1. This appeal is by plaintiff-appellant who brought a suit against the defendant-respondents for declaration of title and recovery of possession on the following facts:-- Originally the suit land belonged to Golak Chandra Das, Abhoy Charan Das (defendant No, 2) in the Bhagina of Golak Chandra Das, defendant No, 2 executed a registered kabala Exh. A in favour of defendant No, 1 Md. Babru on 28th Falgoon, 1364 B. S. corresponding to 4-3-58. Further case of the plaintiff respondent was that Golak Chandra Das died leaving a widow and his son named Dhiren and that during the minority of Dhiren the suit land was sold to the plaintiff-respondent by the widow of Golak Chandra Das and thereafter Dhiren duly sold that suit land to plaintiff-respondent on execution of a registered kabala Exh. 1 on 12-3-58, as the consideration of the transaction that took place was during the minority of Dhiren. Further case of the plaintiff was that the defendant No, 2 had no interest and fraudulently prepared kabala Exh. 1 without any considera-tion and wrongfully entered into the suit land in the early part of Chaitra, 1364 B. S. and as such the plaintiff was forced to bring the suit for declaration of title and recovery of possession.
2. Each of the defendants filed separate written statement but in substance their contentions are the same. They denied the version of the plaintiff and contended that the landlord took the suit land in khas and thereafter defendant No, 2 took settlement from the landlord in respect of the same on payment of selam and further defendant No, 2 acquired title to the same and possessed the same on that basis and thereafter he duly sold away Narendra the suit land to defendant No, 1 on execution of registered has Exh. A for consideration. They also asserted adverse possession and the plea of limitation.
3. The trial Court rejected the contention of the defendant-appellant and decreed the suit. On appeal by the defendants which was heard by the Additional District Judge, Sylhet, he concurred with the learned Munsif regarding the want of title in the defendants but also held that the plaintiff has got no title and as such dismissed the suit. The plaintiff has appealed against that decision.
4. It may be stated that there is a concurrent finding of fact of the Courts below regarding the version of the defendant-respondent that the defendant No, 2 made purchase from Golak Chandra Das in respect of the suit land and thereafter took settlement in respect of the same from the landlord has no substance, and it was further concurrently found that the defendant No, 2 had acquired no interest therein and as such by the sale of the suit land to defendant No, 1 on execution of the registered kabala Exh. A dated 4-3-58 A. D. he had acquired no interest in the suit land. It may further be noted that in the first appellate Court the defendants did not press question of adverse possession. It may also be stated that there is a concurrent finding of facts of the Courts below that the defendants are trespassers.
5. Only question now falls for consideration and decision is that whether the kabala Exh. 1 dated 12-3- 58 A. D. executed by Dhiren who is son of Golak Chandra Das in favour of the plaintiff is valid. It may be stated that there is no dispute that the suit land originally belonged to Golak Chandra Das and Dhiren is his son. The learned trial Court upon the consideration of the evidence and upon the construction of the document Exh. 1 has found that the present deed is not a deed of ratification of oral contract but was for payment of past debt and as such Exh. 1 was a valid document of sale.
6. The Court of appeal below has not at all considered the fact that in the deed itself there is a recital about the past debts. He has referred to the alleged oral sale made in the recital of the deed Exh. 1 and from there he has inferred that the present deed of sale is ratification of a past contract and since the contract was void due to the minority of the vendor the present demise being a ratification is also void. The learned Additional District Judge has referred to AIR 1938 Lah. 159 and 16 Lah. 546=AIR 1935 Lah. 561 in support of his finding. Mr. Zinnur Ahmed the learned Advocate appearing on behalf of the appellant does not contest the proposition of law that a void contract cannot be ratified and his contention is that the learned Court of appeal below has misconstrued the recital of document and has erroneously found it to be a ratification of a past void contract.
7. There is substance in the contention of the learned Advocate. In the document there are two recitals--one relates to the fact that the vendor during his minority made a verbal sale of the demised property 12/14 years ago. There is a second recital that the vendor during his minority incurred debts to the extent of Rs, 200 for his maintenance and for necessities of life and for payment of land revenue and other dues. The learned Additional District Judge has only referred to one part of the recital and that he has misconstrued the averment of verbal sale 12 or 14 years back as a void contract. It may be stated that a sale is a complete demise and as such when a sale has taken place it has passed the stage of contract and is a complete demise and therefore the A analogy of void contract is not available. Admittedly the sale of a property valued above Rs, 100 by oral sale for want of registration is void. But there is another recital in the document which really states that the vendor of plaintiff incurred debts to the extent of Rs, 200 during his minority, and there is nothing in law preventing a minor on his attaining majority, if he elects, to pay his past debt. The question of extending the principle of void contract by ratification does not apply in a case of this nature. Here the person at the time when he is executing a document is a major and had full contractual capacity and his admission to pay the past debt is a fresh contract if at all and not a rectification of the previous contract. That is one aspect of the case. Another aspect of the case is that it is a case of payment of past debt incurred by the minor during his minority. There is no bar in the minor after attaining majority in electing to pay the debt. The principle governing this transaction has been decided in a case reported in Ananta Rai and another v. Bhagwan Rai and another . It was a case for pre-emption and the sale consideration was made up of the following items :-- 1
(1) Due on a simple mortgage dated 4th January 1929 executed by Kailashpati Rai in favour of Ananta Rai and Tarilok Rai, vendees6,000
(2) Due on a possessory mortgage deed in favour of one Ram Autar Rai3,500
(3) Due on a possessory mortgage deed in favour of one Mongal Rai1,000
(4) Due on a sarkhot of Jeth Badi 13 Sambat 1988 executed by Kailashpati in favour of one Beni Madho2,050
(5) Paid to the vendor prior to registration250
(6) Paid before the Sub-Registrar 200 Total13,000 The relevant passage may be quoted as follows:-- "It is manifest from a perusal of section 17, Agra Pre-emption Act that a decree for pre-emption can be passed in favour of a plaintiff only on payment of either the 'actual price' paid by the vendee or on payment of the market value of the property. In the present case there cannot be the slightest doubt that Kailashpati agreed at the time of the sale Narendra to pay to the vendees the amount due on the basis of the Kumar Das Md. mortgage of 1929 even though that mortgage was void in law. Md. Babru It is equally clear that the vendees agreed to set off a sum of -Rs, 6,000 in lieu of the mortgage debt out of the total sale K. Hussain, consideration entered in the sale deed. In other words, a consideration of Rs, 6,000 passed from the vendees to the vendor notwithstanding the fact that the mortgage of 1929 was unenforceable at law. The right of pre-emption is a right of substitution for the buyer and it is not open to a plaintiff in a pre-emption suit, while claiming to enforce this right of substitution, to take exception to the validity of the items of sale consideration when, as a matter of fact, those items of consideration have changed hands. Here we are not concerned with any question of ratification of a contract entered into by a person during his minority. The case before us is one in which a person after attaining majority has elected to pay the debt incurred by him during his minority and this is perfectly permissible at law.
8. To put the matter in another way. If Kailashpati after attaining majority had paid the amount due on the basis of the mortgage of 1929 to the vendees he could not subsequently bring a suit for the refund of that amount for the simple reason that a contract entered into by a minor though void is not unlawful. The set-off of Rs, 6,000 out of the entire sale consideration was to all intents and purposes tantamount to payment of the mortgage debt by Kailashpati to the vendees. The legality of the transaction cannot therefore be impugned either by Kailashpati or by the plaintiff. In this view of the matter the Court below was wrong in holding that the plaintiff was not liable to pay the entire amount due on the basis of the mortgage of 4th January 1929, and the appeal of the vendees must succeed."
9. From this decision as observed earlier it is clear that in the present case by Exh. 1 the vendor who was a major was fully competent to pay his past debts incurred during his minority. It can be upheld on two reasons--firstly in the present demise the person is not a minor and he had full contractual capacity and had full discretion to pay or not to pay a past debt which is otherwise not enforceable against him in law; and secondly the recitals show that it was also for payment of the necessities of the minor. In that view of the matter the learned Subordinate Judge was wrong in not construing the document in question from a correct stand-point. On the contrary he misdirected himself in treating a complete demise into a ratification of a contract, which was void. No such question of ratification of contract arises in the present case. The position therefore is that by Exh. 1 the plaintiff has acquired a valid title. It may be stated that by this mode of payment of past debt as consideration of present demise in a kabala can be a valid consideration and the learned Additional District Judge was wrong in holding that there was no consideration. The decision cited above is an authority on this point and I respectfully agree to the observations made in that decision.
10. The result, therefore, is that the appeal is allowed. The judgment and decree of the Court of appeal below are set aside and those of the trial Court restored. There will be no order as to cost in this appeal. AIR 1940 All. 12