Krishnaswami Nayudu, J.-

The appeal arises out of a suit to declare the plaintiffs’ right to the A Schedule properties and to direct delivery of possession of the same. The 2nd defendant is the appellant. The suit properties originally belonged to one Vinayagam Pillai. The plaintiffs are the sons of Vinayagam Pillai by his first wife. Vinayagam Pillai married a second wife Vellayammal in whose favour he executed a sale deed of these properties on 5th September, 1930. Vellayammal died in 1935 leaving no issue. Vinayagam Pillai died in 1940 leaving the plaintiffs, his undivided sons, and his first wife who is the 5th defendant. On 7th May, 1940, Vellayammal’s mother Krishnammal, claiming to be her stridhana heir, sold these properties to one Sankarapandia Thevar and eventually the 2nd defendant purchased them under Exhibit B-4 dated 3rd March, 1945 from the 1st defendant, to whom Sankarapandia Thevar sold the properties in 1944. The question arose as to who would be the lawful heirs of Vellayammal, whether the mother who purported to deal with the (properties, or her husband and his heirs, viz., the plaintiffs and the 5th defendant, which again depended on the form of Vellayammal’s marriage with Vinayagam Pillai. Both the Courts held that it was in the Brahma form with the result that the mother could not be a stridhana heir, but only the plaintiffs. As Krishnammal had no title to deal with the properties, the sales in favour of the 2nd defendant and others were held to be void and wholly inoperative.

The further point that was raised and considered by the lower Courts and urged before me is as to whether, notwithstanding the void nature of the sale the 2nd defendant is not entitled to be paid any compensation for the amount of consideration which he parted with for the sale of item under Exhibit B-4. The contention of the appellant is that the consideration for the sale was for the purpose of discharging the decree debt due by the plaintiffs’ father Vinayagam Pillai in O.S. No. 193 of 1936 on the file of the District Munsif’s Court, Sattur, and to raise the attachment of the properties which were sought to be sold to the 2nd defendant. In view of the plaintiffs having derived benefit by the sale of item 9 in favour of the 2nd defendant, the 2nd defendant claims entitled on equitable grounds to be paid the sum of Rs. 900, which was the consideration which he parted with.

Section 41 of the Specific Relief Act is sought to the aid of the appellant. The section provides:

“ 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.”

As to when cancellation of an instrument may be ordered is provided for in section 39 of the Specific Relief Act, which says:

“Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable ; and the Court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.”

The Courts below held that the sale was an unauthorised dealing with the property by a person who had no title to the property and therefore void and following the decision in Ammani Ammal v. Ramaswami Naidu1, the appellant’s claim for compensation was negatived.

In Ammani Ammal v. Ramaswami Naidu1, the guardian of a minor sold the minor’s property as his own property and part of the consideration for the sale went in discharging of debts binding on the minor. The minor after attaining majority sued for a declaration that the sale was not binding on him and sought to recover possession. It was held that he was entitled to recover possession without repaying the debts binding on him discharged from and out of the purchase money and that the alienee was not entitled to be paid the amount of binding debts discharged either under sections 39 and 41 of the Specific

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