EBRAHIM ROWTHER & OTHERS Vs. SYED MOHAMED ROWTHER

JUDGEMENT

(1.) THE property in suit, a shop building, belonged to the 1st defendant and his brother Assankunju Rawther (the father of the six plaintiffs and of the 2nd defendant, and the husband of the 3rd defendant) in equal shares. In 1117 M.E. (1941 -42 A. D.) Assankunju Rawther possessorily mortgaged his undivided half share in the property to the 1st defendant for Rs. 780/ -, and he died the following year of cancer for which for more than a year past he had been undergoing treatment in several places like Neyyur, Ernakulam and Nagercoil. About eighteen months after his death, by Ext. A dated 14 -8 -1119(28 -3 -1944), his major son, the 2nd defendant, and his widow, the 3rd defendant, the latter purporting to act also as guardian for the plaintiffs, all of whom were then minors, sold Assankunju's half share to the 1st defendant for Rs. 2,750/ -. According to the recitals in the deed the consideration was made up as follows:

(2.) IT has been argued on behalf of the plaintiffs that the sale under Ext. A being not merely voidable but void and non -existent so far as they are concerned, there is no principle of law by which they can be asked to pay their share of the liabilities before recovering their share of the property. The relief of a cancellation sought in the plaint was unnecessary and it must be regarded as superfluous. The plaintiffs, are entitled to ignore the sale altogether; the 1st defendant got nothing thereunder so far as the plaintiffs' shares were concerned, and if he paid something for nothing he must be left to bear the loss; it is not as if something he had got was being taken away so as to entitle him to compensation or make the plaintiffs liable to restore any advantage they had obtained; there is nothing for the court to cancel so as to award compensation as a condition of the cancellation; it is as if the 1st defendant had bought property belonging to one person from another; and the true owner cannot be asked to compensate a purchaser, who has foolishly paid money to a person to whom the property does not belong. In so far as this contention raises a pure question of law I have thought it as well to consider it although it was put forward for the first time in the course of the argument before me -it was not taken in the courts below, not even in the present memorandum of appeal -and is, in fact, inconsistent with the offer in the plaint to pay the plaintiffs' share of the genuine liabilities.

(3.) IN my view the contention is unsound. I do not think that a person whose property has been sold by another claiming no authority to sell it so as to bind him is in the same position as a person whose property has been sold by another claiming such authority. The success of the former in a suit in respect of the property does not depend on an adjudication by the court that the sale is void so far as he is concerned and does not bind him; nor can there be any question of his having received any advantage under the transaction. There can therefore be no question of his restoring any advantage he has obtained to the buyer, or of justice requiring that he should make compensation to the buyer. But, the success of the latte in such a suit, whether he figures as a plaintiff or as a defendant, depends on an adjudication by the court that the sale is void as against him and does not bind him; and it is quite possible that, as in the present case, he has received some advantage under the transaction. Therefore, in my view, both section 41 of the Specific Relief Act and section 65 of the Indian Contract Act would apply to enable the court to require him to restore the advantage he has received or to make compensation for it to the person from whom he received it. For, it seems to me, that when a court adjudges an instrument void as against a particular person, it adjudges the cancellation of that instrument so far as that person is concerned. It is not merely when a court sets aside a voidable instrument that it adjudges its cancellation. I see no difference between a court saying that an instrument is void as against a particular person, whether it gives a formal declaration to that effect or not, and its saying that the instrument is set aside or cancelled as against that person.