minor capacity

Topics: Contract, Appeal, Legal terms Pages: 8 (2761 words) Published: December 2, 2013
JudgmentMohori Bibee and another Vs. Dharmodas Ghose
Mohori Bibee and another Vs. Dharmodas Ghose
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Court : Kolkata
Reported in : (1903)30IndianAppeals114
Judge : Lord Macnaghten; Lord Davey; Lord Lindley; Sir Ford North; Sir Andrew Scoble; Sir Andrew Wilson, JJ. Decided On : Mar-04-1903
Acts : Indian Evidence Act, 1877 - Section 115; Indian Contract Act - Sections 41, 19, 64, 65 Appellant : Mohori Bibee and another
Respondent : Dharmodas Ghose
Advocate for Respondent : W.W. Box, Adv.
Advocate for Appellant : Watkins; Lempriere, Advs.
Judgment:
SIR FORD NORTH, J.

On July 20, 1895, the respondent, Dhurmodas Ghose, executed a mortgage in favour of Brahmo Dutt, a money-lender carrying on business at Calcutta and elsewhere, to secure the repayment of Rs. 20,000 at 12 per cent. interest on some houses belonging to the respondent. The amount actually advanced is in dispute. At that time the respondent was an infant; and he did not attain twenty-one until the month of September following. Throughout the transaction Brahmo Dutt was absent 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 considering the proposed advance, Kedar Nath received information that the respondent was still a minor; and on July 15, 1895, the following letter was written and sent to him by Bhupendra Nath Bose, an attorney:— 

“Dear Sir,—I am instructed by S.M. Jogendranundinee Dasi, the mother and guardian appointed by the High Court under its letters patent of the person and property of Babu Dhurmodas Ghose, that a mortgage of the properties of the said Babu Dhurmodas Ghose is being prepared from your office. I am instructed to give you notice, which I hereby do, that the said Babu Dhurmodas Ghose is still an infant under the age of twenty-one, and any one lending money to him will do so at his own risk and peril.” 

Kedar Nath positively denied the receipt of any such letter; but the Court of first instance and the Appellate Court both held that he did personally 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 declaration, which, he had prepared for him, containing a statement that he came of age on June 17; and that Babu Dedraj and Brahmo Dutt, relying on his assurance that he had attained his majority, had agreed to advance to him Rs. 20,000. There is conflicting evidence as to the time when and circumstances under which that declaration was obtained; but it is unnecessary to go into this, as both Courts below have held that Kedar Nath did not act upon, and was not misled by, that statement, and was fully aware at the time the mortgage was executed of the minority of the respondent. It may be added here that Kedar Nath was the attorney and agent of Brahmo Dutt, and says in his evidence that he got the declaration for the greater security of his “client.” The infant had not any separate legal adviser. 

On September 10, 1895, the infant, by his mother and guardian as next friend, commenced this action against 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 defendant, Brahmo Dutt, put in a defence that the plaintiff was of full age when he executed the mortgage; that neither he nor Kedar Nath had any notice that the plaintiff was then an infant; that, even if he was a minor, the declaration as to his age was fraudulently made to deceive the defendant, and disentitled the plaintiff to any relief; and that in any case the Court should not grant the plaintiff any relief without making him repay the moneys advanced. 

By a further statement the defendant alleged that the plaintiff had subsequently ratified the mortgage; but this case...
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