P. Chandra Reddy, C.J.
1. This second appeal has been referred to a Bench, under the impression that there is a conflict between Vainkuntarama Pillai v. Athimoolam Chettiar, JLR 38 Mad 1071: (AIR 1914 Mad 641 (2)) (A) and Hanumantha Rao v. Sitharamayya, ILR 1939 Mad 203: (AIR 19-39 Mad 106) (B).
2. The facts leading up to this litigation may be briefly set out. The father of the respondent (1st defendant) executed two promissory notes, Exs. A-1 and A-2 dated 19-5-1939 and 20-10-1939 respectively. On his death, his widow, i.e., the mother of the 1st defendant, renewed these two promissory notes by Exs. A-3 and A-5 elated 17-5-1942 and 20-8-1942 respectively as the minor's guardian
In 1945 the maternal grandfather of the 1st defendant renewed them again by Exs. A-4 and A-6 dated 16-5-1945 and 9-8-1945 respectively. A consolidated promissory note (Ex. A-7) was obtained by the plaintiff from the 1st defendant (i.e. the respondent) on 15-5-1948, in renewal of the prior promissory notes. On the foot of this promissory note a suit was instituted by the appellant in the Court of the District Munsif of Gurazala. One of the defences to the suit was that as the promissory note was executed by the 1st defendant while he was a minor, it was not enforceable against him.
The appellant filed a rejoinder stating that the 1st defendant represented himself to ho over 21 yean of age and executed Ex. A-7 in his favour. The trial Court dismissed the suit upholding the first defendant's objection. It also found that the story of the plaintiff that a misrepresentation was made to him was not true. On appeal, the dismissal of the suit was confirmed. This second appeal is by the aggrieved plaintiff against the judgment of the Subordinate Judge, Narasaraopeta.
3. In support of this appeal it is argued with great insistence by Sri N. Subramanyam that not Saving found that his client had known that the executant of the promissory note was a minor, the Courts below ought to have directed the minor to refund the .advantage he had received, on editable considerations. He also arsues that ILR 38 Mad 1071: (AIR 5914 Mad 641 (2) (A) is in conflict with ILR 1939 Mad 203 :(AIR 1939 Mad 106) (B) and that the latter case supports the proposition that a Court has discretion to award compensation on the principle of Section 41 of the Specific Relief Ret.
4. We do not think there is any substance in this argument. ILR 1939 Mad 203: (AIR 1939 Mad 106) (B) concerned a suit by a person to set aside a number of sale deeds executed by him during his minority and to recover the properties sold together with mesne profits, etc. A decree for possession was made on condition that he refunded to the various alienees the amounts of price received from them. It was held that Section 41 of the Specific Relief Act vested wide discretion in a Court and that the Court would afford relief when the requirements of that section were satisfied and circumstances warranting the exercise of the discretion existed. The learned Judges did not purport to decide whether a promissory note executed by a minor could form the basis of a suit against him. The passage that has given room for the argument of conflict between that decision and ILR 38 Mad 1071: (AIR 1914 Mad 641 (21) (A) is as follows:
'Holding as we do that the learned Subordinate Judge had power under Section 41 of the Specific Relief Act to order a refund of the consideration received by the appellant, it still remains for us to consider whether the power was properly exercised on the facts found in the present case. It is settled law that where an alienee chose to advance money to a minor with knowledge of the minority, it would be improper to order a refund.
It is equally settled that where an innocent purchaser or alienee was induced to part with money to a minor by a misrepresentation as to his age, an order for refund would be made almost as a matter of course. Where, however, there is neither knowledge of minority on the part of the alienee, nor misrepresentation on the part of the minor, the answer is not quite so easy. Cases of this type have been somewhat rare, for our attention has not been drawn to any decisions other than those in M. Raghavayya v. M. Subbayya, 7 Mad LW 124: (AIR 1919 Mad 1129) (C) and ILR 38 Mad 1071: (AIR 1914 Mad 641 (2)) (A).
The appellant's argument is that no order for refund could be made against a minor except when the money was paid to him as result of fraud practised upon, or a fraudulent misrepresentation made to, the person who was hereby induced to part with the money. There ace no doubt dicta in ILR 38 Mad 1071: (AIR 1914 Mad 641 (2)) (A) which seem to lend colour to such an argument, but we must on this point again be guided by the clear pronouncement contained in the latter case :
'Reference may finally be made to an argument of the respondent's advocate that the observations in ILR 38 Mad 1071: (AIR 1914 Mad 641 ,2)) (A) are explicable on the footing that the minor in that case was a defendant. According to him, Section 41 is framed so as to afford relief only in a case where the minor himself as plaintiff seeks the assistance of the Court and the section is inapplicable if he happens to be merely a defendant in a suit by the person who dealt with him when he was a minor. On the soundness; of this argument it is unnecessary to express a final opinion as in this case the minor has come into Court as plaintiff seeking the assistance of the Court as such.'
5. It is thus seen that no principle can be extracted from this judgment which is in conflict with ILR 38 Mad 1071: (AIR 19]4 Mad 641 (2)) (A). (61 ILR 38 Mad 1071: (AIR 1914 Mad 641 (2)1 (At laid clown that where money was obtained by al minor misrepresenting his age, that amounted to a fraud and he might be made to refund it, but, in the absence of fraud, a refund could not be ordered. In that case it was held that as there was no fraud or misrepresentation by the minor as to his age when ho borrowed money on the mortgage, he could not be directed to return the money he had obtained by executing the mortgage. In our opinion, the principle embodied in ILR 38 Mad 1071: (AIR 1914 Mad 641 (2)) (A) is a correct one. if we may say so with respect, and still holds the field.
7. Under the Indian Contract Act, a contract entered into by a minor is void and cannot be enforced against him since a minor has no capacity to make contracts.
8. Next, Mr. Snbramanyam seeks support for his proposition in 7 Mad LW 124: (AIR 1919 Mad 1129) (C) That again is a case under Section 41 of the Specific Relief Act and far from rendering him any support, furnishes an answer to the proposition stated by Mr. Subrahmanyam. It is remarked by Coutts-Trotter, I, that in India there is a statutory right to impose conditions by Section 41 of the Specific Relief Act and that this right was recognised by the Privy Council in Mohori Bibee v. Dhurmodas Chouse, ILR 30 Cal 539 (PC) (D).
It is specifically pointed out by the other learned Judge, Seshagiri Aiyar, J., that 'if relief is claimed on general equitable grounds apart from the statute, such a claim is inadmissible.' In other words, apart from the rule stated in Section 41 of the Specific Relief Act, there is no provision of law under which relief I could be claimed against a minor on the basis of contracts entered into by him. Further Seshagiri Aiyar J., has extracted portions of the judgment of Lord Sumner in Leslie Ltd. v. Sheill, 1914-3 KB 607 (E):
'......there is no case in which I can find that a Court of Equity has given judgment against an infant in circumstances like the present, that is to say, in which it has interfered on the ground of the fraud of the infant, whereby he induced the making of the contract of loan, to order the infant to pay the plaintiff a sum equal to the sum borrowed under the void contract, and so, in effect, to the amount of the principal lent, to give validity as against the infant to a void contract.
The learned Judge has also observed that this decision was accepted as good law by the Judicial Committee in Mohamed Syedol Ariffin v. Yeoh Ool Gark, 1916-2 AC 575: (AIR 1916 PC 242) (F).
9. Khan Gul v. Lakha Singh, ILR 9 Lah 701: (MR 1928 Lah 609) (G) also is not to the point. That was a case where a minor, by misrepresentation, induced others to lend him money on a promissory note. That decision is based on the principle that a man will not be permitted to take advantage of his own fraud and that in equity relief may he given even against an infant when fraud is committed by him.
10. It follows that ILR 38 Mad 1071: (AIR 1914 Wad 641 (2)) (A) is correct and does not require any reconsideration, as it is in consonance with the principles underlying the Indian Contract Act.
11. Even on facts the plaintiff does not seem to have any presentable case. His own case, as al-ready referred to, was that he was made to believe that the 1st defendant had attained majority, namely, that the 1st defendant was over 21 years or age. This Implies that he knew that the defendant could not attain majority till he completes 21 years. This story was disbelieved by the Courts below. The only reasonable inference to be drawn from this is that he was aware of the minority of the executant and yet obtained a renewal from him for reasons of his own. However, that need not detain us having regard to the view we have taken on the question of law posed by the learned counsel for the appellant.
12. This appeal is, therefore, dismissed. As therespondent is unrepresented, there will be no orderas to costs.