P L D 1952 Dacca 274 (PLP)

Rang Elahi v. Mahbub Elahi I L R 7 Lah. 35 and Ahmad Khan v. Mirajdin I L R 21 Lah. 605 distinguished. Ram Tuhul Singh v. Biseswar Lail Sahoo and another L R 2 1 A 131 (P C) ; T hurston v. Nottingham Permanent Benefit Building Society 1903 A C 6 ; Mohori Bibi v. Dharama das Ghose I L R 30 Cal. 539 (P C) and Irnambandhi v. Mutsaddi I L R 45 Cal. 878 (P C) relied on. Macnaghtin's Principles and Precedents of Muhammadan Law. Case No. VI, P. 171 ; D. F. Mulla's Principles of Muhammadan Law, 13th Edition, Section 364, p. 303 and Trevelyan's Law Relating to Minors, 5th Edition, Chapter XVll, P. 163‑165 referred to. A. K. Fazlul Huq and A. M. Sayem for Appellant. Muhammad Nurul Huq Chowdhury and A. M. Abdullah for Respondents. IBRAHIM, J.‑

In this appeal it is not necessary to traverse the entire field of facts which were pertinent to the various issues contested in the Courts below. Here, in this Court only one point of law is involved. and the facts relevant to it, which are not in dispute are as follows :‑Defendant No. 2 is plaintiff's elder brother and defendant No. 3 is his mother. They and the plaintiff inherited the land in suit from plaintiffs father who died during his minority. The plaintiff has 7" annas share in the land in suit. During his minority defendant No. 2, and defendant No. 3 on her own behalf and on behalf of the plaintiff, sold it to defendant No. 1, by the two kabalas Exh. A and Exh. A (1), dated respectively 27th of July 1939, and 24th of June 1940. Out of the sale proceeds, Rs. 807 was applied in taking settlement of some lands at Ramnathpur at a premium of Rs. 1,

257. This property has been recently sold at a price much higher than the premium that was paid for it. Plaintiff on attaining majority instituted this suit for recovery of his share in the land in suit on the ground that the transfer of his property by defendant No. 3 was void. In view of the authorities (Macnaghtin's Principles and Precedents of Muhammadan Law, page 171, case No. VI; Imambandhi v. Mutsaddi I L R 45 Cal. 878 (P C), D. F. Mulla's Principles of Muhammadan Law, 13th Edition, Section 364 at Page 303 ; Trevelyan's The Law Relating to Minors, 5th Edition, Chap. XVII, pages 163‑165) it is not disputed that the sale so far as the plaintiffs interest was void. But defendant No. 1 contends that the plaintiff is not entitled to any relief unless he refunds the entire benefit he has derived, namely, the profit he has made by selling the Ramnathpur property, or at least the consideration paid by him (defendant No. 1) for plaintiff's share in the land in suit. The Court below rejected this plea and decreed the plaintiff's suit unconditionally. Hence this second appeal by defendant No.

1. The question is whether the appellant is entitled to any such refund. In Ram Tuhul Singh v. Biseswar Lall Sahoo and another L R 2 I A 131 (P C). The Privy Council said "It is not in every case a person is benefited by the money of another that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality. To support such a suit there must be an obligation express or implied to repay." In Thurston v. Nottingham Permanent Benefit Building Society 1903 A C 6, a female infant obtained from the Society of which she was a member part of the purchase money of some property she purchased and the society also agreed to make her advances to complete certain buildings thereon. They made the advances and took from her a mortgage for the amount. On attaining 21, she brought the action to have the mortgage declared void under the Infant's Relief Act. It was held that as regards the purchase money paid to the vendor, the Society was entitled to stand in his place and had a lien on the property ; but that the mortgage must be declared void that the Society was not entitled to any repayment of the advances. Dealing with this part of their claim Lord Justice Romer said "The short answer is that a Court of equity cannot say that it is equitable to compel a person to pay any moneys in respect of a transaction which as against that person, the Legislature has declared to be void." In Mohori Bibi v. Dharma das Ghosh I L R 30 Cal. 539 (P C), money was advanced to a minor with full knowledge of his minority, on a mortgage executed by him. The minor through his mother as next friend instituted this suit for declaration that the mortgage was void and should be delivered up to be cancelled. The mortgagee claimed refund of the advance as a condition precedent to any relief being given to the plaintiff. In support of the mort gagee's claim reliance was placed on sections 64, 65 of the Indian Contract Act, and section 41 of the Specific Relief Act. Sections 64 and 65 of the Contract Act were held to be in applicable as these start from the basis of there being a contract and have no application to a case in which there never was and D never could have been, any contract. With reference to section 41 of the Specific Relief Act their Lordships virtually ruled that the discretion given to the Court under that section could not be exercised in favour of a person, who had taken a transfer from an infant with full knowledge of his minority. Sir Ford North who delivered the judgment of their Lordships, approvingly quoted the observation of Lord Justice Romer in Thurston v. Nottingham Permanent Benefit Building Society (supra) and negatived the mortgagees' defence. In view of these authorities I see no room for the appel lant's plea in this case. A transaction which is void is a nullity ; it does not exist and never existed in the eye of law. If a minor's property is sold by an unauthorised person, such as the mother is under the Muslim Law, the sale is void. If in such a case, the transferee is let into possession of the property his possession as held by the Privy Council in Imam bandhi v. Mustaddi (supra) is no better than that of a tres passer. Now, if a trespasser spends money or pays it to an unauthorised person to enable him to secure possession of the minor's property, it would be extraordinary result if it be held that he is entitled to resist the minor's claim for recovery of t the property unless the minor pays him that money. To permit him to do that would be to allow him to take his stand on a transfer which never had and has no existence in Law. Section 41 of the Specific Relief Act, which gives the Court discretion to allow compensation on adjudging the cancellation of an instrument, cannot come in for consideration at all, for the instrument having no existence in law does not require cancellation. The position of the transferee must be regarded as that of a person advancing money, without there being any transfer of property. The transferee is not entitled to resist the minor's claim for recovery of the property unless he can do so on some footing other than that of the transfer. On behalf of the appellant reliance has been placed on Rang Ilahi v. Mahbub Ilahi I L R 7 Lah. 35 and Ahmad Khan v. Mirajdin I L R 21 Lah.

605. In the second case the question decided against the minor was whether his claim to the property could prevail against a bona fide auction purchaser at a sale in execution of a decree on a mortgage executed on his behalf by his mother to liquidate a subsisting mortgage created by the father from whom he inherited the property. As regards the question involved in the present case, the view that had been expressed in the first case, was reaffirmed. In the first case the money borrowed by the mother by executing a mortgage on behalf of her minor children, was spent partly in liquidating a subsisting mortgage created by the minor's father and partly for the maintenance of the children. It was held that the minors were not entitled to recover the property without pay ing this amount together with the cost of certain improvements made by the mortgagee. It is not necessary to decide in this case, whether in such circumstances as were present in those cases, a refund of the money can .be imposed as a condition precedent to the recovery of the property by the minor. Here the facts are different. The question here is whether in the circumstances of this case the plaintiff can be called upon to take any refund. According to the findings of the Court below the minor was not in need of money. He had sufficient property to meet his needs. The mother, who took the money spent it in acquir ing a property at Ramnathpur. This was a sort of speculation. The minor can have no personal liability in respect of this money and he cannot be called upon to refund it. Even section 68 of the Contract Act which binds the minor's estate for supply of necessaries does not apply to this case, Whether on the analogy of the case of Thurston v.. Nottingham Permanent Benefit Building Society (supra) he can have any lien on the Ramnathpur property is a different matter and for that he cannot refuse to deliver possession of the property in dispute which he is holding as a trespasser. This appeal, therefore, fails and is dismissed. The parties will bear their respective costs throughout. A. H. Appeal dismissed.