GOLAM ABDIN SARKAR Vs. HEM CHANDRA MOJUMDAR

JUDGEMENT

(1.) The question involved in this appeal is whether plaintiff No. 2 is entitled to have the kabuliyat executed by him, while he was a minor, declared void so far as he is concerned and to recover possession of his share in the property in dispute. The Court of Appeal below has decided this question in his favour and the defendants have appealed to this Court. It appears that the plaintiff s mother obtained certificate of guardianship in respect of his person and property, and the plaintiff, therefore, was a minor until he attained the age of twenty-one years. The conveyance was executed by him when he had not attained that age. There can be no doubt, therefore, that the conveyance was void. See the case of Mohori Bibi v. Dharmodas Ghose 30 C. 539; 5 Bom. L.R. 421; 7 C.W.N. 441 (P.C.); 30 I.A. 114.

(2.) It is contended on behalf of the appellant that the minor is estopped from pleading invalidity of the kabuliyat under Section 115 of the Indian Evidence Act. The lower Court has found that the plaintiff had no knowledge that a certificate of guardianship had been obtained and that his minority had been extended. In fact that Court has found that there was no misrepresentation by plaintiff No. 2. It has, however, been contended on behalf of the appellant that even if plaintiff No. 2 had no knowledge that his minority had been extended the fact that he sold the property as if he was of age was a representation upon which the defendants have acted and the plaintiff was, therefore, estopped.

(3.) The question whether the law of estoppel applies to a minor was considered in the case of Dhurmo Dass Ghose v. Brahmo Dutt 25 C. 616; 2 C.W.N. 330. Mr. Justice Jenkins (as he then was) held in that case that the general law of estoppel, as enacted by Section 115 of the Indian Evidence Act, would not apply to an infant unless he has practised fraud operating to deceive, and observed that fraud on the part of an infant operating to deceive must be found as a fact and whether in any particular case there is such fraud must depend upon its own peculiar circumstances. On appeal Maclean, C.J., and Prinsep, J., held that Section 115 has no application to contract by infants. The learned Chief Justice observed as follows: "A minor cannot be estopped by a deed or by the recitals in a deed, and if he cannot be so estopped, it seems incongruous to say that he can be estopped by a parole declaration, for this is the contention. We must read the language of the Legislature if we can, so as to make it harmonise, and not conflict, with the general, law, though remembering at the same time that the office of the Legislature by its Legislative Acts is to define, and even alter, the law. The term person in Section 115 is amply satisfied by holding it to apply to one who is of full age, and competent to enter into a contract, and I cannot bring myself to think that it could have been the intention of the Legislature, by such a general expression, to institute such a grave change in the law of estoppel in relation to minors." Mr. Justice Ameer Ali also was of opinion that when the law declares that an infant shall not be liable upon a contract, he cannot be made liable upon the same contract by means of an estoppel under Section 115. See Brohmo Dutt v. Dharmo Dass Ghose 26 C. 381; 3 C.W.N. 468. When the case went up to the Privy Council their Lordships did not think it necessary to deal with the question of estoppel, because the vendee in that case was fully aware that the vendor was a minor; and no question of estoppel arises where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement. But there is nothing to show that their Lordships did not approve of the view taken by this Court on the question of estoppel as is contended by the learned Vakil for the appellant.