SHIAM LAL Vs. RAM PIARI

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by the appellants to recover Rs. 346- 1 from the defendants and for sale of a shop alleged to be the property of the defendants. The facts are these. The said shop belonged to two brothers, Bhagwan Das and Chhote Lal, who mortgaged it to Matru Mal and Basdeo in 1903. They died leaving them surviving Musammat Hulaso, their mother, Musammat Ram Piari, widow of Chhote Lal, and Musammat Goma, daughter of Bhagwan Das. On the 20 of September, 1905, a sale-deed is alleged to have been executed in favour of the plaintiffs in respect of the said shop for a consideration of Rs. 600 by Hulaso and Ram Piari. It has been found that Ram Piari was a minor at the date of the sale and is still a minor. The Sub-Registrar, before whom the sale-deed was presented for registration, being also of opinion that Ram Piari was a minor, refused to register it as a document executed by her. The plaintiffs say that out of the amount of consideration for the sale they paid Rs. 100 in cash and Rs. 231 in discharge of the mortgage held by Matru Mal and Basdeo and they seek to recover the said sums with interest not only from the defendants personally bat also by sale of the shop. The Court of first instances refused to order a sale of the shop, but made a personal decree against the defendants. From this decree Ram Piari appealed and the plaintiffs filed objections under Section 561 of the Civil P. C.. The lower appellate Court dismissed the objections, decreed the appeal, and dismissed the suit as against Ram Piari on the ground that, as Ram Piari was a minor, the sale by her was absolutely void and that the plaintiffs could not recover the amount paid by them. Against this decree of the Court below the present appeal has been preferred. As regards the Rs. 231 alleged to have been paid in discharge of the mortgage held by Matru Mal and Basdeo, I think the plaintiffs have no right of action. As the sail to them by Ram Piari was a sale by a minor, it was void, as held by their Lordships of the Privy Council in Mohori Bibee V/s. Dharmo Das Ghose 30 C. 539; 7 C.W.N. 441. As they did not acquire any interest in the property, they had no interest to protect, and, therefore, the payment made by them in discharge of the mortgage was nothing more than a payment by a volunteer. The learned Vakil for the appellants has relied upon a passage in Pomeroy's Equity Jurisprudence, Vol. III, paragraph 1212. That passage it seems to me is against his contention. There the learned author says, Such relations must exist towards the mortgaged premises or with the other parties that the payment is not merely a voluntary act, but is an equitably necessary or proper means of securing the interest of one making it from possible loss or injury. The payment must be made by or on behalf of the person who had some interest in the premises or some claim against other property which he is entitled in equity to protect and secure. A mere stranger, therefore, who pays off a mortgage as a merely voluntary act can never be an equitable assignee." As I have already said, the plaintiffs acquired no interest in the shop in question under the sale-deed said to have been executed in their favour by Musammat Ram Piari, the latter being a minor. Therefore, they had no interest to protect and if they made any payment to discharge a mortgage existing on the property it was a voluntary act on their part and does not confer on them any right to recover the money so paid by them from the mortgaged property. The Privy Council has held in the case referred to above that in the case of a contract by a minor which is void the person, advancing money on the contract cannot recover it under the provisions of Secs.64 and 65 of the Contract Act. Therefore, from any point of view the plaintiffs are not entitled to get back the sum of Rs. 231 alleged to have been paid by them to the mortgagor. As for the remaining sum of Rs. 100 which is said to have been paid by them in cash, it is contended that the payment was made for necessaries. That was not the case set up in the Courts below. All that was said was that the money was paid for the maintenance of the vendors. That does not amount to a payment for necessaries, and cannot create any lien in favour of the plaintiffs on the minor's property. I, therefore, agree with the conclusion at which the Court below has arrived and dismiss the appeal with costs.

(2.) The plaintiffs appealed under the Letters Patent. JUDGMENT

(3.) After carefully listening to the very able and elaborate arguments addressed to us on behalf of the appellants, we are of opinion that the judgment delivered by our brother Banerji is a judgment in accordance with the law as prevailing and as understood in these Provinces. We, therefore, are not prepared to interfere. We dismiss the appeal with costs.