The central legal point established in the judgment is the invalidity of a mortgage executed by a minor and the implications of fraudulent misrepresentation of age, as governed by the Indian Contract Act, 1872, and the Indian Majority Act, 1875.

JUDGMENT

Buckland, J. - This is a suit for a declaration that a mortgage, dated 7th August 1919, executed by one Desbarathi Singha in favour of Benaykrishna Datta, the defendant, of premises No. 2, Shashibhushan Sur's Lane, to secure an advance of Rs. 4,500 is void and not binding upon the plaintiff and for other consequential reliefs.

2. The circumstances of this case are the following. A man of the name of Premchand Singha, who died on 21st November 1900, had two wives. His first wife, Nrityamayee, predeceased him, leaving a daughter of the name of Kusumkumari. Her name does not recur. By his second wife, Katyayanee, he had a daughter, Subashini and a posthumous son, Dasharathi, who was born on 1st June 1901.

3. On 30th August 1901, letters of administration to the estate of her deceased husband were granted by this Court to his widow, limited to the minority of her son.

4. On 30th July 1917, Subashini was appointed guardian of the person and property of her brother Dasharathi, by the District Court of Hooghly.

5. On 30th August 1918, Katyayanee, as administratrix, obtained leave from this Court to raise a loan of Rs. 1,500 at a rate of interest not exceeding 10 per cent. per annum on the mortgage of premises No. 2, Shashibhushan Sur's Lane, Calcutta, and, in pursuance thereof, on 8th October 1918, executed a mortgage of the property in question, in favour of Chetnarayan Singh Doogar, for Rs. 1,500.

6. On 7th August 1919, the events happened, with which this suit is principally concerned. On that day, Dasharathi executed a mortgage of the premises, No. 2, Shashibhushan Sur's Lane, in favour of the defendant, Binaykrishna Datta, to secure a loan of Rs. 4,500, and, on the same date, he paid off the amount due on the mortgage, dated 8th October 1918, and obtained a reconveyance from Chetnarayan Singh Doogar.

7. Had no guardian of the person and property of Dasharathi Singha been appointed in the year 1917, he would have attained majority on 31st May 1919, and it would be impossible to impugn the mortgage of 7th August 1919. But, by reason of such appointment, the period of his minority was extended until 31st May 1922, wherefore the mortgage in favour of the defendant' Binaykrishna Datta was executed by him during his minority.

8. On 11th June 1922 shortly after he had attained his majority, Dasharathi Singha conveyed the premises, No. 2, Shashibhushan Sur's Lane to the plaintiff, free from encumbrances, in consideration of the sum of Rs. 21,217.

9. On 24th June 1922, Binayakrishna Datta instituted a suit in this Court, being Suit No. 2086 of 1922 against Dasharathi Singha for the purpose of enforcing his mortgage of 7th August 1919. To that suit, Saradaprasad Das was not made a party.

10. On 30th August 1922 a preliminary mortgage decree was made and a final decree on 19th February 1925. On 12th September 1928, this suit was filed by Saradaprasad Das, for the purpose of having it. declared that the mortgage in* favour of Binaykrishna Datta had already obtained a decree, was void.

11. Kalidasee Dasi, widow of Dasharathi,. has also been made a party to the suit. No relief is claimed against her. It was stated from the Bar, at the commencement of the hearing, that her co-defendant questions whether she is of full age or whether a guardian ad-litem ought to be appointed, but learned Counsel for the plaintiff stated that it was not proposed to do anything further in the matter and he would take the risk whether or not she was of full age.

12. On behalf of the mortgagee, Binaykrishna Datta, it has been questioned whether or not Dasharathi was in fact a minor on 7th August 19.19, but this has not been seriously challenged, and any question there might; have been has been set at rest by the production of the order appointing the guardian.

13. The substantial defence is based upon the allegation that Dasharathi Singha-fraudulently represented that he was of full age and induced Binaykrishna Datta by such misrepresentation, to lend the money upon th