MT HAMIDAN BIBI Vs. NANHE MAL

JUDGEMENT

(1.) The facts of the case, which have led to this appeal, lie within a very narrow orbit. On 30 October 1919 Mt. Muniran, Mt. Hamidan and Suleiman executed a sale-deed of a house situate, in mohalla Sarai Harha in the city of Benares in favour of Nannhe Mal and Radhe Shiam for a sum of Rs. 2,700. It is admitted by the parties that the share of Mt. Muniran in the house was 11 annas 4 pies, that of Suleiman was 3 annas 1 /3 pies and that of Mt. Hamidan was one anna 6 2/3 pies. The proportionate price of Mt. Hamidan's share in the property was Rupees 253. It has been found by the Courts below that on the date of the execution of the sale- deed, Mt. Hamidan was a minor. The sale of her interest in the property was therefore void under Section 11, Contract Act. On 4 June 1927 Mt. Hamidan brought a suit in the Court of the city Munsif of Benares for the avoidance of the sale-deed so far as it touched her interest in the property upon the ground that no title did or could pass to the vendees by reason of her minority. The Court of first instance decreed the suit. On appeal, the lower appellate Court has varied the decision of the trial Court by putting the plaintiff upon terms. The lower appellate Court remitted an issue to the trial Court: as to whether Mt. Hamidan at the time of executing the sale-deed had misrepresented her age to the vendees. The finding of the trial Court was in plaintiff's favour. The lower appellate Court upon a review of the entire evidence came to the conclusion that Mt. Hamidan was as a matter of fact, a mi-nor on the date of the execution of the sale-deed but that she had persuaded the vendees to purchase the property by holding out that she was a major. The lower appellate Court further found that Mt. Hamidan had obtained a benefit out of the sale transaction: There can be no doubt from the evidence that the members of the plaintiff's family were desirous of selling this house in order to obtain funds for opening a shop by the plaintiff's father-in-law (who witnessed the sale-deed) or her brother.

(2.) The Court further held that Mt. Hamidan "should make good the benefit which she has received." In the result, the lower appellate Court directed that a decree be passed in plaintiff's favour declaring her right to joint possession to the extent of her share in the house on the condition that she paid Rs. 253 to the vendees. Plain-tiff challenges the legality and propriety of the order passed by the lower appellate Court and contends that the condition as regards the refund of Rs. 253should be deleted from the decree. A number of authorities have been cited by the appellant but they are of no assistance to her and are opposed to the rulings of this Court. Section 41, Specific Relief Act, provides that: 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.

(3.) In Mohori Bibee V/s. Dharmondas Ghose (1903) 30 Cal 539 the Judicial Committee ob-serves as follows: Another enactment relied upon as a reason why the mortgage money should be returned is B. 41, Specific Relief Act, which is as follows: ... Section 38 provides in similar terms for a case of a rescission of a contract. These sections no doubt do give a discretion to the Court, but the Court of first instance and subsequently the appellate Court in the exercise of such discretion came to the conclusion that under the circum-stances 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 in-fancy, and their Lordships saw no reason for interfering with the discretion so exercised.