The plaintiffs are the appellants. The parties to this second appeal are Muhammadans. The suit out of which this second appeal arises was instituted by the plaintiffs to set aside an alienation of property made by their mother, the 1st defendant during their minority. They also sued for partition of the property,? going to themselves and? to their mother. The alienation is evidenced by Ex. VI and the consideration for it was Rs. 1,430. The alienee, the 2nd defendant, contended that she paid the full consideration for Ex. VI, that the money was utilised to pay off the plaintiffs' deceased father's debts binding on the estate and that she also effected improvements of the property from the date of her purchase. The lower Courts held that the alienation was invalid “as it was made by the mother of Muhammadan minors” and gave a decree to the plaintiffs for? share of the properties but the recovery of the share was made conditional on the plaintiffs depositing in Court I share of Rs. 1,430 that is, Rs. 1,251-4-0. The plaintiffs were also directed to pay Rs. 750, the value of the improvements effected on the property.
In second appeal it is not argued that the alienation is valid nor is it seriously argued that the plaintiffs are not bound to pay the value of the improvements; what is strongly contended is that the lower Courts should not have directed the plaintiffs to refund to the alienee the proportionate amount of the purchase money in respect of their shares of the property.
It is settled law as laid down by their Lordships of the Privy Council in Imambandi v. Mutsaddi (1), that a Muhammadan mother has no power to alienate the property of her minor sons. The sale of the suit property by the 1st defendant in favour of the 2nd defendant is therefore absolutely void. It is argued for the appellants that when a transaction is void, the person in whose favour it has been declared to be void is not bound to refund any moneys in respect of that transaction; and strong reliance in support of this proposition is placed on the ruling of the Privy Council in Mohori Bibee v. Dharmodas Ghose (2) in which it was held that a contract by a minor such as a mortgage is void and a money-lender who has advanced money to a minor on the security of the mortgage is not entitled to repayment of the money on a decree being made declaring the mortgage invalid. It is true that their Lordships held relying on Thurstan v. Nottingham Permanent Benefit Building Society affirmed by the House of Lords in Nottingham Permanent Benefit Building Society v. Thurstan that
“a Court of Equity cannot say that it is equitable to compel a person to pay any moneys in respect of a transaction which, as against that person, the Legislature has declared to be void;”
but at the same time it is clear from that judgment that in a proper case having regard to Sect. 41 of the Specific Relief Act the Court may in adjudging the cancellation of an instrument require the party to whom such relief is granted to make compensation to the other which justice may require. The following observations of their Lordships are relevant in this connection:—
“Another enactment relied upon as a reason why the mortgage money should be returned, is Sect. 41 of the Specific Relief Act (1 of 1877) which is as follows:”—
“Sect. 41. On adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require.”
“Sect. 38 provides in similar terms for a case of rescission of contract. These sections no doubt 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 circumstances 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.”
In my opinion the decision of the Privy Council is an authority for the proposition that, though a transaction is declared to be void, the Court may under Sect. 41 of the Specific Relief Act require the party to whom relief is granted to make compensation to the other party which justice may require. In the case before them their Lordships declined to exercise the discretion in favour of the mortgagee as they agreed on that point with the Calcutta High Court which held that the circumstances of the case did not call for the exercise of any such discretion. On the authority of this decision it was held in Rang Ilahi v. Mahbub Ilahi that in setting aside the mortgage made by a Muhammadan mother who had no power to alienate the property of her minor son, the Court had discretionary power under Sect. 41 of the Specific Relief Act to make it a condition that the minors should refund the amount by which the estate and themselves were benefited. This decision is very similar to the present case. In the present case also, the minor plaintiffs have been benefited as the debts binding on their father's estate were paid off by the sale of the property. In support of their conclusion the learned Judges of the Lahore High Court, relied also on two decisions of the Bombay High Court, Dattaram v. Vinayak and Limbaji Ravji v. Rahi , which held that in setting aside a sale made on behalf of a minor by an unauthorised person, the Court may under Sect. 41 of the Specific Relief Act make it a condition that the minor should refund the amount by which his estate and himself were benefited. The decision of the Privy Council in Mohori Bibee v. Dharmodas Ghose is relied on in all these cases in support of their conclusions by the learned Judges.
Besides the decision in Mohori Bibee v. Dharmodas Ghose which, as I have shown, does not altogether preclude the repayment of moneys advanced for a transaction when it is declared to be void, the learned Counsel for the appellants relied also on the decisions in M. Guruswamy Pantulu v. Budhkaru Lall Khajanchee (6), Khair Din v. Shah Muhammad (7) and Baluswami Aiyar v. Lakshmana Aiyar (8). As I shall show presently none of these decisions supports him to any extent. In Manimathu Udayan v. Ramaiengar the present question arose for decision; but the learned Judges, Sankaran Nair and Tyabji, JJ., for different reasons thought it was unnecessary to decide it and the question was therefore left open. In Guruswamy Pantulu v. Lall Khajanchee , it was held that a minor mortgagor who enters into a transaction misrepresenting his age is under no equitable obligation to refund the money when the transaction turns out to be void. The judgment of the High Court is a very short one; but the judgment appealed against makes it clear that there was in that case no room for applying Sect. 41 of the Specific Relief Act for the circumstances of the case showed that the mortgagee “was aware that the 2nd defendant (the mortgagor) was a minor and took documents which accompanied the mortgage for purposes of throwing a favorable colour on the transactions.” In Doulatuddin v. Dhaniram Chhutia the learned Judges declined to apply Sects. 38 and 41 of the Specific Relief Act because as they pointed out there was “neither cancellation of any documents nor rescission of a contract.” In that case the suit by the plaintiff was for compelling the defendant to execute a sale-deed in respect of certain properties. If this is not a well-founded distinction, I think the decision would be contrary to the decision of the Privy Council in Mohori Bibee v. Dharmodas Ghose . In this connection it is interesting to note that refund of a proportionate amount of the purchase money was ordered by the Calcutta High Court in Laloo Karikar v. Jagat Chandra Saha when the transaction in question was set aside as void. In that case a Muhammadan died leaving his widow and infant children. He had debts, and to satisfy the decree obtained by one of the creditors against some of the heirs the widow acting on her own behalf and on behalf of her children sold a certain property and made over delivery of possession. The children on attaining majority sued jointly with the widow to recover possession of the property on a declaration of title. The alienation except as regards the share of the mother was set aside as the mother had no power under Muhammadan Law to alienate. The learned Judges held that the
“decree for possession in favour of the plaintiffs should be conditional on repayment of a proportionate share of the ancestral debts payable out of the assets left by the original debtor and each heir who was competent to sell her own share and cannot subsequently ignore her act was liable to satisfy the debt to the extent of the assets in her share”. (See the head-note).
In the judgment, no reference is made to Sect. 41 of the Specific Relief Act. The learned Judges proceeded upon the general principle that
“the essence of the matter is that each of the heirs is liable to satisfy the debt to the extent of the assets in his share”.
It is obvious that this will be an important consideration for applying Sect. 41 of the Specific Relief Act as under it relief by way of compensation will be granted, only if justice requires it. The decision in Laloo Karikar v. Jagot Chandra Saha was followed in Jhanda v. Sapuram Singh an exactly similar case. The decision in Khair Din v. Shah Muhammad does not help the appellants as in that case equitable relief was not granted to the vendee because the minors were not benefited in any way by the transaction and on this ground the case was distinguished from the decision in Rang Ilahi v. Mahub Ilahi relied on by the respondents. The last case relied on by the appellants was Baluswami Aiyar v. Lakshmana Aiyar in which it was held that
“where a managing member of a joint Hindu family for purposes not binding upon the other co-parceners and without their concurrence agrees to convey a specific item of property the purchaser cannot enforce specific performance of the entire contract; but Courts will grant specific performance by a conveyance of the share which the vendor had in the property at the date of the contract if the purchaser elects to pay the entire consideration”.
On the strength of that decision it is argued that in this case since the vendee has got the mother's share of the property she should be content to retain it for the whole of the purchase money. That decision clearly has no application to the facts of the present case. It turned upon the provisions of Sects. 15 and 17 of the Specific Relief Act and related to an executory contract whereas in the present case, we are dealing with an executed contract. In considering the rights of parties in respect of a conveyance which has been perfected, principles and equities different from those applicable to cases which rest on an executory contract will have to be applied; and this appears to be clear from the Judgment of Kumaraswami Sastriar, J., in Baluswami Aiyar v. Lakshmana Aiyar . In the present case the vendee is not seeking to enforce specific performance of any contract. She is only contending that since the transaction is declared to be void compensation should be paid to her to the extent it has been set aside. Whether she should be compensated would depend upon the circumstances of the particular case.
In the present case, both the lower Courts have found that 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 a proportionate amount of the purchase money on the principle of the decision in Mohori Bibee v. Dharmodas Ghose and as was decided in the various cases referred to above. In my opinion the decisions of the lower Courts are right and this Second Appeal should be dismissed with costs. I may state that this judgment will not affect the amendment made in the lower Court's decree subsequent to the filing of the Second Appeal.
N.R.RAppeal dismissed.