Grimwood Mears, C.J. and Piggott, J.
1. We are concerned in this appeal with a sale-deed, dated the 20th of September, 1916, whereby the plaintiff Bishambhar Nath purported to convey to the defendant Muhammad Said a four annas share in certain zamindari property in the village of Kurian, near Cawnpore. There are two issues for determination:
(i) Was Bishambhar Nath a minor on the 20th of September, 1916?
(ii) If the first issue be found in the affirmative, should the decree in favour of the plaintiff be made subject to repayment of any consideration actually received by him from the defendant on account of the sale-deed in question?
[Their Lordships then examined the evidence bearing on the first issue in detail and held that Bishambhar Nath was a minor on the 20th of September, 1916.]
2. We now turn to the second question. Should the decree in favour of the plaintiff be made subject to any and what conditions of repayment
3. Notwithstanding that the effect of our first finding is to declare the contract between the parties destitute of legal effect, we are of opinion that we have an equitable power, wholly distinct from the existence of a contractual or non-contractual relation of the parties, which entitles us in a case of this kind to make a decree conditional upon repayment. In each case the test must be the conduct of the parties. On the one band, the father of the plaintiff contends that the defendant and his father have brought about the moral and financial ruin of his two sons. He maintains that Abdul Aziz secured influence over Sheo Narain, influenced him adversely to his own interests and those of his father, acquired the whole of his share of the family property, and by putting him in funds enabled him to commence a course of dissipation. Similarly when Bishambhar Nath, in July, 1916, was minded to raise money, he was brought by Sheo Narain to the defendant and the latter adopted the same course with him and most carefully and cautiously kept all knowledge of his transactions with Bishambhar Nath from the father. He accepted from Sheo Narain a document of doubtful authenticity, the horoscope; he relied upon a paragraph in a written statement of the father, he contented himself with a medical certificate whereas, it is contended, he ought to have gone to the father and told him of the son's intentions and asked him for proof of his age. It is said that he did not do so as he was well aware that the father would have disapproved strongly of the suggested transactions; and would have asserted his son's minority, and, as against the defendant, the case has been put as one of studied abstention on his part from all communication with the father and as one on. which he was prepared to take risks, actuated by a desire to add to the property originally owned by Sheo Narain that of his brother Bishambhar Nath.
4. In one view of the case it is possible that Sheo Narain and Bishambhar Nath did perpetrate a fraud upon the defendant. They may have 'planted' a forged horoscope upon him and Sheo Narain may have made verbal representations as to the age of Bishambhar Nath. This is, however, largely a matter of surmise, and proof of these matters was on the defendant. He failed to give the requisite proof. Whilst due protection must be given to persons in the position of the defendant, when victims of a clear fraud, they must nevertheless make out a plain case for equitable relief, and the very request for such relief puts upon the court the obligation of looking carefully into the conduct of the petitioner in each case. We think that the father of the minor plaintiff is right in charging the defendant with having been to some extent unscrupulous in his dealings with his two sons, and, as regards Bishambhar Nath, we think that in the defendant's anxiety to acquire the property he was content to run some degree of risk. Purchasers or money-lenders who deal with persons who are hovering upon majority, and the ascertainment of whose exact age is impossible must not complain if their cupidity leads them at times into litigation and loss. We are of opinion that we ought not to exercise our powers of equitable relief in this case and that the appeal must be dismissed. We, however, direct that in this and the trial court each party shall pay his own costs.