1. This is an appeal by the defendants in a suit for arrears of rent the claim is based on a kabuliyat which, the defendants contend, was obtained by undue influence. This defence has been negatived. As regards one of the two defendants the additional defence has been urged that the kabuliyat does not bind him, as it was executed by his mother, when she was the administration of the estate of his father, without the permission of the District Judge under Section 90 of the Probate and Administration Act. In our opinion that provision is of no assistance to the appellants. Section 90, no doubt, makes it obligatory upon the administratrix to obtain the sanction of the Court if a lease for more than five years is granted, but non-compliance with this provision does not invalidate the transaction, which becomes merely voidable and not void. If the party prejudicially affected thereby seeks relief, the Court will assist him only on equitable terms of reimbursement. The principle applicable to cases of this character was explained in the case of The Eastern Mortgage and Agency Co. Ltd., v. Rebati Kumar Roy (1906) 3 C.L.J. 260, which shows that an alienation by an executor or administrator without leave of the Court where such leave is necessary under Section 90 of the Probate and Administration Act, is not void but voidable. This attracts the operation of the elementary rule that no person can be allowed to avoid a transaction in such a manner as to enable him to recover property which would otherwise be lost to him and at the same time keep the money or other advantages which he has obtained thereunder. The maxim that 'he who seeks equity must do equity' is applicable to a defendant as well as to a plaintiff and a party who seeks to avail himself of an equitable defence must stand the test as well as one who appears as plaintiff in such a case as the present. Here the Courts below have found that the transaction was beneficial to the estate. At that time, as a suit had already been instituted for the cancellation of a prior kabuliyat and the main questions in dispute between the parties related to the extent of the lands comprised in the tenancy, the status of the tenant, the rate of rent payable and the fixity of the rent. These disputes were settled by a consent decree in the suit and by the execution of the kabuliyat. The defendant has never repudiated the kabuliyat. He has not, even in the course of this suit, offered to restore the land to the landlord. He cannot now be permitted to turn round and contend that the kabuliyat is not operative as against him. It is plain that the justice of the case is against the appellant, and Section 90 cannot be successfully invoked by him even on the assumption that Section 90 governs a case where a new kabuliyat is granted, as here, in respect of an existing tenancy.
2. The result is that the decree of the Subordinate Judge is affirmed and this appeal dismissed with costs.