A mortgage deed executed by a minor is a nullity under Indian law and is legally unenforceable, regardless of any plea of estoppel, provided the fact of minority is established through reliable evidence.

Lord Salvesen -

This is an appeal from a decree of the Court of the Judicial Commissioner of Oudh, dated 27th May 1925, reversing a decree dated the 30th April 1924, of the Subordinate Judge of Lucknow.

The first respondent, who alone appeared in the appeal, is the mortgagee under a mortgage dated the 18th April, 1908, and the appellants are the representatives by succession or purchase of two persons named Baqar Ali Khan and Ali Ahmad Khan.

The mortgage was executed by the two persons last mentioned in security of a sum of Rs. 7,000 loaned by the mortgagee for a term of five years in the first instance and bearing interest at the rate of 14 annas per cent. per mensem. It is in the ordinary form, and provision is made for interest being accumulated at compound rates in the event of nonpayment, and for the period of payment of the principal sum and interest being extended beyond the stipulated period in the option of the mortgagee.

The mortgagors were two of the family of a certain Qasim Ali Khan, originally the zemindar of the village of Jamwasi and the owner of certain other heritable properties. Qasim Ali Khan had as far back as the year 1892 executed a deed of gift in favour of his wife, Mt. Rais-un-nisa, of the entire village of Jamwasi, and on the 10th August 1899 he executed another deed of gift in her favour of his house property in Lucknow.

On the 21st June 1902, she in her turn gifted the village Jamwasi and the house property to her three sons and one daughter, excluding, however, from the gift the sir lands in the village, extending to some 27 acres or thereabouts. From that time onwards the four children, who ware described as minors in the deed, were registered as the proprietors of the properties in question. They remained in peaceable occupation of the lands until the present suit was started in 1923, in which the plaintiff (now respondent 1) sought a decree for Rs. 32,632-7-9, and in default of payment sale of the lands mortgaged in her favour.

The case has been decided on the issue whether the two mortgagors were minors at the date when they executed the mortgage in question. On this question of fact the Courts below have differed. The Subordinate Judge held that the executants were minors on that date, but his judgment was reversed by the Court of the Judicial Commissioner. Their judgment is summed up in the following passage :

We have given our careful attention to all the evidence which weighed with the Court of trial, but we are not satisfied that the two executants were minors at the time of execution. On the contrary we think it is quite probable that they were majors. This finding of fact is sufficient to dispose of the appeal, and it becomes unnecessary to consider the questions of law which would arise if we were to find in fact that the executants were minors.

It is noteworthy that the learned Judges did not consider themselves in a position to affirm that the executants of the mortgage were in fact majors at the time of its execution, and it may be inferred from this that the judgment really proceeded on the footing that the appellants had failed to discharge the onus of proof which the Court held rested upon them.

Their Lordships are in agreement with the learned Judges when they say :

Where a deed is executed by a person who alleges himself to be a major at the time of execution, a heavy burden rests upon him or his representatives when they set up the defence of minority.

If, therefore, the case depended upon the oral evidence alone, they would not have been disposed to hold that it was so convincing as to entitle the appellants to a finding in their favour. But the documentary evidence which the appellants have adduced and the proceedings instituted in relation to the two mortgagors, Baqar Ali Khan and Ali Ahmad Khan, are so weighty that, if they stood alone and were unchallenged, they would conclusively establish the fact of minority. The first document is a deed of gift dated 21st June 1902, in favour o