1. Plaintiff and his elder brother sold certain property to defendant under Ex. 1 in 1915. He has sued for a declaration that Ex. 1 is void so far as it relates to his 1/2 share of the property on the ground that he was a minor when he joined his brother in executing it and for the partition and recovery of his half share. The District Munsif dismissed the suit; but on appeal the Subordinate Judge has made the declaration prayed for and has decreed that the property be divided and plaintiff's half share be delivered to him but he has made all this conditional on plaintiff depositing in Court within 3 months Rs. 1,250, that is half the amount of the purchase money paid by defendant, failing which the suit will be dismissed. - Defendant appeals to this Court.
2. It has been found by both the lower Courts that plaintiff was a minor when he executed Ex. 1 but that he dishonestly represented to defendant at that time that he was a major and that defendant believed that representation and acted on it in taking the sale deed from plaintiff as a major, that is the plaintiff intentionally caused defendant to believe, that he was a major and to act on that belief. Both the lower Courts are of opinion that plaintiff is not estopped in this case from pleading minority. Defendant alleged in his written statement that plaintiff was a major at the date of Ex.1. It is urged for defendant that as that was defendant's case and as it was found that plaintiff intentionally caused defendant to believe that he was a major and to act on that belief, the lower Courts were not at liberty to find that plaintiff was a minor at the date of Ex 1. Plaintiff was estopped under Section 115 of the Evidence Act from denying that he was a major at that date and therefore we have no knowledge and must carefully guard ourselves against acquiring any knowledge that he was not then a major. That appears to be the logical result of applying Section 115 of the Evidence Act to the facts found in this case, there being nothing in the section itself to confine it to persons other than minors or to preclude it from affecting a minor who in fact has intentionally caused another party to believe a thing to be true and to act upon that belief. But that is the very position taken up in Dadasaheb Dasrathrao v. Bai Nahani  41 Bom. 480 which was expressly dissented from by Coutts Trotter, J. (now C.J.) in Raghavayya v. Subbayya  7 L.W. 124. In that case, in which the prayers were similar to those in this case it was proved that at the time of the sale deed the plaintiff was a minor but not that he had represented that at that time he was a major. It is not therefore as accepted by the lower Courts an authority that plaintiff is not estopped in the present case from pleading his minority. But it has been brought to my notice that in A.S. No. 89 of 1920 on the file of this High Court (unreported), in which the original Court had found that a defendant who had executed a mortgage deed when a minor, fraudulently representing to the mortgagee that he was a major and causing the mortgagee so to believe, was liable to refund the mortgage money and eventually made a preliminary decree for sale as on a valid mortgage. Wallis, C.J., and Krishnan, J. laid down that the defendant was not estopped from pleading his minority and dismissed the suit. In doing so they quoted as authorities Guruswamy Pantulu v. Budhkarn Khajanchee  10 L.W. 225 from the very brief report of which it appears that a defendant who when a minor had executed a mortgage deed, was held by Wallis, C.J., and Sadasiva Aiyar, J. not to be estopped from proving that he was a minor at the date of execution even if he had so misrepresented himself as a major and Leslie v. Sliiell  3 K.B. 607. It was Leslie (R.), Ltd. v. Shiell  3 K.B. 607 which Coutts Trotter, J. regarded as sufficient to destroy the value of the Bombay decision in Dadha Saheb Dasratha Rao v. Bai Nahcmi  41 Bom. 480 and was also treated as the leading authority in Guruswamy Pantulu v. Lall Khajanchee  10 L.W. 225. As Coutts Trotter J, pointed out Leslie (R.), Ltd. v. Shiell  3 K.B. 607 has been mentioned with approval by the Privy Council in Mahomed Lyedol Ariffin v. Yeah Ooi Garh  2 A.C. 5.75. But with great respect I may perhaps point out that Leslie (R.), Ltd. v. Shiell  3 K.B. 607 has little to do with estoppel. There it was part of the plaintiff's case that the defendant was a. minor at the time of the transaction concerned -- indeed he was still a minor when the writ was issued -- and the decision was that the plaintiffs had not any of the remedies claimed against the defendant, who had obtained a loan from them by misrepresenting himself as a major. The approval of Leslie (R.), Ltd. v. Shiell  3 K.B. 607 expressed by the Privy Council in Mahomed Syedol Ariffin v. Yeoh Ooi Gark  2 A.C. 5.75 appears to have had no reference to any question of estoppel and in that case it was not found that the mortgagee plaintiff actually believed that the minor concerned was a major. Several other cases of this and other Courts have been quoted before me; but I do not think it necessary to discuss them now. I think I am clearly bound by the the decision of a Bench of this Court in A.S. No. 89 of 1920 to find that plaintiff was not estopped from proving that he was a minor at the date of Ex. 1. The appeal on that point fails.
3. Plaintiff has filed a memorandum of objections appealing against the Subordinate Judge's order that he must deposit half the purchase money. I do not think that Leslie (R.), Ltd. v. Shiell  3 K.B. 607 and Guruswamy Pantulu v. Lall kha-janchee  10 L.W. 225, on which Mr. Somayya has relied to show that a defendant who when a minor has obtained money on loan or mortgage by representing himself as a major cannot be compelled to refund it. are of much interest in connexion with this aspect of the present case. Here plaintiff comes to Court and asked for relief by way of a declaration that Ex. 1 is void so far as it relates to his share of the property, and under Section 41 of the Specific Belief Act that relief may be granted to him on the condition that he makes such compensation to defendant as justice may require. Mallacheruvu Baghavayya v. Mallacheruvu Subbayya  7 L.W. 124 is authority for that if any is required. Nor is it necessary in my opinion to attempt to trace in any detail where the purchase money for plaintiff's share of the property went or to attempt in such a case as this to distinguish between restitution and repayment. The Subordinate Judge has round that except an advance payment of Rs. 100 mide to plaintiff's brother the whole of the purchase money was paid to plaintiff and his brother jointly and that ,plaintiff derived full benefit from the purchase money. In the circumstances the fact that the disposal of Rs. 400 out of the total purchase money Rs. 2,500 has not been shown by the evidence does not affect the propriety of the latter finding. An attempt has been made on plaintiff's behalf to question this finding at the hearing in other respects ; but as plaintiff has not had the evidence printed 'he cannot succeed in that attempt. Since the date of Ex. 1 plaintiff and his brother have become divided and plaintiff is in possession of his share of the family property. In the circumstances the Subardinate Judge's juridiction to make plaintiff's success in the case conditional on his payment of the Rs. l,250 appears just and proper. The objection in regard to mesne profits which has been raised in plaintiff's memorandum, has not been argued before me.
4. An additional ground of appeal has been filed subseqently by defendant to the effect that plaintiff should have been directed also to pay him Rs. 150, half the amount spent by defendant in improving the land while in his possession since the date of Ex. 1. About this there is only the vague evidence of defendant himself, unsupported by any accounts. The point does not appear to have been urged before the Subordinate Judge. I see no sufficient reason to interfere with the Subordinate Judge's decision in this respect.
5. Both the appeal and the memorandum of objections are dismissed with costs.