1. On the 25th of February 1909 the plaintiff, Gaya Prasad, being at that time just over 18 years of age, executed in favour of the defendant, Sarfaraz Chaudhri, a mortgage-deed for Rs. 349-13-6, hypothecating a 6-pie zemindari share of his own in village Lohraula. Out of the consideration only Rs. 56 was paid in cash at registration, and the balance was said to represent principal and interest on two older bonds executed by Gaya Prasad. As a matter of fact the two older bonds in question, one for Rs. 99 and the other for Rs. 81, were produced and apparently purported to have been executed jointly by Gaya Prasad and his mother. It has been found that Gaya Prasad's mother had obtained a certificate of guardianship under the Guardians and Wards Act prior to the date of the execution of the mortgage--deed in suit. Under the law, therefore, Gaya Prasad was a minor on the 25th of February 1909. He brought the present suit for a declaration that the document in question is null and void and not binding on the plaintiff and of no effect as regards the property therein hypothecated. The first Court decreed the claim; but, acting under the discretion conferred by Section 41 of the Specific Relief Act I of 1377, made this decree subject to payment by the plaintiff of the sum of Rs. 56, found to have been paid at the time of registration. Both parties appealed to the District Judge. There had been allegations of fraud on both sides. The plaintiff on the one hand denied that any consideration had passed, and over and above pleading his minority alleged that he had been induced to execute the mortgage-deed in suit by fraud; while the defendant alleged that he had been deceived by the plaintiff and that he knew nothing about the certificate of guardianship but believed the plaintiff to be of full age, as in fact he would have been but for the existence of that certificate. The learned District Judge has found that there was constructive fraud on the part of the plaintiff, in that he was bound to have informed the defendant, Sarfarax Chaudhri, of the fact of his minority but did not do so. He has not found that there was any actual false representation on the part of the plaintiff in regard to his age, nor does he purport in any way to apply the principle of estoppel so as to debar the plaintiff from asserting that he was in fact a minor on the date of the execution of the mortgage-deed. He has nevertheless passed a decree to the effect that the plaintiff do pay Rs. 349-13-6, the full consideration for the deed in suit, with Rs. 108-2 interest, and the costs incurred by the defendant in both Courts. The decree doos not provide for the event of this payment being made, unless such provision is considered to be implied from the words: The decree of lower Court be modified and a conditional decree be passed.' No doubt the learned District Judge had sufficient reason for feeling certain that the plaintiff will in no case make the payment in question. In the event of payment not being made, the suit for cancellation of the mortgage-deed was to stand dismissed with costs in both Courts. Against this decree the plaintiff appeals.
2. He contends that there is no legal basis for a finding that the consideration for the mortgage-deed in suit had been paid in full, and further that the suit should in any case be decreed. The case law on the subject seems to me in a somewhat unsatisfactory condition. The later law on the subject is all based on the decision of their Lordships of the Privy Council in Mohori Bibi v. Dharmodas Ghose 30 C. 539 : 5 Bom. L.R. 421 : 7 C.W.N. 22 : 15 C.L.J. 69 : 14 Bom. L.R. 5 : 39 C. 232 : 29 I.A.1. It was there laid down in the plainest terms that a mortgage made by a minor is void. The head-note represents their Lordships as further deciding that a money-lender who has advanced money to a minor on the security of a mortgage is not entitled to re-payrnent of the money on a decree being made declaring the mortgage invalid. As a matter of fact their Lordships refer to the discretion vested in the Courts by Section 41 of the Specific Relief Act, without definitely deciding whether or not it would be a reasonable exercise of that discretion to refuse to declare a document void, which was really void in law, unless and until some payment were first made by the plaintiff. They content themselves with holding that on the facts of the case before them the Courts below had exercised a wise discretion in refusing to direct any such payment to be made. In Kamta Prasad v. Sheo Gopal Lal 26 A. 342; A.W.N. (1904) 41 a suit very similar to the present, in which the cancellation of a mortgage-deed executed by a minor had been unconditionally decreed by the Court below in spite of a finding that a sum of over Rs. 500 had been received by the plaintiff, the decision of the Court below was affirmed by a Bench of this Court. According to the head-note the case would be absolutely decisive on the question now before me; but it would seem from the body of the judgment that the learned Judges did not desire to commit themselves to any positive decision as to the limits of the discretion exeroiseable under Section 41 of the Specific Relief Act, jn cases where cancellation of a deed is sought on the ground of minority. In Jagar Nath Singh v. Lalta Prasad 1 Ind. Cas. 562 : 31 A. 21 : 5 A.L.J. 674 : A.W.N. (1908) 267 the question was as to the recovery of possession over land which had been conveyed by a deed of sale executed by a minor. The two learned Judges who heard that case differed as to the facts; but the learned Judge who was of opinion that the equities of the case were in favour of the vendees was prepared to make a decree in favour of the plaintiff subject to re-payment of the sale price. There seems to me in any case a distinction between a case for recovery of possession and a suit like the present, which is in reality a mere suit that a document which is void in law may be declared to be so, I was also referred to the case of Kanhai Lal v. Babu Ram 8 Ind. Cas. 888 : 8 A.L.J. 1058, in which a suit upon a promissory note executed by a minor was dismissed. The question of the possible application of Section 41 of the Specific Belief Act was referred to in the judgment but did not require to be determined. On the authorities it appears beyond question that, if the defendant were suing to enforce this mortgage-deed, his suit would be dismissed. Even supposing I were to dismiss this appeal and leave the decree of the lower Appellate Court as it stands, and that decree were to result in the dismissal of the plaintiff's suit for a declaration, there would still remain on record the finding between the parties that the plaintiff was a minor when he executed this mortgage. No suit could, therefore, be brought by Sarfaraz Chaudhri on this deed with any hope of success. It appears to me, therefore, that to refuse the plaintiff a declaration that this deed is void in law, except on condition of his paying to the defendant, Sarfaran, the mortgage-money, is logically equivalent to trying to compel the plaintiff to pay what he is not bound in law to pay. There might be something to be said for such a decree as was passed in this case by the Court of first instance; but the lower Appellate Court has in effect held that the plaintiff is not entitled to a declaration that this mortgage-deed is void unless he first pays into Court the entire amount due under it including interest up to date and the whole costs of the defendant, that is, everything which the defendant could possibly claim in a suit brought by him as plaintiff to enforce the provisions of this void contract. I incline to the opinion that the discretion conferred upon the Courts by Section 41 of the Specific Relief Act must be so interpreted and exercised as only to impose upon a plaintiff seeking relief by way of cancellation of an instrument such conditions as the law would impose upon him if the position of the parties were reversed and he were the defendant in a suit brought to enforce the instrument according to its terms. It seems to me impossible in any case to affirm the decree of the learned District Judge, and my own view of the law as at present advised is that the plaintiff's suit should have been decreed as brought I set aside the decrees of both the Courts below and decree the plaintiff's suit for a declaration as brought with costs through out.