A contract entered into by a minor is void, and the minor is not estopped from pleading his minority. The defendant is not entitled to a refund of the consideration money paid for the sale.

Raj Kishore Prasad, J.

1. This appeal by defendant 1 is from a judgment of affirmance decreeing the plaintiffs suit.

2. The facts are simple, and may, briefly, be stated as below :

3. On the 24th October 1942, the plaintiff is alleged to have sold the land in suit to defendant 1, appellant, under a registered sale deed, Ext. A, for a sum of Rs. 99/-. The plaintiff, thereafter, brought a suit, out of which the present appeal arises, on the 29th June, 1954, for a declaration that at the time of the execution of the impugned sale deed, Ext. A, he was a minor, being then only 17 years 5 months old, and, therefore, it was void and it conferred no title on the defendants.

(3a) The suit was contested by the defendant-appellant, according to whom, the plaintiff on the day of execution of the disputed sale deed, Ext. A, was aged 24 to 25 years, and, not 17 years 5 months, as alleged by him, and the sale was valid.

4. On a consideration of the evidence both oral and documentary, both the courts below concurrently held that the plaintiff was a minor at the time of the execution of the impugned sale deed, Ext. A, and, therefore it was void, and, as such, the defendant did not acquire any title thereunder. On this ground, therefore, the plaintiffs suit was decreed.

5. On second appeal to this Court, the above concurrent finding of fact is sought to be got over, on behalf of the appellant, by urging that as it was based on inadmissible evidence it was vitiated. Mr. Bhabanand Mukherji, who appeared for the appellant, developed his argument by contending :

1. That the Admission Register of the School, Ext. A, which has largely influenced the decision of the courts below, is inadmissible, because the mother of the plaintiff, on whose statement, admittedly as deposed to by P.W. 1, the age of the plaintiff was recorded in the Admission Register, Ext. 1, although alive, had not been examined, and therefore, unless the maker of the statement is examined, Ext. 1 cannot, in law, be used in evidence. In support of his contention, he placed strong reliance on a Bench decision of the Calcutta High Court in Janald Nath Roy V/s. Jyotish Chandra Acharya, AIR 1941 Cal 41 and on a Single Judge decision of the Lahore High Court in Asa Nand V/s. Gian Chand, AIR 1936 Lah 598;

2. That the finding that the plaintiff was a minor at the material date is vitiated also because it is based on oral evidence, which was valueless to prove age in a case like the present. In support of this contention, reliance was placed upon a decision of the Privy Council in Bhagwan Baksh Singh V/s. Mahesh Baksh Singh, AIR 1935 PC 199;

3. That the alleged age of 17 years 5 months is so close upon 18 years, which is the legal age of maturity, that it is difficult to say whether a person is a minor or a major, and here, the plaintiff knew, according to his own case, that he was 17 years 5 months old, and he treated himself as a major, because he admitted that a mortgage bond was got executed by him by the plaintiff; and

4. That, in any view of the matter, the defendant-purchaser was entitled to a refund of the sale consideration of Rs. 99/-, in the present case, because it was the plaintiffs own admission that the defendant got executed by him a document in 1942, when he was 17 years 5 months old, in respect to his one-third share, asserting that it was a mortgage deed, but no consideration was paid and it remained inoperative. Mr. Mukherji, therefore, submitted that the considerations which weighed with their Lordships of the Privy Council in disallowing the claim for such a refund in Mohori Bibee V/s. Dharmodas Ghose, ILR 30 Cal 539, are not present in the present case, and, therefore, justice required that a refund of the consideration money should be allowed as a condition precedent to the plaintiff getting a declaration that the sale deed of the defendant was void.

6. In reply, however, it was contended by Mr. S. K. Mazumdar, who appeared for the plaintiff-respondent, in the