Coutts Trotter, J.
1. The facts of this case are very simple. The plaintiff on the 2nd October 1903 executed a sale-deed of certain lands to the 2nd defendant jointly with his undivided brother, the 1st defendant, for Rs. 300 0 0. At the time of the conveyance he was a minor; it is contended that he definitely represented that be was of age and I am not convinced that that allegation, if proved, would make any difference in law; but it is sufficient to say that it is not proved.
2. A very great number of cases were cited before us, and a very interesting discussion took place. In my opinion the decision of the English Court of Appeal in Leslie Ltd. v. Sheill (1914) 3 K.B. 607: 30 T.L.R. 460 concludes the matter in all eases where the minor is a defendant and concludes it in his favour. I am not at all satisfied that the law is satisfactorily settled apart from Statutes, in cases where the minor is plaintiff, as the English cases seem to me to fall into two groups not easy to reconcile. I n ay take as representing one group, Nottingham Permanent Bent fit Building Society v. Thurstan (1903) A.C. 6 and as representing the other, Vabntini v. Canali (1890) 24 Q.B.D. 166. I desire to express no opinion on the point now. But 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 recognized in Mohori Bibee v Dharmo das Qhose 30 I.A. 114I regard this as a proper case for exercising that discretion and make it a condition that the plaintiffs shall repay the Rs. 150-0-0 to the 2nd defendant before recovering possession of the property. The details of the order are contained in the judgment of my learned brother, which I have had the advantage of perusing.
3. I desire to add that the decision in Dadasaheb Dasrathrao v. Bai Nahani 41 Ind. Cas. 180 is vitiated by the fact that no reference is made either in the report of the arguments or the judgments to Leslie Ltd. v. Sheill (1914) 3 K.B. 607a decision approved of in Mahomed Syedol Ariffin v. Yeoh Ooi Gark (1916) 2 A.C. 575. I think the Bombay decision must be regarded as erroneous.
Seshagehi Aiyar, J.
4. The plaintiff and the 1st defendant are members of a joint Hindu family. They executed a sale deed, Exhibit 1, to the 2nd defendant on the 2nd ot October 1903. The consideration recited is three hundred rupees. The suit is brought for the cancellation of that sale deed in so far as it affects the plaintiff, and for the recovery of a half share of the property on the ground that at the time of its execution the plaintiff was a minor. The District Munsif and the Subordinate Judge in appeal both held that the plaintiff was estopped by his conduct from recovering the property. Hence this second appeal.
5. The written statement of the 2nd defendant does not allege that an actual false representation as to age was made by the plaintiff. In paragraph No. 4 it is stated 'that the plaintiff was not a minor on the date of the execution of the sale deed as alleged in the plaint, but was a major.' Paragraph No. 9 says that 'plaintiff is estopped by his conduct subsequent to his ceasing to be a minor to prosecute his suit, even if the plaintiff was really a minor on the date of the execution of the suit document. There is no specific issue on the question of any representation. The District Munsif was of opinion that plaintiff must have been aware of his real age, and that, therefore, he must be deemed to have intentionally represented himself to be a major. The Subordinate Judge is apparently of the same opinion, in the evidence given by the 2nd defendant as his own witness he states in cross-examination; I asked the defendant and plaintiff how old plaintiff was when Exhibit I was executed because we had to give the age in the transfer application, I asked them about the age. I knew the plaintiff's age even before I asked them about it.' It may be that by implication it is intended to suggest by this evidence that some reply was given by the plaintiff about his age. It is unfortunate that this was not cleared up by the defendant in his re-examination. On these facts it is not open to the defendant to rely upon any actual false representation by the plaintiff as that was not alleged by him, and as there is no finding of any such representation by either of the Courts below.
6. Therefore, the position is this: The plaintiff at the time of the execution of the conveyance was undoubtedly a minor: and it is not shown that he made any false representation as to his age at that time. The question for consideration, therefore, is whether the plaintiff is entitled to have the sale-deed cancelled in respect of his share of the property and if he is so entitled, whether he should be bound by any equities. I do not. think Vaikuntarama Filial v. Athimoolan Chettiar 23 Ind. Cas. 799 affects this question. It may be permissible to point out that the decisions relied upon by the learned Chief Justice in that case have since been considered elaborately by the Court of Appeal in England in Leslie Ltd. v. Sheill (1914) 3 K.B. 607 : 30 T.L.R. 460. Lord Sumner points out that for a very long time and in many forms equity has interfered to give relief against frauds committed by infants, or has refused it to infants guilty of fraud; but the practice and even the principles applicable to such cases were long ill-defined. Then the Lord Justice proceeds to examine the case-law on the question and says that unless there is a fiduciary relationship or a relationship of accountability between the parties, the minor on attaining age is entitled to repudiate the transaction. One exception to this rule is that if the minor is in possession of property which can be restored in specie, he will be compelled to give it back to the person from whom he received it. A distinction is drawn between the cases of restitution and of re-payment. If it is a question of re payment, involving as it would new liability, personal or otherwise, he held the minor should, not be subjected to it. Lord Justice Kennedy in the same case says: It appears to me, that whilst Courts of Equity have interfered to make an infant restore property found in his possession which he had obtained by fraudulent misrepresentation as, e. g., the promissory note in the old case of Clarke v. Cobley (1789) 2 Cox 173 : 2 R.R. 25, to compel the recognition, in regard to property in his possession, of rights and interests of persons whom he has misled into entering into transactions in regard to it [cf. Watts v. Creswell (1714) 9 Vin. Abr. 415; and to prevent the payment over again to the infant of moneys of which he has procured the payment already by a representation of full age, as in Cory v. Gertcken (1816) 2 Madd. 40, there is no case in which I can find that a Court of Equity has given judgment against an infant in circumstances like the present, that is to say, in which it has interfered on the ground of the fraud of the infant, whereby he induced the making of the contract of loan, to order the infant to pay the plaintiff a sum equal to the sum borrowed under the void contract, and so, in effect, to the amount of the principal lent, to give validity as against the infant to a void contract. Lawrence, J., expressed similar views. This decision was accepted as good law by the Judicial Committee in Mahomed Syedol Ariffin, v. Yeoh Roi Gark (1916) 2 A.C. 575 The decision of the Bombay High Court in Dadasaheb Dasrathrao v. Bai Nahani 41 Ind. Cas. 180 does not refer to either of these decisions. Therefore, if the point distinctly arises for consideration, whether even though a false representation was made by the infant as to his age he should be refused relief, the question may have to be referred to a Full Bench; but as I stated at the outset, there is no ground in this case for holding that an actual false representation was made by the infant.
7. Mr. Somasundaram for the respondent contended that the mere fact of the minor not disputing that he was a major is tantamount to a representation by him that he was a major. I am unable to agree with this contention. The authorities seem to establish that it is not open to Courts to presume a representation from silence or from conduct. In order that a minor may lose the advantage secured to him by the law an assertion of untrue fact must be made by him. See Jones, In re; Jones, Ex parte (1881) 18 Ch. D. 109 : 45 L.T. 193 and Stikeman v. Dawson (1847) 1 De G. & Sm. 90 : 16 L.J. Ch. 205 : 11 Jur. 214.
8. It was next contended by the learned Vakil for the respondent that the principle of the English decisions should not be extended to cases where the minor comes into Court as plaintiff. There are dicta in some of the English decisions which toa certainextent support this contention. For example, in Hamilton v. Vaughan-Sherrin Electrical Engineering Go. (1894) 3 Ch. 589 Stirling, J., seems to concede that if the plaintiff who was a minor had derived any benefit he would not be granted relief without being compelled to refund the advantage which was secured to him, Corpe v. Overton (1833) 10 Bing. 252 : 3 L.J.C.P. 24 also contains observations to a similar effect. In Bam Ratun Singh v. Shew Nandan Singh 6 C.W.N. 132 that principle seems to have been accepted without any discussion whatsoever. But after the decision of the Judicial Committee in Mohori Bibee v. Dharmodas Ghose 30 I. A. 114 : 7 C.W.N. 441 5 Bom. L.R. 421 it is not permissible to say that the fact that the infant is a plaintiff and not a defendant should make any difference in the principle to be applied. The observations of Lord Justice Bomer in Thurston v. Nottingham Permanent Benefit Building Society (1902) CH 1 , which was fully endorsed by the House of Lords in Nottingham Permanent Benefit Building Society v. Thurstan (1903) A.C. 6, show that the array of the infant in the suit is not a matter of any significance. I am, therefore, of opinion that the fact that the suit is brought by the infant on attaining age is not a consideration for refusing relief to him.
9. The further question is whether the infant plaintiff should not be put on terms before he is granted relief. Chapter IV 6f the Specific Relief Act applied to both void and voidable contracts. Section 39 is clear on the point. Section 41 leaves it to the discretion of the Court to grant or refuse, to the party affected by the cancellation, compensation. Mr. Narayanamurthi for the appellant relied upon the judgment of the Judicial Committee in Mohori Bibee v. Dharmodas Ghose 30 I.A. 114 for the broad proposition that under no circumstances should the infant be compelled to pay compensation. There are two passages in the judgment of the Judicial Committee which although they appear to be in conflict on the face of them, are not really so. At page 125, their Lordships refer to Section 41 of the Specific Relief Act and point out that as the Courts below had not exercised the discretion vesting in them, the Board were not prepared to direct the award of compensation for the first time. In the next paragraph they advert to a contention based upon the principle that he who seeks equity must do equity. They point out that if the contract is void db initio no principle of doing equity would arise. The learned Vakil for the appellant contended that this succeeding paragraph must be taken to have given the final answer to the contention as to compensation. I do not think so. In my opinion the two paragraphs are consistent with each . other. In the second paragraph their Lordships must be taken to have held that if the matter rested purely on principles of equity, they would not be prepared to order compensation, as that claim was negatived under similar circumstances by the House of Lords in Nottingham Permanant Benefit Building Society v. Thurstan (1903) A.C. 6. Their Lordships should not be taken to have held that the statutory rule contained in Section 41 of the Specific Relief Act should not be given effect to, as it only contains a rule of equity. The net import of the two paragraphs is to declare that the statutory discretion as to compensation does exist and can be exercised by the Courts, but that if relief is claimed on general equitable grounds apart from the Statute, such a claim is inadmissible, as that would be opposed to the principles laid down by the House of Lords.
10. There can be no doubt that in this case the substantial prayer of the plaintiff is that the deed executed by him should be cancelled. The Courts below did not consider the question of compensation, as in their opinion it was not open to the plaintiff to repudiate the contract at all. We have, therefore, for the first time to apply our mind as to whether compensation should be awarded or not. Nothing that has beer, said by Mr. Narayanamurthi hag induced me to think that the plaintiff should not be put on terms. The contract was entered into by his own elder brother and although we are not now concerned with deciding whether the sale was for necessary purposes or not, there is no question that the money was actually received by both the brothers and that the plaintiff derived full benefit from the consideration paid by the 2nd defendant. The property has admittedly risen in value considerably, and the plaintiff is enabled by law to get back that property. I think he must be compelled to refund his share of the purchase-money before a decree for possession is given to him. I would, therefore, in reversal of the decree of the Courts below, give a decree to the plaintiff for possession of his half share in the property in suit and would also direct that he do pay within three months from this date to the 2nd defendant 150 rupees, being his share of the consideration for the sale. If the money is not paid, there will be a charge upon the property for this sum. I do not think that this is a case in which the plaintiff should be given any costs. I would order that each party do bear his own costs throughout.