JUDGMENT 1. THE principal question for decision in this suit is whether or no an English mortgage within the meaning of section 58 (e) of the Transfer of Property Act 4 of 1882 in favour of a minor is a nullity. 2. HERE are the relevant facts which have led up to this litigation. Late Rajendralal Basak, an attorney-at-law and father of the two plaintiffs in this suit, executed one deed of mortgage after another, running into four, in the course of a little more than three years, as respects his dwelling-house at 267a Chittaranjan Avenue, North. If perhaps assists one's convenience to set out the necessary detail of these mortgages in a tabular form: serial No. Date of mortgage consideration thereof name of the mortgagee 1. 16-8-44 rs. 32,000 sailendra Nath Paul, defendant no. 1. 2. 10-12-46 rs. 21,000 " 3. 8-12-47, rs. 6,000 raj Kumar Gupta, defendant No. 2. 4. 8-12-47 rs. 24,000 sailendra Nath Paul, defendant no. 1. Sailendra Nath Paul, the mortgagee in three mortgages above and the first defendant in this suit, is described in each of the mortgage deeds as "son of Bisseswar Pal, deceased of No. 6, Baranasi Ghosh Street in the town of Calcutta. " A feature of the first two mortgages which alone the plaintiffs impugn by this suit may be noticed now. Take the mortgage of August 16, 1944. The mortgagor Basak transferred the mortgaged property-"all That partly five and partly four storied brick built. . . . . dwelling house now No. 267a chittaranjan Avenue North"-absolutely to the mortgagee Paul. More, he bound himself to repay the mortgage money on a firm date, namely, August 16, 1945, whereupon the mortgagee Paul was to recovery the mortgaged property to the mortgagor Basak. In the second mortgage of december 10, 1946, was stipulated that "all the powers provisions and covenants contained" in the first "shall be applicable. . . . to this security as fully as if the same powers provisions and covenants had been hereby set out and specifically made applicable thereto". 3. RAJENDRALAL Basak, the mortgagor who had mortgaged his dwelling-house at 267a Chittaranjan Avenue on each of these four occasions, died on April 12, 1948, leaving behind him a will (since probated) by virtue of which two of his sons, the two plaintiffs before me, Anil Krishna Basak and Sailendra Krishna Basak, were appointed executors. 3. RAJENDRALAL Basak, the mortgagor who had mortgaged his dwelling-house at 267a Chittaranjan Avenue on each of these four occasions, died on April 12, 1948, leaving behind him a will (since probated) by virtue of which two of his sons, the two plaintiffs before me, Anil Krishna Basak and Sailendra Krishna Basak, were appointed executors. And they sue as such too. 4. AFTER Rajendralal's death, these two sons of his also went in for a mortgage. On December 14, 1948, they, in their capacity as executors, executed a deed of further charge for Rs. 13,000 in favour of Sailendra Nath Paul again, as respects the same premises: 267a, chirttaranjan Avenue, North. On March 28, 1950, Sailendra, the mortgagee, had assigned this mortgage to his first cousin Nandi Charan Paul who in turn transferred on July 16, 1952, his right, title and interest as a puisne mortgagee to Chittaranjan Mukherjee, the third defendant in this suit. On November 24, 1952, the first defendant Sailendra instituted a suit against the two plaintiffs here and the other puisne mortgagees for the usual decree. That is suit No. 4464 of 1952, It culminated in a preliminary decree -and that to On consent on September 6, 1954, and in a final decree on December 2, 1957. Execution was levied. And all that now stands between execution so levied and its completion is the confirmation of the sale held already-confirmation postponed to a certain date early in April, 1965, awaiting the decision of this suit, as I have it from Mr. Sen and Mr. Das, the learned counsel appearing for the plaintiffs and the first defendant respectively. 5. SOME seven years after the final decree on December 2, 1957, to be exact, on August 25, 1964, the plaintiffs came to know that the mortgagee Sailendra was a minor on August 16, 1944, and December 10, 1946-the dates the first two mortgages bear. [see the tabular statement in paragraph 2 ante]. A copy of the extract from the Register of Births they obtained from the Corporation of Calcutta on August 27, 1964, revealed that a son was born to Bisseswar Pal at 6, Baranasr Ghosh Street on february 11, 1929, one Manmatha Nath pal, said to be the uncle of Sailendra nath Paul, having lodged this information in the registry. A copy of the extract from the Register of Births they obtained from the Corporation of Calcutta on August 27, 1964, revealed that a son was born to Bisseswar Pal at 6, Baranasr Ghosh Street on february 11, 1929, one Manmatha Nath pal, said to be the uncle of Sailendra nath Paul, having lodged this information in the registry. Indeed, a signature of Manmatha in Bengali appears in the original register, the relevant entry whereof has been marked exhibit B at the trial. This confirmed the plaintiffs' information about the nonage of the mortgagee Sailendra, the only son of Bisseswar, on August 16, 1944, and December 10, 1946, when he was 15 years 6 months and 5 days and 17 years, 9 months and 29 days respectively-below 18, the age of majority, in either case. 6. ONLY seven days after they had come to know so, that is to say, on september 3, 1964, they raised this action. The reliefs they pray the Court for are, amongst others: (a) a declaration that the first two mortgages of August 16, 1944, and December 10, 1946, are null and void and not binding on the estate of late Rajendralal Basak, (b) a declaration that all proceedings taken thereunder and the preliminary decree dated September 6, 1954, and the final decree dated December 2, 1957, are void and not binding on the said estate, (c) an injunction restraining the first defendant Sailendra Nath paul from proceeding with suit no. 4464 of 1952 subsequent proceedings (all that remain of which now is confirmation of the sale: see paragraph 6 ante), and (d) for discharge of the Official Receiver from the mortgaged property, 267a Chittaranjan Avenue-North. All the three defendants, Sailendra Nath Paul, Raj Kumar Gupta and Chittaranjan Mukherjee, contest the suit. The pleas the suit is resisted with are-one, the mortgagee Sailendra was not a minor at the relevant dates ; two, the plaintiffs having come to know of this minority on August 25, 1964, is not true ; three, even, were Sailendra, the mortgagee, a minor, as alleged, that would shake neither the first two mortgages nor the decrees resting thereupon, the earlier of which is a consent decree at that; four, by reason of the plaintiffs' own mortgage of December 14, 1948, in favour of the same mortgagee Paul, 267a, Chittaranjan Avenue, North, stood charged with repayment of Rs. 32,000 and Rs. 32,000 and Rs. 21,000, the principal money due on the two impugned mortgages ; and five, the suit is barred by limitation. 7. THE parties go to trial on the following issues : 1. Was the first defendant sailendra Nath Paul a minor on august 16, 1944, and December 10, 1946, the dates of the two mortgages sought to be impugned by this suit ? 2. Did the plaintiffs come to know of the first defendant's minority as above on August 25, 1964, as averred in paragraph 16 of the plaint ? 3. Should it be found that the first defendant was a minor on August 16, 1944, and December 10, 1946, are the two mortgages sought to be impugned and are the preliminary decree dated September 6, 1954, and the final decree dated december 2. 1957, void ? 4. Did the property in controversy here, viz., 267a Chittaranjan avenue, North, stand mortgaged and charged with repayment of rs. 32,000 and Rs. 21,000-the consideration of the two impugned mortgages-by reason of the present plaintiffs having secured the same at the time of their mortgage for Rs. 13,000 on December 14, 1948, in favour of the first defendant ? 5. Are the plaintiffs precluded from challenging the preliminary decree dated September 6, 1954, by reason of having consented thereto ? 6. Is the suit barred by limitation ? 7. What reliefs, if any, is the plaintiff entitled to ? 8. THE plaintiffs examine two witnesses-Sailendra Krishna Basak, himself, the second plaintiff, and his another brother, Sunil Krishna Basak. The defendants examine neither themselves nor any witness. To the first issue first. Much the most important evidence on this issue is the entry in the Register of births, ext. B, which records that on february 11, 1929, a son was born to bisseswar Pal at 6, Baranasi Ghosh street. Mr. Das contends, and rightly too, that without more such entry cannot be said to fit the mortgagee Sailendra Nath Paul. But I see a lot more. That this Sailendra is the son of Bisseswar, and of 6, Baranasi Ghosh Street too, is beyond controversy. That indeed is the recital in one mortgage deed after another executed in his favour on August 16, 1944, December 10, 1946, December 8, 1947, and December 14, 1948. [see pages 8, 14, 19 and 40 of the admitted brief of documents : ext. A]. That indeed is the recital in one mortgage deed after another executed in his favour on August 16, 1944, December 10, 1946, December 8, 1947, and December 14, 1948. [see pages 8, 14, 19 and 40 of the admitted brief of documents : ext. A]. On top of that, appearances are very much in favour of his being the only son of Bisseswar. Such is the evidence of the second plaintiff Sailendra Krishna Basak-the first witness examined on behalf of the plaintiffs. To pay the interest of the mortgage he and the other plaintiff Anil Krishna Basak, brothers and co-executors both, had executed in favour of the self-same mortgagee Sailendra Nath Paul on December 14, 1948, he (plaintiff Sailendra Krishna Basak) called on the mortgagee Sailendra in his house at 6, Baranasi Ghosh Street during the Pujahs of 194,9. The mortgagee Sailendra then told] the mortgagor Sailendra that the principal sum of Rs. 13,000 (which their mortgage was for) he would assign in favour of his two cousins, Nandi Charan and Chandi Charan, because of an impending partition amongst the member of the family. Naturally this led to further talks in the course of which the mortgagee Sailendra said that he was the only son of his parents, though sisters he had many, [see qq. 36 and 37 to the mortgagor Sailendra Basak in his evidence-in-chief and q. 43 in his cross-examination. I see nothing unnatural or unbelievable in this. With Rs. 553 as interest just received, a mortgagee is apt to loosen his tongue a little, the more so, when one is so young. The mortgagee Sailendra was then hardly twenty-one. In order to make myself sure I asked the mortgagor Sailendra Basak (q. 44) it the mortgagee Sailendra had told him that he was the only son of his parents then alive. The answer I got was: the mortgagee Sailendra told him that he was the only son of his parents, I had reasons to ask so. A little earlier a suggestion was put to the witness (the mortgagor Sailendra : qq. 41 and 42) that the mortgagee Sailendra had another brother, Daila by name. But that evoked the same answer: the mortgagee Sailendra was the only son of his parents, as he told the witness. 9. A little earlier a suggestion was put to the witness (the mortgagor Sailendra : qq. 41 and 42) that the mortgagee Sailendra had another brother, Daila by name. But that evoked the same answer: the mortgagee Sailendra was the only son of his parents, as he told the witness. 9. UPON all I see, such evidence stands, though I do not think much of the evidence of the other brother, Sunil Krishna Basak, the second and last witness of the plaintiffs. The best he could say was that on receipt of some information from Chandi Charan, a cousin of the mortgage Sailendra, in August, 1964, he had asked his brother, the mortgagor Sailendra-himself a plaintiff and the plaintiffs' first witness-to search the birth register in the Corporation of Calcutta with a view to finding out the correct age of the mortgagee Sailendra (qq. 18-26, for example ). What Chandi Charan told him, if at all, is hearsay, so long as Chandi Charan is not examined. And he has not been examined. If hearsay is not receivable in evidence openly, a fortiori it is not receivable by implication. By parity of reasoning, his evidence that Manmatha Nath Pal was the father of Chandi Charan and therefore the undo of the mortgagee Sailendra, Chandi Charan's first cousin, fails too. He heard it from Chandi and his brother Nandi who is not a witness too (qq. 14 and 15 to the plaintiffs' witness No. 2, Sunil Krishna Basak ). This sort of assertion by a third person narrated to me by Sunil cannot establish the truth of that which is asserted: Manmatha being an uncle of the mortgagee Sailendra. The evidence of the mortgagor Sailendra, the plaintiffs' first witness and himself a plaintiff (no. 2), however, remains. He heard, not from the third person, but from the mortgagee Sailendra, a party to this litigation (defendant no. 1) that he was the only son of his parents. That therefore comes to an admission by him. 10. NO doubt, such admission is not conclusive proof of the matter, said to have been admitted by him : that he is the only son of Bisseswar (section 31 of the Evidence Act 1 of 1872 ). A simple denial by him on oath from the witness-box would have gone a long way to rob the evidence of the mortgagor Sailendra of all its value. A simple denial by him on oath from the witness-box would have gone a long way to rob the evidence of the mortgagor Sailendra of all its value. His sworn testimony that he was not born on February 11, 1929, or that he had a brother Daila would have shaken a good deal the entry in the birth register, a public document though it is. With odds so heavy against him-the sworn testimony of the mortgagor Silendra attributing to him an admission that he is the only son of his parents and the entry in the birth register thereby fitting him so nicely and showing his date of birth to be February 11, 1929-such a one, a party though, does not step into the witness-box at the trial, in spite of his having been physically present in the court-room, as I have it not only from Mr. Sen, but also from Mr. Das who is good enough to point him out to me. In vain does Mr. Das contend that the mortgagee Sailendra could not have given evidence on his own birth and that his examination would have therefore served no purpose. It is not necessary that one who gives evidence on his age should have had personal knowledge of his own birth-a reduction ad absurdum. We all know how old we are, because of information we obtained at second hand, say, from our parents or other elders in the family, in other words, from persons who had special means of knowledge. And such information we obtained ante litem motam, i. e., before the commencement of any controversy. So what legal writers call the necessary principle makes an inroad into the hearsay rule which yields and "admits of certain carefully safeguarded and limited exceptions" one of which is this: a witness can speak of his own age and date of birth in certain circumstances. Hence the mortgagee Sailendra himself, a defendant (No. 1), would have been a very competent witness to testify to his own birth, on the basis of what he had heard from his father, uncle or other elders in the family, even though what his relatives had told him is not the best evidence, not delivered on oath, and not capable of being tested by cross-examination. Such then is the principle upon which is founded the fifth exception to the hearsay rule in section 32 (5) of the Evidence Act 1 of 1872. True it is that neither birth nor age is specifically referred to in the section proper. What goes in evidence by virtue of that provision is, amongst other things, the statement by a dead person on the existence of any relationship by blood between persons as to whose relationship by blood the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised (ante litem motam ). But the date of birth is the commencement of a relationship by blood. That way, the date of birth, age and all that do come under this statutory exception to the hearsay rule, an exception which demonstrates the necessity for resorting to hearsay statements. The decisions reported in books say as much. In (1) Ramchandra Dutt and another v. Jogeswar Narain Deo, [1893] I. L. R. 20 Calcutta 758, the plaintiff brought his suit on March 7, 1891, on the assertion that he was born on March 10, 1867. As he would have three years to bring it after he had obtained his majority, he was according to his own showing within time. At and during the trial, the plaintiff gave evidence on the point and proved statements made to him by deceased relatives as to the date of his birth. Another witness of his proved statements made by deceased relatives of the plaintiff on the same point during the negotiations of his (plaintiff's) marriage. O'kinealy and Ameer Ali, JJ. looked at illustrations (k to m) of section 32 of the Evidence Act 1 of 1872 and held that such hearsay evidence was admissible. Indeed, illustration (1) appears to be so apt here that it deserves to be quoted; (1) The question is, what was the date of the birth of A. A letter from A's deceased father to a friend announcing the birth of A on a given day, is a relevant fact. Thus, it is not right to say, as Mr. Das docs, that the mortgagee Sailendra, the defendant Sailendra, could not have given evidence on his own birth. He could have, and as a very competent witness too. Thus, it is not right to say, as Mr. Das docs, that the mortgagee Sailendra, the defendant Sailendra, could not have given evidence on his own birth. He could have, and as a very competent witness too. Before leaving Ramchandra dutt's case (supra) it is but proper to note that (2) Haine v. Guthrie, [1884] L. R. 13 Q. B. D. 818, a decision of the Court of Appeal, laying down that "the rule which admits hear say evidence in pedigree cases is confined to the proof of pedigree, and does not apply to proof of the facts which constitute a pedigree, such as birth, death, and marriage when they have to be proved for other purposes. " was cited before their Lordships, but not followed, because the Legislature, by section 32 of the Evidence Act 1 of 1872, adopted the view that hearsay evidence was admissible to prove the date of birth. 11. IN another case decided carlier [1890] but reported later, (3) Dhanmul v. Ram Chander Ghose, [1896-97] 1 C. W. N. 270. the admissibility of statements made by the deceased maternal grand father in a plaint as the next friend of the suing minors as to the order in which the minors were born and also as to the dates of their births was at issue. Petheram, C. J, presiding over a Bench of three judges held, other members agreeing: "the effect of the section (section 32, sub-section 5 of the Evidence Act)is to make a statement, made by such a person relating to the existence of such relationship, admissible to prove the facts contained in the statement on any issue and that the plaint was admissible here to prove the order in which the sons were born, and their ages " following Ramchandra Dutt's case (supra), Bhashyam Ayyangar, J. held some eight years later in (4) Oriental Government Security Life Assurance Company Limited v, Narashimha Chari, [1901] I. L. R. 25 Madras 183 at pagse 209-210: "a statement as to the age of a member of a family, made by his sister, is no doubt admissible after her death under section 32, clause (5) of the Evidence Act, illustration (e) [ (1)] and Ram Chandra Dutt v. Jogeswar Narain Deo (supra ). The principle of the decision in my opinion is that the time of one's birth relates to the commencement, of one's relationship by blood and a statement, therefore, of one's age made by a deceased person having special means of knowledge relates to the existence of such relationship within the meaning of section 32, clause (5)," sir Arnold White, C. J., the other member of the Bench, held as much at page 199 of the report, though his Lord ship did not cite Ramchandra Dutt's case (supra) as Bhasyam Ayyangar, J. did. What is more, in 1916, the Privy Council had an occasion to review all these decisions-Ramchandra Dutt v. Jogeswar Narain Deo, Dhanmul v. Ram chunder Ghose, and Oriental Government Security life Assurance Co. v. Narasimha Chari-in (5) Mahomed Syedol Ariffin bin Mahomed Ariff v. Yeoh Ooi Gark, 21 C. W. N. 257: 43 I. A. 256: A. I. R. 1916 P. C. 242-an appeal from the Straits Settlements, Penning, where section 32 of the Evidence Ordinance is "in similar terms" to our Evidence Act 1 of 1872. The Supreme Court of the Straits Settlements ruled as inadmissible an entry relating to the appellant's birth in a book containing a record of births, deaths and marriages in his family kept by his late father. The genuineness of the entry was not in question. In having ruled so, the Supreme Court governed themselves by the rule with regard to hearsay evidence adopted in the English case of Haines v. Guthrie (supra) [see paragraph 16 ante] Lord Shaw of Dunfermline delivering the judgment of the Privy Council observed : "But such a limitation (as prescribed by Haines v. Guthrie) finds no foundation in this colonial Statute, even in the words of the section, and this is made clearer by the illustration given thereto " Quoting illustration (1) to section 32, Lord Shaw continued: "their Lordships agree with the judgments in the Indian Courts above cited, that there is no repugnance between a statement which relates to the existence of a relationship and the illustration by a statement as to when A was born, that is to say, when the relationship began". : at page 263 of 43 I. A. Lord Shaw even quoted from the judgment in the Madras case, but through oversight, if I may say so with the greatest respect, attributed the observation, I have quoted too earlier in this paragraph (marked "a"), to Sir Arnold White. Really the observation life Lordship quoted is an observation made by Bhashyam Ayyangar, J. at the bottom of page 209 and top of page 210 in the official report: I. L. R. 25 Madras commencing from page 183. 12. IT is therefore settled law that hearsay evidence on one's age or date of birth is admissible within the limits indicated above. Hence the mortgagee Sailendra does not examine himself at Ms peril, even though he is present in Court at and during the trial. He might have said in his evidence what he had heard about his age or date birth from his father or other elderly members of the family-persons who had special means of knowledge thereof. He might have also said if he was the only son of his father, or if he had a brother, Daila by name. It is, therefore, idle ho say that his examination would have been futile. And non-examination of such a one, depriving his adversary of the crucible of cross-examination, must necessarily be the strongest possible circumstance going to discredit the truth of his case on his not having been a minor on August 16, 1944, and December 10, 1946. [see (6) Grubaksh Singh v. Gurdial Singh and another, 32 C. W. N. 119 (P. C.), for the principle I go by]. Mr. Das cites (7) Maniklal Shah v. Hiralal Shaw, A. I. R. 1950 Calcutta 37, where J. P. Mitter, J. holds that the entry in the Register of Deaths maintained under chapter 31 of the Calcutta Municipal Act 3 of 1923 (shortened hereafter into "the Act") is evidence of only the fact of death. Other particulars such as 'cause of death', 'the deceased's age' etc.-and there are 13 particulars in all in this register with 14 columns, the first column being captioned : Serial number-as to which the officer concerned making the entry can have no personal knowledge or any means of checking, cannot be treated, according to his Lordship, as evidence. Other particulars such as 'cause of death', 'the deceased's age' etc.-and there are 13 particulars in all in this register with 14 columns, the first column being captioned : Serial number-as to which the officer concerned making the entry can have no personal knowledge or any means of checking, cannot be treated, according to his Lordship, as evidence. Judged by this test of personal knowledge, the officer concerned can have no such knowledge of the fact of birth either. So, will that not be evidence ? In that case, the register of births will be wholly valueless. To treat it so will be to flout section 35 of the Evidence Act 1 of 1872 under which an entry in any public or other official register, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country in which such register is kept, is itself a relevant fact. The Register of Births I see before me is a statutory register prescribed in Schedule XXI to the Act under section 450 ibid. And the registrar who registered on February 16, 1929, the birth of a son to Bisseswar Pal on February 11, 1929, and other particulars in. this register, such as place of birth, nationality, sex, profession of father, etc. did so in performance of a duty specially enjoined by section 450 ibid. Hence, an entry so made by him in this register is itself a relevant fact. An entry does not mean one entry being preferred to the other. If February 11, 1929, the date of birth, is an entry, 6, Baranasi Ghosh Street, the place of birth is an entry too. On what logic, one entry will be evidence and the other entry will not be ? I can understand the informant manmath's signature in column 9 of the register being not treated as evidence. Because it is an entry not made by the registrar. Thus, an entry, in the context here, means any entry made by the registrar in performance of a duty enjoined by section 450 ibid. Any such entry is therefore itself a relevant fact. And that fact is proved by a certified copy of this public document being produced under section 77 of the Evidence Act. Thus, an entry, in the context here, means any entry made by the registrar in performance of a duty enjoined by section 450 ibid. Any such entry is therefore itself a relevant fact. And that fact is proved by a certified copy of this public document being produced under section 77 of the Evidence Act. Here, much more has been produced : the original itself. As Wort, J. says in (8) Nanliak Lal v. Baijnath Agarwalla, A. I. R. 1935 Patna 474, at page 476, a case Mr. Sen cites, the birth certificate "is evidence and conclusive evidence unless disproved". In sum, any entry so made is by statute prima facie evidence and will become conclusive unless disproved. Were that not so, why take the trouble of providing by law for a public document as this, made for the information of the state and its citizens who may need the information it contains ? An entry made by a public officer or any other under the mandate of the law, and contemporaneously too with the happening of that which is entered, is to be presumed to be true. That is the minimum recognition it is entitled to. And that seems to be the better view, if I may say so, with respect. At all events, in the case before me, non-examination of the mortgagee Sailendra changes the whole outlook, and what at its inception is prima facie evidence is elevated' at the close of the trial to conclusive evidence. 13. MR. Das reminds me that 6, Baranasi Ghosh Street is a big house. That has been his suggestion to Sunil whose evidence is that it is "a medium size house". A number of people-not a lot of people-live there too. [see qq. 30-33 to Sunil]. But all this does not enable me to hold that in February, 1929 there was another Bisseswar Pal at 6, Baranasi Ghosh Street. And what is more, on the 11th day of that month, he too had a son born to him. Nothing is impossible in this world. But I need firm evidence to hold that in or about February, 1929 another Bisseswar Pal, not the mortgagee Sailendra's father, was at 6, Baranasi Ghosh Street and that a son was born to him on the 11th day of that month. I have not what I need. Nothing is impossible in this world. But I need firm evidence to hold that in or about February, 1929 another Bisseswar Pal, not the mortgagee Sailendra's father, was at 6, Baranasi Ghosh Street and that a son was born to him on the 11th day of that month. I have not what I need. The mortgagee Sailendra's would have been the best evidence on this point. By not examining himself, he too does not give me what I need. 14. UPON the whole of the evidence, I therefore find as facts-A. The mortgagee Sailendra (defendant No. 1) is the only son of his father Bisseswar Pal of 6, baranasi Ghosh Street. B. The entry in the Register of Births, ext. B, recording the birth of a son to the said Bisseswar on February 11, 1929, therefore, appears to be an entry relating to the birth of the mortgagee Sailendra whose identity with the entry so made is thus established. C. Taking the date of birth of the mortgagee Sailendra as February 11, 1929, as I do, he was 15 years 6 months and 5 days on august 16, 1944, and 17 years 9 months and 29 days on December 10, 1946. It, therefore, follows that he was a minor on August 16, 1944, and december 10, 1946-the dates when the two mortgages the plaintiffs impugn by this suit were executed. Hence, I find the first issue in favour of the plaintiffs. 15. TO the second issue I now proceed. The copy of the extract from the Register of Births, ext. B, is over the signature dated August 27, 1964, of the Chief registrar of Births and Deaths. Sunil, the plaintiffs' second witness, is therefore right when he says that he got it on August 27, or 28, 1964 (q. . 29 ). Taking the mortgagee Sailendra to be the only son of Bisseswar the plaintiffs came to know of Sailendra's minortiy on August 27, or 23, 1964. The averment in paragraph 16 of the plaint that they came to know of the mortgagee sailendra's minority on August 25, 1964, must be read with Sunil's evidence that Chandi Charan had told him something which led him to ask his brother, the plaintiff Sailendra, to find the truth out with reference to the entry in the Register of Births (qq. 18-29 ). 18-29 ). A copy of the extract was applied for on August 26, 1964, when the requisite fee of Re. 1 was paid, as the receipt, ext. C, goes to show. So it looks that Chandi had told Sunil something on or about August 25, 1964. This is presumably why the averment in paragraph 16 of the plaint runs so. But what Chandi Charan told Sunil is not evidence. So, no finding can rest on that. The finding will, therefore, necessarily be that the plaintiffs came in know of the minority of the mortgagee Sailendra, the only son of Bisseswar Pal of 6, Baranasi Ghosh Street, on August 27 or 28, 1964, when they had had the certified copy of the extract from the Register of Births before them, unless there are indications to the contrary. Mr. Das contends that there are such indications. 16. LET the contrary indications Mr. Das contends about be examined. True it; is, as he points out, that neither Sailendra nor Sunil, the two witnesses of the plaintiffs, says: 'i did not know before August 27 or 28, 1964, of the mortgagee Sailendra's minority on august 16, 1944, and December 10, 1946'. But does it require to be said in so many words ? Sunil gets an information and works it out by obtaining a certified copy of an extract from the Register of Births, ext. B, which the plaintiffs see and which satisfies them about the minority of the mortgagee Sailendra at the relevant time. That is the first time when they came to know of his minority. That (August 27 or 28, 1964), is the date of their knowledge. The other plaintiff, Anil, does not examine himself, as Mr. Das rightly submits. For that, the Court may draw a presumption adverse to him. Not that the Court must. Here, the Court will not. For, it is there to be seen that the copy of an extract from the birth register having been obtained on August 27 or 28, 1964, he could mot have had earlier a firm knowledge of the mortgagee Sailendra's minority. 17. WHAT Chandi Charan, a third person, told Sunil is hearsay and has not been received in evidence. But the fact Sunil had met Chandi Charan is in evidence. 17. WHAT Chandi Charan, a third person, told Sunil is hearsay and has not been received in evidence. But the fact Sunil had met Chandi Charan is in evidence. The occasion for this meeting, as Sunil says, was that Chandi Charan had requested him in 1961 to allow his (Chandi Charan's) womenfolk to see, from Sunil's house in Chittaranjan avenue, Queen Elizabeth pass by, during Her Majesty's gracious visit to the city. But in 1960 Sunil had brought a suit against Chandi Charan. [see qq. 35-37, 64-67 etc. ] Surely Sunil and Chandi Charan would not litigate in court and be intimate out of it. Such evidence therefore produces disbelief in my mind. Say, it is false. Hence, Mr. Das asks me to reject the whole of his evidence. But law is not: false in one thing, false in everything. There is a very slender foundation, if at all, for conferring on this doctrine the status of anything higher than a rule of caution, as the Supreme Court says in (9) Nisar Ali v. State of Uttar Pradesh, 1957 S. C. A. 312. However, cautious I may be, I see no escape from the evidence the true effect of which is that the plaintiffs became sure of the mortgagee Sailendra's minority on the basis of the extract from the birth register which they had obtained on August 27 or 28, 1964. If I disbelieve Sunil on his orotund talk of Queen Elizabeth's visit which he tries to make good use of from the witness-box, as a judge of fact I have the right to believe, and act on, his evidence about the taking of a copy of an extract from the birth register on August 27 or 28, 1964. [see (10) Sukha and others v. State of Rajasthan, A. I. R. 1956 S. C. 513, holding that judges of facts have the right to disbelieve one part of the testimony and believe the rest, and (11) Gallu Sah v. State of Bihar, A. I. R. 1958 S. C. 813, where no violation of any rule of law nor even of prudence is seen in a judge of facts accepting the testimony of witnesses against one and not accepting the same against the other]. That is what I do. That is what I do. In so doing, the conclusion I come to is that on August 27 or 28, 1964, for the first time the plaintiffs came to know of the mortgagee sailendra's minority on August 16, 1944, and December 10, 1946. On legal evidence it cannot be held that they came to know of this on August 25, 1964, as averred in paragraph 16 of the plaint. I find the second issue so, but observe at the same time that the plaintiffs' knowledge of such minority, two days sooner or two days later, appears to be of the least materiality. Their suit was raised on September 3, 1964. 18. I now reach the third issue-much the most important one calling for decision. That each of the two impugned mortgages is an English mortgage within the meaning of section 58 (e) of the Transfer of Property Act 4 of 1882 is admitted on all hands. That indeed is manifest from the recitals reproduced in paragraph 3 (supra ). The mortgagee Sailendra was below 18, and therefore a minor, on August 16, 1944. and December 10, 1946 when the two impugned mortgages were executed in his favour-the earlier one for Rs. 32,000 and the latter one for Rs. 21,000. Can the two mortgages stand, the mortgagee in each case having been a minor on the date of execution ? That is the point debated before me. A discussion on such a topic must necessarily start with the Privy council decision in (12) Mohori bibee and another v. Dharmodas ghose, [1903] 7 C. W. N. 441, 1903 i. L. R. 30 Calcutta 539. But that is a case where the mortgagor Dharmodas ghose was a minor. What is more, the mortgagee Brahmo Dutt's attorney Kedar Nath Mitter, to whom "all matters regarding the minority" of Dharmodas were left, had knowledge of his minority, because of a letter dated July 15, 1895, written to him by the attorney of Dharmodas's mother and certificated guardian. Kedar Nath's knowledge was "the knowledge of his principal, Brahmo Dutt. In spite of the attorney's letter, Kedar Nath prepared, the mortgage and had it executed by Dharmodas five days later, to wit, on July 20, 1895. In the case depending before me, the mortgagee was a minor at the relevant time. The mortgagor was an attorney. Kedar Nath's knowledge was "the knowledge of his principal, Brahmo Dutt. In spite of the attorney's letter, Kedar Nath prepared, the mortgage and had it executed by Dharmodas five days later, to wit, on July 20, 1895. In the case depending before me, the mortgagee was a minor at the relevant time. The mortgagor was an attorney. Such a one, the mortgagor Rajendralal Basak, and an attorney at that, received Rs. 32,000 "from the within named mortgagee", Sailendra Nath Paul, as the endorsement towards the end of the mortgage deed records, on August 16, 1944, when the mortgagee Sailendra was no more than 15 years 6 months and 5 days. Such a one received too Rs. 21,000 on December 10, 1946, from the same mortgagee who was then 17 years 9 months and 29 days. And these are the two mortgages the plaintiffs want me to strike down as void. 19. THE disparity of facts, or here the mortgagee being a minor, and not the mortgagor, as in Mohori Bibee's case (supra), appears to Mr. Sen an irrelevant consideration. He takes me through the process of reasoning Sir Ford North's judgment in mohori Bibee's case (supra) reveals. First: section 7 of the Transfer of Property Act 4 of 1882 is there making the capacity to contract the limit of the capacity to transfer. Second : the Transfer of Property Act is the Act under which the two mortgages sought to be voided have been made: section 58 (e) ibid, "and it is merely dealing with persons competent to contract". Third: section 4 ibid provides that the chapters and sections of that Act which relates to contracts are to be taken as part of the Contract Act 9 of 1872. Fourth: sections 2 and 10 ibid (Contract Act) prescribe between themselves when agreements become contracts. Fifth: section 11 ibid (Refines who are meant by "persons competent to contract". One "who is of the age of majority" is a person so competent, if not disqualified because of unsoundness of mind or of any prescription of law-features which do not hulk large here. Having taken me through these provisions, what Mr. Fifth: section 11 ibid (Refines who are meant by "persons competent to contract". One "who is of the age of majority" is a person so competent, if not disqualified because of unsoundness of mind or of any prescription of law-features which do not hulk large here. Having taken me through these provisions, what Mr. Sen presses upon me most is the following from Sir Ford North's judgment: "looking at these sections their Lordships are satisfied that the Act (Contract Act) makes it essential that all contracting parties should be 'competent to contract', and expressly provides that a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Act. " mr. Sen therefore concludes: here is the mortgagee Sailendra who by reason of infancy was incompetent to contract on august 16, 1944, and December 10, 1946, and as such the mortgages on the aforesaid dates must go down as void. 20. IF there was ever any necessity of invoking the doctrine that a case, even though decided by the Privy Council, is an authority for the proposition it decides on the facts before it, here is pre-eminently one. Because, pushed to its logical consequence, the proposition laid down by Sir Ford North in such general terms will do away with the special cloak of protection which law throws around minors, and, worse, will protect instead "the very parties who prey upon the weakness and folly of the young," to quote from the judgment of Maclean, C. J., presiding over the Court of Appeal here in the same case: (13) Brohmo Dutt, v. Dharma Dass Ghose, 3 C. W. N., 468 at page 474: I. L. R. 25 Calcutta 381. :no wonder, therefore, this Privy Council decision was distinguished in later cases where the mortgagee was a minor, as in the case in hand. Of four such decisions cited at the Bar one is (14) Hart Mohan mondal and others v. Mohini Mohan Banerji and others, (1916) 22 C. W. N. 130, where the two mortgagees were minors on the date of the execution of the mortgage-bond and had no covenant to perform, there having been no question of any reconveyance-which led Teunon and Chaudhuri, JJ., to distinguish it from Mohori Bibee's case (supra ). Another is the Full Bench decision in (15) A. T. Raghava Chariar v. O. M. Srinivasa Raghava Chariar, (1916) I. L. R. 40 Madras 308, a case of simple mortgage too, as is apparent from the judgment at page 322 of the report of Srinivasa Ayyangar, J., a member of the Full Bench. In that case, the mortgage executed in favour of Rangasami Ayyangar, on March 23, 1903, when the said Ayyangar was, in fact, an infant, was upheld, he having advanced the whole of the mortgage money (Rs. 11,00 odd) to the mortgagor. More, such mortgage was held to be enforceable by him, no less by the transferee from the Official Receiver in whom had vested the estate of the mortgagee Ayyangar on his having subsequently become insolvent. Mohori Bibee's case (supra) was distinguished on the ground that under the general scheme of the Transfer of Property Act an infant might be a grantee, but not a grantor, and that no enforcing of any contract made by the minor Ayyangar was involved. (See the judgments of Wallis, C. J., at page 315, of Srinivasa Ayyangar, J., at page 334, and of Abdur Rahim, J. at page 316 of the report ). No enforcing of any contract, because, as Abdur Rahim, J., put it at page 316 and 317 "the infant has already advanced the money which formed the consideration for the promise of the mortgagor and there is no question to be considered of enforcing any promise on the part of the infant. It is probable that an analysis of the transaction would show that the minor made the advance in pursuance of a promise express or implied; but as he has performed his part, nothing remains to be done by him. " still another decision cited at the Bar is (16) Madhab Koeri v. Baikuntha Karmakar and others, (1919) A. I. R. 1919 Patna 561, which goes the same way. This mortgage in favour of two minors was to secure payment of a loan of Rs. 200. Dawson-Miller, C. J., held Jwala Prasad, J., agreeing, that there was no contract by the minor mortgagees, Baikuntha Karmakar and Ghasi Ram karmakar, which still remained to be performed as in Mohori Bibee's case (supra ). This mortgage in favour of two minors was to secure payment of a loan of Rs. 200. Dawson-Miller, C. J., held Jwala Prasad, J., agreeing, that there was no contract by the minor mortgagees, Baikuntha Karmakar and Ghasi Ram karmakar, which still remained to be performed as in Mohori Bibee's case (supra ). And his Lordship concluded: " the reasoning which is at the root of all the cases relating to the contractual obligations of the minors appears to me to have no application to the present case". vide page 563 of the report. The last decision cited: (17) Zafar Ahsan and others v. Zubaida Khatun and others, [1929] A. I. R. 1929 Allahabad 604, is to the same effect too: a case of mortgage for Rs. 3,000 by the father to the minor daughter in order to pay off the dower debt of her mother, where Banerji and King, JJ. reiterated the law laid down in earlier decisions : "When a transfer is made of property in favour of a minor and the minor has paid consideration for it such a transaction cannot be held to come within the principle" Thus, the reason on which Mohori Bibee's case is distinguished comes to this. The infant Dharma Dass, the mortgagor there, was charged with the obligation to repay the mortgage money to the mortgagee Brohmo Dutt who could, law permitting, enforce this contractual obligation against the infant; whereas, in all the four cases just reviewed, the minor mortgagees had nothing like a contractual obligation to perform. By advancing the mortgage money they had done all they were to, and little or northing remained to be done by them. 21. MR. Sen does not dispute this distinguishing feature, but contends that each of the two mortgages dated august 16, 1944, and December 10, 1946, he wants to void is an English mortgage where, to the minor mortgagee Sailendra, the mortgagor Rajendralal Basak had conveyed the mortgaged property, 267a Chittaranjan Avenue, which the said minor mortgagee bound himself to recovery on August 16, 1945, in one case, and December 10, 1947, in another, on the mortgagor paying all dues under the aforesaid mortgages, as he (the mortgagor) had covenanted to do. So, Mr. Sen concludes, here remained a contractual obligation to be performed by the infant mortgagee, and there seems to be no escape from Mohori Bibee's case. Mr. So, Mr. Sen concludes, here remained a contractual obligation to be performed by the infant mortgagee, and there seems to be no escape from Mohori Bibee's case. Mr. Das sees in all this no contractual obligation. He refers to section 60 of the Transfer of Property Act and contends that the obligation here is a statutory one. 22. DEVELOPING his contention, Mr. Sen submits at one stage that had it been a case of simple mortgage, he would have been out of court forthwith. Because each of the two mortgages is an English mortgage, Mr. Sen concludes, it makes all the difference. Does it really? Section 60 Mr. Das relies upon calls attention. Even in the case of a simple mortgage, any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee, at the cost of the mortgagor, either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been duly effected by a registered instrument)to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished. Of the four cases cited at the Bar in support of the proposition that "an infant may take a mortgage", the mortgage-money was Rs. 11,00 odd in Raghava Chariar's case (supra), Rs. 200 in Madhub Koeri's case (supra), and Rs. 3,500 in Zafar Ahsam'r case (supra), as noticed in paragraph 29 ante. Valued at upwards of Rs. 100, each of the above three mortgages must have been effected by a registered instrument. I do not take into account Hari Mohan Mondal's case, (supra) because what the mortgage-money was there does not appear in the report. So, the mortgagors in each of the above four cases could have required, other things being there, the infant mortgagees to re-transfer the mortgaged property to them or to their nominees, even though each was a simple mortgage, thus reducing the distinction between a simple mortgage and an English mortgage to a distinction without difference. That this legal right of the mortgagor to a reconveyance is seldom insisted on in practice (except in the case of an English mortgage) is a different matter. What matters is that such a right exists at law. That this legal right of the mortgagor to a reconveyance is seldom insisted on in practice (except in the case of an English mortgage) is a different matter. What matters is that such a right exists at law. Again, in all the cases except Hari Mohan Mondal's the consideration money in which cannot be ascertained, they could have similarly required the minor mortgagees to have registered an acknowledgment in writing that the mortgages were not outstanding, or, to quote the words of the statute, that any right in derogation of their interest transferred to the mortgagees had been extinguished. Thus, these are the two obligations-a reconveyance and a registered acknowledgment-which still remained to be performed by the infant mortgagees in at least three of the cases reviewed above. And the obligation of executing a reconveyance remained to be performed by all the minor mortgagees in all the four cases. But these were not contractual obligations. These were statutory obligations. These were the rights conferred on the mortgagor by section 60. So, all the mortgages in favour of the minors stood, not with standing Mohori Bibee's case where what remained to be performed by the infant mortgagee Dharmodas was the contractual obligation of repaying the mortgagor Brahmo Dutt Rs. 10,500 paid to him (Dharmodas) as part of the total consideration Rs. 20,000. 23. THAT, then, is the test to go by. If facts reveal a contractual obligation remaining to be performed by an infant mortgagee, they are caught by Mohori Bibee's case. If, on the other hand, only a statutory obligation remaining to be performed by a minor mortgagee is there, Mohori Bibee's case will not rule the matter. Judged by this test, what do I see here? No doubt, the infant mortgagor before me, Sailendra Nath Paul, says in the mortgage-bond that, upon payment of the mortgage-money by the firm dates, he "will at any time thereafter upon the request and at the cost of the mortgagor recovered" the mortgaged property, 267a chittaranjan Avenue, to the mortgagor. But it is merely a repetition of the statutory obligation which is already there. By repeating a statutory obligation in a deed, you do not convert it into a contractual obligation. It is a statutory right of the mortgagor conferred by section 60, not by any contract. 24. But it is merely a repetition of the statutory obligation which is already there. By repeating a statutory obligation in a deed, you do not convert it into a contractual obligation. It is a statutory right of the mortgagor conferred by section 60, not by any contract. 24. TOO much emphasis should not be laid on the words in section 58 (e) under which, amongst other things, the mortgagor transfers the mortgaged property absolutely to the mortgagee and the mortgagee re-transfers it to the mortgagor upon payment of the mortgage money. These words are more catchy than effective. And the mortgage remains a mortgage which under section 58 (a) is the transfer only of an interest in specific immovable property. Because of these deceptive words, an English mortgage does not elevate itself to the height of a sale which under section 54 is a transfer of ownership. On a matter as this, one cannot but refer to the leading case of (18) Ram Kinkar Banerjee and others v. Satya Charan Srimani and others, [1938] L. R. 66 I. A. 50, cited too at the Bar. Lord Porter, delivering the judgment of their Lordships of the Judicial Committee, points out at page 62 of the report that if section 58 (e)stopped at the words "transfers the mortgaged property absolutely to the mortgagee", it might be necessary to put the constructions of an absolute sale upon a mortgage of this type. But the sub-section (e) "does not stop there: it adds the proviso that the mortgagee 'will retransfer' the property 'upon payment of the mortgage money as agreed'. Their Lordships think that with this addition the sub-section upon its true construction does not declare 'an English mortgage' to be an absolute transfer of the property. It declares only that such a mortgage would be absolute were it not for the proviso for retransfer. " Mr. Sen stresses this and contends that a re-transfer by the infant mortgagee there could not be either on August 16, 1945, or on December 10, 1947, with the result that the mortgages would have become absolute. He propounds a test: could I have brought a suit for a reconveyance against the minor ? " Mr. Sen stresses this and contends that a re-transfer by the infant mortgagee there could not be either on August 16, 1945, or on December 10, 1947, with the result that the mortgages would have become absolute. He propounds a test: could I have brought a suit for a reconveyance against the minor ? Nice though such a contention looks on the face of it, if one goes a little below the surface, it is plain to be seen how destitute of merit it is even on facts, nothing to say of law. The firm date for repayment of Rs. 32,000 on the foot of the first impugned mortgage was August 16, 1945. Even on December 10, 1946, that sum of Rs. 32,000 remained due and owing to the mortgagee-for which and for a further sum of Rs. 21,000, the adult mortgagor executed a second mortgage that very day (December 10. 1946 ). Thus, in any event, you could not have brought a suit on or about August 16, 1945. Why ask then: could I have brought a suit against the minor mortgagee on August 16, 1945, for a reconveyance ? First earn the right to sue by repaying Rs. 32,000. And on December 10, 1947 -the other firm date for repayment on the foot of the second mortgage ? The mortgagee Sailendra was then 18 years 9 months and 29 days-a major. It is no good, therefore, seeking to make a capital of repayment which might have been made, but was in fact never made. And if repayment was to be made, surely the mortgagor would not have remained in no-man's-land with the mortgage-money in one hand and no remedy in the other to sue his minor mortgagee for redemption under section 60. All he had to do then was to call in his aid section 103 of the Transfer of Property Act which forestalls such a contingency. In terms thereof, he was only to apply to the Court in which a suit might be brought for the redemption of his mortgage to appoint a guardian ad litem for the purpose of accepting his tender under section 60, and for the performance of all. consequential acts which could or ought to be done by the minor mortgagee if he were competent to contract. A reconveyance is a consequential act, no doubt. Thus, Mr. consequential acts which could or ought to be done by the minor mortgagee if he were competent to contract. A reconveyance is a consequential act, no doubt. Thus, Mr. Sen could have brought on application-not even a suit -if only his clients or their predecessor in interest had really been in earnest to make the repayment. So, that way cannot help matters forward for the plaintiffs. The only way they can get out of the predicament they are in is to say: no matter, the infant mortgagee became an adult later (as every infant, if he lives, is bound to be) ; no matter, we have not availed of section 1 (3); when an infant, the mortgagee made the promise to recovery-a promise he was not competent to make. But this way eludes them too. It is an idle promise, if a promise at all. It neither feeds nor fosters a contractual obligation. It only echoes the statutory obligation embedded in law. Promise or no promise, the mortgagor, on payment or tender of the mortgage-money, could as of right and as a matter of law (section 60), get a reconveyance from the mortgagee. That is the substance. That is the substantial right inherent, in a mortgage, whatever its form. To quote Lord Porter again from Ram Kinkar Banerjee's case (supra): "Sec. 58 (e) deals with form not substance. The substantial rights are dealt with in ss. 58 (a) and 60. " Therefore, in each promise, one on August 16, 1944, and another on December 10, 1946, by the infant mortgagee Sailendra to recovery the mortgaged property, i see form, not substance; I see the right conferred by the statute (section 60) reiterated, no contractual obligation apart from what the statute confers as a right. To say so is not to say that there was no contract ever. There was, once when the minor mortgagee Sailendra made the advance of Rs. 32,000- on August 16, 1944, and again when he lent Rs. 21,000 on December 10, 1946, presumably in pursuance of a promise each time. But by then and by such payments he had performed his part. Nothing remained to be done by him in the realm of contract -a realm where repayment of the sums taken remained to be made by the mortgagor. 21,000 on December 10, 1946, presumably in pursuance of a promise each time. But by then and by such payments he had performed his part. Nothing remained to be done by him in the realm of contract -a realm where repayment of the sums taken remained to be made by the mortgagor. And so soon as repayments would be made, would emerge a new realm ; not the realm of contract which was no more, the mortgagee and the mortgagor each having done his part of the contract, the mortgagee having advanced the money and the mortgagor having repaid it; but a realm of the statutory rights of the mortgagor-one of which was to have the mortgaged property reconvened to him without the Contract Act coming anywhere near. The conclusion I have therefore come to is that there remained no contractual obligation to be performed by the infant mortgagee Sailendra after the execution of the two impugned mortgages-a consideration which takes the case in hand out of the domain of Mohor Bibee's case rules and governs. 25. MR. Das invites my attention to the argument advanced by Dr. Sulaiman from the Bar (where he then was) in (19) Munni Kunwar v. Modem Gopal, (1915) I. L. R. 38 Allahabad 62, at page 66, and in particular to the following passage: "conveyance is something more than a contract; as soon as the sale deed is executed the transaction passes from the domain of contract into that of conveyance. Now contracts are governed by the Contract Act which requires mutuality ; but conveyances are governed by the Transfer of Property Act," several provisions of which [ss. 5, 6 (h), 7, 54 etc.) do not require anything to be done by a transferee. Therefore, Mr. Das continues, there is nothing to prevent a minor from being a transferee. And, Mr. Das concludes, if a minor vendee could successfully sue for possession of the property conveyed to her as in Munni Kunwar's case, (supra) equally the minor mortgagee here could be sued for a reconveyance on payment. All I need say is that section 103 just referred to contemplates, and provides for, a mortgagee "incompetent to contract", that is to say, an infant amongst others. In no manner, therefore, can the plaintiffs void the first two mortgages on the authority of Mohori Bibee's case which does not apply here. I have stated why. 26. All I need say is that section 103 just referred to contemplates, and provides for, a mortgagee "incompetent to contract", that is to say, an infant amongst others. In no manner, therefore, can the plaintiffs void the first two mortgages on the authority of Mohori Bibee's case which does not apply here. I have stated why. 26. LET me quote from Ghose's tagore Law Lectures : 1875-76: on the law of Mortgage in India, 5th edition, [1922], at page 205: "it is not necessary to deal at length with the question who may take a mortgage, because any person, capable of holding property, may be a mortgagee, as the disabilities which attend the creation of a mortgage do not attach to the acceptance of a security. An infant, therefore, may take a mortgage. " at the footnote in this edition are cited some of the cases reviewed in the foregoing lines. But in the 3rd edition [1902] at page 252 this very passage occurs without reference to the reported decisions, for there were none then, sewing thereby what was the original opinion of that eminent jurist untrammeled by case-law. First and last, it will not do to forget that a minor we are dealing with-a minor who had paid Rs. 31,000 plus rs. 21,000, i. e., Rs. 53,000, for the two impugned mortgages to an adult mortgagor, an attorney-at-law. That money remains due and owing to him to this day. Not a whisper is there for repayment of what is so due and owing all these years-some 18 to 20 years at that. And still the Court is being asked to declare each of the two mortgages a nullity which of course, no one is. This being the position, I can do no better than adopt, with respect, what Wallis, C. J., said in (15) R. Charter's case, [1916] I. L. R. 1940 Madras 308, at page 314: "the provision of law which renders minors incompetent to bind themselves by contract was enacted in their favour and for their protection, and it would be a strange consequence of this legislation if they are to take nothing under transfers in consideration of which they have parted with their money. " : (here Rs. 53,000 ). 27. " : (here Rs. 53,000 ). 27. HAVING regard to the foregoing considerations, I hold: the two mortgages of August 16, 1944, and December 10, 1946, stand ; stand too the two decrees resting thereon-the preliminary decree of September 6, 1954, and the final decree of December 2, 1957. I, therefore, find the third issue in favour of the defendants. 28. TO understand the fourth issue which I now reach, it may be recalled that the two plaintiffs before me, on December 14, 1948, a little more than eight months after the death of their father, the mortgagor Rajendralal Basak, on April 12, 1948, executed a mortgage of the self same property for Rs. 13,000 in favour of the same mortgagee Sailendra Nath Paul who was then 19 years 9 months and 23 days. So they did in their capacity as executors to the estate of Rajendralal Basak. By this mortgage they declared that for the mortgage-money of the first two mortgages (now impugned), as also of another, and for the fresh loan of Rs. 13,000 taken, the mortgaged property, 267a Chittaranjan Avenue, would "henceforth be a security and remain charged with". [see paragraphs 5 and 9 ante and pages 40-46 of the admitted brief of documents]. This leads Mr. Das to contend that a new mortgage had thereby come into being for all the leans taken together, and Mr. Sen to contend that qua executors the two plaintiffs could not foist upon the estate two void mortgages. Mr. Das sees in the recital in this new mortgage by the plaintiffs in their capacity as executors a mere description. It is hardly necessary for me to enter into it, in view of the finding I have come to on the first two mortgages being valid, not void. Could I have voided the mortgagee, I would have accepted Mr. Sen's contention in preference to Mr. Das's. This fresh loan of Rs. 13,000 was being taken "to repay certain unsecured debts payable by the Estate of Rajendra Lal Basak", as the mortgage of December 14, 1948, recites : page 43 of the admitted brief of documents. I see therefore much more than a mere description. I need say no more on an issue which does not arise now. The fifth issue I now take up merits like treatment. The two impugned mortgages are good. I see therefore much more than a mere description. I need say no more on an issue which does not arise now. The fifth issue I now take up merits like treatment. The two impugned mortgages are good. So are the decrees, including the preliminary one, consent or no consent. Had the mortgages been void, they would have been "not only bad, but incurably bad", to quote the words of Lord Denning in (20) Macfoy v. United Africa Co. Ltd., [1961] 3 All E. R. 1169, a case Mr. Sen cites. No consent then could have avoided what is void. The concept of a fresh agreement Mr. Das imports into the consent, though attractive at first sight, appears to be barren, in the ultimate analysis. In the first place, consent cannot convert a nullity into a reality. In the second place, consent on September 6, 1954, the date of preliminary decree, was no consent when the plaintiffs came to know of the mortgagee Sailendra's minority for the first time on August 27 or 28, 1964, "if an act is void, then it is in law a nullity", to quote Lord Denning again in Macfoy's case, fraud or no fraud. In vain, therefore, does Mr. Das address me on absence of fraud here. So, I dispose of this issue holding: it does not arise in view of my finding on the third issue ; had the finding on the said issue been that the mortgages are nullities, consent could not have stood between the plaintiffs and their success in this suit. 29. THE penultimate issue-the sixth one-may now be dealt with. The present suit, filed as it was on September 3, 1964, is governed by the limitation Act 36 of 1963 came into force on January 1, 1964, under article 59 of which a suit to set aside a decree has to be instituted within three years from the time when the facts entitling the plaintiff to have the decree set aside first become known to him. From August 27 or 28, 1964, when the plaintiffs first came to know of the mortgagee Sailendra's minority-a fact which they took as entitling them to set aside or void the decrees-to September 3, 1964 when this suit was instituted-is 7 or 6 days. So, that way the suit cannot be barred by limitation. 30. CAN it be barred in any other way ? So, that way the suit cannot be barred by limitation. 30. CAN it be barred in any other way ? Mr. Das has commented on. lack of evidence if the mortgagor Rajendralal basak know the mortgagee Sailendra to be a minor. It is idle to expect evidence to that end from the: plaintiffs' side. If the two witnesses: examined on their behalf had said (which they could not): yes, our father knew the mortgagee Sailendra to be a minor and has said so, that would have been good evidence under section 32 (3) of the Evidence Act 1 of 1872, such a statement going against the pecuniary interest of the deceased Rajendralal, Limitation would have then run from much earlier. But if these witnesses had said the opposite, that would not have been admissible. What is more important, it is the defendant Sailendra who is pleading limitation. It is for him, therefore, to establish facts which will support the plea. But he does not examine himself and thereby deprives me of the best evidence on the point: how Rajendralal Basak had taken him -as a major or a minor-or what he: himself had told Rajendralal about his age. So, again I may draw a presumption adverse to him. And so I do. I have tried to go another way. I have had the advantage of seeing the mortgagee Sailendra pointed out to me by Mr. Das. But throwing my mind back to August 1944 or December 1946, I cannot visualize how he looked like then. So, could Rajendralal tell by his appearance only if he was 18 on August 16, 1944, when he was in fact 15 years 6 months and 5 days, and on December 10, 1946, when he was in fact 17 years 9 months and 29 days ? To distinguish 17 years 10 months from 18 is an impossible task even for a radiologist by skiagram, ossification test and the like. To distinguish 151/2 years from 18 by appearance only is a difficult enough task, depending as it does upon the build of the subject and so many other factors. It will therefore be a profitless task to proceed that way. 31. UPON materials I have had put before me, I find that the suit is not barred by limitation. 32. THE seventh issue is the general one on reliefs the plaintiffs are entitled to. Mr. It will therefore be a profitless task to proceed that way. 31. UPON materials I have had put before me, I find that the suit is not barred by limitation. 32. THE seventh issue is the general one on reliefs the plaintiffs are entitled to. Mr. Banerjee appearing for defendants 2 and 3 has taken advantage of this issue to argue that even if the first two mortgages go down as void, the whole of the decree, a composite one, will not fail and the mortgages in favour of his clients, provided for in the decree, will remain untouched. My finding on the impugned mortgages being what it is, I do not feel called upon to dwell on this. Upon all that goes before, the plaintiffs are entitled to no relief. I find this issue so. In the result, the suit fails and be dismissed with costs. Certified for two counsel.