G.K. Misra, J.
1. The second defendant is the natural mother of the first defendant who was a minor The disputed property belongs to defendant 1 and was inherited from his adoptive father. The adoptive parents of the first defendant are dead. The second defendant as guardian of the first defendant sold to the plaintiff homestead land of 9 x 150 cubits for Rs. 500/- on 6-6-57 by a registered sale deed Ex. 1. The sale was effected for repayment of mortagage dues under Kx. 2 dated 20-7-53 executed by the adoptive father of the first defendant in favour of one Bai Mahapatrani. Plaintiff's case is that the possession of a portion of the land measuring 4 x 38 cubits (disputed portion) was not delivered. He accordingly brought the suit for recovery of the disputed portion, not delivered, or in the alternative for refund of Rs. 200/- out of the sale consideration representing the proportionate value of the disputed portion.
Defendants 1 and 2 filed separate written statements. Defendant-1 contested the suit alleging that there was not legal necessity for the transfer, that defendanf-2 was not his guardian and that the plaintiff fraudulently purchased the homestead at a low price though the real value of the properly was Rs. 500/-. Defendant-2 admitted execution of the sale deed and receipt of Rs. 500/- towards consideration. She pleaded that the plaintiff promised to pay Rs. 200/- more and that she was prepared to take back the land on return of the entire consideration money.
2. The learned Munsif held that defendant-2 was not the guardian of the minor first defendant and the transfer was void. He, however, dismissed the plaintiff's suit on the finding that the contract cannot be split up and a suit for recovery of a portion of the consideration does not lie. The learned Subordinate Judge held that the first defendant lived with the second defendant who was his de facto guardian. He also held that the sale was for consideration and legal necessity and that the transfer by the de facto guardian for legal necessity was voidable and not void. On these findings he decreed the plaintiff's suit for recovery of Rs. 200/- representing the value of the disputed portion. Against the reversing appellate Courts decree, the second appeal has been filed.
3. The following questions arise for consideration in the second appeal-
i. Os the alienation by the de facto guardian of the minor void or voidable?
ii. Is the minor liable to refund the proportionate consideration?
iii. Is the guardian liable to refund the same?
iv. Is the plaintiff entitled to refund under Sections 88 and 41 of the Specific Relief Act in the facts and circumstances of this case?
4. Alienation by a de facto manager of minor's property for legal necessity was valid under the old Hindu Law. This doctrine was enunciated in Hunooman Pershad Pandey's case, in (1854-67) 6 Moo. Ind. App. 393 (PC). Hindu jurists protected transaction entered into by persons interested in the minor for the minors benefit or necessity. The learned Subordinate Judge's finding is based on this old view of Hindu law. This law has, however, been abrogated by Section 11 of the Hindu Minority and Guardianship Act (Central Act XXXII of 1956) which came into force on 27-8-56. The suit transaction was on 8-6-1957 and would be governed by this section. It lays down that after commencement of this Act, no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor. Thus an alienation by a de facto guardian is void ab initio. He is incompetent under the statute to make an alienation on behalf of the minor. The alienee from the de facto guardian would be a rank trespasser.
5. The next question for consideration is whether the minor is liable to refund the consideration. Section 2(g) of the Contract Act says that an agreement not enforceable by law is said to be void. Ex. 1 executed by defendant-2 as the de facto guardian of defendant 1 is not enforceable by law and is void. It has now been authoritatively pronounced that Sections 65 and 70 of the Indian Contract Act have no application to a minor and no refund of consideration can be ordered under those sections. In (1903) 30 Ind App. 114 (PC) Mohri Bibeee v. Dharmodas Ghose, their Lordships held that the Contract Act makes it essential that all contracting parties should be competent to contract and expressly provides that a person who by reason of infancy is incompetent to contract cannot make a contract within the meaning of the Act. Adverting to Section 65 of the Contract Act their Lordships said that it has no application to a case in which there never was and never could have been any contract. In AIR 1940 Pat. 324 (FB) Bankey Behari Pd. v. Mahendra Pd. their, Lordships held that Section 70 has no application to minor. Thus the plaintiff's claim for refund of consideration, even though it was for legal necessity, cannot be upheld either under Section 65 or Section 70 of the Contract Act.
It was urged that relief of refund may be granted under Section 38 or Section 41 of the Specific Relief Act. Section 38 lays down that on adjudging rescission of a contract, the Court may require a party to whom such a relief is granted to make any compensation to the other which justice may require. Section 41 is to the effect that on adjudging cancellation of an instrument the Court may require the party to whom such a relief is granted to make any compensation to the other which justice may require. In 30 Ind. App. 114 (126) reliance was placed on these two sections to clam; refund of consideration against the minor. After examination of the relevant law, their Lordships approved the following dictum of Romer, L.J. in (1902) 1 Ch. 1 at p. 13:
'The short answer is that a Court of Equity cannot say that 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'.
This dictum applied with full force to this case also.
Plaintiffs suit either for recovery of possession of the disputed portion or for refund of the consideration money against the minor must fail.
6. It was contended that defendant-2, the de facto guardian, is liable to refund the consideration. The law on the point is that if the de facto guardian gives a covenant in the sale deed binding himself personally for reimbursement on the failure of the contract, a suit for refund of consideration against him is maintainable. In the sale deed Ex. 1 there is no such covenant. In (1874-75) 2 Ind. App. 131 (PC) Ram Tuhud Singh v. Biseswar Lall Sahoo, Sir James Colvile delivering the opinion of the Judicial Committee observed as follows-
'But even if this were true, 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 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. It is well settled that there is no such obligation in the case of a voluntary payment by A of B's debt.'
This observation applied with full force to the present case. In the absence of any covenant express or implied, binding defendant-2 personally to make reimbursement to the plaintiff, defendant-2 is not liable to refund. The equity under Section 38 or Section 41 of the Specific Relief Act should not be invoked against defendant-2 when the plaintiff knowing full well that she had no power of transfer of the minor's property purchased the same without taking a personal covenant from her
7. To sum up, plaintiff acquired no title under the sale deed Ex. 1 and is not entitled to refund of consideration from the defendant. In this view of the matter, it is unnecessary to examine the question whether the claim for refund is barred by limitation
8. In the result, the judgment of the lower appellate Court is set aside and theplaintiff's suit is dismissed. The second appeal is allowed, but in the circumstances, parties to bear their own costs throughout.