Vemana Venkama Naidu and Others vs Sayed Vilijan Chisty and Others

Viswanatha Sastri, J.—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.

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; See Imambandi v. Mutsaddi, 45 Cal. 878 : A. I. R. 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 of Section 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, that Section 41 applies. 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.

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.

In Raghavayya v. Subbayya, 7 M. L. W. 124 : A. I. R.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.

In (Koduri) Venkataramayya Vs. (Thumulluri) Punnayya, , 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 u/s 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 of Section 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.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 upon Section 41, Specific Relief Act, in support of his conclusion. Rahima Bee Vs. Amathul Mannan Bee and Others,

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 u/s 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 of Section 41, Specific Relief Act and

not on the doc-trine of ""approbate and reprobate"". In Bhattiprole Hanumantha Rao Vs. Kodrakota Sitharamayya and Others, 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 by Section 41 is 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.

The other High Courts have also taken the same view. In Rang Ilahi v. Mahbub Ilahi, 7 Lah. 35 : A. I. R. 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, u/s 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 Ravji Hajare Vs. Rahi Ravji Hajare, . See also Jagar

Nath Singh v. Lalta Prasad, 31 ALL. 21: 1 I. C. 704.

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) to Section 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 to Sections 38 and 41, 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

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 u/s 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.

Mr. Pocker placed strong reliance on two decisions of this Court, one Wadsworth J. in Kunhibi v. Kalliani Ammal, 1989-2 M. L. J. 463: A. I.

R. 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. 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 of Imambandi v. Mutsaddi, 45 Cal. 878: A. I. R. 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., in Kunhibi alias Beebi Umma Vs. Kalliani Amma and Others, :

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 by Article 91 or Article 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 of Section 41, Specific Relief Act, would not apply also to a case where the minor is

a defendant; see Ajudhia Prasad and Another Vs. Chandan Lal and Another (which says it would); Khangul v. Lakha Singh, 9 Lah. 701: A. I. R.

1928 Lah. 609 and Bhattiprole Hanumantha Rao Vs. Kodrakota Sitharamayya and Others, (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.

For these reasons we hold that both on authority and the language of Section 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. In Ayderman Kutti v. Syed Ali, 37 Mad. 614:

A. I. R. 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 in Imambandi v. Mutsaddi, 45 Cal. 878: A. I. R. 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.

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.