TOOLSEY PERSAUD BHUCKT Vs. BENAYEK MISSER

JUDGEMENT

(1.) THE suit out of which this appeal arises was one for foreclosure of two mortgages made by the first defendant in the action, Toolsey Persaud Bhuckt, in favour of the present respondent. The first mortgage was dated May 11, 1885, and the second mortgage or further charge was dated November 28, 1885.

(2.) THE principal defence, and the one upon which the learned Counsel for the appellant has principally addressed their Lordships, was that the appellant was a minor on May 11, 1885, at the date when the first mortgage was executed. It is obvious that that is a question of fact, to be determined by the evidence, documentary and oral, given in the case.

(3.) THE suit came, in the first instance, before Wilson J., sitting on the original side of the High Court at Calcutta. Certain issues were stated and tried by the learned judge, which are to be found in his judgment. The 9th issue was: "Was the first defendant at the date of the first mortgage a minor?" The learned judge says: "The first question then is, was he an infant at the time of the execution of the mortgage? He was admittedly of age at the date of the further charge." The learned judge then states, and comments upon, the evidence in favour of the first defendant having been of age at the date of that mortgage, and then he comments on the evidence against it. He says, "What have we against that?" and then he states the evidence which was given, and he says, "That, I must say, is very unsatisfactory evidence to counterbalance the deliberate assertions of the first defendant himself, of the executors of his father's will, and the long series of acts on his part wholly inconsistent with the story that he was a minor at the time of the transaction. It is sought to confirm this evidence in two ways, and the first document that is used by way of confirmation is a horoscope which seems to me to be an extremely suspicious one." He concludes his observations in this matter thus: "I have little doubt that it is a made-up document, and made up with singular indiscretion." Then he refers to evidence which has been given in confirmation of the inference sought to be drawn from the horoscope, and he concludes by saying: "I think, therefore, that the evidence is strong to shew that at the time this mortgage was executed the first defendant was/not an infant."