Madras High CourtVemana Venkama Naidu And Ors. vs Sayed Vilijan Chisty And Ors. on 4 August, 1950Equivalent citations: AIR1951MAD399, (1950)2MLJ587, AIR 1951 MADRAS 399JUDGMENT
 

 Viswanatha Sastri, J.1. Defendants 1, 3 and 4 are the appellants. Plaintiffs, who are Muslims, sued for partition and recovery of possession of certain lands on the ground that they had been improperly sold when they were minors, by their mother acting as their guardian, to the predecessor-in-title of defendants 1 to 4. The plaintiffs' father, Syed Khaja alias Abbas, was entitled along with three brothers and a sister, to a 4/7ths share of certain properties. All the sharers including the plaintiffs' father mortgaged their 4/7ths share under Ex. D-8 dated 23-8-1915, in favour of Papa Naidu, the predecessor of defendants 1 to 4, for Rs. 4500. This mortgage was renewed after the death of the plain-tiffs' father by their mother, acting on her own behalf and as guardian of her minor children, as well as the other sharers in the property, under Ex. D-4 dated 16-5-1927, for Rs. 7860. A sum of Rs. 680-13-0 out of the consideration for EX. D-4

went in discharge of a decree which had been obtained by a creditor against the father of the plaintiffs and another sum of Rs. 871 in discharge of a prior mortgage, EX. D-5, executed by the plaintiffs father and other sharers. The plaintiffs' mother, acting on her own behalf and as guardian of the plaintiffs, then minors, along with the other sharers, sold the mortgaged property under Ex. D-1 dated 16-3-1932 to the predecessor-in-title of defendants 1 to 4 in discharge of the mortgage, EX. D 4. On 21-8-1943 the plaintiffs filed this suit in forma pauperis for partition and recovery of possession of 4/21st share of the properties conveyed by their mother under Ex. d-1. The Court below has passed a decree in favour of the plaintiffs for joint posses-sion of 221/8024 share of the lands with mesne profits for three years prior to suit. The plaintiffs were also directed to pay Rs. 400 to defendants 1 to 4 with interest at 6 per cent. the said sum representing the plaintiffs' share of the liability for their mortgage-debt, EX. D-5, dis-charged by the vendee. Defendants 1, 8 and 4 have preferred this appeal against the decree.2. The sale deed, EX. D-1, having been executed by the mother of the minor plaintiffs acting as their guardian, was void under the Mahomedan law, and wholly inoperative to convey any title to the property to the vendee; SeeImambandi v. Mutsaddi, 45 Cal. 878 : (A. I. R. (5) 1918 P. C. 11). The plaintiffs are therefore entitled to a partition of their shares of the lands sold by their mother. It is, however, contended by Mr. Ramachandra Rao, the learned counsel for the alienees, here appellants, that the plaintiffs are bound to restore or make compensation for, the benefit received by them from the predecessor-in-title of defendants l to 4, the benefit consisting in the discharge of their father's debts, particularly the mortgage debt, EX. D-4, for Rs. 4500 which sum, with subsequent interest, was charged on the suit lands. He relies on the provisions ofSection 41, Specific Relief Act, and on certain decisions of this Court in support of his contention, Mr. Poeker, tha learned counsel for the plaintiffs, who are respondents, contends that the sale, Ex. D-1, was wholly void and unenforceable and that the plaintiffs are therefore entitled to an unconditional decree for partition and possession of the lands, leaving defendants 1 to 4 to enforce their rights as creditors or mortgagees in a separate suit of their own. He maintains that it is only where a person who is sui juris seeks to set aside a sale to which he was a party on some ground rendering it voidable at his option, thatSection 41applies. He argues that the section has no application to a case where a sale is wholly void as being a sale of the minor's property effected by an un-

authorised guardian, a stranger to the minors in the eye of the law, though in fact their own mother. It was also contended that the present suit was not one for cancellation of the sale deed executed by the mother of tha plaintiffs, but one ignoring the sale as a nullity and treating the vendee as a trespasser for recovery of possession.Section 41, Specific Relief Act was, according to him, inapplicable to the present case.3.Section 41, Specific Relief Act, is in these
terms :''On adjudging the cancellation  of an  instrument,
the Court may require a party to whom such relief is granted to make any compensation to the other which justice may require."The language of the section is very wide and :givea a large discretion to tha Court to make an crder for compensation if the ends of justice require such compensation to be awarded where the Court adjudges that a deed is void. This section has been the subject of repeated judicial interpretation in several decisions of this Court and the other High Courts, We shall refer in detail only to the recent decisions of this Court.4.InRaghavayya v. Subbayya, 7 M. L. W. 124 : (A. I. R. (6) 1919 Mad. 1129), Coutts-Trot-ter and Seshagiri Aiyar JJ. held that a plaintiff seeking to recover possession of property con-veyed by him during his minority was entitled to a decree, subject, however, to repayment of the price by way of compensation to the disap-pointed vendee. Saction 41,Specific Relief Act, was relied upon by the learned Judges in support of this conclusion.InVenkataramayya v. Punnayya, 23 M. L. W. 521: (A. I. R. (13) 1926 Mad. 607), Reilly J., held that a minor who, representing himself to be a major, executed a sale deed of his property and who, on attaining majority seeks a declaration of its invalidity, could be directed to repay the consideration paid to him by the disappointed vendee, in the exercise of the Court's power underSection 41, Specific Relief Act. The learned Judge held that this power could be exercised even though the sale was not effected for any necessity or benefit of the minor and irrespective of the way in which the purchase money was applied. Whether the rule so broadly stated is in consonance with authority and the language ofSection 41, Specific Relief Act, it is not necessary for us to deter-mine, for, in this case, the purchase money, or at any rate the bulk of it, went to satisfy debts binding on the minor's estate.Abdul Majid v. Ramiza Bibi, A. I. R.(18) 1931 Mad. 463 : 83 M. L. W. 312, decided by Madhavan Nair J., arose out of a suit by Muhammadans for recovery of property alienated by their mother as their guardian during their minority. The alienation was, of course, void, but the plaintiffs were

given a decree for possession on condition that they should refund the amount by which they and their estate were benefited. The learned Judge, after observing that relief by way of compensation would be granted only if justice required it, concluded as follows :"The minors' estate was benefited by the use of the purchase money obtained from the vendee and so it is equitable when the transaction is set aside as regards their share, that they should pay the proportionate amount of the purchase money."The learned Judge relied uponSection 41, Specific Relief Act, in support of his conclusion.Rahima Bee v. Mannan Bee, A. I. R.(23) 1936 Mad. 140: (161 I. C. 522) decided by Wadsworth J. was again a case of alienation of a Muhammadan minor's property by her mother for the purpose of discharging a liability which arose in connection with the management of the minor's estate. The learned Judge followed the decision of Madhavan Nair J., above cited, and held that the Court was empowered underSection 41, Specific Relief Act, to require the minor plaintiff to surrender tha benefit which had been obtained for the minor as a result of the impugned sale. The learned Judge was also inalined to the view that in such a case the plaintiff should not be allowed both to approbate and to reprobate, to get the benefit of this transaction and at the same time treat it as void. In view of the well established right of tha minor to avoid a transfer of propetty executed by him while he was a minor, it is difficult to see how the doctrine of "approbate and reprobate" could apply to the case. We would prefer to rest our conclusion on the language ofSection 41, Specific Relief Act and not on the doc-trine of "approbate and reprobate".In Hanu-mantharao v. Sitaramayya, 1939-2 M. L. J. 195 : (A. I. R. (26) 1939 Mad. 106) before Madhavan Nair O. C. J. and Kriahnaswami Aiyangar J., a minor who had sold his properties without any misrepresentation as to his age, to pur-chasers who were not aware of his minority, sued to recover the properties sold by him. The Court upheld the right of the minor to recover possession of the properties, the sales being void, but on condition of the plaintiff refunding to the several purchasers the amounts of consideration received from them. The learned Judges held that :"The statutory disoretion vested in the Courts of this country bySection 41is of a wider amplitude than the corresponding rule of equity administered in England, where there is no saoh statutory counter part. That disoretion is, of course, not to be arbitrary, but sound and reasonable and guided by well settled judicial principles. But once it is found that the requirements of the section are satisfied and there exist circumstances which call for the exercise of the dieotetion, the Court is bound to afford relief without being hampered by

reference to the limitations which surround the corresponding rule of equity as administered "elsewhere."5. The other High Courts have also taken the same view. In Rang Ilahi v. Mahbub Ilahi, 7 Lah. 35 : (A. I. R. (13) 1926 Lah. 170), the Lahore High Court decreed a suit by Muhamma-dan minors for possession of their property usufructuarily mortgaged by their mother as guardian on condition of their paying compensation to the mortgagee. The Bombay High Court has alao held that in setting aside a sale made on behalf of a minor by his unauthorised guardian, the Court may, underSection 41, Specific Relief Act, make it a condition that the minor should refund the amount by which the estate and himself were benefited. Dattaram v. Vina-yak, 28 Bom. 181: (5 Bom.L. R. 916);Limbaji Baoji v. Rahi Raoji, A. I. R.(12) 1925 Bom. 499: (49 Bom. 576).See alsoJagar Nath Singh v. Lalta Prasad, 31 ALL. 21: (1 I. C. 704).6. Mr. Pocker, for the respondent, argues that it was not obligatory upon his clients to have the sale-deed executed by their mother set aside and that his suit was merely one for possession, ignoring the sale. He relied on a decision of the Judicial Committee and two decisions of this Court which will presently be examined.Section 39, Specific Relief Act, empowers the Court to adjudge a written instrument void and order its cancellation at the instance of a party who may be injured by the instrument, if left outstanding. That the person seeking cancella-tion need not himself be a party to the instrument is shown by illustrations (b) and (c) toSection 39. Whether a minor executes a sale him-self or whether an unauthorised guardian exe-cutes a sale-deed on his behalf, the result under the Muhammadan law would be the same. The sale would be void for the reason that the person professing to sell had not the legal com-petency to bring about a valid sale. The decision of the Judicial Committee in Mohiri Bibi v. Dhurmadas Ghose, 30 Cal. 539: (80 I. A. 114 P. C.) relied upon by the respondent, is itself an authority against him on this point. Dealing with the question of a claim for compensation by a mortgagee from a minor in a suit for cancellation of the mortgage, the Judicial Committee after referring toSections 38and41, Specific Relief Act, observed :"These sections, no doubt, do give a discretion to the Court; but the Court of first instance, and subsequently the appellate Court, in the exercise of such discretion, came to the conclusion that under the cir-cumstances of this case, justice did not require them to order the return by the respondent of money advanced to him with full knowledge of his infancy, and their Lordships see no reason for interfering with the discretion so exercised."These observations of the Judicial Committee have been applied by the Courts in India and

compensation to disappointed alienees from minors or unauthorised guardians of minors purporting to act on their behalf, has been awarded in suits by the minors for recovery of possession of the property alienated. It is true that the Judicial Committee in rejecting the claim for compensation in that case also relied on the following passage from the judgment of Romer L. J. in Thurston v. Nottingham etc. Building Society, (1902) 1 Ch. 1 at p. 13:"The short answer is that a Court of equity cannot say that it is equitable to compel a person to pay any money in respect of a transaction which, as against that person, the Legislature has declared to be void."This observation was based not with reference to the power of the Court to award compensation underSection 41, Specific Relief Act, but with reference to the exercise of their general equitable jurisdiction by Courts. That the rules adopted by the English Courts in the matter of restitution or prevention of unjust enrichment of one party at the expense of another do not rest where they were left in 1902, but have been liberalised by the genius of the common law, that is to say, by the learned Judges of the English Courts interpreting and expounding the common law, would be apparent from a per-usal of the latest decision of the House of Lords in Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Basbonse, Ltd. 1948 A. C. 32:(111 L.J. K. B. 433). We are not bound to follow the dic-tum of Romer L. J., cited by the Judicial Committee in preference to the clear statutory provision in Section 41, Specific Relief Act, which authorises the award of compensation even where an English Court of Equity functioning in the year 1900 might not have awarded it.7. Mr. Pocker placed strong reliance on two decisions of this Court, one Wadsworth J. inKunhibi v. Kalliani Ammal, 1989-2 M. L. J. 463: (A. I. R. (26) 1989 Mad.881 and the other of Gentle C. J, and Horwill J. in Ramachan-drayya Naidu v. Abdul Kader, 1946-2-M. L. J. 100 : (A. I. R. (35) 1948 Mad. 37). In both these cases, the suit was filed by the mortgagee of a Muhammadan minor's property to enforce a mortgage executed by the minor's de facto guardian.The mortgage was clearly void on the authority ofImambandi v. Mutsaddi, 45 Cal. 878: (A. I. R. (5) 1918 P. C. 11) and this Court held that the mortgagee's suit should be dismissed even though the mortgage loan might have been taken to pay a debt binding on the minor.The reason for this conclusion was thus stated by Wadsworth J., inKunhibi v. Kalliani Ammal, 1939-2 M. L. J. 463: (A. I. R. (26) 1939 Mad. 881):"A minor whose property has been made subject to a void mortgage by an unauthorised person is entitled to ignore that mortgage and the mortgagee is

entitled to claim no benefit thereunder in law as against the minor. To hold that the minor as defendant to a suit on a void mortgage is bound to pray for its cancellation and to restore the benefit received, would be to give to the mortgagee a right to enforce his void contract by compelling the minor to pray for cancellation; that is to say, the person who has entered into a void contract with some person not authorised to bind the minor, would be given a weapon whereby he could force the minor to honour the contract in part."The decision of the Division Bench cited above does not contain any independent reasons and purports to follow the decision of Wadsworth J. It seems to us that there is a  distinction  between a case where a creditor sues to enforce the liability of a minor on  a mortgage executed by the minor himself or by an unauthorised guardian professing to act on his behalf, and a case where the minor himself sues to recover possession of property sold by him or by his de facto guardian, treating the sale as void. To decree the suit of the creditor against the mortgaged property or  the minor's estate would be to enforce the term3 of the very contract which Rule 11,Contract Act, has declared to be void and unenforceable. In   a case where a minor as plaintiff sues to recover possession of property sold by him or by his unauthorised guardian professing to act on  his behalf, he seeks an  adjudication  that the sale is void. Without such an adjudication,  a decree for possession in favour of the minor could not be made. It is true that it is not necessary for the minor to sue to set aside the sale within the period of three years limited byArticle 91orArticle 44,Limitation Act. At the same  time, an adjudication by the Court that the sale is void as against the minor is the foundation of a decree for possession in his favour. It is here that Section 41, Specific Eelief Act, comes into play and invests the  Court  with  a  discretionary power to direct payment of compensation. The position of a minor defendant using his minority as a shield against a creditor or a mortgagee is differentiated in the decisions from his position as a plaintiff using his minority as a weapon of attack. We need not resolve the doubt that has been expressed in some of the decisions of this and  other High Courts whether the principle ofSection 41, Specific Relief Act, would not apply also to a case where the minor is a defendant; see Ajudhia Prasad v. Chan-den Lal, I. L. R. (1937) ALL. 860: (A. I. R.  (24) 1937 ALL. 610 F.B.) (which says it would); Khangul v. Lakha Singh, 9 Lah. 701: (A. I. R.  (15) 1928 Lah. 609 F.B.)  and Hanumantharao v. Sitharamayya, 1939-2-M. L. J.  195:  (A. I. R. (26) 1939  Mad.  106)  (which poses the question but does not answer it).  In the present case, it is the minor that comes into Couct as a

plaintiff and the maxim  that he who seeks equity must do equity clearly applies.8. For these reasons we hold that both on authority and the language  ofSection 41, Specific Relief Act, we have power to award compensa-tion if we consider it just and equitable to do so in the circumstances of this ease. The following facts are relevant in this connection. These was a mortgage liability  on  the estate created under EX.  D. 3  by the co-sharers as well as the father of the minors.  The minor's took the property only  subject  to this mortgage. The minor's mother, who was a shares herself, acting on her behalf and on behalf of her minor children as well as the co-sharers of the minor's deceased father, executed Ex. D. 4 in renewal of Ex. D. 3 and discharged Ex. D. 6 by the sale-deed, Ex. D. 1. Clearly the minors have been benefited   by  the discharge of the liability of their estate for their father's debt. Further, a decree debt against the father of the minors has also been discharged out of the money borrowed under Ex. D. 4. All the sharers besides the minor's mother joined in the execution of the sale-deed, EX. D. 1, as a propel and reasonable  arrangement for the discharge of their debts.InAyderman Kutti v. Syed Ali, 37 Mad.  614: (A. I. R. (1) 1914 Mad.495) this Court had upheld the right of the de facto guardian of a Muhammadan minor to alienate the minor's estate if the transaction must, from its very nature, be beneficial to the minor or if there was urgent and  imperative necessity, In  1918 the Judicial Committee   upset   this view inImambandi v. Mutsaddi, 45 Cal. 878: (A. I. R. (5) 1918 P. c. 11). There is no Sugges-tion here of any want of bona fides on the part of the vendors or the purchasers or of the price being inadequate. We consider therefore that the plaintiffs must be required to pay defendants 1 to 4 a fraction of the debts binding on the estate of their deceased father which have been discharged as a result of the sale under EX. D. 1, the fraction being proportionate to their fractional share of the whole estate. The result is that in addition to the sum of Rs. 400 which the plaintiffs have been directed to pay by the judgment of the lower Court they would have to pay defendants 1 to 4 a further sum of Rs. 1026-11-6 as a condition of their   recovering    possession   of   their   share of the  property. Having regard to the fact that the plaintiffs are found liable to pay com-pensation to defendants 1 to 4  and they have not paid such compensation so far, we think that the most workable order that could be made under the circumstances will be that there would be no liability on the part of the plaintiffs to pay interest to the defendants, and no

liability on the part of the defendants to account for any mesne profits to the plaintiffs till the date of this judgment. Interest at six per cent. per annum on the sum awarded to defendants 1 to 4 from this date will have to be paid, and defendants 1 to 4 will have to account for mesne profits in respect of the share of the properties now decreed to the plaintiffs from this date at the rate found by the Court below.9. Having regard to the fact that defen-dants 1 to 4 have in their memorandum of appeal resisted the claim of the plaintiffs to possession of their share of the property alienated by their mother, we think that there should be no order as to costs in this appeal.