTI Vs. DORAISINGA TEVAR

JUDGEMENT

(1.) This is a suit in which the 1st plaintiff claims to recover immoveable property of which he made a gift to his wife on the 19th December 1899, by setting aside the gift.

(2.) The principal question is whether, at the time of the gift, the 1st plaintiff had attained the age of 21. Up to that time, he was under the protection of the District Court under the Guardian and Wards Act, and his father-in-law was, at that time, the guardian appointed by the Court. The Subordinate Judge finds that the preponderance of evidence is, that he had not attained the age of 21 in December 1899, and I certainly agree with his finding, apart from the expert evidence, that there is nothing in the whole case to show that the 1st plaintiff was of the age of 21 except that he has from time to time alleged it. His statements are unreliable and the only result of them is that they do not prove what is his real age. The statements of his mother at a time when she was likely to know what his age was and at a time when she had no motive to falsify his age, seem to be reasonably good evidence in that respect. Then, as to the document that is put forward as the horoscope of the 1st plaintiff himself, Exhibit D, I am not able to place much reliance upon it. It is difficult to say what it is. It is difficult to say that the portion of it which identifies it with the 1st plaintiff was not added after some time in order to make it useful in evidence in this case. But I see no reason to refuse to accept the documents D. 1, and D. 2, which have the appearance of genuine documents and which are proved by the 3rd witness on behalf of the plaintiffs. They are the 1st plaintiff s brother s horoscopes and it may be deduced from what is stated in them, that the 1st plaintiff cannot have been born much before 1883. It is clear, if these documents are accepted, and I accept them, they prove that the 1st plaintiff was not 21 years of age in December 1899. There is, besides, the evidence of one expert witness, Dr. Thomas, who in 1899, expressed the opinion that the 1st plaintiff s age was over 21. Against this, we have the evidence of the 10th and 11th witnesses, Colonel Reeves and Major Robertson, who have had the same opportunities of examining 1st plaintiff and who came to the conclusion that he was not 21 in 1899. I see no particular reason to accept the evidence of Dr. Thomas in preference to the evidence of the other two medical gentlemen, and their evidence is corroborated by the other evidence in the case to which I have referred and the Subordinate Judge was, I think, right in accepting it as showing that the 1st plaintiff had not attained the age of 21 in December 1899. The 1st plaintiff being a minor in 1899, there is no doubt that the gift is void. But, it is contended by Mr. Srinivasa Aiyangar that the effect of the order of the District Court discharging the guardian in December 1899 is to make him of age whether he was of age or not, and that he is not entitled to dispute that order and say, after that order had been made, that he was not of age. I did not understand Mr. Srinivasa Aiyangar to argue that, if the 1st plaintiff shows that the order was not procured by him, that is, if he shows that it was secured by a fraud practised upon him, he is still bound by it. It seems to me that the effect of the evidence is that there was such, a fraud practise upon the Court to which the 1st plaintiff was not a party and therefore, I do not think it necessary to state my opinion as to the exact degree of conclusiveness which attaches to an order under section 48 of the Guardian and Wards Act. There is no evidence which leads to the inference that the 1st plaintiff knew in December 1899, that he really was not more than 17 years of age. I do not think there is anything in favour of it. I do not think paragraph 7 of the plaint indicates any admission that he knew it. The only evidence suggested as showing that he did know is that, from time to time, he has varied his statements in regard to his age. In Exhibit XII soon after the order discharging the guardian and shortly before the 1st plaintiff applied to have that order set aside, he said that he was 17. On other occasions, he has stated other ages according as it may suit himself or those who were dealing with him to make out his age. His evidence is entirely untrustworthy on this point and shows that he is a shifting and unreliable person. It does not seem to show that he knew, he being a minor of 17, what exactly his age was in 1899. Therefore, I do not think that it is proved that he was a party to the fraud practised by his father-in-law upon the District Court in December 1899. That being so, there is no obstacle to his now attempting to set aside the gift. He is not bound by the order of the District Court discharging his guardian on the ground that he, the 1st plaintiff, had ceased to be a minor.

(3.) Then, it is said that at the time at which the 1st defendant purchased the property from the donee, Ranga Nachiar, under Exhibit VIII the 1st plaintiff represented to the vendee, 1st defendant, that his wife was the owner of the property and that he had duly passed it on to her, and, consequently, he is now estopped from endeavouring to recover that property from the possession of the 1st defendant. The only evidence of representation is the fact that he attested the document, and the allegation of the 1st defendant that the 1st plaintiff negotiated the sale. That allegation is one which I am not prepared to accept; and it is denied by the 1st plaintiff. The 1st defendant is interested in establishing the sale, and the 1st plaintiff is interested in having it set aside. I take the statements of neither as being of great value in deciding what happened at the time of Exhibit VIII. The Subordinate Judge, after a long discussion of the evidence, comes to the conclusion that the 1st plaintiff really took little or no part in the negotiations and was probably not the person really interested. Apart from that, I take it that the evidence of representation which can be relied on at all is only the attestation of the document by the 1st plaintiff. At the time the 1st plaintiff attested the document, he was a minor. He seems to be a person whose conduct is easily influenced, and easily made to do this, to do that, at one time and at another, according as those who advised him might think desirable. All the evidence of his conduct that we have indicates that he is not a person of very strong moral character and is likely to be influenced by others. Within a few months of the declaration by the Court he makes a gift to his wife and subsequently his wife comes to make this sale and he attests the document. What is the value of that attestation? We have been referred to Kandasawmy Pillay v. Rangasawmy Nainar (1912) 23 M.L.J. 301 where the learned Judge expressed an opinion that an attestation, having regard to the habits of the people of this country, by a person who is interested may amount to representation. But I think the application of that rule must depend upon the facts found in each case. It cannot be said that it will apply without exception, even to a minor. Here, we have a person who is not only a minor but who is shown to be a person not very likely to have taken much trouble to know what was being done. To say that he is bound by it and that we must presume that he represented to the vendee that he was not the real owner and that the gift was valid seems to me to go beyond what has yet been decided in any case and I am not prepared to say that the 1st plaintiff s attestation in this case can be taken as a representation to the 1st defendant of the validity of the gift or of the sale; consequently, he was not estopped by that attestation from proceeding with the claim made in the present suit.