LALTA PRASAD Vs. JAGAR NATH SINGH; DWARKA PRASAD

JUDGEMENT

(1.) This and the connected First Appeal No. 118 of 1906 arise out of a suit brought by the respondents Lalta Prasad and Bhuaneshri Prasad for possession of a 2 anna 6 pie share of zamindari and for a declaration that a sale-deed, dated the 28 of June 1899, executed by them jointly with one Dwarka Prasad in respect of the said share, is null and void.

(2.) The plaintiffs are the sons of Lala Madho Prasad, whose paternal uncle is the aforesaid Dwarka Prasad. After the death of Madho Prasad in 1882, Dwarka Prasad applied for and obtained in 1888 a certificate of guardianship of the persons and property of the plaintiffs who were minors at the date of their father's death. Madho Prasad and Dwarka Prasad jointly owned an 8 anna share in the village Kharaun, out of which Madho Prasad, in his life-time sold 2 annas 9 pies and Dwarka Prasad sold 2 annas 6 pies after Madho Prasad's death. The remaining 2 annas 9 pies was sold by the plaintiffs and Dwarka Prasad on the 28 of June 1899 to Jagar Nath Singh defendant and the predecessors in title of defendants Nos. 2 to 11. The plaintiffs state that they were minors at the date of the sale; that they are persons of weak intellect and inexperienced; that they executed the Bale-deed under the influence of Dwarka Prasad, who is an extravagant man of dissolute habits; that they did not derive any benefit from the sale; that the sale was effected without any necessity, and that they did not receive any part of the consideration for it. On these grounds they seek to set aside the sale and recover possession of the portion of the property sold of which the purchasers have taken possession.

(3.) The defendants deny that the plaintiffs were minors at the date of the sale and assert that the plaintiffs represented themselves to be of full age and thus induced them to purchase the property. They contend that the plaintiffs are estopped from maintaining the suit, and that in any case they are bound to make restitution of the amount of consideration for the sale. The Court below found that the age of the plaintiff was below 21 years on the date of the execution of the sale-deed and that they were minors and incompetent to make the contract of sale. Following the ruling of their lordships of the Privy Council in Mohori Bibee v. Dharmodas Ghose (1903) I.L.R. 30 Calc. 539 the learned Subordinate Judge held the sale to be void. He, however, was of opinion that the plaintiffs had made fraudulent misrepresentations to the purchasers as to their age and that they benefited by the sale. He accordingly made a decree for possession on condition that the plaintiffs should refund so much of the consideration for the sale as represented the value of the share decreed to them.