Norman Macleod, Kt., C.J.
1. the plaintiff filed this suit to recover possession of the plaint land which had belonged to his father, and had been mortgagee, by him to one Tatya Dada. On his father's death the plaintiff, then a minor, came under the protection of his step-mother. She redeemed the mortgage and sold the land to the father of defendants Nos. 2 and 3 who in his turn sold it to defendant No. 4. Plaintiff claimed that his step-mother had no authority to dispose of his property.
2. Defendant No. 4, who alone contested the suit, pleaded that the step-mother was the guardian of the plaintiff during his minority, that the lands were sold for legal necessity to pay off the mortgage and provide for the marriage expenses of the plaintiff, and consequently the sale was binding on the plaintiff. If it was held to be not binding, the defendant should be awarded Rs. 800 the consideration for the sale deed and Rs. 100 spent by him on improvements. The trial Judge held that the stepmother was not the natural guardian of the minor, that the stile deed was effected for legal necessity, that Rs. 100 had not been spent on improvements, that the suit was in time, and on those findings dismissed the suit with costs. In appeal the only issue argued was whether the sale was for the minor's benefit. The District Judge found the issue in the affirmative and dismissed the appeal with costs. We are of opinion that As the sale was by an unauthorised person the plaintiff was entitled to have it set aside.
3. The issue whether the sale was for legal necessity was irrelevant. But then the question arises whether the plaintiff should recover the property without restoring to the present purchaser the benefit which had accrued to him by the sale effected by his step-mother.
4. We have been referred to as. 64 and 65 of the Indian Contract. Act, and it has been argued that on the analogy of those sections a minor who seeks to avoid a sale of his property by some one who had no power to sell must restore any benefit he has received from the unauthorised sale. But when a contract is void ab initio as in this case, those sections are not applicable. There is the following passage to the notes under Section 64 in the latest edition of Pollock and Mulla at p. 355: 'It does not follow however that a minor is entitled to both repudiate his agreement and to retain specific property which he has acquired under it, or to recover money after receiving for it value which cannot be restored. General principles of equity seem incompatible with such a result and it would certainly be contrary to English authority.' But in one of those authorities, Nottingham, Building Society v. Thurstan  A.C. 6 it was held by the House of Lords, approving the decision of the Court of Appeal, that the mortgage by the female in fact was void under the Infants Relief Act and that the Society was not entitled to any repayment of the advances made to her Lord Roiner L. J in the Court of Appeal said 'the abort answer is, that a Court of Equity cannot say 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.'
5. When, however, the sale or mortgage which a minor seeks to avoid on corning of age has been made by some one who was prima facie entitled to bind the minor, he is bound to refund the purchase-money when his estate has benefited by it, or to hold the property charged with the amount of the debt from which it has been freed by the sale. Mayne, 9th Ed., Section 220 and the authorities there cited. But the step-mother of the minor cannot be said to be a person prima, facie entitled to bind him; and her transaction with the minor's property was not voidable but void.
6. In Mohori Bibee v. Dharmodas Ghost (1903) I.L.R. 30 Cal. 539 it was held by the Privy Council that a minor was incompetent to contract on the true construction of the Indian Contract Act, so that a mortgage made by a minor was void. The general current of decisions in India had been that the contracts of infants were voidable only. Their lordships then considered whether the minor on avoiding the mortgage should be ordered to refund the mortgage money in the following passage at p. 549: 'Another enactment relied upon as a reason why the mortgage money should be returnedis Section 41 of the Specific Relief Act (I of 1877), which is as follows:- 'Section 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'. Section 38 provides in similar terms for a case of rescission of a contract. 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 circumstances of the case justice did not require them to order the return by the respondent of money advanceed to him with fall knowledge of his infancy, and their Lordships see no reason for interfering with the discretion so exercised.'
7. In Nathu v. Balwantrao (1903) I.L.R. 27 Bom. 390 a Hindu mother, while her adopted son was a minor and had a guardian of his property appointed to him by the Court, alienated some of the minor's property, treating it as her own. At the instance of the minor on attaining majority the sale was set aside and though it was proved that the purchase money had been applied by the mother in payment of debts for which the plaintiff was liable, the Court refused to order him to refund the purchase money to the defendant, Chanclavarkar J. referred to Ram Tuhul Sing v, BiseBwar Lall Sahoo where their lordships said: 'It is not in every case in which a man has benefited by the money of another that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality. To support such a suit there must be an obligation, express or implied, to repay.' But the Specific Relief Act had not been enacted when that case was decided, and it was not referred to in Mohori Bibee v. Dharmodas Ghose.
8. In Dattaram v. Vinayak I.L.R(1908) . 28 Bom. 181 it was held that the administrator of a minor, appointed under Act XX of 1864, could not sell immoveable property held by the minor as a mortgagee in possession without the previous sanction of the Court, But on the question whether the minor on avoiding the transaction should restore the benefit accruing to him thereunder, Chandavarkar J. referred to the decision in Mahori Bibee v. Dharmodas Ghose as an authority for the proposition that the circumstances of a case may be such that having regard to Section 41 of the Specific Relief Act the Court may on adjudging the cancellation of an instrument require the party to whom such relief is granted to make any compensation to the other which justice may require, We think, therefore, that we have a discretion in this cane when setting aside the sale of the suit property to make it a condition that the plaintiff should refund Rs. 800 which is the amount by which his estate and himself were benefited. The plaintiff would have been responsible on his coming of age for the repayment of the mortgage debt and ha has certainly benefited by the amount spent by his step-mother on his marriage. It was not unnatural that his step-mother should have thought that she was entitled to act as she did in his interest, and she could not have been expected to know that she ought to have applied to the District Court, for the appointment of a guardian. If she had made the application she would have had to pay the costs out of the minor's estate. Therefore in the exercise of our discretion _we impose on the plaintiff as the condition on which he is entitled to recover the suit property from the defendant that he should refund Rs. 800 within two mouths after the record reaches the trial Court. The appeal is allowed and a decree will be issued in terms of our judgment. In the circumstances of the case there will be no order as to costs throughout.
9. I agree.