JUDGMENT Banerji, J.
1. This and the connected First Appeal No. 118 of 1906 arise out of a suit brought by the respondents Lalta Prasad and Bhuaneshri Prasad for possession of a 2 anna 6 pie share of zamindari and for a declaration that a sale-deed, dated the 28th of June 1899, executed by them jointly with one Dwarka Prasad in respect of the said share, is null and void.
2. The plaintiffs are the sons of Lala Madho Prasad, whose paternal uncle is the aforesaid Dwarka Prasad. After the death of Madho Prasad in 1882, Dwarka Prasad applied for and obtained in 1888 a certificate of guardianship of the persons and property of the plaintiffs who were minors at the date of their father's death. Madho Prasad and Dwarka Prasad jointly owned an 8 anna share in the village Kharaun, out of which Madho Prasad, in his life-time sold 2 annas 9 pies and Dwarka Prasad sold 2 annas 6 pies after Madho Prasad's death. The remaining 2 annas 9 pies was sold by the plaintiffs and Dwarka Prasad on the 28th of June 1899 to Jagar Nath Singh defendant and the predecessors in title of defendants Nos. 2 to 11. The plaintiffs state that they were minors at the date of the sale; that they are persons of weak intellect and inexperienced; that they executed the Bale-deed under the influence of Dwarka Prasad, who is an extravagant man of dissolute habits; that they did not derive any benefit from the sale; that the sale was effected without any necessity, and that they did not receive any part of the consideration for it. On these grounds they seek to set aside the sale and recover possession of the portion of the property sold of which the purchasers have taken possession.
3. The defendants deny that the plaintiffs were minors at the date of the sale and assert that the plaintiffs represented themselves to be of full age and thus induced them to purchase the property. They contend that the plaintiffs are estopped from maintaining the suit, and that in any case they are bound to make restitution of the amount of consideration for the sale. The Court below found that the age of the plaintiff was below 21 years on the date of the execution of the sale-deed and that they were minors and incompetent to make the contract of sale. Following the ruling of their lordships of the Privy Council in Mohori Bibee v. Dharmodas Ghose (1903) I.L.R. 30 Calc. 539 the learned Subordinate Judge held the sale to be void. He, however, was of opinion that the plaintiffs had made fraudulent misrepresentations to the purchasers as to their age and that they benefited by the sale. He accordingly made a decree for possession on condition that the plaintiffs should refund so much of the consideration for the sale as represented the value of the share decreed to them.
4. Against this decree the defendants purchasers have preferred this appeal and the plaintiffs have preferred appeal No. 118. The defendants repeat the pleas advanced by them in the Court below. The plaintiffs contend that they are not liable to make any restitution.
5. After arguments were heard in both the appeals the learned advocates for the parties informed us that there was some] likelihood of a compromise. We accordingly deferred judgment. The parties, however, have not come to any terms and we must decide the appeals.
6. The first question is that of the age of the two plaintiffs. It was conceded at the hearing that as a guardian of the plaintiffs was appointed by the Court they must be deemed to have been minors until they attained the age of 21. It is alleged on behalf of the plaintiffs that Lalta Prasad was born on the 24th of November 1880 and Bhuaneshri Prasad on the 17th April 1882. If this allegation is true, the former attained majority in 1901 and the latter in 1903. So that both of them were under age when they executed the sale-deed. At the time of the registration of the sale deed, however, the former stated his age to be 24 and the latter 22. As has been stated above, the learned Subordinate Judge has found that both the plaintiffs were under the age of 21 years when they executed the sale-deed. After carefully considering the evidence I find it impossible to come to a different conclusion. It has been abundantly proved that Mad ho Prasad, the father of the 'plaintiffs, died in 1882. The witnesses for the plaintiff, who are men of position and respectability, swear that at that time Bhuaneshri was about six months old and Lalta Prasad about 18 mouths. There is no reason to disbelieve these witnesses, and it is most unlikely that they have made a mistake. The most important evidence on the point is afforded by the fact that when on the 3rd of April 1888 Dwarka Prasad applied for a certificate of guardianship he stated in his application that the age of Lalta Prasad was 7 and that of Bhuaneshri 6 years. Dwarka Prasad has been examined in this case and has supported his former allegation. He had no motive in 1888 for under-standing the age of each of his grand-nephews, and I see no reason to assume that he did so. According to the evidence of Lieutenant-Colonel Emerson, the Civil Surgeon, the plaintiffs were not of full age in 1899. On this point I fully agree with the finding of the Court below.
7. As the plaintiffs were minors at the date of the sale-deed they were incompetent to make a contract of sale, and according to the ruling of the Privy Council in Mohori Bibee v. Dharmodas Ghose (1903) I.L.R. 30 Calc. 539 referred to above, the sale must be held to be absolutely void.
8. It is contended that as the plaintiffs falsely represented to the appellants that they were of full age and thereby induced the appellants to purchase their property and pay them the price of it, they are estopped from proving their true age and denying the validity of the date made by them. Reliance is placed on the provisions of Section 115 of the Evidence Act, which, it is urged, applies to minors also. The authorities on the question whether that section applies to minors are divergent. Whilst it was held by some of the Judges of the Calcutta High Court in Brohmo Dutt v. Dharmodas Ghose (1898) I.L.R. 26 Calc. 381 that the section applies only to persons of full age, the contrary view was held by the Bombay High Court in Ganesh Lala v. Bapu (1895) I.L.R. 21 Bom. 198. I do not, however, deem it necessary to express any opinion on the point although it seems to me to Le difficult to hold that in no case would the doctrine of estoppel be applicable to infants (see Bigelow on Estoppel, pp. 599 et seqq). In my opinion the law of estoppel can only be applied subject to other provisions of law, and therefore when, as held by the Privy Council, a contract by a minor is void under the provisions of the Contract Act, the law of estoppel cannot be invoked in aid to validate that which is void under the law. The law on the subject is thus stated in Pollock on Contracts, 6 edn., p. 73 : "When an infant has induced-persons to deal with him by falsely representing himself as of full age, he incurs an obligation in equity which, however, in the case of a contract is not an obligation to perform the contract and must be carefully distinguished from it." Indeed it is not a contractual obligation at all. It is limited to this extent "that the infant is liable to restore any advantage he has obtained by such representation to the person from whom he has obtained it." (p. 52). This was held in Stikeman v. Dawson (1847) 16 L.J. Ch. 205 and other cases to which it is needless to refer. In that case Vice-Chancellor Knight Bruce observed that for false representation or a fraudulent suppression or concealment the minor was answerable in equity after his majority, notwithstanding his minority at the time. This liability attaches to a minor, not on the ground of estoppel, but, as Sir Frederick Pollock points out, on the ground that "an infant shall not take advantage of his own fraud." If, however, the fact of minority "was known and there was no deception, restitution cannot be ordered. No question of estoppel therefore arises in this case, and what we have to consider is whether the plaintiffs made any fraudulent misrepresentation as to their age which deceived the appellants and induced them to purchase the property in question.
9. The circumstances which led up to the sale of the 28fch of June 1899 are these. On the 26th of August 1893 Dwarka Prasad borrowed Rs. 400 from some of the appellants and hypothecated a 4$ pie share. In lieu of that sum and interest due thereon and a further advance of Rs. 665 in cash for the expenses of the marriage of Lalta Prasad, plaintiff, a mortgage bond for Rs. 1,200 was executed by Dwarka Prasad and Lalta Prasad on the 9th of June 1897. On that occasion Lalta Prasad stated his age to be 22 years. On the 11th of April 1898 Lalta Prasad alone borrowed Rs. 799-12-0 from Shiubaran Singh and others and executed a mortgage of a 1 anna 3 pie, share. On this occasion also he stated his age to be about 22 years. On the 7th of February 1899 Bhuaneshri borrowed Bs. 800 from Babu Karan Singh and executed a mortgage of a 1 anna 3 pie 15 kant share. He Stated before the Sub-Registrar that his age was about 22 years and received the money in. the presence of that officer. So that long before the execution of the sale-deed in suit the two brothers executed three documents and represented themselves to be persons of full age. In respect of the last two mortgages the appellants brought suits for pre-emption and these suits were defended by the plaintiffs as persons of full age and they filed written statements in that character on the 17th of February 1899. Before that date, that is on the 16th of February 1899, the two plaintiffs and Dwarka Prasad sent a notice to the appellants informing them that they were desirous of selling a 3 anna share in the village Kharaun and that the price had been settled with Shiubaran Singh and others at Bs. 8,000, and they asked the appellants if they would purchase that share for the aforesaid price. They further stated in the notice that the sale should be completed within ten days, otherwise the property would be sold to Shiubaran Singh and others. An answer to this notice was sent on the 23rd of February 1899 expressing readiness to purchase for a reasonable price. After this the pre-emption suits were com-"promised and petitions of compromise were filed on 15th March 1899, in which Lalta Prasad and Bhuaneshri said that it had been agreed with the present appellants, the plaintiffs in those suits, that each of the two brothers would sell to the appellants a 1 anna 3 pie 15 kant share for a consideration of Bs. 2,800. In the written statements, the notice and the petitions of compromise mentioned above, the plaintiff professed to act as persons of full age. Decrees were passed in the pre-emption suits against the plaintiffs in accordance with the compromise, and in the decrees their names appear as those of persons of full age. It was in pursuance of the terms of the compromise that the sale-deed of 28th June 1899 was executed. The property sold was a 2 anna 9 pie share, and the consideration was Rs. 5,958-5-0, which was made up of Rs. 1,674-8-0 due to Shiubaran Singh and others on the mortgages of 11th April 1898, and the 6th of January 1899; Rs. 1,420-8-0 due on account of the mortgage of 9th June 1897, and Rs. 2,863-5-0 paid in cash before the Sub-Registrar. At the time of registration of this document Lalta Prasad stated his age to be about 24 and Bhuaneshri's about 22 years. It is thus manifest that not only at the date of the execution of the sale-deed in question did the plaintiffs represent themselves to be of full age, but in 1897, 1898 and 1899 they executed documents in favour of the appellants and other persons in which they made similar representations, and at no time was it ever hinted that they were minors. As in fact they were minors, these representations were falsely made and they were clearly made with a view to induce the appellants to advance them money and purchase their property on the faith of these representations. If the appellants or any of them was aware of their true age they had no object in obtaining documents from them without the intervention of a guardian. I fully agree with the following observations of the learned Subordinate Judge: "There is no satisfactory evidence on the record to show that the defendants knew the true age of the plaintiffs and were not misled by their untrue statements. The defendants are residents of Ghazipur, while the plaintiffs are residents of Jaunpur. There is no reason to believe that the defendants knowingly entered into a contract with minors. Had they known the plaintiffs to be minors they would not have entered into the sulahnamas in the pre-emption suits nor into this sale transaction. The facts are all against the supposition that the defendants knew the plaintiffs to be minors. "It is true Sita Ram appellant stated that he had known Bhuaneshri for thirteen years, but Sita Ram was not one of the purchasers under the sale-deed, and it does not appear that any of the purchasers had ever seen the plaintiffs before they entered into the transactions of 1897 and 1898. The Sub-Registrar who registered the deeds mentioned above has given evidence in this case and has stated that he considered the plaintiffs to be men of full age, and it is not surprising that the appellants also considered them to be of full age a d were as much deceived on the point as the Sub-Registrar. In my judgment the plaintiffs made fake representations as to their age with a view to induce the purchasers at first to lend them money and afterwards to purchase their property and that these representations were fraudulently made. The plaintiffs are therefore liable in equity to make restitution for the benefit they obtained. The learned Subordinate Judge has ordered the plaintiffs to refund Rs. 6,416-10-5 out of the consideration for the sale. He is of opinion that the whole of this money was received by the plaintiffs and this finding is, in my opinion, justified by the evidence. The endorsement of the Sub-Registrar on the sale-deed shows that Rs. 2,863-5-0 was received by Lalta Prasad in his presence. Lalta Prasad has not repudiated the correctness of this entry, ani he has not by his own deposition or by any other evidence proved that he returned the money or gave it to Dwarka Prasad. He borrowed Rs. 799-12-0 from Shiubaran Singh and others, and Bhuaneshri borrowed Rs. 800 from them. These amounts, together with interest, were due by them, and the total sum due was Rs. 1,674-8-0. It has been proved that this sum was paid by the appellants to the creditors Shiubaran Singh and others. Of the amount of the bond of 9th June 1897 Lalta Prasad took Rs. 665 for the expenses of his marriage. This amount together with interest was clearly due by him alone, and as it was set off against the consideration for the sale-deed he has benefited to the extent of the amount due by him. It has thus been abundantly proved that the two plaintiffs, who are admittedly joint, received and benefited by the amount which the Court below has directed to be restored by them. As pointed out by that Court, although they were minors in the eye of the law, they were grown-up young men when they received the money. Lalta Prasad was on his own showing about 19 years old and Bhuaneshri over 17. They were old enough to understand and know their own interests, and it is most unlikely that they wore entirely under the influence of Dwarka Prasad. They are therefore liable to make restitution of the amounts by which they have benefited. In the case of Mohori Bibee v. Dharmodas Ghoae (1903) I.L.R. 30 Calc. 239 restitution was not ordered, but that was apparently on the ground that the mortgagee in that case had advanced the money with full knowledge of the ago of the plaintiff and was not deceived. In the present case I am of opinion that the purchasers were ignorant of the true age of the plaintiffs and were deceived by their misrepresentations. I would therefore dismiss both the appeals with cost.
Richards J.
10. These appeals arise out of a suit for a declaration of the plaintiffs' title to certain property and for a declaration that a certain sale-deed dated the 28th of June 1899 was void as against the plaintiffs. The plaintiffs are the sons of one Lala Madho Prasad. Lala Madho Prasad was the son of Lala Mahabir Prasad. Lala Mahabir Prasad was a brother of the defendant Lala Dwarka Prasad. These persons were all members of a joint Hindu family an 1 the property in question was part of the joint family estate, Mahabir Pra°ad died in 1870, leaving Madho Prasad, his son, a minor, him surviving. The share of the family was an eight anna zamindari share. After the death of Mahabir Prasad, Dwarka and Madho sold a 2f share out of the eight anna share. Madho died on the 25th September ,1882 leaving the plaintiffs infant children him surviving. In 1891, Dwarka Prasad sold a 2 anna 3 pie share and also a 2 anna 71/2 pie share to certain persons now represented by the defendants 1 to 11.
11. The plaintiff's did not join in this sale.
12. On the 28th of June 1899, Dwarka Prasad and the plaintiffs sold a 3 pie share to one Beni Koeri and others, and the remaining 2 anna 9 pie share to persons represented by the defendants 1 to 11.
12. It is in effect to set aside the deed transferring this 2 anna 9 pie share that the present suit is brought. The plaintiffs allege that the plaintiff No. 1, Lalta Prasad, was born on the 24th of November 1880, and that the plaintiff No. 2, Lala Bhuaneshri Prasad, was born on the 17th April 1882, and that they attained majority on the 24th of November 1901 and the 17th of April 1903, respectively; that they received no consideration, and that the sale was a fraud upon them. The defendants 1 to 11 allege that the plaintiffs were of full age when they executed the sale-deed, and that even if they were not, they represented themselves as being of full age, and that therefore they ought not to he; allowed to set up the minority.
13. A certificate of guardianship of the person and property of the plaintiffs was granted in the year 1888 to Dwarka Prasad, and accordingly, under the provisions of Act No. XL of 1853, the plaintiffs did not attain majority until they reached the age of 21 years respectively. The Court below has found that the plaintiffs were minors at the time the sale-deed of the 28th June 1899 was executed. The learned Subordinate Judge says--"The fact of the plaintiffs being minors is established beyond any reason, able doubt." I entirely agree with that finding. Dwarka Prasad, the guardian of the minors, was examined and proved, that they were minors. Perhaps not much reliance should be placed on his uncorroborated evidence, but on the 10th of March, 1888, he made an application to the District Judge to be appointed guardian of the minors (he was subsequently appointed guardian). He then gave the ages of the plaintiffs as seven years and six years, respectively. In the year 1888 Dwarka had no object or motive for under-stating the ages of his nephews, and it is impossible not to give great weight to this corroboration of his evidence. The Civil Surgeon examined the plaintiffs on the 25th of November 1905, and he stated the age of the elder plaintiff to be then twenty-four years and the younger plaintiff twenty-two years. This was six years after the execution of the deed in question, and unless the Civil Surgeon was very much in error, the plaintiffs must have been under twenty-one years in June, 1899. There was a lot of other evidence which is not perhaps very definite, but the age of the plaintiffs, particularly of the plaintiff Bhuaneshri Prasad is fixed by the death of their-father Madho Prasad, which unquestionably happened not earlier than 18?2. Bhuaneshri Prasad was then an infant in arms. In 1899 the plaintiffs were recorded as minors. On the last day of the hearing of the appeal the last-mentioned plaintiff was in Court and he appears even now to be a very young man. I think it is pretty clear from the evidence that Dwarka was at least an extravagant man. He very soon dissipated almost his entire interest in the family property. It was quite unnecessary for him to have applied for a certificate of guardianship to his nephews, as the family was joint, and I have no doubt that his object in getting himself appointed was to enable him the more effectually to dispose of the 'minors' property. I also think that there is a good deal in the case to suggest that the interests of the plaintiffs were not very well looked after. The defendants or the persons whom they represent had become co-sharers in 1891, and I think it hard to believe that they were unaware of the plaintiff's' real age. In fact one of the defendants, Sita Ram, admiss that he had seen the second plaintiff visiting the village "for the last 12 or 13 years." I shall now proceed to consider the evidence as to the alleged representation by the plaintiffs that they were of full age. The plaintiffs went before the Registrar in 1897, 1898 and in 1899 in connection with the registration of certain mortgage. It is not very clear what occurred before the Registrar, but they apparently did 'give their ages as being over 21 years. Possibly the Registrar was deceived, but the Registrar was not the purchaser. They also defended a suit or suits as adult. There is, however, no evidence that in the negotiations for the sale of the 28th of June 1899, or at any time up to the execution of the deed the plaintiffs ever represented themselves to the defendants (or to the persons now represented by the defendants) as being of full age. None of the defendants have come forward to say that they were in fact misled by the representation of the plaintiff, or that they ever made any inquiry about their ages. The defendant Sita Ram says that the sale-deed sued on was executed under his superintendence, and in cross-examination he admitted that he had been seeing Bhuaneshri Prasad for 12 or 13 years. I am quite satisfied that Sita Ram knew that plaintiff No. 2 at least was under 21 years. I believe the truth to be that the defendants, who had already acquired the greater part of Dwarka's share, were naturally very anxious to acquire the remaining shares and were prepared to take the risk of purchasing from minors. I think it quite impossible to hold that the plaintiffs were guilty of fraudulent misrepresentation of their age committed for the purpose of deceiving the defendants or their representatives and inducing them to buy the property. The learned Subordinate Judge did not frame any express issue as to whether or not there had been fraudulent misrepresentation by the plaintiffs as to their ages. At pages 20 and 21 of the judgment, however, he refer to two pre-emption suits brought by the defendants against the plaintiffs and their uncle Dwarka, These suits were defended by the plaintiffs as adults, and the learned Judge says that the plaintiffs ought to have brought (o the notice of the Court that they were minors, and later on, at page 21, he says.--"If ever a fraud was committed upon a Court deliberately and with the object of injuring the other party this is such a case." On the strength of this supposed fraud, the learned Judge has ordered the plaintiffs to refund the sale consideration as a condition precedent to setting aside the sale-deed. Surely this is a strange ground for holding minors guilty of fraud. I think the evidence goes to show that the whole litigation was managed by Dwarka, and that the plaintiffs were under his influence and ready to do whatever he told them to do, and I think it quite impossible to hold that the plaintiffs were guilty of fraudulent misrepresentation merely because when sued as adults they neglected to inform the Court of their minority. In my opinion the ordinary law as to estoppel, does not apply to infants and this was practically admitted in the argument. It is said, however, that an infant is liable for fraudulent misrepresentation in an action for deceit and that the fraud of an infant may therefore be set up as a defence when the infant seeks to set aside a transaction induced by his fraud. Assuming this for the purpose of argument to be so, I think it a fair test in. this case to consider whether the defendants on the evidence could succeed if they were suing as plaintiffs in a suit for damages for fraudulent misrepresentation. I certainly hold they Could not. In such a suit the plaintiffs should prove that they were induced to enter into the contract of sale by the fraudulent misrepresentation of the defendant and that the plaintiff (purchaser) was in fact deceived and really did not know the true state of the facts. They (the defendants) have never come forward to say that they were in fact misled or deceived. The evidence is altogether consistent with the plaintiffs acting under the influence of their uncle, and the defendants' agent, Sita Ram, I believe, knew well that the plaintiffs were minors. Ono question further remains, namely, should the Court direct the plaintiffs to make any compensation to the defendants, and if so, to what extent? The Court below directed that Rs. 5,416-10-5 should be paid by the plaintiffs before getting possession. It seems to me that the policy of the law is to protect infants against themselves as well as against others. In the case of Mohori Bibee v. Dharmodas Ghose (1903) I.L.R. 30 Calc. 539 their Lordships of the Privy Council held that a minor was wholly incapable of making contracts. Section 64 of the Contract Act therefore does not apply. In the case cited the minor was within a few months of being 21 years when he executed the mortgage, and yet the latter was set aside without any compensation. Dealing with the question of compensation their Lordships quote the following passage from the judgment of Lord Justice Romer in the case of Thurston v. Nottingham Permanent Building Society [1902] 1 Ch. 1 : [1903] A.C. 6. "The short answer is that a Court of equity cannot say that it is equitable to compel a person to pay any money in respect of a transaction which as against that person the Legislature has declared to be void." In the case of Thurston v. Nottingham Permanent Building Society the infant was allowed to keep the entire advance made to her by the Society for the purpose of completing buildings on her property. I can see no reason for directing the plaintiffs to refund the entire purchase money. Furthermore the cases of both the plaintiffs are not quite id en-treal. Lalta Prasad was not only the elder of the two, but he seems to have received a larger amount of money. Lalta Prasad as sole mortgagor mortgaged a 1 anna, 3 pie share on the 11th of April 1898. Bhuaneshri Prasad in like manner, on the 7th of January 1899, mortgaged a 1 anna, 3 pie, 15 kant share. The defendants or their representatives brought suits for preemption against Lalta and Bhuaneshri in respect of these mortgages. (These are the suits the plaintiffs defended as adults.) The suits were compromised and decrees made in the terms of the compromise. By these compromises the defendants in the present suit were to pay Rs. 829 with interest to the mortgagees in respect of Lalta's mortgage and Rs. 52-8-0 costs. They were also to pay Rs. 811 with interest and Rs. 52-8-0 costs in respect of Bhuaneshri Prasad's mortgage. In the sale-deed of the 11th of April 1899, it is recited that Rs. 1,674-8-0 was paid to the mortgagees on foot of these mortgages. The shares of the plaintiffs in respect of this sum of Rs. 1,674-8-0 were practically equal in amount and I treat them as equal. Lalta had had a further advance of Rs. 665 on foot of the mortgage made by "him and his uncle or 9th June 1897, and under the terms of the sale-deed, this mortgage was also paid off. It may therefore be said that on the sale of the 28th of June 1899, debts of Lalta's to third parties were discharged as follows. Rs. 665, Rs. 837-4-0 (half of Rs. 1,674-8-0) and Rs. 52-8-0 costs, total Rs. 1,554-12-0. In the case of Bhuaneshri, debts were in like manner discharged: Rs. 837-4-0 (half of Rs. 1,674-8-0) and Rs. 52-8-0 costs, total Rs. 889-12-0. Lalta was married in 1897 and the Rs. 665 were paid for his marriage expenses. I think that it would be reasonable under the provisions of Section 41 of the Specific Relief Act to direct that plaintiff Lalta should pay to the defendants the sum of Rs. 1,554-12-0 as a condition to getting possession, and that the plaintiff Bhuaneshri should in like manner pay the sum of Rs. 889-12 0, and I would to this extent modify the decree of the lower Court. These sums represent mortgage debts paid to third parties. The mortgages have never been set aside, and. I think that these mortgage debts stand on a different basis from the other moneys which the Court below has directed the plaintiffs to pay as a condition precedent to getting possession. I would dismiss the defendants' appeal, and allow the appeal of the plaintiffs to the extent mentioned above.