P L D 1971 Dacca 281 (PLP)

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 considera tion 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 l::{h. 1 was a valid document of sale. 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 A I R 1938 Lah. 159 and 16 Lah. 546=A I R 1935 Lab. 561 in Support of his finding. Mr. Zinnur Ahmed the learned Advocate appearing on behalf of the appellant does not contest tire 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 is to be a ratification of a past void contract. 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 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 analogy of void contract is not available. Admittedly the sale of a property valued above Rs. 100 by oral sale for want of regis tration 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. Bliagwan Rai and another (A I R 1940 All. 12). It was a case for pre‑emption and the sale consideration was made up of the following items:‑ Rs. (1) Due on a simple mortgage dated 4th January 1929 executed by Kailashpati Rai in favour of Ananta Rai and Tarilok Rai, vendees 6,000 (2) Due on a possessory mortgage deed in favour of one Ram Autar Rai 3,500 (3) Due on a possessory mortgage deed in favour of one Mongal Rai 1,000 (4) Due on a sarkhat of Jeth Badi 13 Sambat 1988 executed by Kailashpati in favour of one Beni Madho 2,050 (5) Paid to the vendor prior to registration 250 (6) Paid before the Sub‑Registrar 200 Total 13,000 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 to pay to the vendees the amount due on the basis of the mortgage of 1929 even though that mortgage was void in law. 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 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. 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." 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. 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. Appeal allowed.