Name of the case-
Mohori Bibee v/s Dharmodas Ghose
In the Privy Council
(1903) ILR 30 Cal 539 (PC)
Date of Judgement-
04 March 1903
Name of the Judges-
Lord McNaughton, Lord Davey, Lord Lindley, Sir Ford North, Sir Andrew Scoble, Sir Andrew Wilson.
Facts of the case-
Dharmodas Ghose was the respondent in this case. He was a minor (i.e. has not completed the 18 years of age) and he was the sole owner of his immovable property. The mother of Dharmodas Ghose was authorized as his legal custodian by Calcutta High court.
When he went for the mortgage of his own immovable property which was done in the favor of appellant i.e. Brahmo Dutta, he was a minor and secured this mortgage deed for Rs. 20,000 at 12% interest rate as per year.
Brahmo Dutta who was a money lender at that time and he secured a loan or amount of Rs. 20,000, and the management of his business was in the control of Kedar Nath and Kedar Nath acted as the attorney of Brahmo Dutta.
Dharmodas Ghose’s mother sent a notification to Brahmo Dutta informing him about the minority of Dharmodas Ghose on the date on which such mortgage deed was commenced, but the proportion or the sum of loan that was actually provided was less then Rs. 20,000.
The representative of the defendant, who actually acted instead of on behalf of money lender has given money to the plaintiff, who was a minor and he fully had knowledge about the incompetency of the plaintiff to perform or enter into contract and also that he was incompetent legally to mortgage his property which belonged to him.
On 10th September 1895 Dharmodas Ghose along with his mother brought an legal action against Brahmo Dutta by saying that the mortgage that was executed by Dharmodas was commenced when he was a minor or infant and so such mortgage was void and disproportionate or improper and as a result of which such contract should be revoked.[i]
When this petition or claim was in process, Brahmo Dutta had died and then further the appeal or petition was litigated by his executor’s. The plaintiff argued or confronted that in such case no relaxation or any sought of aid should be provided to them because according to him, defendant had dishonestly misinterpreted the fact about his age and because if mortgage is cancelled at the request by defendant i.e. Dharmodas Ghose.
Issues before the court-
- Whether the deed was void under section 2, 10 and 11 of the Indian Contract Act, 1872 or not?
- Whether the defendant was liable to return the amount of loan which he had received by him under such deed or mortgage or not?
- Whether the mortgage commenced by the defendant was voidable or not?
Argument of the appellant-
- The respondent was a major when he executed the mortgage.
- Neither the appellant nor his agent had any notice that the respondent was a minor.
- The respondent made a fraudulent declaration regarding his age and is hence dis-entitled from seeking any relief.
- The respondent is stopped by section 115 of the Indian Evidence Act, 1872 from claiming that he was a minor at the time of executing the mortgage.
- The respondent must repay the amount advanced according to section 64 and 38 of Indian Contract Act (1872) and section 41 of Specific Relief Act (1877).
Argument of the respondent-
- Brahmo Dutta and his agents Kedar Nath possessed knowledge of the respondent’s actual age.
- Since the respondent was a minor at the executing the mortgage, the contract is void.
According to the verdict of Trial court, such mortgage deed or contract that was commenced between the plaintiff and the defendant was void as it was accomplished by the person who was an infant at the time of execution of mortgage.
When Brahmo Dutta was not satisfied with the verdict of Trial Court he filed an appeal in the Calcutta High court.
According to the decision of Calcutta High court, they agreed with the verdict that was given by Trial court and dismissed the appeal of Brahmo Dutta.
Then he later went to Privy Council for the appeal and later the Privy Council also dismissed the appeal of Brahmo Dutta and held that there cannot be any sought of contract between a minor and a major person.
The final decision that was passed by the council were-
Any sought of contract with a minor or infant is void/void ab- initio (void from beginning).
Since minor was incompetent to make such mortgage hence the contact such made or commenced shall also being void and not valid in the eyes of law.
The minor i.e. Dharmodas Gosh cannot be forced to give back the amount of money that was advanced to him, because he was not bound by the promise that was executed in a contract.
In Mohori Bibee v/s Dharmodas Ghose, at the end it can be concluded that any agreement or deed in which minor is party to it or is included in such agreement shall be declared null and void because such agreement is not agreement in the eyes of law. In cases minors parents or custodians shall not be liable for the dealing done by the minor without their consent, and hence they will be not liable to return the amount back taken by the minor out of the moral obligation.
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