Kumaraswami Sastri, J.
1. These appeals arise out of a suit filed by the 1st plaintiff Yamuna Raja Ammani for a declaration that the sale-deed executed by her in favour of the 1st defendant on the 13th August, 1913, whereby she conveyed the lands mentioned in the plaint to the 1st defendant for a consideration of Rs. 16,250 was obtained from her when she was a minor and that consequently the deed is invalid and confers no rights on defendants 1 to 3 for possession of the properties, for division of the properties, if necessary, and, ,in the alternative, if the Court should hold that the plaintiff is estopped from impeaching the sale-deed, for payment to her of Rs. 16,250, the consideration and interest thereon and for costs and other reliefs.
2. The facts leading to this appeal are shortly these: The plaintiff is related to the Royal family of Tanjore and Ramakumara Sahiba who was the Dowager Rani of Tanjore and owned certain immoveable properties made a deed of settlement whereby she gave properties to the plaintiff and to other donees by, a deed, dated 10th August, 1907, which has been filed in the suit as Ex. A. Under that deed the plaintiff was entitled to a third share, another third belonged to her elder sister Rajanna Ammani and the remaining third to one Swaminatha Rao, who was the husband of another sister of hers. The 1st plaintiff was married to one Sanguram Jathav, who died in 1913. According to her she; was a minor about 15 years of age at the time when this sale-deed was executed by her. She says that this sale-deed is not binding on her and that it was executed by her without receiving any consideration, that Dasarathi Sahib, her husband's brother and the 1st defendant in collusion got her to execute the sale-deed. She denies she entered into any agreement to sell the property, received any advance or got the consideration under the sale-deeds. The 1st defendant is the purchaser, 2nd and 3rd defendants are undivided sons of the 1st defendant, 4th, 5th and 6th defendants are the legal representatives of Dasarathi Sahib who died before the suit was instituted. So far as the claim against them is concerned she gave up the claim on the ground that she has compromised the matter with them. As regards the alternative claim for getting back Rs. 16,250, that was also given up in the course of the trial.
3. The case for the contesting 1st defendant is that the plaintiff was a major at the time of the sale, being about 19 years old, that he wanted to buy all the three shares and did not want to take only one or two shares, that Rajanna Ammani, the elder sister of the plaintiff and Swaminatha Rao, the husband of her other sister, agreed to sell their shares, that Dasarathi and her other relations brought about the sale of plaintiff's third share, that it was represented that Yamuna also would sell the property and that she was a major, that he arranged with the vendors and also spoke to her husband and the transaction was put through with the knowledge of these people, that he was never informed that she was a minor, that an advance of Rs. 2,500 was paid under Exs. IV and V before the sale-deed was executed and the balance of Rs. 13,000 and odd which was due to the plaintiff was paid before the Sub-Registrar, that he got possession of this land and has been in possession ever since the sale. The Subordinate Judge believed the evidence of the plaintiff's witnesses and the documents filed by her to show that she was a minor at the date of the transaction. He found that she was born on the 12th November, 1898, and that the sale and the agreements to sell are, therefore, not binding. He, however, disbelieved her case as to the agreements, Exs. IV and V, and the advance paid under those agreements as also - her case that the balance was not paid to her at the time of registration. In this view she received the money and she made the representation made before the Registrar that she was 20 years old and the defendant in ignorance of her minority actually paid the whole consideration. He was also of opinion that the price was fair and as the transaction was not in any other way open to question he held that the plaintiff was bound: to repay Rs. 16,250 before she could get possession of the properties on the ground that the sale-deed-was void. He passed a decree directing that on payment of this sum possession should be handed over to the plaintiff.
4. Although the suit was originally filed by Yamuna Bai as sole plaintiff, when the proceedings were pending in the Lower Court she assigned her rights to the 2nd plaintiff by a deed, dated 2nd August, 1923, and the 2nd plaintiff wanted to come on record as the assignee pendente lite. This application was dismissed by the Subordinate Judge on the ground that it was merely a traffic in litigation and it was not a bona fide transaction: But on appeal in C.M.A. No. 285 of 1923 the High Court held that he should be brought on record as 2nd plaintiff as the deed by assignment was there and the 1st plaintiff did not object. The 2nd plaintiff, therefore, came in after the order of the High Court on the 21st November, 1923. Against the decree of the Subordinate Judge the defendants 1 to 3 filed the Appeal No. 184 in so far as it held that the 1st plaintiff was a minor and that the sale-deed was void and possession was decreed. As against the portion of the decree which directed the plaintiff to pay into Court Rs. 16,250. the 2nd plaintiff has filed the Appeal No. 183 of 1925. Both these appeals have been tried together.
5. The only questions in these appeals are whether the Subordinate Judge was right in coming to the conclusion that the plaintiff was a minor at the date of the sale, Ex. III, and, if so, whether he was right in passing a decree for possession on payment of the consideration which he found to have been received by the 1st plaintiff.
6. [His Lordship discussed the evidence relating to the age of the plaintiff and concluded:]
7. Having regard to all these facts, I agree in holding that the 1st plaintiff was a minor at the date of the execution of the sale-deed. Appeal No. 184 of 1925 must, therefore, be dismissed.
8. Turning to Appeal No. 183 of 1925, as I said before, the position is this: There is a sale-deed executed by a minor which is void in law. She comes to Court to set aside the sale and to get back possession of the properties. The Subordinate judge has come to the conclusion that she did receive this money, she knew what she was doing and that although she was a minor she fraudulently gave a false age, the 1st defendant was an innocent purchaser and on these findings of fact he thought it was a case where he should make her at least pay hack the money which she actually received as consideration. The first question is whether we agree with him on the facts.
8. [His Lordship then discussed the evidence and continued:]
9. On these: facts, therefore, the conclusion which I have come to is that the 1st plaintiff, though a minor, deliberately made a false statement as to her age, knew the transaction that she was entering into, knew that money was actually paid by the 1st defendant and that the 1st defendant innocently paid this money and purchased the 1st plaintiff's share of the property under Ex. III.
10. On these facts the question is whether the Subordinate judge was right in making the plaintiff pay back the money which she received; and in this connection we have to see what the rights of the parties are. The suit itself is not a suit by the 1st defendant to recover possession of the property in which case it may be said that the plaintiff was protecting the title which she had. It is a case where a fraudulent plaintiff being a minor at the time of the transaction wishes to set aside the transaction merely on the ground of minority. According to law as it now stands the contract of a minor is void and there can be no estoppel. But I can see no reason why on these facts a plaintiff who comes to the Court seeking equity being done to her may not also do equity, that is to give back what she got. Otherwise, it would enable the fraudulent plaintiff to get an advantage by getting not only the money but also the property itself. The relevant sections are Section 65 of the Contract Act and Section 41. of the Specific Relief Act. Section 65 of the Contract Act enacts:
When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.
11. In this case the contract is void. The 1st plaintiff comes to Court saying that she understands that the contract is void and she wants to set it aside. Section 65 of the Contract Act, in. my opinion, refers to cases where a contract is ab initio void as in the case of a minor's contract or becomes subsequently void for some reason. Section 39 of the Specific Relief Act runs as, follows:
Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
12. Then Section 41 runs as follows:
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.
13. On Section 65 of the Contract Act we have the latest pronouncement of their Lordships of the Privy Council in cases where the contract is void from its inception. In Harnath Kunwar v. Indar Bahadur Singh (1922) L.R. 50 IndAp 69 : I.L.R. 45 A. 179 : 44 M.L.J. 489 (P.C.) there was a sale of spes successionis--the right of a reversioner--which is void under the Transfer of Property Act. The Subordinate Judge held that the vendor had merely a right of expectancy in the estate at the date of the deed and that no property passed under it. As regards the claim to recover money, he held that it is barred by limitation. Then there was an appeal which was also dismissed. The matter was taken to the Privy Council and their Lordships directed that the sale should be set aside on payment of Rs. 25,000 which was found by the Courts to have been paid by the purchaser. They also gave interest on the sum. As regards the plea that the contract being void there can be no repayment this is what their Lordships say at page 184:
Before this Board, the claim has been based on Section 65 of the Contract Act.
14. Then they set out that section. They then proceed to state as follows:
So framed, the plaintiff's claim to compensation rests, not on any principle or formula of English Law, but on the words of this section, and it has to be seen whether the facts of this case come within its scope. The section deals with (a) agreements, and (6) contracts. The distinction between them is apparent from Section 2. By Clause (e) every promise and every set of promises forming the consideration for each other is an agreement, and by Clause (h) an agreement enforceable by law is a contract. Section 65, therefore, deals with (a) agreements enforceable by law, and (6) with agreements not so enforceable. By Clause (g) an agreement not enforceable by law is said to be void. An agreement therefore discovered to be void is one discovered to be not enforceable by law, and, on the language of the section, would include an agreement that was void in that sense from its inception, as distinct from a contract that becomes void. The agreement here was manifestly void from its inception and it was void because its subject-matter was incapable of being bound in the manner stipulated. Though this aspect of the case has not been satisfactorily presented or developed in the pleadings and the proceedings before the Lower Courts, their Lordships think there are materials on the record from which it may be fairly inferred in the peculiar circumstances of this case that there was a misapprehension as to the private rights of Indar Singh in the villages which he purported to sell by the instrument of January 2, 1880, and that the true nature of those rights was not discovered by the plaintiff or Rachpal Singh earlier than the time at which his demand for possession was resisted, and that was well within the period of limitation. It was thus that the agreement was discovered to be void, and the discovery, in their Lordships' view, was one within the words and the meaning of Section 65 of the Contract Act. The plaintiff, therefore, though not entitled to recover possession of the villages, is entitled to recover compensation, and in assessing that compensation their Lordships consider it should include the sum of Rs. 25,000 found by both Courts to have been paid to Indar Singh and also in the circumstances, of this case, interest, not at the rate or for the period claimed by the plaintiff, hut at 6 per cent, from the date of the institution of this suit.
15. I set out the judgment in detail because the argument was sought to be founded by Mr. Bhashyam Aiyangar on the decision of their Lordships of the Privy Council in Mohori Bibee v. Dhurmodas Ghose . This was a case where a minor sued to set aside a deed of mortgage and it was found that the mortgagee had notice of the minority of the plaintiff. The question arose as to whether there was an estoppel by reason of the representation of the minor and their Lordships held that Section 115 of the Evidence Act did not apply where the statement relied upon is made to a person who knows the real facts and is not misled by the untrue statement. They held that a false representation made to a person who knows it to be false is not such a fraud as to take away the privilege of infancy. Then arose the question of construction of Section 65 of the Contract Act. There is an observation of their Lordships of the Privy Council that Section 65 of the Contract Act being based on the footing of an agreement or contract between competent parties could not apply to a contract, by a minor which is void. Dealing with Section 41 of the Specific Relief Act, their Lordships observed as follows:
Another enactment relied upon as a reason why the mortgage money should be returned, is Section 41 of the Specific Relief Act I of 1877.
16. Referring to Section 38, their Lordships observed:
Section 38 provides in similar terms for a case of rescission of a contract. These sections no doubt do give a discretion to the Court, but the Court of first instance and subsequently the Appellate Court, in the exercise of such discretion, came to the conclusion that under the circumstances of this case justice did not require them to order the return by the respondent of money advanced to him with full knowledge of his infancy and their Lordships see no reason for interfering with the discretion so exercised.
17. Pausing here for a moment it may be said that this passage shows that their Lordships were of opinion that if the mortgagee had not notice of this minority, a case would arise under Section 41 for relief. Their Lordships, after dealing with the general argument that one who seeks equits must do equity, observed as follows:
But this is the last point over again and does not require further notice except by referring to a recent decision of the Court of Appeal in Thurston v. Nottingham Permanent Benefit Building Society (1902) 1 Ch. 1.
18. Then they cite a passage of Lord Justice Romer to the effect that a Court of Equity cannot be said to be equitable to compel a person to pay any money in respect of a transaction which, as against that person, the Legislature had declared to be void. They, therefore, refused to give relief for the return of the money. In this case, the finding accepted by their Lordships of the Privy Council was that the mortgagee had notice of the minority. But if he had no notice I do not think that this is an authority for the view that under Section 41 he can get no relief.
19. This case has been referred to by Coutts Trotter, J., in Mallacheruvu Raghavayya v. Mallacheruvu Subbayya (1917) 7 L.W. 124. It was held in that case that a minor is entitled to have a sale executed by him during his minority set aside without repayment in the absence of proof that he deliberately misled the purchaser into buying by a false representation that he was of age. It was also held that in case of false representation Section 41 of the Specific Relief Act gives the Court power to direct the refund of the consideration received by the minor before the Court grants the cancellation of the deed. Coutts Trotter, J., in referring to the case in Nottingham Permanent Benefit Building Society v. Thurstan (1903) A.C. 6 and Mohori Bibee v. Dhurmodas Ghose , observed thus:
It is clear that in this country we have a statutory right to impose conditions by Section 41 of the Specific Relief Act and that right is clearly recognised in, Mohori Bibee v. Dharmodas Ghose .
20. Having regard to the pronouncement of their Lordships of the Privy Council in the case in Harnath Kunwar v. Indar Bahadur Singh (1922) L.R. 50 IndAp 69 : I.L.R. 45 A. 179 : 44 M.L.J. 489 (P.C.), already referred to, I do not think that the case in Mohori Bibee v. Dhurmodas Ghose is the authority for holding that where a contract or an agreement is void from its inception, we cannot order restitution. Harnath Kunwar v. Indar Bahadur Singh (1922) L.R. 50 IndAp 69 : I.L.R. 45 A. 179 : 44 M.L.J. 489 (P.C.), is a case where a transfer was void. from its inception and their Lordships of the Privy Council deal with the various clauses of Section 65 of the Contract Act and make the buyer get back the purchase money.
21. As far as English cases are concerned, the question as to whether a fraudulent minor plaintiff who induced another person to enter into a transaction and received consideration therefor is protected has been dealt with by Justice Lawrence in Leslie, Limited v. Sheill (1914) 3 K.B.D. 607, where he observed as follows:
There are no doubt many cases in which equity will give relief against frauds perpetrated by infants. Wherever the infant requires as a plaintiff the assistance of any Court, it will be refused until he has made good his fraudulent representation. Whenever the infant is still in possession of any property which he has obtained by his fraud he will be made to restore it to its former owner. But I think that it is incorrect to say that he can be made to repay money which he has spent, merely because he received it under a contract induced by his fraud.
22. Then he refers to various authorities on the subject. I have not been referred to any case where it has been held that in spite of fraudulent representation by a minor he is still entitled to protection. All the cases in India are the other way. I have already referred to Mallacheruvu Raghavayya v. Mallacheruvu Subbayya (1917) 7 L.W. 124. I may refer to the decision in Koduri Venkabaramayya v. Thumuluri Punnayya (1925) 23 L.W. 521, where Mallacheruvu Raghavayya v. Mallacheruvu Subbayya (1917) 7 L.W. 124 was followed and in that case there was misrepresentation by the minor. Reference was made to Fuli Bibi v. Khokai Mondal (1917) 7 L.W. 124 where the question as to repayment of the money was considered. In that case the Judge expressly states that the defendant did not allege any fraudulent misrepresentation. That case, therefore, proceeded on the ground that there being no proof of fraudulent misrepresentation, there can be no equity to direct the money to be repaid. Fuli Bibi v. Khokai Mondal I.L.R. (1927) C. 712 case is, therefore, no authority for the view that even if there is fraudulent misrepresentation by a minor he can still retain both the proceeds as also the property which he seeks to recover. In Khan Gul v. Lakha Singh I.L.R. (1928) Lah. 701 the same question was decided by a Full Bench of the Lahore High Court. It was there held that
A minor, who by falsely representing himself to be a major has induced a person to enter into a contract, is not estopped from pleading his minority to avoid the contract but that he may in equity be required to return the benefit he has received by making a false representation as to his age whether he be a defendant or plaintiff.
23. It is clear from the authorities that, if he is a plaintiff, he is bound to give back the money. In this case all the authorities are discussed in detail by the learned Judges. The Bombay High Court thinks that there is an estoppel in the case of a minor who seeks relief on a false representation and on that ground they treat the whole transaction as valid. In Calcutta, the view is taken that though there may be no estoppel, misrepresentation by a minor may give a right to restitution. See Golani Abdin Sarkar v. Hem Chandra Majumdar (1915) 20 C.W.N. 418.
24. Having regard to the current of authorities in India which is one way at least in cases where a minor who sues as a plaintiff makes a fraudulent misrepresentation and induces an innocent person to enter into a transaction otherwise legal and validly enforceable, I am of opinion that the 1st plaintiff is bound to restore the benefit she has received. I think the Subordinate Judge was perfectly right in passing a decree for 1st plaintiff for recovery of possession of the suit properties after depositing into Court the consideration for the sale-deed (Ex. III). In my opinion the appeal fails and is dismissed. The amount should be paid by the 15th of July. As each party has succeeded and failed, each party will bear his own costs in both the appeals.
25. I agree that we should not be justified in this case in differing from the learned Subordinate Judge's finding that plaintiff 1 was a minor at the date of her sale-deed, Ex. III, and that the sale is therefore void. I agree also in the findings that defendant 1 paid the full purchase-money and that plaintiff 1 represented herself to be a major in the transaction, though she must have known that that representation was false; and I also agree that it is not shown that defendant 1 knew that plaintiff 1 was a minor. On these facts it is clear that plaintiff 1 is entitled to a decree for recovery of the property. The question remains whether that decree should be made conditional on repayment of the purchase-money as the learned Subordinate Judge has made it.
26. On the face of it, Section 65 of the Contract Act appears to cover the case. That section runs:
When an agreement is discovered to be void or when a contract' becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.
27. It will be seen that that section provides for two distinct classes of cases. It first provides for agreements which are discovered to be void, that is agreements which, when they were made, were supposed to be valid--which were supposed by one at least of the parties to be valid--but which are afterwards discovered to have been always unenforceable or. void. The second class of cases provided for are contracts which become: void, that is contracts which were quite good and valid when they were made but become void through some subsequent event. Now on the facts which we have found this is a case which falls within the first class. We have found that defendant 1 did not know that plaintiff 1 was a minor at the time of the sale-deed. So far as he was aware, it was a valid sale-deed. But it has been established and discovered in these proceedings that at the time of that deed she was a minor, and, therefore, the sale was void. On the face of it, therefore, this case comes within the first class of cases provided for by Section 65 of the Contract Act.
28. But Mr. Bhashyam Aiyangar for the appellant here has strongly urged before us that Section 65 must not be taken in its plain meaning but that, because it has been so interpreted by their Lordships of the Privy Council in Mohori Bibee v. Dhurmodas Ghose , it must be understood as restricted in a way not mentioned in the section--that is, the agreements and the contracts referred to in the section must be understood to be agreements and contracts made by persons competent to contract and by no others. In that case a minor had mortgaged some property. The mortgagee knew that the mortgagor was a minor. After executing the mortgage-deed and receiving the money the minor by his next friend sued for the cancellation of the mortgage-deed under Section 41 of the Specific Relief Act. When that case came before the Privy Council, it was urged that Section 65 of the Contract Act applied to it. Their Lordships dismissed that contention very summarily. In their words
it is sufficient to say that this section (section 65 of the Contract Act) like Section 64, starts from the basis of there being an agreement or contract between competent parties and has no application to a case in which there never was, and never could have been, any contract.
29. Now from the facts I have mentioned it will be seen that it was not necessary for their Lordships for the purpose of that case to make a statement so wide as to apply to the whole of Section 65. The first part of Section 65 was clearly inapplicable to that case. There was no agreement discovered to be void by any one because on the facts found the mortgage in that case was known to be a minor's mortgage, so known to both parties, at the time the mortgage-deed was executed. So their Lordships had not to consider the first part of the section at all. What they had to consider must have been an argument that the second part of the section applied, and what they said was that it was inapplicable. That was clearly so. But the words which their Lordships used were, it must be admitted, so wide as in their grammatical sense to cover the whole section, the first part as well as the second part:.
30. However, as has been pointed out, that section has been considered by the Privy Council again in a later case, Harnath Kunwar v. Indar Bahadur Singh (1922) L.R. 50 IndAp 69 : I.L.R. 45 A. 179 : 44 M.L.J. 489 (P.C.). That was a suit brought by a purchaser for possession of an estate sold by a Hindu widow's reversioner before the reversion fell in or for the return of the purchase-money. It was found that the sale was void; but it was also found that through misapprehension the parties did not know that at the time of the sale but discovered it afterwards. In that case the Privy Council decided that the vendor must give compensation to the purchaser. They directed that he must pay the purchase-money with interest. They arrived at that result by applying Section 65 of the Contract Act to the case. There it will be seen the sale was void from its inception, but it was only discovered to be so subsequently. That was clearly a case to which the first part of Section 65 of the Contract Act applied. But it will be noticed, in the words of their Lordships of the Privy Council in Mohori Bibee v. Dhurmodas Ghose , that was also clearly a case where there never was, and never could have been, a contract; and yet in spite of those, words in Mohori Bibee v. Dhurmodas Ghose their Lordships said that Section 65 of the Contract Act was applicable. I think that clearly shows that in Mohori Bibee v. Dhurmodas Ghose their Lordships' remarks were confined to the second part of Section 65. That was the only part which gather the appellant asked should be applied in that case. If we understand the remarks of their Lordships in Mohori Bibee v. Dhurmodas Ghose otherwise, there is an obvious contradiction between the two cases; and in disposing of the later case their Lordships do not appear to have had any idea that they were saying anything contradictory to what had been said in the earlier case. In my opinion it is clear that in no part of what they said in Mohori Bibee v. Dhurmodas Ghose were their Lordships considering the first part of Section 65 of the Contract Act. They were not in that case laying down what would have been a very surprising doctrine, and certainly unnecessary for the case before them, that agreements discovered to be void under Section 65 meant only agreements made by persons competent to contract. In fact, their words, - 'the section has no application to a case in which there never was, and never could have been, any contract,' would, if I may say so with respect, not be an interpretation of the first part of Section 65 of the Contract Act but in direct conflict with it. So when we examine those two cases, I think it is clear that Section 65 of the Contract Act is applicable to a case like this and has been applied by their Lordships to a similar case in Harnath Kunwar v. Indar Bahadur Singh (1922) L.R. 50 IndAp 69 : I.L.R. 45 A. 179 : 44 M.L.J. 489 (P.C.). On that basis it is clear that plaintiff 1 in this case, if she is to get back the property, must repay the purchase-money.
31. But quite apart from that, we have Section 41 of the Specific Relief Act. In Mohori Bibiee v. Dhurmodas Ghose the Privy Council indicated that that section was applicable to the minor in that suit, who there sued for cancellation of the mortgage-deed. They said that the Lower Courts had discretion to make relief conditional on compensation under Section 41 of the Specific Relief Act in that case, though as a matter of fact the Courts did not make such an order. In this case plain-till 1 has prayed that her sale-deed Ex. III might be declared void and for recovery of possession of the property. Section 41 of the Specific Relief Act appears to me to be applicable to such a case. That that section can be' applied in such a case was decided in Mallmcheruvu Raghavayya v. Mallacheruvu Subbayya (1917) 7 L.W. 124 which I myself followed in Koduri Venkataramayya v. Thumuluri Punnayya (1925) 23 L.W. 521 and it was also decided in Lila Dhar v. Fiarey Lal (1921) 19 A.L.J. 578. In Khan Gul v. Lakha Singh I.L.R. (1928) Lah. 701 a purchaser sued a minor vendor, who had misrepresented his age, for possession of the property sold or for return of the purchase-money. A Full Bench of the Lahore High Court were of the opinion that in such circumstances the minor must return the benefit received, whether he was a plaintiff or defendant. Mr. Bhashyam Aiyangar has suggested that in this case Section 41 of the Specific Relief Act cannot be applied because plaintiff 1 need not have included any prayer for a declaration that her sale-deed was void in the plaint. As he puts it, she could have ignored the sale-deed and could have brought the suit solely for recovery of possession; in that way Section 41 might have been avoided. But 1 do not think that manoeuvre would really alter the position. If plaintiff 1 had simply brought her suit for possession, defendant 1 would have met her with her sale-deed. Then the Court would have had to consider the very same question, whether that was a valid sale-deed, whether it was a sale-deed which the Court should declare void, as has been declared here, and, when the Court considered the matter in that way, it would have been proper to apply the principles of Section 41 of the Specific Relief Act.
32. Mr. Bhashyam Aiyangar referred to Thurstan v. Nottingham Permanent Benefit Building Society (1902) 1 Ch. 1 [on appeal Nottingham Permanent Benefit Building Society v. Thurstan (1903) A.C. 6] , a case which was decided by the Court of Appeal, the decision being confirmed by the House of Lords. That was an interesting case in which a minor, Mrs. Thurstan, had mortgaged some land. She had made no misrepresentation about her age; but the mortgage society had supposed that she was a major. On attaining majority the ex-minor sued to set the mortgage aside and to recover possession of the property. The Court of Appeal found that she was entitled to succeed without repaying the mortgage-money. Romer, L.J., in that case said:
A Court of Equity cannot say that it is equitable to compel a person to pay any money in respect of a transaction which, as against that person, the Legislature has declared to be void.
33. Now, so far as that goes, it appears to be of assistance to plaintiff-1. As I understand it Romer, L.J., was stating a limitation, a qualification, to the general rule that he who seeks equity must do equity. But we must remember that does not affect the statutory provisions of Section 41 of the Specific Relief Act in this country. In Mohori Bibee v. Dhurmodas Ghose the Privy Council draws that distinction I think very clearly. They quote Romer, L.J .'s remark and say that it was applicable to that case and that the general rule that he who seeks equity must do equity did not apply in that case. But they had already said that Section 41 of the Specific Relief Act did apply. So it is clear that, although the general principle of equity may be limited in that particular way, that limitation has no effect on the principle of Section 41 of the Specific Relief Act, by which we have to be guided in this country. I may mention also that Romer, L.J., in that case also said that different considerations would arise if the infant had been guilty of fraud. In this case we have the fact that plaintiff 1 was guilty of fraudulent misrepresentation of her age.
34. Mr. Bhashyam Aiyangar also referred to Leslie, Limited v. Sheill (1914) 3 K.B.D. 607. There the plaintiff had lent money to the defendant, a minor, who had represented himself to be a major. The lender sued for relief against the minor. But the defendant's plea of infancy was found good, and it was held that the defendant was under no legal or equitable liability at all to the plaintiff. It will be seen that the plaintiff in that case could not sue upon his contract. That was admitted. The question was whether he could get any relief in law or equity against the defendant. The answer of the Court was that no decree could be made against the minor or ex-minor at all in that matter. But that appears to me to have no application to this case, where an ex-minor is suing for relief. There is, however, an interesting passage in that case, which has already been quoted, in the judgment of Lawrence1, J., who was sitting in the Court of Appeal on that occasion. He said:
Wherever the infant requires as a plaintiff the assistance of any Court, it will be refused until he has made good his fraudulent representation. Wherever the infant is still in possession of any property which he has obtained by his fraud, he will be made to restore it to its former owner.
35. The first of these sentences expresses a principle which we have to remember in this case. Mr. Bhashyam Aiyangar drew our attention to the succeeding sentence:
But I think that it is incorrect to say that he can be made to repay money which he has spent, merely because he received it under a contract induced by his fraud.
36. Mr. Bhashyam Aiyangar contended that the learned Judge meant that restitution might be required in the shape of property or perhaps in the shape of a fund which could be traced, but that no order for repayment of money could be made. I think that is to misunderstand the learned Judge's statement. What he was referring to in the last sentence quoted, I think, was the impossibility of making a decree against the minor for repayment, a decree which could be executed against him. Where the minor or ex-minor is the plaintiff there is no reason why restitution should not be in money as well as in kind. The contrast between ordering restitution when the minor or ex- minor is the plaintiff and making an executable decree for repayment against him as defendant is not a question of coin or money. The contrast is between making a decree against him for repayment of money and making an order in his favour conditional on restitution in money or otherwise. There is a very important difference between enforcing in any way, direct or indirect, a minor's void agreement and giving a minor conditional relief when he applies for relief in respect of a void agreement.
37. And, I think, we must remember that apart from the special provisions of law, to which I have referred, there is a general principle that we must never allow the Court to be made by a plaintiff an instrument of fraud. That applies just as much to a minor plaintiff as to any other plaintiff. We have no right to be tender to a minor in that matter. If a minor were allowed to misrepresent his age to a purchaser, to sell property to the purchaser so deceived, to deliver the property to him, to collect the purchase-money and then to come to Court at once and recover the property without being made to give up the purchase-money, that would be making the Court an instrument of very gross fraud, which we could never tolerate. In my opinion, under the provisions of Section 65 of the Contract Act, under the provisions of Section 41 of the Specific Relief Act and on the general principle which I have mentioned we cannot make the decree, to which the plaintiffs are entitled for the recovery, of the property, except on condition that they refund the purchase-money.
38. I agree that both these appeals should be dismissed without costs.