HARIMOHAN Vs. DULU MIYA

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for recovery of money on a mortgage bond. The substantial defence of the defendant was that he was a minor at the time of the loan and as such plaintiff was not entitled to any relief. The Courts below have found that defendant 1 executed the mortgage bond and borrowed the money. It has been further found by the Courts below that defendant 1 was a minor at the time when the bond was executed and the money was advanced. The Courts below have also found that there had been no fraudulent misrepresentation on the part of defendant 1 about his age at the time when he executed the bond. On these findings the Courts below have dismissed the suit. Hence the present appeal by the plaintiff.

(2.) The first point urged on behalf of the appellant is that the finding of the lower appellate Court, that there had been no fraud by the minor, is wrong, inasmuch as it was the duty of the defendant to disclose to the plaintiff at the time of the transaction that his minority was extended by the appointment of a guardian under the Guardian and Wards Act. Reliance was placed on a decision of this Court in Surendra Nath Roy V/s. Krishna Sakhi Dasi (1911) 9 C 110. in support of this contention. In Dhurmo Dass Ghose V/s. Btahmo Dutt (1898) 25 Cal 616 Jenkins, J., held that fraud operating to deceive must be found as a fact and whether in any particular case there was such fraud must depend on its own circumstances. It must be shown to the satisfaction of the Court by the party who alleges fraud that he was deceived into action by this fraud. In the present case, it has not been found that plaintiff was not aware of the minority of the defendant at the time of the transaction. On the other hand, the finding of the lower appellate Court is that, from the circumstances of the case, it was the duty of the creditor to have inquired about the minor at the time when the money was advanced. It has not been found also that, at the time when the minor executed the bond and received the money, he was aware that his minority was extended under the law. It has not been proved in this case that the defendant held himself out as being of age or that the plaintiff was deceived by any misrepresentation on the part of defendant 1. Under these circumstances, the Courts below were right in holding that there had been no fraud or misrepresentation on the part of defendant 1. The next point urged in support of the appeal is that on the facts found by the Courts below they should have held that the defendant was bound to make restitution to the plaintiff of the benefit received by him. It is argued that, as the minor received the money under the bond which is void, he is bound to return the money which he received from the plaintiff. It is now well-settled that a plaintiff cannot base his claim for restitution under Section 65, Contract Act: see the case of Mohori Bibee V/s. Dharmodas Ghose (1903) 30 Cal 539, Motilal Mansukhram V/s. Maneklal Dayabhai 1921 Bom 147 and Punjabhai V/s. Bhagwandas Kisandas 1929 Bom 89. The plaintiff is not also entitled to get any compensation under Section 41, Specific Belief Act. Section 41 embodies the equitable principle that he who seeks equity must do equity: But a Court of equity cannot say that it is equitable to compel a person to pay any moneys in respect of a transaction which, as against that person, the legislature has declared to be void, Thurstan Vs. Nottingham Permanent Benefit Building Society (1902) 1 Ch 1.

(3.) This law has been affirmed by the House of Lords in Nottingham Permanent Benefit Building Society V/s. Thurstan (1903) AC 6 and by the Privy Council in Mohori Bibee v. Dharmodas Ghose (1903) 30 Cal 539. It was however argued, on the authority of the latter decision (1), that, in a proper Case, the Court, in the exercise of its discretion, might require the minor to return the money advanced to him, under the provisions of Section 41, Specific Relief Act. In that case however the minor sought the equity. In the present case the minor does not invoke the aid of the equitable jurisdiction of the Court. Plaintiff therefore in my opinion is not entitled to get any compensation under Section 41, Specific Relief Act. It was however contended that defendant 1 was liable for damages in tort. But there can be no liability in tort in this case, as the Courts below have negatived fraud or his part. Further "you cannot convert a contract into a tort to enable you to sue an infant." Jenninjs V/s. Rundall (1799) 8 Term 335, R. Leslie, Limited V/s. Sheill (1914) 3 KB 607. If the tort is directly connected with the contract and is the means of effecting it and is a parcel of the same transaction, the minor is not liable in tort: see the case of Khan Gul V/s. Lakha Singh 1928 Lah 609.