BHAGGABHOR MONDAL Vs. MOHINI MOHAN BANERJEE

JUDGEMENT

(1.) In this case it appears that in Chait 1308 corresponding to year 1901 a mortgage-bond was executed by the appellant before us in favour of two mortgagees. Both the mortgagees, it has been found, were minors at the time. They sued upon this mortgage-bond, obtained a decree and in the sale in execution of that decree they bought the property. The mortgagor now sues to have it declared that the mortgage-bond is void and to have the decree and the sale set aside.

(2.) The only contention advanced on his behalf in this appeal is that, though he has taken the money of the minors, the mortgage-bond is void and cannot be enforced at their instance. In support, of that proposition the learned Pleader who has appeared for the appellant has cited before us the cases reported as Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri 13 Ind. Cas. 331 : 39 C. 232 : 21 M.L.J. 1156 : 39 1. A. 1 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 9 A.L.J. 33 : 15 C.L.J. 69 : 14 Bom. L.R. 5, Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 5 Bom. L.R. 421 : 7 C.W.N. 441 : 30 I.A. 114 (P.C.) and also the case reported as Navakoti Narayana Chetty v. Loyalinga Chetty 4 Ind. Cas. 383 : 33 M. 312 : 19 M.L.J. 752 : 7 M.L.T. 233. No doubt in the cases decided by their Lordships of the Privy Council and reported as Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 5 Bom. L.R. 421 : 7 C.W.N. 441 : 30 I.A. 114 (P.C.) and Mir Sarwarjan v. Fakhruddin Mahomed Chowdhuri 13 Ind. Cas. 331 : 39 C. 232 : 21 M.L.J. 1156 : 39 1. A. 1 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 9 A.L.J. 33 : 15 C.L.J. 69 : 14 Bom. L.R. 5, it has been held that a contract by a minor is not merely voidable but void. But in this case we are not concerned with any covenant which it is for the minors to perform. There is here no question of any reconveyance. The appellant has taken the minors money and he now seeks to avoid the contract which he has made in their favour. We cannot find anything in the Transfer of Property Act which nullifies a transfer made by a person of full age in favour of a minor. The minors are now of full age and they seek to have the contracts in their favour enforced, and we may, therefore, take it that the mortgage entered into was for their benefit. In support of the view that they may enforce the mortgage we may refer to the cases that have been cited by the appellants in their own favour, that is to say, the case in Navakoti Narayana Chetty v. Loyalinqa Chetty 4 Ind. Cas. 383 : 33 M. 312 : 19 M.L.J. 752 : 7 M.L.T. 233 and also the case of Ulfat Rai v. Gouri Shanker 11 Ind. Cas. 20 : 33 A. 657 : 8 A.L.J. 670.

(3.) For these reasons we are of opinion that simply because of the minority of the respondents at the time when the mortgage in their favour was created we ought not to set aside the decree that has been made in their favour and the sale held thereunder. We, therefore, dismiss this appeal with costs.