Judgement

Appeal from a decree of the High Court (Dec. 12, 1898) affirming a decree of Jenkins J. (Feb. 7, 1898).

These decrees held that a certain mortgage dated July 20, 1895, was void and inoperative as having been executed by the respondent to Brahmo Dutt, now represented by his executors, the appellants, while he was still a minor, and ordered the same to be cancelled.

The suit was to cancel the mortgage as having been executed by the respondent while a minor after due notice of the fact.

The said mortgage was of the respondents properties, No. 15, Boloram Ghoses Street, and 133, Cornwallis Street, in Calcutta, to one Brahmo Dutt, since deceased, to secure Rs.20,000, with interest at 12 per cent, per annum. It was prepared by one Kedar Nath Mitter, an attorney of the Calcutta High Court, who acted in the matter on behalf of both the mortgagee and the mortgagor. The First Court found that in May, 1895, the respondent applied to the said attorney to procure him a loan of Rs.20,000 on the said property, and that the attorney applied to Brahmo Dutts local manager, one Dedraj, who consented to take up the mortgage; that in course of investigating the title of the houses it came to the knowledge of the attorney that the respondent was a minor, and was still represented in certain litigation in which he was concerned by his mother as the guardian of his person and property; that, the respondent having alleged that he had attained his majority, the attorney made inquiries which, he said, led him to the conclusion, which was found not to have been justified, that the respondent had been born on June 17, 1874, and was of full age on June 17, 1895 ; that in order to make matters, as he thought, safe, the attorney called upon the respondent to make a declaration fixing the date of his birth, and that the respond ent made such declaration, affirming that he had been born on June 17, 1874, and had attained his full age of twenty-one years on June 17, 1895 ; that on July 15, 1895, the attorney had been informed by the respondents mother and guardian that he was still a minor, and that he, the attorney, was fully aware of the respondents minority at the time of the execution by the respondent of the mortgage in question.

The same Court held that s. 115 of the Indian Evidence Act (Act I. of 1872), which is as follows, "When one person has by his declaration, act, or omission intentionally caused or permitted another person to believe a thing to be true, and to act upon such belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing," was not intended to apply to infants.

The judge held further that, although he absolved Brahmo Dutt from all personal responsibility in the matter, his claim must necessarily be tested by reference to his attorneys knowledge, and he expressed his opinion that Kedar Nath was not deceived, and that the circumstances of the case were not such as to nullify the plea of infancy.

On behalf of Brahmo Dutt a point was raised based on the provisions of s. 64 of the Contract Act (Act IX. of 1872), which provides as follows —

"64. When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is promisor. The party rescinding a voidable contract shall, if he have received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received."

The judge in reference to this contention said that both sides agreed that if the mortgage in question was the mortgage of an infant it was voidable; and that he was of opinion that there had been no benefit to the respondent which he was bound or able to restore, as he "probably" spent the money received by him "in useless or even vicious extravagance." He considered also that this was not a case in which justice requ