TMI Blog1903 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge; and his acts and knowledge were the acts and knowledge of his principal. It was contended that Dedraj, the defendant's gomastha, was the real representative in Calcutta of the defendant, and that he had no knowledge of the plaintiff's minority. But there is nothing in this. He no doubt made the advance out of the defendant's funds. But he says in his evidence that Kedar Babu was acting on behalf of my master from the beginning in this matter ; 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 question raised as to the plaintiff's age; and he says, I left all matters regarding the minority in the hands of Kedar Babu. The appellants' counsel contended that the plaintiff is estopped by s. 115 of the Indian Evidence Act (I. of 1872) from setting up that he was an infant when he executed the mortgage. The section is as follows: Estoppel. When one person has by his declaration act or omission intentionally caused or permitted another person to believe a thing to be true, and to act upon such belief, neither he nor his representa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 law 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 turns upon what is the true construction of the Contract Act itself. It is necessary, therefore, to consider carefully the terms of that Act; but before doing so it may be convenient to refer to the Transfer 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 manner allowed and prescribed by any law for the time bring in force. That is the Act under which the present mortgage was made, and it is merely 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 India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty accept those obligations if he thinks fit to do so. The question whether a contract is void or voidable presupposes the existence of a contract within the meaning of the Act, and cannot arise in the case of an infant. Their Lordships are, therefore, of opinion that in the present case there is not any such voidable contract as is dealt with in s. 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 s. 64. starts from the basis 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 shewed that the Act was only intended to define 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 cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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