Authored By : S.C. Ghose, Hamilton Wincup Gordon

S.C. Ghose and Hamilton Wincup Gordon, JJ.

1. This was a suit to recover a certain sum of money on aregistered bond, dated the 20th April 1886, executed by the four defendants infavour of the plaintiff. At the time of the execution of the bond and of theinstitution of the suit, the defendant No. 1 was a minor, and the plaintiffscase against him was that he borrowed the money covered by the bond fornecessaries, that is to say, for the purpose of defraying expenses incurred indefending him in a prosecution for dacoity before the Criminal Courts. Thisdefendant, through his guardian ad litem, denied his liability under the bond,and he also pleaded limitation. The Subordinate Judge decreed the claim againstall the defendants. He found that the minor defendant borrowed the money fornecessaries, as alleged by the plaintiff, and relying on Section 681 of theContract Act, and on certain authorities cited in his judgment, he held thatthe bond was good and valid as against the minor, On the question of limitationthe Subordinate Judge was of opinion that, notwithstanding the fact thatdefendant No 1 was a minor when he admitted execution before the registeringofficer, the bond was duly registered under the Registration Act, and that,therefore, under Article 1162, Schedule 11 of the Limitation Act, the suithaving been brought less than six (though more than three) years after the duedate was within time. And as regards the plea of fraud in the registeringofficer, which appears to have been raised before him at the trial, theSubordinate Judge held that, although there was certainly a league between theplaintiff and the minor defendant to defraud the Sub-Registrar, still "itcannot be contended that thereby the plaintiff has committed an act of fraud ondefendant No. 1. The learned vakil for the defence referred me to thedefinition of fraud in Section 173 of the Contract Act. That definitionabundantly shows that it is no fraud unless committed by a party, and theSub-Registrar was certainly not a party within the meaning of thedefinition." On appeal by the minor defendant the District Judge hasreversed the decree of the Subordinate" Judge and dismissed the suit as againsthim. He agrees with the Subordinate Judge that the minor defendant borrowed themoney on the bond for necessaries, and he holds therefore on the authority ofthe case Walter v. Everard (1891) 2 Q.B. 369 that he is liable, But as regardslimitation he finds that the suit is barred. Relying upon certain passages inthe judgment of Lord ESHER in the case of Walter v. Everard the learnedDistrict Judge is of opinion that the present suit should be dealt with as ifthere were no bond at all, and that therefore the suit, having been institutedmore than three years after the due date of payment, is barred. And on thequestion of registration of the bond the learned Judge observes:"Registration of a document executed admittedly by a minor is noregistration as against him, for a minor is incompetent to admit executionbefore the registering officer, and that officer has no jurisdiction to recorda minors admission." Against this decision the plaintiff has appealed tothis Court and his learned Counsel has contended before us that the DistrictJudge has taken an erroneous view of the questions of limitation andregistration, while the learned vakil for the respondent has argued in supportof the judgment of the District Judge on the ground decided against him, thatthe contract was not for necessaries within the proper meaning of the term, andthat therefore it is not binding on the minor. We think, however, that thislatter contention is not correct. The liberty of the minor was in jeopardy.There was a charge of dacoity impending over him in the Criminal Courts, and inorder to defend him and to save him from punishment and incarceration in jailit was necessary to raise funds for legal advice and assistance. Pleaders wereemployed to defend him, and the money borrowed under the bond was paid to themas remuneration. In these circumstances, we think it may fairly and reasonablybe said that the money was borrowed for necessaries within the meaning ofSection 68 of the Contract Act, and that the minor is accordingly liable on thecontract. As an authority for the view we take we may refer to the decision ofMr. Justice BROUGHTON in Watkins v. Dhunnoo Baboo I.L.R. Cal. 140 in which thatlearned Judge held that a minor is liable for costs incurred in successfullydefending a suit in which his property was in jeopardy, and that such costs arerecoverable from him as if they were necessaries. Whether the principle whichunderlies that decision can he supported in its entirety, it is not necessaryto discuss in this case. It is sufficient to say that the liberty of the minorbeing at stake, we think the money should be taken to have been borrowed fornecessaries.

2. Then as to the plaintiffs appeal we think it mustsucceed. We think the learned District Judge is in error in holding that thepresent suit should be treated as if there were no bond at all, and that it isaccordingly barred, and further that on this point he has not rightly construedthe judgment of Lord ESHER in the case of Walter v. Everard, to which we havealready referred. That suit was brought on a covenant under seal, in which aconsideration is implied, and Lord ESHER in his judgment says: "It is nottrue that you can sue an infant upon a bond given by him for the price ofnecessaries supplied to him, with all the ordinary incidents of such an action.The plaintiff cannot simply put in the bond against the infant, and say thatbond is under your seal, and there can be no inquiry into the considerationgiven for it." And further on in his judgment the same learned Judgeobserves: You cannot sue the infant upon his bond as a bond. But if the bondis what is called a single bond, that is, if it is given only for thereasonable price of necessaries supplied to the infant, and there is nopenalty, the infant can be sued upon it." We think that the principle thusenunciated when applied to the present case means this-that before the minordefendant could be fixed with liability, it was necessary for the plaintiff toprove not only the execution of the bond by him, but also that he borrowed themoney covered by it for necessaries; in other words, it was incumbent on theplaintiff to establish this fact as if there were no bond at all, and in thissense we think the suit must be treated as Lord ESHER observes: "Just as ifthere had been no deed." The bond cannot be ignored and treated asnon-existent, because it is the basis of the suit, and it has been proved tohave been executed by the defendant. On the question of registration also weare unable to agree with the District Judge. The point for determination iswhether the bond has been duly registered in accordance with the provisions ofthe Registration Act, and we are of opinion that it has. Section 85 of the Actprovides: "If any such person (by whom the document purports to beexecuted) appears to the registering officer to be a minor * * * theregistering officer shall refuse to register the document as to the person soappearing." In the present case the defendant No. 1 appeared before theRegistrar and admitted execution of the bond, and the document was accordinglyregistered. We may well assume that before the registering officer registeredit, he was satisfied in his own mind (at any rate it did not appear to him tobe otherwise) that the defendant No. 1 was not a minor, and by so registering,we are unable to say that he has in any way violated the law relating to theregistration of documents. That law nowhere lays down that registration of adocument, execution of which is admitted by a minor, is ipso facto void asagainst such minor, or void for want of jurisdiction on the part of theregistering officer. No doubt deception appears to have been practised on theregistering officer by the plaintiff and the minor by concealing from him thefact of the minority of the latter, but that, in our opinion, does not amountto fraud in the proper sense of the term, so as to invalidate the registrationproceedings as against the minor defendant. In this view we think that the suitis not barred, it having been instituted within six years from the due date ofthe bond.

3. We accordingly decree the appeal, and restore the decreeof the Subordinate Judge with costs.

1 Claim for necessaries supplied to person incapable ofcontracting, or on his account.

[Section 68: If a person, incapable of entering into acontract, or one whom he is legally bound to support is supplied by anotherperson with necessaries suited to his condition in life the person who hasfurnished such supplies is entitled to be reimbursed from the property of suchincapable person.]

3 "Fraud" defined.

[Section 17 : Fraud means and includes any of the followingacts committed by a party to a contract, or with his connivance, or by hisagent, with intent to deceive another party thereto or his agent, or to inducehim to enter into the contract:

(1) The suggestion, as a fact, of that which is not true, byone who does not believe it to be true;

(2) The active concealment of a fact by one having knowledgeor belief of the fact;

(3) A promise made without any intention of performing it;

(4) Any other act fitted to deceive;

(5) Any such act or omission as the law specially declaresto be fraudulent.

Explanation: Mere silence as to facts, likely to affect thewillingness of a person to enter into a contract is not fraud, unless thecircumstances of the case are such that, regard being had to them, it is theduty of the person keeping silence to speak, or unless his silence is in itselfequivalent to speech.]

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Sham Charan Mal vs.Chowdhry Debya Singh Pahraj (26.06.1894- CALHC)