The central legal point established is that a property transfer by minors is null and void, and the equitable doctrine of 'those who seek equity must do equity' does not apply in such cases.

JUDGMENT

Page, J. - On 21st January 1920 the appellants Fuli and Amini, who were minors, executed a kobala by which they transferred to the respondents their shares of a ryoti interest in certain lands that they had inherited. Fuli was born on 21st December 1902 and Amini on 7th March 1905. It was alleged by the respondents that Rs. 950 was paid as consideration for the transfer, and both the lower Courts have held that part, but not the whole, of this sum was received by or on behalf of the appellants.

2. On 24th January 1923 the appellants brought the present suit against the respondents claiming a declaration that they were entitled to their respective shares in the property, and joint possession with their cosharers, whom they impleaded as pro forma defendants. They also claimed damages and mesne profits against the respondents. When the suit was filed the appellants' mother, Bhadi, was joined as a co-plaintiff, but subsequently she withdrew her claim. The trial Court dismissed Fuli's claim and decreed Amini's claim in part; but the lower appellate Court rejected the claims of both of the appellants, and dismissed the suit with costs. From that decree the appellants have preferred the present appeal.

3. The kobala in suit was executed by Fuli, and on behalf of Amini by her husband as her guardian, But as the husband of a minor is not her guardian under Mahomedan law, and the lower, appellate Court has found that both Fuli and Amini were minors at the time when the kobala was executed, it was conceded that the kobala was null and void as against both the appellants.

4. At the trial Fuli stated:

I went to the Sub-Registrar for registering the document. As he found me minor he then asked my mother about my age, and said that if she stated my age as major he could register it. My mother then told my age as 17 to 18 years to him.

5. Now, it is admitted that Fuli would not be estopped by a misrepresentation as to her age made by her mother, Ram Charan Das v. Joy Ram Majhi 17 C.W.N. 10, and there is no finding, and no evidence to justify a finding, that either Fuli or Amini herself made any representation as to her age to the respondents, or that Fuli's conduct was such as would render her amenable to the rule of estoppel by negligence : Gregg v. Wells [1939] 10 A. & E. 90 Freeman v. Cooke [1848] 2 Ex. 654. The interesting question that was much canvassed at the hearing of the appeal, whether a minor is a "person" within Section 115, Evidence Act (1 of 1877), therefore, does not arise. Brohmo Dutt v. Dharmodas Ghose [1898] 26 Cal. 381, Dadasaheb Dasarathrao v. Bai Nahani [1917] 41 Bom. 480, R. Leslie v. Sheill [1914] 3 K.B. 607. There being no evidence or finding that either of the appellants was guilty of misrepresentation or fraud prima facie the appellants are entitled to succeed.

6. Two contentions, however, have been raised by the respondents in support of the decree of the lower appellate Court : (i) that as a condition precedent to passing a decree in their favour the Court ought to require the appellants to repay to the respondents the moneys which they respectively have received as consideration for the transfer, either u/s 41, Specific Relief Act (1 of 1877) or pursuant to the principle that "those who seek equity, must do equity"; (ii) that as the suit was instituted by Amini who was then a minor, and not by her next friend acting in her name, she is not entitled to any relief in the suit which, so far as she is concerned, must be treated as a nullity.

7. The answer to the first contention is not far to seek. 3. 41, Specific Relief Act, is not ad rem for it applies to proceedings in which the plaintiff is seeking "the cancellation of an instrument" whereas in the present suit the appellants are not seeking the cancellation of the kobala, which is void and may be disregarded by the appellants as a nullity. Mohori Bibee v. Dharmodas Ghose [1903] 30 Cal. 539 Bijoy Gopal Mukerji v. Krishna Mahishi Debi [1907] 34 Cal. 329. The att