Viswanatha Iyer, J.
1. Plaintiff is the appellant. The plaintiff filed a suit for a declaration that certain sale deeds caused to be executed by him arc null and void and for recovery of possession of those properties with mesne profits. In this appeal we are concerned with only items 1 and 2 of the plaint schedule. In a family partition among the plaintiff and his brothers evidenced by Ext. P-3 dated 13-7-1123 these items were obtained by the plaintiff towards his share. On 15-11-1950 a sale deed Ext. D-1was executed for Rs. 3,000/- in respect of item No. 1 to the 1st defendant. On the same day another sale deed Ext. D-2 was executed in respect of item No. 2 to defendants 2 to 4 for Rs. 7,000/-. With the amount obtained under these sale deeds on the same day certain properties were purchased in the name of the plaintiff and his brothers for Rs. 20,000/-. That sale deed is Ext. P-6. According to the plaintiff, he was a minor on the date these sale deeds were caused to be executed by him and therefore Exts. D-1 and D-2 are void and no title passed to defendants 1 to 4 Therefore, he seeks to recover possession of these properties with mesne profits.
2. Defendants 1 to 4 contended that the plaintiff was a major on the date of these sale deeds and even if he was a minor, with consideration obtained under that sale deeds Ext. P-6 properties were purchased and later on plaintiff and others entered into a partition deed on 28-6-1951 evidenced by Ext. D-4 and thereafter plaintiff has disposed of those properties. Thus the plaintiff is estopped from contending that the sale deeds Exts. D-l and D-2 are not valid. They further contended that if for any reason the plaintiff is entitled to succeed, they are entitled to value of improvements and also the consideration advanced for the sale deeds in question.
3. During the course of the suitplaintiff's coming to know that a portion of item 2 had been earlier transferred by gift by the 2nd defendant to his sister's son-in-law, the latter was irnplcaded as 8th defendant in the year 1963. The 8th defendant adopted the contention of defendants 1 to 4 and also contended that in any event the suit is barred against him so far as it concerns the properties obtained by him from the 2nd defendant under a gift deed, Ext. D-6. The court below found that the plaintiff was a minor on the date of the sale deeds, Exts. D-l and D-2. He attained majority only on 15-10-51 and therefore the two sale deeds, Exts. D-l and D-2, are found to be void. The court below found that the suit is barred by limitation as against the 8th defendants and the property obtained by him by gift from the 2nd defendant. The court below also found that the plaintiff having accepted the partition deed Ext. D-4 and executed a sale deed of the property obtained by him under that, is estopped from impeaching the validity of the sale deeds Exts. D-l and D-2. On these findings the suit was dismissed so far as items I and 2 are concerned. It is against that that this appeal has been filed.
4. The learned counsel for the appellant contended that the lower court was wrong in dismissing the suit holding the plaintiff is estopped from impeaching the validity of the sale deed. This contention is correct. The court below found that the plaintiff was a minor on the date the sale deeds were purported to have been executed by him. It is true that with the consideration obtained under Exts. D-l and D-2 certain properties were purchased under Ext. P-6 on the same day and they were later partitioned between the plaintiff and his brothers and the plaintiff disposed of his share by Ext. D-3 sale deed in the year 1952 after he became a major. But the sale deeds being ab initio void they are not capable of being ratified and there is nothing to show that the plaintiff made any representation after he became a major that these sale deeds Exts. D-l and D-2 are valid nor is there any evidence in this case to show that on the basis of any .such representation the defendants have altered their position so as to constitute an estoppel to the plaintiff. The fact that the property purchased with the consideration obtained under Exts. D-l and D-2 was partitioned and the fart that the plaintiff disposed of his shnrc will not in any way amount to a representation by the plaintiff that the sale deeds Exts. D-l and D-2 are. accepted by him. Therefore, the court below was not correct in coming to the conclusion that the plaintiff is estopped from impeaching the validity of Exts. D-l and D-2.
5. Rut, the plaintiff now asks for a declaration that these sale deeds are void and seeks recovery of these properties from the defendants. With the consideration obtained under Exts. D-l and D-2, Ext. P-6 property was purchased, that was subsequently partitioned and plaintiff disposed of his share. Now when the plaintiff asks for a cancellation of the sale deed, the question is whether that relief should be made conditional on his depositing the consideration under Exts. D-l and D-2. The learned counsel for the appellant relied on the Full Bench, decision of the Allahabad High Court reported in Ajudhia Prasad v. Chandan Lal, AIR 1937 All 610 and contended that he cannot be directed to deposit the amount of consideration paid under Exts. D-l and D-2. In that case a suit was filed for recovery of amount advanced under a mortgage executed by the defendants in that case. The defendants pleaded that they were minors at the time of the mortgage deed. In the rejoinder the plaintiff contended that in any event if the mortgage deed was void the defendants were liable to pay the amount under Section 65 of the Contract Act. In dealing with that, Sulaiman C. J. held thus:--
'Where one of the parties is a minor and is thus incapable of contracting so that there never is and can never be a contract, Section 65. Contract Act, can have no application to such a case as that section starts from the basis of there being an agreement of coniract between competent parties. In such a case therefore there would be no question of ordering him to restore the advantage which he has received or to make compensation for what he has received.'
In that case relief could not be claimed under Section 41 of the Specific Relief Act of 1877. His Lordship noticed Section 41 of the Specific Relief Act and took the view that if the minor was the plaintiff and if he was asking for cancellation a different consideration may apply on the language of Section 41 of the Specific Relief Act and he may be called upon to disgorge the benefit which he obtained under the invalid sale deed. Of course, even there His Lordship had stated that relief under Section 41 will be available to an alienee only if fraud is established. Anyhow, that decision is not an authority for the proposition that when the minor seeks to cancel an alienation that relief must not be made conditional on his disgorging the benefit obtained by him. The question directly arose in Hanumantha v. Sitharamayya, ATR 1939 Mad 106. A Division Bench of the Madras High Court observed thus:--
'Where a minor has executed deeds of sale during his 'minority without making any misrepresentation as to his age and the purchasers had no knowledge that the executant was a minor when the sales were made, a decree for setting aside the sale deeds can be made only on condition that the minor refunds to the purchasers the amount of the consideration received from them.'
This decision proceeds on the language of Section 41 of the Specific Relief Act, 1877 which is in these terms:--
'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.'
A statutory discretion is vested in the Courts by virtue of this section. Once the requirements of the section are satisfied and there exist circumstances which call for the exer-cise of the discretion, the Court is bound to afford relief to the alienee without being hampered by reference to the limitations Which surround the corresponding rule of equity as administered in England. The plain language of the Section must be given effect to and the exercise of the power under this Section is only controlled by the statute. Section 33 of the present Specific Relief Act, 1963, is on the same lines as Section 41 with an addition that even in a case where the erstwhile minor is a defendant the Court is given the discretion to direct the defendants to disgorge the benefit which he obtained under the invalid transaction. The facts of this case clearly justify the application of the principle of Section 41 of the Specific Relief Act. The consideration under Exts. D-1 and D-2 were utilised for the purchase of a property under Ext. P-6. That was subsequently partitioned and the share which he obtained was disposed of by him under Ext. D-3. Therefore, he has obtained the benefit of the consideration. Now that he asks for a declaration that the sale deeds Exts. D-1 and D-2 are invalid, that relief can be granted to him only on his disgorging the sum of Rs. 10,000/- paid under Exts. D-l and D-2. Before he recovers Item 1 he must deposit Rs. 3,000/- and before he is given any relief in respect of Item 2 he must deposit Rs. 7,000/- or such portion of it as is proportionate to the property which he may be allowed to recover.
6. The learned counsel for the appellant further contended that the finding of the court below that the suit is barred by limitation as against 8th defendant to whom 2nd defendant executed a gift of a portion of Item 2 under Ext. D-6 is incorrect. He challenged the finding mainly on one ground, that is that the gift deed in favour of the 8th defendant is sham and it has not taken effect; 2nd defendant continues to be the owner and the suit having been filed against the 2nd defendant within 12 years of Ext. D-2 the suit is not barred by limitation. The Court below found that the gift deed in favour of the 8th defendant is valid. He was implead-ed after the expiry of the period of limitation. An attempt was made before us to show that the gift deed has not taken effect. 8lh defendant is a sister's son-in-law of the 2nd defendant. The gift deed proceeds on the basis that out of love and affection for the 8th defendant 2nd defendant executed the gift deed. At the time of the gift deed 2nd defendant's sister had lost her husband and the sister and her daughter, namely the wife of the 8th defendant, were under the care and protection of the 2nd defendant and in such circumstances there is nothing unnatural in the 2nd defendant executing a gift deed in favour of the 8th defendant. The 8th defendant has been examined in this case as D. W. 4 and he has stated that lie is in possession of this item from the date of the gift deed. No motive is alleged by the plaintiff as to why the gift deed was executed if it was not intended to be a real transaction. In such circumstances, the finding of the court below that the gift deed is valid and posses-sion passed under the gift deed is correct. That being so, the suit having been instituted against the 8th defendant only beyond 12 years of the gift deed the suit was rightly held to be barred by limitation as against the 8th defendant.
7. The defendants claim that they are entitled to value of improvements if the plaintiff is entitled to recover possession. That claim is justified. The defendants stated in the written statement that they have planted the entire area of Item 2 with rubber at a cost of Rs. 30,000/-. So, in case the plaintiff is entitled to succeed they are entitled to the value of improvements. Now that the plaintiff is entitled to recover possession of only a portion of Item 2, before he is allowed to recover, the value of improvements of that portion which is not covered by the gift deed and the sale deed (Exts. D-6 and D-7) must be ascertained and the plaintiff must be called upon to pay that amount also in addition to that portion of the amount under Ext. D-2 which can be related to the portion which the plaintiff is entitled to recover.
8. In the result, the plaintiff is allowed to recover possession of Item 1 on his depositing Rs. 3,000/-. The plaintiff is entitled to recover possession of that portion of Item 2, excluding the urea covered by Exts. D-6 and D-7 in the possession of the 8th defendant, on his depositing Rs. 3,500/- and also on his paying the value of improvements for that portion which has to be determined by the Court below afresh. The defendants 3 and 4 are entitled to the value of improvements as may be now found in the property. So far as Item 2 is concerned this should be treated as a preliminary decree. The Court below will issue a commission and determine the value of improvements and also the mesne profits. The plaintiff will be entitled to get mesne profits only after he deposits the proportionate amount of the consideration chargeable i.e., Rs. 3,500/-for the portion of Item 2 allowed to be recovered and also the value of improvements for that portion which will be determined by the court below. The court below will on ascertainment of the value of improvements and mesne profits pass a final decree for recovery of possession of the portion of Item 2 to which the plaintiff is entitled.
9. The Appeal is allowed to this extent. There will be no order as to costs. A copy of the decree will be forwarded to the District Collector Ernakulam for court-fee realisation.