MALLACHERUVU RAGHAVAYYA Vs. MALLACHERUVU SUBBAYYA

JUDGEMENT

(1.) The facts of this case are very simple. The plaintiff on the 2nd October 1903 executed a sale-deed of certain lands to the 2nd defendant jointly with his undivided brother, the 1st defendant, for Rs. 300 0 0. At the time of the conveyance he was a minor; it is contended that he definitely represented that be was of age and I am not convinced that that allegation, if proved, would make any difference in law; but it is sufficient to say that it is not proved.

(2.) A very great number of cases were cited before us, and a very interesting discussion took place. In my opinion the decision of the English Court of Appeal in Leslie Ltd. v. Sheill (1914) 3 K.B. 607 : 83 L.J.K.B. 1145 : 111 L.T. 106 : 58 S.J. 453 : 30 T.L.R. 460 concludes the matter in all eases where the minor is a defendant and concludes it in his favour. I am not at all satisfied that the law is satisfactorily settled apart from Statutes, in cases where the minor is plaintiff, as the English cases seem to me to fall into two groups not easy to reconcile. I n ay take as representing one group, Nottingham Permanent Bent fit Building Society v. Thurstan (1903) A.C. 6 : 72 L.J. Ch. 134 : 87 L.J. 529 : 51 W.R. 273 67 J.P. 129 : 19 T.L.R. 54 and as representing the other, Vabntini v. Canali (1890) 24 Q.B.D. 166 : 59 L.J.Q.B. 74 : 61 L.T. 731 : 38 W.B. 331 : 54 J.P. 295. I desire to express no opinion on the point now. But it is clear that in this country we have a statutory right to impose conditions by Section 41 of the Specific Relief Act, and that right is clearly recognized in Mohori Bibee v Dharmo das Qhose 30 I.A. 114 at p. 125 : 30 C. 539 : 7 C.W.N. 441 5 Bom. L.R. 421 : 8 Sar. P.C.J. 374 (P.C.). I regard this as a proper case for exercising that discretion and make it a condition that the plaintiffs shall repay the Rs. 150-0-0 to the 2nd defendant before recovering possession of the property. The details of the order are contained in the judgment of my learned brother, which I have had the advantage of perusing.

(3.) I desire to add that the decision in Dadasaheb Dasrathrao v. Bai Nahani 41 Ind. Cas. 180 : 41 B. 480 : 19 Bom. L.R. 561 is vitiated by the fact that no reference is made either in the report of the arguments or the judgments to Leslie Ltd. v. Sheill (1914) 3 K.B. 607 : 83 L.J.K.B 1145 : 111 L.T. 106 : 58 S.J. 453 : 30 T.L.R. 460 a decision approved of in Mahomed Syedol Ariffin v. Yeoh Ooi Gark (1916) 2 A.C. 575 : 86 L.J.P.C. 15. I think the Bombay decision must be regarded as erroneous. Seshagehi Aiyar, J.