Patna High Court
Pramila Bali Das And Ors. vs Jogesher Mandal on 21 June, 1918
Equivalent citations: 46IND. CAS.670
JUDGMENT 1. This appeal arises out of a suit for ejectment. The land in question appertains to the Mukarrari of one Slochana Debi. On June 1st, 1910, Slochana mortgaged her Mukarrari interest to the Midnapur Zemindari Co., Ld., stipulating that she would have no power to grant any permanent lease during the continuance of the mortgage. The mortgage is Exhibit 2. Kanchan Lal Mahapatra, an occupancy-Raiyat of the land in suit, surrendered it on the 27th April 1911. Slochana permanently settled the land with defendant No. 1 by executing a lease, Exhibit 5, in her favour. Defendant No. 1, the lessee, is a minor and is the wife of defendant No. 2. On the 26th May 1913 the plaintiffs took a Darmukarrari of the village from Slochana and redeemed the mortgage of the Midnapur Zemindari Co., Ld., and in 1914 brought the present suit for a declaration that the settlement of the land in suit with defendant No. 1 by Slochana, the Darmukarraridar, is null and void and for khas possession. 2. The lease is in respect of 27 bighas 2 cottas and 11 dhurs of land at an annual rental of Rs. 7-5-9. Under the terms of the lease the lessee has to pay the aforesaid rent by instalments and on default he is liable for interest, etc. 3. The Courts below have decreed the suit, holding that the lease in favour of defendant No. 1 is void on the ground of its being in favour of a minor. The reason given by the lower Appellate Court for the above view is in the following words: In the case of a lease each party is obliged to do something, that is, the lessor is to maintain the lessee in possession and the latter is to pay the rents and to perform the other terms of the lease. In this case in a suit by the lessor to recover rents or to enforce the other terms of the lease the lessee would be entitled to plead her minority by way of answer and so there is want of mutuality in this case. 4. The Court below has relied upon the Privy Council case of Mir Sarwarjan v. Fakhruddin Mahomed 13 Ind. Cas. 331 : 39 C. 232 : 21 M.L.J. 1156 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 9 A.L.J. 33 : 15 C.L.J. 69 : 14 Bom. L.R. 5 : 39 I.A. 1 : 11 M.L.T. 8 (P.C.). That was a case brought by a minor for the specific performance of an agreement for sale to him of certain immoveable property entered into by his guardian and manager of his estate. The suit was brought by the minor after he attained majority. Their Lordships of the Privy Council dismissed the suit on the ground, to quote their Lordships words, that the minor was not bound by the contract. There was no mutuality and that the minor who has now reached his majority cannot obtain specific performance of the contract." It was assumed in that case that the purchase was advantageous for the minor. In an earlier case of Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 7 C.W.N. 441 : 5 Bom. L.R. 421 : 30 I.A. 114 : 8 Sar. P.C.J. 374 (P.C.) their Lordships of the Privy Council held that a mortgage made by a minor is void. The mortgage was under the Transfer of Property Act. Their Lordships considered the various sections of the Contract Act and those of the Transfer of Property Act, and came to the conclusion that it is essential that all contracting parties should be competent to contract and that a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Contract Act and hence the mortgage made by the minor was not only voidable but void, and upon that ground refused to direct the minor to restore the benefit received by him under the mortgage This was followed by the Allahabad High Court in Shiam Lal v. Ram Piari 4 Ind. Cas. 706 : 32 A. 25 : 6 A.L.J. 947 and by the Madras High Court in Navakoti Narayana Chetty v. Loyalinga Chetty 4 Ind. Cas. 383 : 33 M. 312 : 19 M.L.J. 752 : 7 M.L.T. 283, where the sale executed by a minor was held not to convey any interest to the vendee. 5. The appellant contends that the aforesaid decisions of the Privy Council do not apply to this case. It is said that the case of Mir Sarwarjan v. Fakhruddin Mahomed 13 Ind. Cas. 331 : 39 C. 232 : 21 M.L.J. 1156 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 9 A.L.J. 33 : 15 C.L.J. 69 : 14 Bom. L.R. 5 : 39 I.A. 1 : 11 M.L.T. 8 (P.C.) was in respect of specific performance of a contract and cannot apply to a lease which is governed by the Transfer of Property Act, and that Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 7 C.W.N. 441 : 5 Bom. L.R. 421 : 30 I.A. 114 : 8 Sar. P.C.J. 374 (P.C.) was in respect of a mortgage executed by the minor and not of one executed in his favour. In support of his contention the appellant has relied upon the following cases: (1) Bhaggyadhar Mandal v. Mohini Mohan Banerji 20 C.W.N. cxx (120), where Chaudhuri and Teunon, JJ., held that a mortgage executed in favour of a minor is not void and that it can be enforced at the instance of the minor. The reasons upon which the decision is founded have not been given in the report. (2) Munni Koer v. Madan Gopal 31 Ind. Cas. 792 38 A. 62;13 A.L.J.1084 where it was held that there is nothing in the law to prevent a minor from becoming a trustee of immoveable property and from suing for possession of the property conveyed to him by a valid deed of sale. In that case it was observed that "very different considerations would arise it after having agreed to sell the property, the defendant before receiving the price had refused to execute a convenience and the plaintiff was driven to a suit for specific performance. In such a case the plaintiff would have to set up a contract." (3) The case of Raghava Chariar v. Srinivasa Raghava Chariar 36 Ind. Cas. 921 : 40 M. 308 : 31 M.L.J. 575 : 20 M.L.T. 407 : (1916) 2 M.W.N. 363 (F.B.), where a Full Bench of the Madras High Court overruling the earlier decision in Navakoti Narayana Chetty v. Loyalinga Chetty 4 Ind. Cas. 383 : 33 M. 312 : 19 M.L.J. 752 : 7 M.L.T. 283 held that a mortgage executed in favour of a minor is enforcible by him or by another person on his behalf. A distinction has been drawn in this case between an executory contract and a contract wholly performed by one or by both the parties resulting in a transfer by the one party to the other, or in mutual transfers. The former has been held to be void within the principle laid down by their Lordships of the Privy Council in Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 7 C.W.N. 441 : 5 Bom. L.R. 421 : 30 I.A. 114 : 8 Sar. P.C.J. 374 (P.C.), while the latter (completed transfers) have been held not to be affected by the Privy Council decision. 6. The present lease can hardly be said to be covered by any of the aforesaid authorities relied on by the appellant. At page 335 of the aforesaid Madras case, Raghava Chariar v. Srinivasa Raghava Chriar 36 Ind. Cas. 921 : 40 M. 308 : 31 M.L.J. 575 : 20 M.L.T. 407 : (1916) 2 M.W.N. 363 (F.B.), Mr. Justice Srinivasa Aiyangar pointed out that "a transfer to a minor by way of a lease, he agreeing to pay rent or to perform any particular covenants which form an essential part of the transaction, may prevent the transfer from taking effect." The lease in question comes well within this observation, because it imposes a liability upon the lessee-appellant, defendant No. 1, to perform the terms of the lease and to pay rent annually to the lessor, and in default to pay interest, etc. To my mind under the principles laid down by their Lordships of the Judicial Committee in the cases of Mohori Bibee v. Dharmodas Ghose 30 C. 539 : 7 C.W.N. 441 : 5 Bom. L.R. 421 : 30 I.A. 114 : 8 Sar. P.C.J. 374 (P.C.) and Mir Sarwarjan v. Fakhruddin Mahomed 13 Ind. Cas. 331 : 39 C. 232 : 21 M.L.J. 1156 : 16 C.W.N. 74 : (1912) M.W.N. 22 : 9 A.L.J. 33 : 15 C.L.J. 69 : 14 Bom. L.R. 5 : 39 I.A. 1 : 11 M.L.T. 8 (P.C.), the lease is null and void and cannot confer any right or title upon the appellant. 7. Mr. Mullick then contends that even if the lease be held to be void, the appellant is in possession of the land in suit as a Raiyat and has acquired rights of a non-occupancy tenant under the Chota Nagpur Tenancy Act (Act VI of 1908 B.C.) and cannot be ejected under Section 41 of the Act. I fail to appreciate this contention. The appellant claims to hold the land and to have entered into possession thereof under the lease. The lease being void he is a mere trespasser and is liable to be ejected by the landlord. 8. The result is that the appeal is dismissed with costs. Coutts, J.
9. I agree.