CHITRADHAR NARAIN DAS Vs. KHIDAR THAKUR

JUDGEMENT

(1.) This appeal and a cross-appeal arise out of an action in which the plaintiffs who were minors claimed a declaration that a certain mortgage decree was not binding upon them. I propose to say as little as possible in this case because I do not pretend nor did I ever pretend to understand the law as regards this particular matter. By that I mean that I have always failed to find any logical basis for the decisions on this matter, which have been arrived at always excepting certain decisions of the Judicial Committee of the Privy Council to which I shall refer in a moment. I can understand, as in Walian V/s. Banke Behari Pershed Singh (1903) 30 Cal. 1021 that although certain irregularities were present that is to say the strict letter of the law had not been complied with in the appointment of a guardian, yet there was in substance representation. But I find myself in the greatest possible difficulty as regards the decisions which have held that although the law has been complied with so far as the appointment is concerned, yet the question whether there has been a representation in fact can be ignored. It always has seemed to me that to lay down any such wide rule is to open a vista of litigation the end of which cannot be seen. However it does appear to be clear on the authorities, including the decision of their Lordships of the Judicial Committee of the Privy Council in Mt. Rashid-un-nisa V/s. Muhammad Ismail Khan (1909) 31 All. 572 that although the law has been complied with it is open to the Courts to go into the question whether there has been representation.

(2.) Shortly stated, the facts out of which this appeal and the cross, appeal arise are these. The plaintiffs are two minors and their fathers entered into a mortgage transaction in November 1921. Three months prior to that date, that is to say sometime in August they entered into a transaction by which they purchased a certain property.

(3.) For the purpose of raising the money, the consideration for the purchase, they entered into the mortgage transaction to which I have referred. In course of time an action was brought on the mortgage, and amongst the defendants were the two fathers and their respective minor sons. A decree was obtained and it is as regards that decree that this action out of which this appeal: and the cross-appeal arise was brought.