L.H. Jenkins, J.

1. On the 20th of July 1895 the plaintiff executed in favourof the defendant a mortgage over premises in Calcutta known as No. 15, BolaramGhoshs Street and 133, Cornwallis Street, to secure Rs. 20,000, and thepresent suit is brought to have the deed cancelled on the ground that at thetime of its execution the plaintiff was an infant. On the evidence before me Ihave no hesitation in finding that the plaintiff was under the age of twenty-oneon the 20th of July 1895, and as at that time his mother Jogendra Nandini Dasiwas guardian of his person and property under an order of Court to that effect,it follows that at the date of the mortgage the plaintiff was under suchincapacity as arises from infancy. By way of answer to this incapacity thedefendant in the first place contends that the loan was induced by a fraudulentmisrepresentation made by the plaintiff to the defendants attorney Kedar NathMitter, to the effect that the plaintiff was of age, and that Kedar Nath Mitterwas deceived by the misrepresentation, so that it is necessary to examine thefacts relevant to this contention.

2. The plaintiff, who seems to have been a young man ofextravagant and profligate habits came to Kedar Nath Mitter, an attorney ofthis Court, some time in the month of May 1895, with a request for a loan ofRs. 20,000 on mortgage of the property to which I have already referred. Theupshot of the matter was that Dedraj, the local manager in Calcutta of thedefendant, an up-country money-lender, expressed his willingness to advance themoney on being satisfied as to the security. In the course of investigation ofthe plaintiffs title there came into Kedar Nath Mitters hands a decree in apartition suit and an order for possession in which the present plaintiff wasdescribed as a minor, and thereupon Kedar Nath Mitter, according to his accountof what occurred, asked the plaintiff to produce satisfactory evidence of hismajority, with the result that the latter produced copies of two petitionspresented by his mother, one praying for a grant of letters of administration,and the other for her appointment as guardian of the person and property of theplaintiff. In the former of these the plaintiff was described as being underthe age of seven years, from which Kedar Nath says that he drew an inferencewhich would place the plaintiffs birthday in July. Kedar Nath Mitter claims tohave based this inference on what he calls a calculation; but if the mentalprocess he describes ever had an existence, then I can only say it had nojustification in fact or in reason.

3. Kedar Nath Mitter farther has sworn that the plaintiffwas constantly asserting that he was born on the 4th Asser (the 17th June), buthis testimony on this point is uncorroborated by any of the defendantswitnesses, and is absolutely contradicted by the plaintiff.

4. The next thing, according to Kedar Nath Mitter, is thatas he still wanted evidence of the precise date of the plaintiffs birth, theastrologer Kalidas Acharji and Nando Lal Ghosh were produced, and made thedeclarations which form part of the evidence in the case. In addition to thisKedar Nath Mitter got from the plaintiff, as he says, "for greatersecurity in the interests of his client "the declaration affirmed by theplaintiff on the 20th of July, the day of the execution of the mortgage. Theseare the facts on which the defendant relies in support of his plea offraudulent misrepresentations. The plaintiff, on the other hand, contends thatKedar Nath Mitter was not in fact deceived by the misrepresentations containedin the declarations, and to establish that he relies on his conduct in thematter and also on a letter of the 15th of July 1895. This letter was writtenby Babu Bhupendranath Lose, who at that time was the plaintiffs mothersattorney, and was in these terms:

July 15th, 1895.

Babu Kedar Nath Mitter. Dear Sir, I am instructed by SrimatiJogendra Nandini Dasi, the mother and guardian appointed by the High Courtunder its Letters Patent of the person and property of Babu Dharamdas Ghose,that a mortgage of the properties of the said Dharamdas Ghose is being preparedfrom your office. I am instructed to give you notice which I hereby do that thesaid Dharamdas Ghose is still an infant under the age of twenty-one and any onelending money to him will do so at his own risk and peril. Yours faithfully,Bhupendra Nath Bose.

5. This letter was on the same day handed to the witness,Lal Mahomed, Pressman, to be taken by him to Kedar Nath Mitters office. LalMahomed swears that he took the letter to Kedar Nath Mitters office, and therewent into a room where Kedar Nath Mitter and another Babu were seated. He saysthat he handed the letter to this Babu who opened it, read it and then handedit to Kedar Nath Mitter, who in turn read its contents. The Babu, it is said,then signed the peon book, which was brought back by the messenger. No replywas sent to this letter, and on the 24th of July Bhupendra Nath again wrote toKedar Nath Mitter as follows:

class "RightAlign" July 24th 1895.

Babu Kedar Nath Mitter. Dear Sir, Re Dharamdas Ghose. Iwarned you on the 15th of July instant that Dharamdas Ghose was and still is aninfant, and that his mother my client Srimati Jogendra Nandini Dasi is hisguardian. I understand that yesterday, notwithstanding the warning, one of yourclients Jamnadas Brahmadutt through you got the said Dharamdas Ghose to executea mortgage of his properties in Calcutta in favour of the said Babu JamnadasBrahmadutt for Rs. 20,000 of which he did not pay Rs. 8,700, the remainderbeing distributed between the unhappy victim and the confederates of yourclient. I am instructed to call upon your client through you to cancel the saidmortgage at once as otherwise my instructions are to take legal proceedingswithout further reference. Yours faithfully, Bhupendra Nath Bose.

6. To this letter Kedar Nath Mitter replied denying thereceipt of the letter of 15th July, and this led to a further letter from BabuBhupendra Nath Bose.

class "RightAlign" July 26th, 1895.

Babu Kedar Nath Mitter. Dear Sir, Re Dharamdas Ghose. Yourletter of the 25th, I am surprised on hearing from you that you did not get anywriting from me on the 15th. I find from my peon book that my letter of the15th was delivered to you, and the receipt is signed by one of your clerkswhose name, as far as I can make out, is Nishi Kanto Ganguly. As regards therest of your letter it requires no reply. Yours faithfully, Bhupendra NathBose.

7. On the 27th July 1895 Kedar Nath Mitter sent a reply inwhich he simply states that there was no clerk of the name of Nishi KantaGanguly. On that Babu Bhupendra Nath Bose sent to Kedar Nath Mitter the peonbook in which there is the name which certainly appears to be Radha Nath Goolyor Gangooli; and I am further satisfied that there was a clerk of that name atthe time in Kedar Nath Mitters office and (notwithstanding Kedar Nath Mittersdenial) that it was his practice to sit downstairs. It will here be convenientto refer to a letter written on the 20th July 1895 by Nanda Lal Ghose to KedarNath Mitter in which he says:

As requested I have been to Babu Wooma Nath Ghose, theuterine brother of Hurry Das Ghose, and enquired of him whether he recollectedthe precise date of the birth of Dharamdas Ghose.

8. It further appears that there is an entry in Kedar NathMitters day book, dated Tuesday, the 23rd July 1895.

Attending yesterday at No. 2, Badur Bagans Lane,accompanied by Babu Nanda Lal Ghose, Behary Lal Mitter and Nitto Gopal Ghose,having an interview with Babu Wooma Nath Ghose, the uterine brother of HurryDas Ghose, the deceased father of Dharama Ghose and enquiring of him about theage of Dharamdas Ghose.

9. Now Nando Lall Ghoses evidence was that their visitswere in consequence of a letter received by Kedar Nath Mitter from BhupendraNath Bose, though no doubt on learning the dates he receded from this position.In the same way Kedar Nath Mitter gives the following evidence in reference tohis visit: "I wanted further enquiry because of the letter of BhupendraNath Bose. That made me curious to know what the other members said. I am sureof that." Then when the date is shown him he says: "There must be amistake in the date in the day book." The importance of all this is thatprior to these visits the only letter Babu Bhupendra Nath Bose had written wasthat of July 15th, the receipt of which Kedar Nath Mitter had denied, so thatthe position is this. It is sworn by the pressman that he delivered the letter:the peon book contains a signature which is the name of one of Kedar NathMitters clerks, and he is a clerk whose practice it was to sit in Kedar NathMitters room and was one of the attesting witnesses of the mortgage, KedarNath Mitter himself being the other. Radika Nath Ganguly, though still a clerkin Kedar Nath Mitters employ, is for some reason, which has not been explainedbefore me, not called to testify on this point; and both Kedar Nath Mitter andNanda Gopal Ghose explain there conduct by reference to a letter which on thedates can only have been that of the 15th of July.

10. Against this positive testimony and weight ofprobability I simply have the evidence of Kedar Nath Mitter, a witness, whoseevidence I am forced with regret to describe as unsatisfactory.

11. I here pass to a consideration of Kedar Nath Mittersconduct in this matter.

12. The plaintiff is brought to him by Nitto Gopal Ghose whocertainly does not answer the description Kedar Nath Mitter attributed to himof a "well-to-do broker, "but does seem to have had close relationswith Kedar Nath Mitter and actually to have resided with him for four or fiveyears. It is further clear that Kedar Nath Mitter dealt with the plaintiff,arranged for the loan, and secured a promise for payment to himself of Rs. 800for his services at a time, when even, according to Kedar Nath Mitters owncase, he knew the plaintiff was an infant and that his mother was his guardian.

13. Then, when a question arose as to the plaintiffs age,does Kedar Nath Mitter make any inquiry of the plaintiffs mother or of herattorney Bhupendra Nath Bose or any member of the family with whom theplaintiff was brought up That, apparently, is the last thing he would do, andinstead he says that he consulted the witness Nando Gopal Ghose, an uncle, itis true, of the plaintiff, but a man who had been in hostile litigation withthe plaintiff and his mother, who had employed Kedar Nath Mitter as hisattorney in that litigation, and as to whom Kedar Nath Mitter is forced toadmit he inferred that there must be bad feeling still existing between him andthe plaintiffs mother.

14. The other person that he consults is apparently Kali DasAcharji, the astrologer. This man did not attend on his subpoena, and Itherefore have had no opportunity of forming an opinion as to what passedbetween him and Kedar Nath Mitter. Then, I come to the statutory declarationwhich Kedar Nath Mitter got this young man to affirm, a declaration whichcontained more than one allegation that Kedar Nath Mitter must have known wasbeyond the plaintiffs knowledge. I do not intend to criticize this declarationin detail, suffice it for me to say that it was in my opinion a most improperone for Kedar Nath Mitter to have prepared, if the object was to obtain a clearstatement from the plaintiff as to his age.

15. It must further be borne in mind that Kedar Nath Mitteractually conducted this matter in the way I have indicated, though he wasacting as the defendants attorney. Let me say here that I absolve thedefendant from all personal responsibility for this, for it all was clearlydone without his knowledge; still at the same time, as he seeks to rely on afraud alleged to have been practised on Kedar Nath Mitter, his claim mustnecessarily be tested by reference to Kedar Nath Mitters conduct. It isunquestionably within the power of the Court administering equitable principlesto deprive a fraudulent minor of the benefits flowing from the plea of infancy,but one who invokes the aid of that power must come to the Court with cleanhands, and must further establish to the satisfaction of the Court that a fraudwas practised on him by the minor, and that be was deceived into action by thatfraud. I can only say that in this case if has not been established to mysatisfaction that these-requirements exist.

16. Kedar Nath Mitters conduct has not been such as topredispose me in favour of the defendants case, and a consideration of thecircumstances to which I have referred does not lead me to the conclusion thatKedar Nath Mitter was deceived, and I accordingly hold that the circumstancesof the case are not such as to nullify the plea of infancy.

17. It is right that I should here notice the argument thatfraud and deceit are not necessary to the success of the defendants plea.

18. This contention is based on Section 115 of the EvidenceAct as interpreted by Ganesh Lala v. Babu (1895) I.L.R. 21 Bom 198 in which itis no doubt said that, having regard to that section, proof of fraud on thepart of the infant is not essential. The learned Judge in that case relies onthe fact that in Sarat Chunder v. Gopal Chunder I.L.R. (1892) Cal. 296 and inMills v. Fox (1887) 37 Ch. D. 153 no suggestion is made of the exception of aninfant from the doctrine of estoppel. Now in the first of these cases theindividuals sought to be affected were not infants, and at the bottom of page306 the following passage appears in the judgment of the Privy Council:"The District Judge has held it to be proved that they had both reachedmajority at the date of the mortgage* * * * Accordingly it must be taken thatthey were of age to consent to the mortgage being granted or by their acts orrepresentations to bar themselves from challenging it." It seems to mewith all respect that this passage shows that the case is no authority for theproposition it is supposed to justify, but inferentially negatives it.

19. The case of Mills v. Fox on the other hand, turned onspecial circumstances which do not allow of its being an authority for thebroad principle laid down by the Bombay Court. Then it is further said by thelearned Judge that Wright v. Snow (1848) 2 De G. & S. 321 establishes thisproposition. The headnote to that case appears to me to go beyond what wasactually decided, for the learned Judge, V. C. Knight Bruce, finds that it wasnot proved that plaintiff was a minor at the time of the transaction, while hisremarks in the course of the argument point to the view that fraud is necessarythough what amounts to fraud must depend on the circumstances.

20. That V. C. Knight Bruce did not regard fraud asunessential is, I think, made further apparent by the case of Nelson, v.Stacker (1859) 4 De G. & J. 458 in which being then Lord Justice KnightBruce, he says: "It appears to me, however, upon the whole of the evidencethat the defendants deceased wife is not shown to have been defrauded ordeceived by the defendant in any respect before their marriage. I believe thatat the time of the marriage and previously to it before the instrument ofsettlement in question was signed by either of them and (sic)re it wasprepared, she was aware of his minority, and the case- stands substantially onthe same footing, so far as the parties to the present record are concerned, asif the fact of his infancy had been stated on the face of the settlement."Nor does the matter rest there, for in the same case is to be found the clearstatement of that most eminent Judge Lord Justice Turner that fraud is anessential element. It is enough for me to refer to that portion of his judgmentwhich is contained on pages 465 and 466 of the report.

21. It appears to me, therefore, that the cases do notjustify the proposition that fraud on the part of an infant is not essential. Ithink fraud operating to deceive must be found as a fact, and whether in anyparticular case there is such fraud must depend on its own particularcircumstances.

22. This brings me to the plea of ratification which isbased on the allegations contained in the defendants further writtenstatement.

23. It is a matter of surprise and regret to me that anattorney of this Court should have seen fit to act as Kedar Nath Mitter did inconnection with this matter.

24. The draft purports to have been approved by one Nando,Gopal Roy, an attorney of this Court, but how he came to act for the plaintiffdoes not appear, nor has he been called by the defendant to explain hisconnection with the matter. In fact the further charge never was carriedthrough, and I cannot regard the draft as being itself a ratification. At mostthe matter does not seem to me to have been more than an engagement to ratifyin case the further advance was made. I therefore hold that this plea too hasfailed. Next I have to notice the contention based on Section 64 of theContract Act which prescribes the consequences to arise from rescission of avoidable contract, it being common ground that I am bound by authority toregard the mortgage of an infant as voidable. The section provides that theparty rescinding a voidable contract shall, if he have received any benefitthereunder from another party to such contract, restore such benefit so far asmay he to the person from whom it was received. Now it is contended by Mr.Woodroffe that this provision entitles him to repayment of the money advancedeven though it is not earmarked and cannot now be followed.

25. It is obvious that if this were the result of thesection then the protection of infancy would practically he at an end. Themoney advanced has been spent, probably in useless or even viciousextravagance, and there is no benefit which the plaintiff is able or is boundto restore. Nor do I think that this is a case in which justice requires thatthe plaintiff should make compensation in accordance with the provisions of theSpecific Relief Act, Section 38. The result is that there must be a declarationthat the mortgage of the 20th July 1895 is void and inoperative, and it must bedelivered up to be cancelled.

26. Though I should have been glad to relieve the defendantof the costs of the action I do not see how I can with propriety do so; theymust, therefore, be paid by him on scale No. 2.

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Dhurmo Dass Ghose vs.Brahmo Dutt (07.02.1898 - CALHC)