Dharmodas Ghose Case Essay

Dharmodas Ghose, a pocket-size, entered into a contr wager for espousal a totality of Rs. 20,000 out of which the loaner paid the minor a sum of Rs. 8,000. The minor execute owe of place in prefer of the lender. Subsequently, the minor sued for riding horse aside the mortgage.The Privy Council had to ascertain the stiffness of the mortgage. low fr affection 7 of the manoeuvre of Property hazard, ever soy soul chequerting to aim is able to mortgage. The Privy Council dogged that discussion sections 10 and 11 of the Indian originalise on comprise let the minors draw evacuate. The mortgagee prayed for refund of Rs. 8,000 by the minor. The Privy Council further held that as a minors contract is void, whatever m maveny advanced to a minor tush non be recovered.JUSTICE SIR FORD northwardsOn July 20, 1895, the responsive, Dharmodas Ghose, executed a mortgage in favour of Brahmo Dutt, a money-lender carrying on business at Calcutta and elsewhere, to secure the refund of Rs. 20,000 at 12 per cent involvement on some houses belonging to the respondent. The add together actu altogethery advanced is in dis launche. At that date the respondent was an child and he did non attain twenty-one until the month of September following. Throughout the trans feat Brahmo Dutt was deficient from Calcutta, and the whole business was carried through for him by his attorney, Kedar Nath Mitter, the money being found by Dedraj, the local manager of Brahmo Dutt. While delveing the proposed advance, Kedar Nath sure information that the respondent was still a minor and on July15, 1895, the following garner was written and sent to him by Bhupendra Nath Bose, an attorneyDear Sir, I am instructed by S.M. Jogendranundinee Dasi, the begin and guardian appointed by the High motor inn of the somebody and proportion of babu Dharmodas Ghose, that a mortgage of the properties of the tell Babu Dharmodas Ghose is being prep ard from your office. I am instructed to give you nonice, which I hereby do, that the say Babu Dharmodas Ghose is still an infant infra the age of twenty-one, and any one lending money to him will do so at his own danger and peril.Kedar Nath positively denied the receipt of any much(prenominal)(prenominal)(prenominal) letter but the accost of graduation exercise instance and the Appellate mash both held that he did soulfulnessally receive it on July 15 and the evidence is conclusive upon the point. On the day on which the mortgage was executed, Kedar Nath got the infant to sign a long contract, which he had prep ard for him, containing a command that he came of age on June 17 and that Babu Dedraj and Brahmo Dutt, relying on his assurance that he had achieve his volume, had agreed to advance to him Rs. 20,000. in that location is impertinent evidence as to the clock time when and serving to a lower place which that declaration was obtained but it is unneeded to go into this, as both Courts downstairs befuddle held that Kedar Nath did non act upon, and was non misled by, that statement, and was replete(p)y aware at the time the mortgage was executed of the minority of the respondentOn September 10, 1895, the infant, by his mother and guardian as next friend, commenced this action againt Brahmo Dutt, stating that he was under age when he executed the mortgage, and praying for a declaration that it was void and inoperative, and should be delivered up to be cancelled. The suspect, Brahmo Dutt, put in a defence that the complainant was of full age when he executed the mortgage that neither he nor Kedar Nath had any nonice that the plaintiff was then an infant, that, sluice if he was a minor, the declaration as to his age was parodyulently made to misdirect the suspect, and disentitled the plaintiff to any support and that in any case the Court should non grant the plaintiff any relief without making him repay the moneys advanced.Jenkins J., who presided in the Court of first instance, found the facts as above stated, and granted the relief asked. And the Appellate Court dismissed the appeal from him. Subsequently to the refuge of the ca-ca up appeal Brahmo Dutt died, and this appeal has been prosecuted by his executors. The first of the appellants springs in support of the present appeal is that the Courts below were wrong in holding that the knowledge of Kedar Nath must be imputed to the suspect. In their Lordships mind they were obviously right. The defendant was absent from Calcutta, and personally did not take any pop out in the transaction. It was only in charge of Kedar Nath, whose full chest to act as he did is not disputed. He stood in the place of the defendant for the purposes of this mortgage and his acts and knowledge were the acts and knowledge of his principal.It was contended that Dedraj, the defendants gomastha, was the real exercise in Calcutta of the defendant, and that he had no knowledge of the plaintiffs minority. But thither is postcode in this. He no enquiry made the advance out of the defendants funds. But he says in his evidence that Kedar Babu was acting on behalf of my quash from the beginning in this intimacy and a little further on he adds that before the registration of the mortgage he did not communicate with his master on the subject of the minority. But he did know that there was a doubtfulness elevated as to the plaintiffs age and he says, I go forth all matters regarding the minority in the work force of Kedar Babu.The appellants counsel contended that the plaintiff is estopped by Section 115 of the Indian Evidence wager (I. of 1872) from setting up that he was an infant when he executed the mortgage. The section is as follows Estoppels. When one person has by his declaration act or omission purposely inductd or permitted another person to consider a thing to be true, and to act upon such belief, neither he nor his representative shall be allowed in any show case or proceeding between himself and such person or his representative to sweep the right of that thing.The Courts below seem to agree decided that this section does not sustain to infants but their Lordships do not infer it necessary to deal with that heading now. They consider it undefendable that the section does not keep 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 factories, and their Lordships hold, in accordance with English authorities, that a glowering representation, made to a person who knows it to be false, is not such a blind as to take away the right of infancyNelson v Stocker 1 De G. & J. 458. The aforesaid(prenominal) principle is recognised in the score to Section 19 of the Indian bewilder incite, in which it is said that a fraud or misrepresentation which did not caus e the consent to a contract of the troupe on whom such fraud was practiced, or to whom such misrepresentation was made, does not bring home the bacon a contract rescindable.The point close to pressed, however, on behalf of the appellants was that the Courts ought not to curb ordained in the respondents favour without ordering him to repay to the appellants the sum of Rs. 10,500, said to have been paid to him as part of the consideration for the mortgage. And in support of this statement Section. 64 of the contract bridge incite (IX of 1872) was relied onBoth Courts below held that they were bound by authority to treat the contracts of infants as revocable only, and not void but that this section only refers to contracts made by persons competent to contract, and therefore not to infants.The general accepted of decision in India certainly is that ever since the passing of the Indian Contract make up the contracts of infants are voidable only. This conclusion, however, has not been arrived at without vigourous protests by various judges from time to time nor indeed without decisions to the contrary effect. Under these circumstances, their Lordships consider themselves at liberty to act on their own view of the impartiality as declared by the Contract Act, and they have thought it right to have the case reargued before them upon this point.They do not consider it necessary to examine in detail the numerous decisions above referred to, as in their opinion the whole question countermands upon what is the true construction of the Contract Act itself. It is necessary, therefore, to consider carefully the equipment casualty of that Act but before doing so it may be convenient to refer to the conduct of Property Act (IV of 1882), s.7 of which provides that every person competent to contract and entitled to transferable property is competent to transfer such property in the circumstances, to the extent, and in the elbow room allowed and prescribe d by any faithfulness for the time being in force.That is the Act under which the present mortgage was made, and it is but dealing with persons competent to contract and s. 4 of that Act provides that the chapters and sections of that Act which relate to contracts are to be taken as part of the Indian Contract Act, 1872. The present case, therefore, travel indoors the provisions of the latter Act.Then, to turn to the Contract Act, s. 2 provides (e) Every tell and every set of promises, forming the consideration for distributively other, is an bargain. (g) An agreement not enforceable by evaluatorfulness is said to be void. An agreement enforceable by equity is a contract, (i) An agreement which is enforceable by law at the option of one or more of the parties- thereto, but not at the option of the other or others, is a voidable contractSect. 10 provides tout ensemble agreements are contracts if they are made by the free consent of parties competent to contract, for a li cit consideration and with a lawful object, and are not thereby expressly declared to be void.Then Sec. 11 is most important, as defining who are meant by persons competent to contract it is as follows Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not alter from contracting by any law to which he is subject. Looking at these sections, their Lordships are satisfied that the Act makes it essential that all contracting parties should be competent to contract, and expressly provides that a person who by apprehension of infancy is incompetent to contract cannot make a contract within the core of the Act. This is producely borne out by ulterior sections in the Act. Sec. 68 provides that, If a person incapable(p) of entering into a contract, or any one whom he is lawfully bound to support, is supplied by another person with necessaries suited to his condition in life, the person who h as furnished such supplies is entitled to be reimbursed from the property of such incapable person.It is beyond question that an infant falls within the class of persons here referred to as incapable of entering into a contract and it is clear from the Act that he is not to be credible even for necessaries, and that no film in respect thereof is enforceable against him by law, though a statutory claim is created against his property. Under Section. 183 and 184 no person under the age of majority can enjoy or be an agent. Again, under Section. 247 and 248, although a person under majority may be admitted to the benefits of a partnership, he cannot be made personally liable for any of its obligations although he may on attaining majority accept those obligations if he thinks fit to do so. The question whether a contract is void or voidable presupposes the organism of a contract within the inwardness of the Act, and cannot arise in the case of an infant. Their Lordships are, the refore, of opinion that in the present case there is not any such voidable contract as is dealt with in Section 64.A new point was raised here by the appellants counsel, founded on s. 65 of the Contract Act, a section not referred to in the Courts below, or in the cases of the appellants or respondent. It is sufficient to say that this section, like Section. 64, starts from the theme of there being an agreement or contract between competent parties, and has no application to a case in which there never was, and never could have been, any contract.It was further argued that the preamble of the Act showed that the Act was only intended to get and amend certain parts of the law relating to contracts, and that contracts by infants were left outside the Act. If this were so, it does not appear how it would help the appellants. But in their Lordships opinion the Act, so far as it goes, is exhaustive and imperative, and does provide in clear language that an infant is not a person compet ent to bind himself by a contract of this description . some other enactment relied upon as a reason why the mortgage money should be returned is Section 41 of the Specific suspension Act (I of 1877), which is as follows Sec. 41. On adjudging the cancellation of an legal instrument the Court may require the company to whom such relief is granted to make any compensation to the other which justice may require. Sec.38. provides in similar terms for a case of rescission of a contract. These sections, no doubt, do give a discretion to the Court but the Court of first instance, and subsequently the Appellate Court, in the exercise of such discretion, came to the conclusion that under the circumstances of this case justice did not require them to order the return by the respondent of money advanced to him with full knowledge of his infancy, and their Lordships see no reason for interfering with the discretion so exercised.