WALIDAD KHAN Vs. JANAK SINGH

JUDGEMENT

(1.) ON the 17th of November, 1905, the defendant Janak Singh sold certain zamindari property to the plaintiffs, who were then minors. ON a suit by third parties the the plaintiffs were dispossessed. The plaintiffs, having been unable to obtain a refund of the purchase money from the defendant, brought this suit for its recovery and also for the costs incurred in the litigation with the third parties. In defence it was pleaded, inter alia, that the contract was null and void, the plaintiffs having been minors at the date of the execution of the sale deed. The first court decreed the suit in part, namely, for the principal of the sale consideration Rs. 800; Rs. 119 in respect of the costs in the former litigation, and Rs. 260 as interest on the purchase money at 8 annas per cent per mensem. The defendant appealed, eight grounds being taken in the memorandum of appeal. The lower appellate court disposed of the appeal on one ground only. In the opinion of that court the case was concluded by the decision of their Lordships of the Privy Council in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) L.R.,39 I.A., 1; 9 A.L.J., (36) I.L.R., 39 Calc., 232. We think it desirable to set out exactly what was decided by their Lordships in that case, in as much as the report of the case, as it appears in the Allahabad Law Journal, is not quite correct But of. errata slip attached to A.L.J., No. 19 of 1911--Ed. Their Lordships state: "Without some authority their Lordships are unable to accept the view of the learned Judges of the Division Bench that there is no difference between the position and powers of a manager and those of a guardian. They are, however, of opinion that it is not within the competence of a manager of a minor s estate or within the competence of guardian of a minor to bind the minor or the minor s estate by a contract for the purchase of immovable property, and they are further of opinion that as the minor in the present case was not bound by the contract there was no mutuality, and that the minor, who has now reached his majority, cannot obtain specific performance of the contract." The lower appellate court dismissed the plaintiffs suit. The plaintiffs come here in second appeal. Various grounds have been pressed before us. It appears to us that the decision of the Privy Council, referred to above, and the decision in Mohori Bibee v. Dharmodas Ghose (1903) I.L.R., 30 Calc. 599, do not support the decision arrived by the court below. In the latter case it was decided that a moneylender, who had advanced money to a minor on the security of a mortgage, could, not enforce the mortgage against the minor, and their Lordships held that justice did not require an order for the return of the money advanced to him with full knowledge of his infancy. We must draw a distinction between the facts which were before their Lordships in Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri (1911) 9 A.L.J., 33; L.R., 39 I.A., 1 I.L.R., 39 Calc., 232 and the facts of the present case. In the case before their Lordships, they had to deal with an agreement to sell. Here we have before us a contract which has been executed. The sale has actually taken place. The plaintiffs have paid the consideration money. They obtained possession of the property, but were subsequently dispossessed. It cannot be said that, in the altered state of affairs which has arisen since the deed of sale, the plaintiffs have not acquired a good cause of action for recovery of the purchase money. So far as the case has been argued before us, we are unable to see any reason why the plaintiffs should be debarred from recovering from the defendant the purchase money which the latter received from them as consideration for the property to which, it has been found, he had no title. It would, it appears to us, be highly inequitable to allow the defendant to retain the plaintiffs money in his possession, and to hold that the plaintiffs could not recover from the defendant simply because they happened to be minors at the date of the sale. It is quite possible that the transaction might have been of such a nature that the defendant made himself liable under the criminal law for cheating, and it would be strange indeed that a vendor, who might have been held guilty of an offence of cheating, should not be held liable to refund to the plaintiffs the money out of which they have been defrauded, The court below decided the case on a preliminary point, and, as we are unable to agree with the decision, we allow this appeal, set aside the decree of the lower appellate court and remand the case to that court with directions to readmit the appeal to its original number in the register and dispose of it according to law. Costs of this appeal will be costs in the cause.