P L D 1969 Peshawar 306 (PLP)

SHER BAHADUR KHAN, J.

‑ The important question involved in this Letters Patent Appeal is whether the minors, who under a fraudulent concealment of the fact that they were minors at the time they entered into the mortgage transaction, could later on succeed in a suit for cancellation of the mortgage transaction without refunding the mortgage money. This question arose under the following circumstances

2. One Akram Khan, a resident of Hsara Barani, was the owner of 56 shares out of 144 shares of land, measuring 112 kanals 7 marlas. He in his lifetime mortgaged 12 shares to Shah Pasand Khan, defendant‑appellant (who is since dead) for Rs.

379. Akram Khan also died and was survived by his two sons, Ihsan and Muhammad Shuaib. Besides, he left behind a widow and a daughter. The property was, however, inherited by the two sons and the daughter to the exclusion of the widow. After the death of Akram Khan, his widow was appointed as the guardian of Ihsan and Muhammad Shuaib by the Guardianship Court (Senior Sub‑Judge, Peshawar). Ihsan and Muhammad Shuaib were still under the guardianship of their mother, when on 8th June 1953 they mortgaged the remaining 44 shares out of the land which they still owned to Shah Pasand Khan, wherein they admitted the previous mortgage of 12 shares for Rs. 379 in his favour. The entire mortgage charge of 56 shares was admitted to be Rs. 8,

000. This mortgage deed was presented by Shah Pasand Khan for registration before the Sub‑Registrar. Ihsan and Muhammad Shuaib who appeared before the Sub‑Registrar produced medical certificates issued by the Assistant Surgeon, Charsadda, showing that Muhammad Shuaib was about 18‑19 years old and Ihsan was about 23 years old. There was an endorsement of the Sub‑Registrar to the effect that the sum of Rs. 6.771 was paid in his presence to Ihsan and Muhammad Shuaib. The possession of the mortgaged land was delivered to the mortgagee.

3. Muhammad Shuaib and Ihsan minors along with Mst. Ahmadia through their mother Mst. Hussan Zarina as their next‑friend brought a suit giving rise to the present appeal for possession of the land measuring 86 kanals 18 marlas out of 112 kanals 7 marlas allegedly mortgaged by Ihsan and Muhammad Shuaib to Shah Pasand Khan. The ground on which the suit was based was that the transaction of mortgage was entered into during the minority of Muhammad Shuaib and Ihsan, and that the transaction was void ab initio, and therefore the recovery of possession of the land was sought without payment of mortgage money. Subsequently, the plaint was amended and the name of Mst. Ahmadia was omitted from the plaintiffs' list and the name of Abdur‑Rahman was removed from the defendants' list.

4. The suit was contested only by Shah Pasand Khan defendant, and the pleas of the parties gave rise to the following issues :‑ (1) Whether the plaintiffs mortgaged the suit land with some other land to the defendant No. 1 for Rs. 8,000? (2) Whether the plaintiffs were minors at the time of execution of mortgage deed and Mst. Hussan Zarina is their lawful guardian? (3) If issue No. 1 is proved, whether the mortgage is void and inoperative against the rights of the plaintiffs? (4) If issue No. 3 is proved, whether plaintiffs shall be entitled to possession of suit land on payment of the mortgage amount of Rs. 8,000? (5) Whether the plaintiffs are estopped from bringing the suit? (6) Whether defendant No. 1 is a bona fide transferee for consideration without notice, if so, what is the effect? (7) Is the suit not competent in the present form? (8) Whether the suit is bad for non‑joinder of necessary parties ? (9) Whether plaint has not been amended according to the application allowed? (10) Relief.

5. The suit was tried by the Sub‑Judge 1st Class, Charsadda, in which Court the only point raised on behalf of Shah Pasand Khan was that the plaintiffs should be made to pay the mortgage amount of Rs. 8,000 in the event of decree in their favour. Reliance was placed on section 65 of the Contract Act, but the learned Sub‑Judge ruled that section 65 could not be attracted in the present case, as this section, in his opinion, applied only where the agreement was not known to the parties to be void at the time they entered into it, or where the parties are presumed to have known at the time of inception that the agreement was ‑void. The suit was decreed.

6. Shah Pasand Khan preferred an appeal. The learned District Judge relying on Ajudhia Prasad and another v. Chandan Lal and another (A I R 1937 All. 610) and B. Kala Ram S. Bhag Singh and Fazal Bari Khan and others (A I R 1941 Pesh. 38) dismissed the appeal, by his order dated 30th May 1959.

7. In second appeal in this Court, the learned Single Judge in Chambers, by his order dated 21st October 1963, dismissed the appeal, following the ruling of the Full Bench of Allahabad High Court in Ajudhia Prasad v. Chandan Lal and of Peshawar in B. Kala Ram S. Bhag Singh v. Fazal Bari Khan.

8. This is a Letters Patent Appeal against the judgment of the learned Single Judge in Chambers. The simple question for determination in this appeal is whether Muhammad Shuaib and Ihsan who falsely represented themselves to be majors before the Sub‑Registrar at the time they entered into the mortgage transaction with Shah Pasand Khan were entitled to recovery of possession of the land mortgaged without refunding the mortgage money. In deciding this question, it is to be remembered that there are two provisions that permit a refund of the benefit derived by the minors by misrepresentation. They are section 65 of the Contract Act and section 41 of the Specific Relief Act. The leading case on the subject is Khan Gul and another v. Lakha Singh and another (A I R 1928 Lab. 609) (of five Judges, Harrison, J. dissenting). In that case, it was ruled that "a party, who, when a minor has entered into a contract by means of a false representation as to his age, cannot, whether he be defendant or plaintiff, in a subsequent litigation while refusing to perform the contract, claim to retain the benefit he may have derived therefrom". This later on came up for discussion in Ajudhia Prasad v. Chandan Lal. The view of the matter taken by the Lahore Full Bench was not approved by the Allahabad Full Bench, where Sulaiman, C. J. sit with Thom and Bennet, JJ. In the Allahabad case, it may be remembered that the second appeal arose out of a suit for sale on the basis of the mortgage deed executed by the defendants in favour of the plaintiffs. The defendants pleaded that they were minors at the time of the mortgage deed, a certificated guardian having been appointed for them, and also pleaded that there was no necessity for contracting the debt. In the rejoinder the plaintiffs denied that the defendants were minors and also asserted that the defendants were liable to pay the amount under section 68 of the Contract Act. The issues framed by the trial Court related to the minority of the defendants, the object of the debt and its proper attestation and consideration. The trial Court found that the defendants were more than 18 years of age but under 21 years, and that there was no evidence of representation either by the defendants or their father Sital Prasad. The Court held that the plaintiffs could not recover the amount under section 68 of the Contract Act. The lower appellate Court held that the defendants were in fact minors, being under 21 years of age. But it held that the respondents and their father not only concealed the fact that there was already guardian appointed for the minors, but the father even went to the length of declaring before the Sub‑Registrar that his younger son was over 18 years. Following the ruling of the Full Bench of the Lahore High Court in Khan Gul v. Lakha Singh, the Court decreed the claim, for the recovery of the amount with interest at the contractual rate and future interest and in default for sale of the mortgaged property. The appeal came up before the two Judges of the Court who referred after formulating the question to the Full Bench consisting of three Judges. It will be pertinent to note that this was not a case where minors had come to Court as plaintiffs; but that they were sued as defendants. In the present case, the minors happen to be plaintiffs and while seeking restitution of the mortgaged property also wish to run away with the mortgage debt of Rs. 8,000 already received by them on false representation of majority, and therefore they cannot escape on the well‑established principle, recognised by both the Full Benches of Allahabad and Lahore High Courts "that he who seeks equity must do equity". The Allahabad Full Bench is clearly a case where, as already observed, the question considered was whether the minors as defendants can be made to refund the benefit that they derive from a transaction. It did not lay down the law in a case where the minors were plaintiffs and they sought the assistance of the Court. This will be apparent from the observations of their Lordships appearing at page 616 of the report. "Their Lordships dismissed the plaintiff's appeal and did not give him any compensation. Cases like dagar Nath Singh v. Lalta Prasad (31 All. 21) where the plaintiff minor himself seeks relief for cancellation of a document or rescission of a contract are of course to be distinguished because there he is seeking equity and must do equity. In such cases Courts have always imposed the condition upon him to restore the benefit". At page 617 of the report, while commenting on the judgment of the Lahore Full Bench, it was observed‑ "The learned Chief Justice remarked that he was unable to follow the distinction pointed out in Lesly's case (1914) 3 K B 607 and thought that there was no real difference between restoring property and refunding money, except that the property can be identified, but cash cannot be traced. That there is a clear difference is well‑recognized in England. Where a contract of transfer of property is void, and such property can be traced, the property belongs to the promisee and can be followed. There is every equity in his favour for restoring the property to him. But where the property is not traceable and the only way to grant compensation would be by granting a money decree against the minor, decreeing the claim would be almost tantamount to enforcing the minor's pecuniary liability under the contract which is void. The distinction is too obvious to be ignored. The learned Chief Justice has distinguished the case of Mohori Bibi v. Dharmodas Ghose (1903) 30 Cal. 539, where restitution was not allowed on the ground that the party who had lent the money to the minor was aware of the minority. But that part of the judgment of their Lordships was with reference to a claim by the minor under the Specific Relief Act, in which case the Court would have a discretion to impose terms before granting the decree. It would absolutely have no application to the converse case where the defendant is being sued and is not himself asking for any relief. I regret I am unable to appreciate the applicability of the remark of Lord Kenyon quoted by the learned Chief Justice that the protection given by law to the infant `was to be used as a shield and not as a sword'. Surely when the defendant is being sued and sets up the plea of minor ity, he is not using his minority as a sword, but is merely using it as a shield. I am unable to agree that because such a defence would deprive a creditor of his money, the defendant infant is using his minority as a sword.

9. Later, Sulaiman, C. J., who delivered the judgment in this case, observed:‑ "In the same way I am, with great respect, quite unable to agree with the view propounded in that case that the equitable jurisdiction of the Court to order restitution is no more applicable to a case to which the minor is a plaintiff than to an action in which he is defendant; apparently the entire basis of the judgment is that as there is authority for imposing conditions on a minor to refund the consideration when he is suing as plaintiff for the rescission or cancellation of his void contract, there is an equal justification for passing a decree for money against him when he is being sued by his creditor, though he is a defendant. With utmost respect, 1 would say that such a view would be contrary to the great preponderance of authority both in England and in India and would ignore the well recognized distinction between the position of a minor when suing as a plaintiff and when he is being sued as a defendant Tek Chand, J. also held that the minor is not estopped from pleading his minority in avoidance of the contract, but on the other question he agreed with the learned Chief Justice. The learned Judge conceded that there are dicta in several English decisions that this jurisdiction to make restitution in integrum is limited to those cases only in which it is possible to compel the minor to restore the property in special which he had obtained by fraud, and that the Courts, while holding a contract to be void, cannot order him to refund the money which he has received under it. He has also conceded that sections 39 and 41, Specific Relief Act, relate to those cases only in which the minor is the plaintiff, and ultimately concluded that there was no justification for making a distinction between the cases where the minor is the plaintiff and where he is the defendant.

10. The Chief Justice who delivered the judgment also referring to the dissenting judgment of Harrison, J. in the Lahore Full Bench case, observed:‑ "The learned Judge rightly pointed out that section 41, Specific Relief Act, had no application because in a suit against an infant there is no question of the cancellation of an instrument and when the minor is a plaintiff, there is well‑known principle that he who seeks equity must do equity, and therefore held that no suit of this nature, being in its essence contractual, can lead to an order for restitution by the infant on the ground of his having dishonestly induced the plaintiff to contract with him and to pay him money." Then thereafter it was made clear in the judgment by saying "To pass a decree against a minor enforcing his pecuniary liability would, while holding that the contract is void and un enforceable, at the same time be passing a decree against him on the footing that he had entered into the contract and has not carried out its terms. There is no rule of equity, justice and good conscience which entitles a Court to enforce a void contract of a minor against him under the cloak of equitable doctrine."

11. Having quoted extensively from the two Full Bench judgments of Lahore and Allahabad High Courts, we also find that in Kala Ram v. Fazal Bari the defendant was minor and he had not come to the Court to seek assistance. On that score this case is distinguishable from the present one where the minors have come to Court as plaintiffs.

12. After having gone through the two Full Bench authori ties cited above, we find that in the Allahabad case Sulaiman, C. J., as earlier stated, showed his inability to appreciate the applicability of the remark of Lord Kenyon quoted by the learned Chief Justice (the late Sir Shadi Lal) that the protection given by the law to the infant was to be used as a shield and not as a sword" He added "surely when the defendant is being sued and sets up the plea of minority he is not using his minority as a sword, but is merely using it as a shield." Thereafter, he expressed his inability to agree that because such a defence would deprive a creditor of his money, the defendant infant is using his minority as a sword. The learned Chief Justice nowhere said that the same would be the position where the minor was a plaintiff. In this view of the matter, we are of the humble opinion that the well known principle that "he who seeks equity must do equity" will come into play with full force in the case where the minor after fraudulently representing as to his age enters into a bargain and then brings the action as a plaintiff for the restitution of immovable property he must be made to refund the consideration. In conclusion, the law would be put thus‑ (1) If there is a fraudulent representation as to age by the minor. (2) If he brings the action as a plaintiff, the restitution of the immovable property is to be ordered, but the minor is made to refund the consideration.

13. The minors, in the present case, have, therefore, to refund the sum of Rs. 8,000 before restitution of the mortgaged property is ordered. We accordingly accept this appeal, set aside the judgments and decrees of the Courts below and decree the suit of the plaintiff‑respondents on payment of Rs. 8,000, the mortgage money. In view of the difficult question of law involved in the case, we leave the parties to bear their own costs throughout. S. A. H. Appeal accepted.