Straight, O.C.J and Duthoit, J.:— We understand it to be admitted that the defendant Row, at the time he indorsed the cheque and when the present suit was heard and decided, had not attained the age of 21 years. It therefore follows as necessary, consequence that if he was incapable of making a valid and binding contract when be wrote the indorsement on the cheque, no suit was maintainable against him in his own person, and the proceedings of the Courts below, in treating him as a competent party hereto, were contrary to law. If the Judge was satisfied, as he appears to have been, of the fact of his minority, it was obligatory upon him to follow the directions laid down in s. 443 of the Civil Procedure Code. Not having done so, the defendant Row was “coram non judice,” and the trial was, so far as it concerned him, abortive. The whole case is before us under the order of reference, and there is a question involved in it of how far, assuming the defendant Row to have been sui juris, the indorsement itself, taken in conjunction with the facts proved, established a contract by which he was bound to pay the cheque. As to this, we think it sufficient to say that we concur in the views expressed by Oldfield and Brodhurst, JJ., that a liability in law was created. But it seems to us that the primary and crucial point which must be determined is, was the defendant Row, on the 29th of April, 1882, when he indorsed the cheque as - surety for Fraser, legally competent and capable of entering into a binding obligation on his own behalf, which could be enforced in a Court of Law? If he was not, then the Bank had no right to proceed against him. Now, it will, we think, be conceded, that prior to the passing of the Contract Act in 1872, save for the purposes of special Acts declaring to the contrary, the Indian subjects of the Crown were, as regards their age of majority as affecting legal liability, governed by their own personal law, that is to say, [498] Hindus by the Hindu Law, Muhammadans by the Muhammadan Law. So European British subjects, except in so far as had been affected by legislation, were, if we may accept the dictum of Turner and Spankie, JJ., in Hearsay v. Girdharee Lal(1), held not only in the Presidency Towns, but in the Mufassal, to continue minors until attaining the age of 21 years. The following are the remarks upon the subject used by those two learned Judges:—“There being no express enactment determining the age at which a European British subject is to be held to have attained majority in this country, so as to be capable of making a contract, we feel ourselves bound to follow the established rule of the Courts, and to hold that the privileges and disabilities of minority (so far as they are not removed by express enactment) attach to a European British subject until he has attained the age of 21 years.” Such appears to have been the state of the law when s. 11 of the Contract Act was passed, and it is therein provided that “every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.” This was no more than a reduction into terms in the body of the statute of the unwritten rules which had theretofore guided and governed the action of the Courts. And it was admitted by the learned counsel for the appellant, that up to the enactment of the Indian Majority Act, 1875, twenty-one was the age which governed the status of majority of European British subjects domiciled in India. By the Indian Majority Act, 1875, it was declared that “every person,” save as therein otherwise provided, “domiciled in British India, shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.” This Act, therefore, not only fixed the majority of Hindus and Muhammadans alike at eighteen, but applied the same rule to all other subjects of the Crown who were domiciled in British India. The words are clear and specific, and the preamble of the Act in terms confines its operation to “the case of persons domiciled” in British India. It was also conceded by the learned counsel for the appellant Bank, that the defendant Row, whatever his domicile was, had not a domicile in this country. It is, therefore, clear that, [499] standing by itself and without the aid of any rule of international law, the last-mentioned Act cannot apply to him.
As the argument that the lex loci contractus must determine the contractual capacity, it is to be observed that, though American and English authorities have expressed opinions on the question at variance with those of “foreign jurists, who generally hold that the law of the domicile ought to govern in regard to the capacity of persons to contract” (Story's Conflict of Laws, 7th ed., s. 241), two of the latest English writers on the subject seem to speak with uncertain sound as to whether such a rule can be unreservedly laid down (Dicey on Domicile, p. 177. Westlake's International Law, p. 46). In Udny v. Udny decided by the House of Lords in 1869 Lord Westbury remarks:— “The political status may depend on different laws in different countries; whereas the civil status is governed universally by one single principle, namely that of domicile, which is the criterion established by law for the purpose of determining civil status. For it is on this basis that the personal rights of the party, that is to say, the law which determines his majority, or minority, his marriage, succession, testacy, or intestacy, must depend.” And a like view was expressed by Cotton, O.J, in Sottomayor v. De Barros(2). It is therefore by no means so clear or certain that there is any rule of international law which recognises the lex loci contractus as governing the capacity of the person to contracts; but conceding for the moment it does, it nevertheless seems to us that the specific limitation of the provisions of the Act of 1875 to “domiciled persons” necessarily excludes its application to European British subjects generally. For it will not, we think, be denied, that the Legislature of this country, had it been so minded, might have extended the operation of the Majority Act to all European British subjects indiscriminately, and irrespective of any question of domicile, upon the same principle as it had framed and passed Act XIII of 1874, relating to European British minors in certain parts of India. But it did not do so. On the contrary, from the introduction of the Bill in the first instance, to the time of its passing into law, the obvious aim and object of the measure was to secure greater uniformity in the age of majority of persons domiciled in British India, and to raise it in [500] those cases where it was too low. It did not, however, profess or attempt to deal with a continually fluctuating and of frequently changing body of persons, namely, European British subjects temporarily residing in the country, who, to use the terms employed in s. 10 of the Indian Succession Act, have no “fixed habitation” here. It seems to us, therefore, as regards such last-mentioned persons, still conceding the lex loci contractus to be applicable to them, that the only other provision of Indian Law which is germane to the matter, is the provision contained in s. 11 of the Contract Act already adverted to— “Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.” Applying to language its ordinary meaning, we can only interpret this section as declaring that the capacity of a person in point of age to enter into a binding contract was to be determined by his own personal law, whether such law was to be found in the Shastras, the Shara, the Acts of the Indian Legislature, or any other law, according as each particular case called for its application. The rule thus laid down was likely to be, and possibly proved, and inconvenient one in practice, and so far as persons domiciled in British India are concerned, it has now been corrected by Act IX of 1875. But, as we have before pointed out, such last-mentioned Act did not touch persons temporarily residing, but not domiciled, in British India, and we think that it must therefore be taken that their status to contract was still left to be governed by the law to which they were subject—i.e, the personal law of their personal domicile. Such law in the case of European British subjects is the common law of England, which recognizes twenty-one as the age of majority, and in our opinion such is the law which in the case before us, if the defendant Bow's domicile, or rather that of his father, was in England when he was born, must govern its decision. Although it is admitted that the defendant Row was not domiciled in British India, it is not admitted that his father, at the time of his birth, had his domicile in England, and we cannot finally dispose of the matter without a distinct finding upon this point.
We therefore remand the following issue under s. 566 of the Civil Procedure Code for a finding by the lower Court:— “What [501] was the domicile of the father of the defendant Row at the date of his birth?”
Oldfield, J.:— On further consideration, I am induced to alter the opinion which I formed when this case came before the Divisional Bench, that the capacity to contract with reference to age of persons not domiciled in British India should be governed by the Indian Majority Act as the lex loci on the subject.
By the rule of the jus gentium as hitherto understood and recognised in England, the lex loci would govern in respect to the capacity to contract (Story's Conflict of Laws, 7th ed., ss. 100 to 103, and 241), and I was disposed to assume that the Indian Legislature had intended the same-rule to have force in British India; but in framing the Indian Majority Act (Act IX of 1875), which is the lex loci on the subject in this country; the legislature would appear not to have adopted that rule, but by limiting the operation of the Act to persons domiciled in British India, to have intentionally excluded from its operation persons not domiciled there, and to have left such persons to be governed by the law of their domicile. On this view, the Act will not affect such persons. I concur in the order of remand proposed by my colleagues.
Brodhurst, J.:— At present I see no reason to doubt that the conclusions arrived at in my judgment of the 14th March last were correct, and I do not wish to add anything further than that I concur with my learned colleagues in remanding the case to the lower Court for a finding on the proposed issue.
Mahmood, J.:— I agree with my honourable colleagues in the view that if the defendant-respondent Row be taken to have been sui juris when he indorsed the cheque, the facts proved in this case render him liable to the claim.
Reserving, however, for the present my opinion as to the law which would govern his age of majority for contractual capacity within the meaning of s. 11 of the Indian Contract Act (IX of 1872), I concur with my honourable colleagues in remanding the case to ascertain the exact, domicile of the defendant-respondent Row.
Cause remanded.