MT NAIMA KHATUN Vs. BASANT SINGH

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for damages for breach of contract. On 18 September 1925 the plaintiff's husband sold half a village called Aghwan Hera to the defendant for Rs. 35,000. On 1 December 1925 three documents were executed : one was a sale deed by the defendant to the plaintiff for Rs. 25,000 re-turning the village previously purchased, another sale deed by the plaintiff to the defendant for Rs. 28,000 of shares in another village, Pilkhani, and a third a security bond executed by the defendant in favour of the plaintiff. Under the sale deed executed by the plaintiff in favour of the defendant Rs. 8,200 were acknowledged to have been previously received, and Rs. 19,800 were left in the hands of the defendant to be paid in equal amounts to two previous creditors. There was a statement in the deed that there were no prior encumbrances. Under the security bond executed by the defendant he agreed to indemnify the plaintiff, if he did not carry out his part of the contract. The rubkar of the appellate Court, dated 23 February 1926, indicates that mutation of names was effected in favour of the defendant, Basant Singh, in respect of the village Pilkhani. It is not now disputed that the defendant did not discharge the prior encumbrances. The plaintiff has accordingly brought his suit for damages for the breach of this contract.

(2.) The claim was resisted on the ground, first, that the defendant was a minor on 1 December 1925, and therefore is not bound by the contract made with the plaintiff. Secondly, that the contract had been obtained by fraud and misrepresentation, and is voidable at the option of the defendant. The learned Subordinate Judge has come to the conclusion that the defendant, was, in fact, a minor on the date of this transaction and that the document was obtained under some misrepresentation. He has accordingly dismissed the suit. In appeal his findings are challenged.

(3.) It would be convenient to take up the question of the minority of the defendant in the first place. It cannot be disputed that the burden of showing that the defendant was a minor on the date when he entered into the contract with the plaintiff lies heavily upon the defendant. We may only refer to the recent pronouncement of their Lordships of the Privy Council in the case of Sadiq Ali Khan V/s. Jai Kishori A.I.R. 1923 P.C. 152. The only question is whether the defendant has discharged this burden. The defendant produced three witnesses, besides himself, as to his age. The learned Subordinate Judge has not referred to the oral evidence on this question at all and has based his finding exclusively on the documentary evidence. The reason, in our opinion, is obvious. The oral evidence was not such as could be implicitly relied upon. The first witness, Jhanda Singh, is a cultivator by occupation and was employed in the army from 1899 and was in service till 1922. According to his statement, the first time when he took leave, and he does not remember when he took any other leave and came to his village, Basant Singh was born in the village. This was seven years after his entering into service. He is not a relation of the family of the defendant. Another curious fact is that he came home on leave in the mon January, and not in the hot weather. We also find it difficult to believe that he would be able to remember this fact after a lapse of more than 20 years.