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Abdul Majid Saib (Died) and ors. Vs. Ramiza Bibi Sahiba (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1931Mad468
AppellantAbdul Majid Saib (Died) and ors.
RespondentRamiza Bibi Sahiba (Died) and ors.
Cases ReferredBaluswami Aiyar v. Lakshmana Ayyar. In
Excerpt:
- - it is argued for the appellants that when a transaction is void, the person in whose favour it has been declared to be void is not bound to refund any moneys in respect of that transaction, and strong reliance in support of this proposition is placed on the ruling of the privy council in mohori bibee v dharmodas ghose [1903] 30 cal. if this is not well founded distinction, i think the decision would be contrary to the decision of the privy council in mohori bibee v. in this connexion it is interesting to note that refund of a proportionate amount of the purchase-money was ordered by the calcutta high court in laloo karikar v. that decision clearly has no application to the facts of the present case......were benefited. this decision is very similar to the present case. in the present case also the minor plaintiffs have been benefited as the debts binding on their father's estate were paid off by the sale of the property. in support of their conclusion the learned judges of the lahore high court relied also on two decisions of the bombay high court dattaram v. vinayak [1904] 28 bom. 181 and limbaji raoji v. rahi : air1925bom499 which held that in setting aside a sale made on behalf of a minor by an unauthorised person, the court may under section 41, specific relief act, make it a condition that the minor should refund the amount by which his estate and himself were benefited. the decision of the privy council in mohori bibee v. dharmodas ghose is relied on in all these cases in.....
Judgment:

Madhavan Nair, J.

1. The plaintiffs are the appellants. The parties to this second appeal are Mahomedans. The suit out of which this second appeal arises was instituted by the plaintiffs to set aside an alienation of property made by their mother, defendant 1, during their minority. They also sued for partition of the property, 7/8ths going to themselves and l/8th to their mother. The alienation is evidenced by Ex. 6 and the consideration, for it was Rs. 1430. The alienee, defendant 2, contended that she paid the full consideration for Ex. 5, that the money was utilized to pay off the plaintiffs' deceased father's debts binding on the estate and that she also effected improvements on the property from the date of her purchase. The lower Courts held that the alienation was invalid ' as it was made by the mother of Mahomedan minors' and gave a decree to the plaintiffs for 7/8th share of the properties but the recovery of the share was made conditional on the plaintiff's depositing in Court 7/8th of Rs. 1,430 that is Rs. 1,251-4-0. The plaintiffs were also directed to pay Rs. 750, the value of the improvements effected on the property.

2. In second appeal it is not argued that the alienation is valid nor is it seriously argued that the plaintiffs are not bound to pay the value of the improvements; what is strongly contended is that the lower Courts should not have directed the plaintiffs to refund to the alienee the proportionate amount of the purchase money in respect of their shares of the property.

3. It is settled law as laid down by their Lordships of the Privy Council in Imambandi v. Mutsuddi A.I.R. 1918 P.C. 11 that a Mahomedan mother has no power to alienate the property of her minor sons. The sale of the suit property by defendant 1 in favour of defendant 2 is therefore absolutely void. It is argued for the appellants that when a transaction is void, the person in whose favour it has been declared to be void is not bound to refund any moneys in respect of that transaction, and strong reliance in support of this proposition is placed on the ruling of the Privy Council in Mohori Bibee v Dharmodas Ghose [1903] 30 Cal. 539 in which it was held that a contracts by a minor, such as a mortgage, is void and a moneylender who has advanced money to a minor on the security of the mortgage is not entitled to repayment of the money on a decree being made declaring the mortgage invalid. It is true that their Lordships held relying on Thurstan v. Nottingham Permanent Benefit Building Society [1902] 1Ch.1 affirmed by the House of Lords in Nottingham Permanent Benefit Building Society v. Thurston [1903] A.C. 6:

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

but at the same time it is clear from that judgment that in a proper case having regard to Section 41, Specific Relief Act, the Court may in adjudging the can cellation of an instrument require the party to whom such relief is granted to (make compensation to the other which justice may require. The following observations of their Lordships are relevant 'in this connexion.

Another enactment relied upon as a reason why the mortgage money should be returned is Section 41, Specific Relief Act (1 of 1877) which is as follows:

Section 41. 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.

Section 38 provides in similar terms for a case of rescission of contract. Those sections no doubt give a discretion to the Court, but the Court of first instance and subsequently the appellate Court in 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.

4. In my opinion the decision of the Privy Council is an authority for the proposition that, though a transaction is declared to be void, the Court may under Section 41, Specific Relief Act, require the party to whom relief is granted to make compensation to the other party which justice may require. In the case before them their Lordships declined, to exercise the discretion in favour of the mortgagee as they agreed on that point with the Calcutta High Court which held that the circumstances of the case did not call for the exercise of any such discretion. On the authority of this decision it was held in Rang Illahi v. Mahbub Illahi A.I.R. 1926 Lah. 170 that in setting aside the mortgaga made by a Mahomedan mother who had no power to alienate the property of her minor son, the Court had discretionary power under Section 41, Specific Belief Act, to make it a condition that the minors should refund the amount by which the estate and themselves were benefited. This decision is very similar to the present case. In the present case also the minor plaintiffs have been benefited as the debts binding on their father's estate were paid off by the sale of the property. In support of their conclusion the learned Judges of the Lahore High Court relied also on two decisions of the Bombay High Court Dattaram v. Vinayak [1904] 28 Bom. 181 and Limbaji Raoji v. Rahi : AIR1925Bom499 which held that in setting aside a sale made on behalf of a minor by an unauthorised person, the Court may under Section 41, Specific Relief Act, make it a condition that the minor should refund the amount by which his estate and himself were benefited. The decision of the Privy Council in Mohori Bibee v. Dharmodas Ghose is relied on in all these cases in support of their conclusions by the learned Judges.

5. Besides the decision in Mohori Bibi v. Dharmodas Ghose as I have shown does not altogether preclude the repayment of moneys advanced for a transaction when it is declared to be void, the learned Counsel for the appellant relied also on the decisions in Marimuthu Udayan v. Ramaiengar [1913] 21 I.C. 879, Guruswamy Pantulu v. Lall Khajanchee [1919] 53 I.C. 14, Doulatud-din v. Dhaniram Chhutia [1916] 32 I.C. 804, Khair Din v. Shah Muhammad, A.I.R. 1929 Lah. 331 and Baluswami Aiyar v. Lakshmana Ayyar A.I.R. 1921. Mad. 172. As I shall show presently none of these decisions supports him to any extent. In Marimuthu Udayan v. Ramaiengar [1913] 21 I.C. 879 the present question arose for decision; but the learned Judges, Sankaran Nair and Tyabji, JJ., for different reasons thought it was unnecessary to decide it and the question was therefore left open. In Guruswami Pantulu v. Lall Khajanchee it was held that a minor mortgagor who enters into a transaction misrepresenting his age is under no equitable obligation to refund the money when the transaction turns out to be void. The judgment of; the High Court is a very short one; but the judgment appealed against makes it clear that there was in that case no room for applying Section 41, Specific Relief Act, for the circumstances of the case showed that the mortgagee

was aware that defendant 2 (the mortgagor) was a minor until took documents which accompanied the mortgage for purposes of throwing a favourable colour on the translation.

6. In Doulatuddin v. Dhaniram the learned Judges declined to apply Sections 38 and 41, Specific Relief Act, because as they pointed out there was 'neither cancellation of any document nor recission of a contract.'

7. In that case the suit by the plaintiff was for compelling the defendant to execute a sale-deed in respect of certain properties. If this is not well founded distinction, I think the decision would be contrary to the decision of the Privy Council in Mohori Bibee v. Dharmodas Ghose. In this connexion it is interesting to note that refund of a proportionate amount of the purchase-money was ordered by the Calcutta High Court in Laloo Karikar v. Jagat Chandra Saha : AIR1921Cal572 , when the transaction in question was set aside as void. In that case a Mahomedan died leaving his widow and infant) children. Ha had debts, and to satisfy the decree obtained by one of the creditors against some of the heirs the widow acting on her own behalf and on behalf of her children sold a certain property and made over delivery of possession. The children on attaining majority sued jointly with the widow to recover possession of the property on a declaration of title. The alienation except as regards the share of the mother was set aside as the mother had no power under Mahomedan law to alienate. The learned Judges held that the

decree for possession in favour of the plaintiffs should be conditional on repayment of a proportionate share of the ancestral debts payable out of the assets left by the original debtor and each heir who was competent to sell her own shire and cannot subsequently ignore her act was liable to satisfy the debt to the extent of the assets in her share:' see the head note.

In the judgment no reference is made to Section 41, Specific Relief Act. The learned Judges proceeded upon the general principle that

the essence of the matter is that each of the heirs is liable to satisfy the debt to the extent of the assets in his share.

8. It is obvious that this will be an important consideration for applying Section 41, Specific Relief Act, as under it relief by way of compensation will be granted only if justice requires it. The decision in Laloo Karikar v. Jagat Chandra Suha was followed in Jhanda v. Sapuran Singh A.I.R. 1925 Lah. 509, an exactly similar case. The decision in A.I.R. 1929 Lah. 331 does not help the appellants as in that case equitable relief was not granted to the vendee because the minors were not benefited in any way by the transaction and on this ground the case was distinguished from the decision in Rang Illahi v. Mahbub Illahi relied on by the respondents. The last case relied on by the appellants was Baluswami Aiyar v. Lakshmana Ayyar in which it was held that where a managing member of a joint Hindu family for purposes not binding upon the other coparceners and without their concurrence agrees to convey a specific item of property the purchaser cannot enforce specific performance of the entire contract; but Courts will grant specific performance by a conveyance of the share which the vendor had in the property at the date of the contract if the purchaser elects to pay the entire consideration.

9. On the strength of that decision it is argue that in this case since the vendee has got the mother's share of the property she should be content to retain it for the whole of the purchase money. That decision clearly has no application to the facts of the present case. It turned upon the provisions of Sections 15 and 17, Specific Relief Act, and related to an executory contract, whereas in the present case, we are dealing with an executed contract. In considering the rights of parties in respect of a conveyance which has been perfected, principles and equities different from those applicable to cases which rest on an executory contract will have to be applied; and this appears to be clear from the judgment of Kumaraswami Sastri, J., in Baluswami Aiyar v. Lakshmana Ayyar. In the present else the vendee is not seeking to enforce specific performance of any contract. She is only contending that since the transaction is declared to be void, compensation should be paid to her to the extent it has been set aside. Whether she should be compensated would depend upon the circumstances of the particular case.

10. In the present case, both the lower Courts have found that the minor's estate was benefited by the use Of the purchase money obtained from the vendee and so it is equitable when the transaction is set aside as regards their share that they should pay a proportionate amount of the purchase money on the principle of the decision in Mohori Bibee's case and as was decided in the various cases referred to above. In my opinion the decisions of the lower Courts are right and this second appeal should be dismissed with costs. I may state that this judgment will not affect the amendment made in the lower Court's decree subsequent to the filing of the second appeal.


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