1. The question involved in this appeal is whether plaintiffNo. 2 is entitled to have the kabuliyat executed by him, while he was a minor,declared void so far as he is concerned and to recover possession of his sharein the property in dispute. The Court of Appeal below has decided this questionin his favour and the defendants have appealed to this Court. It appears thatthe plaintiffs mother obtained certificate of guardianship in respect of hisperson and property, and the plaintiff, therefore, was a minor until heattained the age of twenty-one years. The conveyance was executed by him whenhe had not attained that age. There can be no doubt, therefore, that theconveyance was void. See the case of Mohori Bibi v. Dharmodas Ghose 30 C. 539;5 Bom. L.R. 421; 7 C.W.N. 441; 30 I.A. 114.

2. It is contended on behalf of the appellant that the minoris estopped from pleading invalidity of the kabuliyat under Section 115 of theIndian Evidence Act. The lower Court has found that the plaintiff had noknowledge that a certificate of guardianship had been obtained and that hisminority had been extended. In fact that Court has found that there was nomisrepresentation by plaintiff No. 2. It has, however, been contended on behalfof the appellant that even if plaintiff No. 2 had no knowledge that hisminority had been extended the fact that he sold the property as if he was ofage was a representation upon which the defendants have acted and the plaintiffwas, therefore, estopped.

3. The question whether the law of estoppel applies to aminor was considered in the case of Dhurmo Dass Ghose v. Brahmo Dutt 25 C. 616;2 C.W.N. 330. Mr. Justice Jenkins (as he then was) held in that case that thegeneral law of estoppel, as enacted by Section 115 of the Indian Evidence Act,would not apply to an infant unless he has practised fraud operating todeceive, and observed that fraud on the part of an infant operating to deceivemust be found as a fact and whether in any particular case there is such fraudmust depend upon its own peculiar circumstances. On appeal Maclean, C.J., andPrinsep, J., held that Section 115 has no application to contract by infants.The learned Chief Justice observed as follows: "A minor cannot be estoppedby a deed or by the recitals in a deed, and if he cannot be so estopped, itseems incongruous to say that he can be estopped by a parole declaration, forthis is the contention. We must read the language of the Legislature if we can,so as to make it harmonise, and not conflict, with the general, law, thoughremembering at the same time that the office of the Legislature by itsLegislative Acts is to define, and even alter, the law. The term person inSection 115 is amply satisfied by holding it to apply to one who is of fullage, and competent to enter into a contract, and I cannot bring myself to thinkthat it could have been the intention of the Legislature, by such a generalexpression, to institute such a grave change in the law of estoppel in relationto minors." Mr. Justice Ameer Ali also was of opinion that when the lawdeclares that an infant shall not be liable upon a contract, he cannot be madeliable upon the same contract by means of an estoppel under Section 115. SeeBrohmo Dutt v. Dharmo Dass Ghose 26 C. 381; 3 C.W.N. 468. When the case went upto the Privy Council their Lordships did not think it necessary to deal withthe question of estoppel, because the vendee in that case was fully aware thatthe vendor was a minor; and no question of estoppel arises where the statementrelied upon is made to a person who knows the real facts and is not misled bythe untrue statement. But there is nothing to show that their Lordships did notapprove of the view taken by this Court on the question of estoppel as iscontended by the learned Vakil for the appellant.

4. It is unnecessary to consider whether a minor can beestopped in any case, but we think that the law of estoppel must be readsubject to other laws such as the Indian Contract Act, and that a minor cannotbe made liable upon a contract by means of an estoppel under Section 115 of theIndian Evidence Act, when some other law (the Contract Act) expressly providesthat he cannot be made liable in respect of the contract. We see no sufficientreason for differing from the view taken in the case of Dhurmo Dass Ghose v.Brahmo Dutt 25 C. 616; 2 C.W.N. 330.

5. In the recent case of Surendra Nath Roy v. Krishna SakhiDasi 9 Ind. Cas. 110 [LQ/CalHC/1911/11] ; 15 C.W.N. 239; 13 C.L.J. 228 it was held that if therewas misrepresentation by a minor operating to deceive, and if the vendees weredeceived by it, the minor would be bound by the transaction. In this case, aswe have already stated, the Court found that there was no fraudulentrepresentation on the part of the minor. We are, therefore, of opinion that theplaintiff No. 2 is not estopped.

6. The only other, question for consideration is whether thecircumstances of this case require that the plaintiff No. 2 should return themoney received by him from the defendants. The lower Appellate Court apparentlythought that the purchase-money should be set off as against the amount ofwashilat which the defendant might be directed to account for if the plaintiffwas ordered to refund the purchase-money to the defendant. The share ofplaintiff No. 2 was purchased by the defendant for Rs. 150 and the value of thesuit in respect of his share is Rs. 1,250. In these circumstances we do notthink that we should order a refund of the purchase-money.

7. The result is that this appeal is dismissed with costs.

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Golam Abdin Sarkar and Ors. vs. Hem Chandra Mojumdar andOrs. (13.12.1915 - CALHC)