A minor is not estopped from pleading his minority to avoid a contract, and equitable principles may require restitution of consideration money obtained through fraudulent misrepresentation by a minor.

JUDGMENT

Edgley, J. - In the suit out of which this appeal arises the plaintiff Company sued the defendants on a promissory note alleged to have been executed by defendant 1 who alone contested the suit. It was said that defendant 1 had borrowed the sum of Rs. 300 from the plaintiff company and had agreed to pay interest at the rate of 3 per cent. per mensem. The total amount claimed was Rs. 624. The execution of the promissory note was admitted, but the main defence was to the effect that, at the time of the execution of this document, defendant 1 was a minor. The suit was decreed by both Courts. The findings of the lower appellate Court are to the effect that the appellant was a minor at the time when he executed the promissory note, that he knew that the period of his minority had been extended, that the plaintiff company did not know that defendant 1 was a minor and that this defendant obtained the loan from the plaintiff company by falsely and fraudulently representing that he was not a minor. Defendant 1 has now appealed to this Court and the main contention urged on his behalf is that he was incompetent under the law to contract at the time when he executed the promissory note and that even if it be admitted that he obtained the loan upon a fraudulent misrepresentation of facts, he is nevertheless under no liability to the plaintiff company in respect of this transaction. The first point which arises for consideration in connexion with this appeal is whether, u/s 115, Evidence Act, the minor is estopped, by reason of his representation to the effect that he was a major, from pleading his minority in order to avoid the contract.

2. The question of the applicability of Section 115, Evidence Act, in the case of minors was considered in Brohmo Dutt v. Dharmo Das Ghose (1899) 26 Cal 381 In that case Maclean, C.J. held that this section had no application to the case of a minor on the ground that the term "person" in Section 115 meant a person who is of full age and competent to enter into a contract and that, as a minor cannot be estopped by a deed or by the recitals in a deed, it would be incongruous to hold that he could be estopped by a parole declaration. In agreeing with the Chief Justice, Ameer Ali, J. stated:

It follows therefore that when the present law declares that an infant shall not be liable upon a contract, or in respect of a fraud in connection with a contract, he cannot be made liable upon the same contract by means of an estoppel u/s 115. I therefore agree that there is no estoppel whatsoever in this case founded upon any representation or alleged representation on the part of the plaintiff.

3. Brohmo Dutt's case (1) came before the Judicial Committee of the Privy Council on appeal in 1903: Mohori Bibi v. Dharmodas Ghose (1903) 30 Cal 539 In deciding that appeal their Lordships of the Judicial Committee held that a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Contract Act, and where he purports to do so, his alleged contract is void. The question of estoppel u/s 115, Evidence Act, was raised before the Judicial Committee, but Sir Ford North in his judgment left the question open as is indicated in the following passage:

The Courts below seem to have decided that this section does not apply to infants; but their Lordships do not think it necessary to deal with that question now. They consider it clear that the section does not apply to a case like the present, where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement. There can be no estoppel where the truth of the matter is known to both parties.

4. The learned advocate for the respondent company places some reliance upon the decision of Caspersz and Chatterjea, JJ. in Surendra Nath Roy v. Krishna Sakhi Dassi (1911) 9 I C 110 In that case the decision of the appeal apparently turned upon the question whether Bijoy Gobinda Saha Choudhury, o