Section 41 of the Specific Relief Act allows the court to require a party to whom relief is granted to make compensation to the other party, and this power is not limited to void instruments only.

Krishnaswami Aiyangar, J.

1. This appeal arises out of a suit by the appellant to set aside a number of sale deeds executed by him during his minority and to recover the properties sold together with mesne profits. The defendants 1, 2, 4 and 5 were the purchasers under different sale deeds, all of which have been set aside by the trial Court. But the decree for possession has been made conditional on the appellant refunding to the several purchasers the amounts of the consideration received from them. The first defendant died after the institution of the suit and his legal representatives are defendants 10 and 11. The main object of the appeal is to get rid of the condition imposed on the appellant to repay the purchase moneys.

2. The Subordinate Judge has found that the appellant was a minor when he executed the several deeds of sale, that he did not make any misrepresentation as to his age. He has not found that any of the purchasers except the fourth defendant had knowledge that the appellant was a minor when the sales were made. As regards the fourth defendant, however, he came to the conclusion that he must have known of the appellants minority at the time of the sale in his favour. These findings of fact have not been challenged in appeal.

3. The learned Judge has held that the appellant was not estopped from pleading that the sales were void, a point concluded by authority and very properly not questioned before us. It was however urged on behalf of the appellant that the learned Judge was in error in imposing the condition referred to above, as neither Section 65 of the Indian Contract Act nor Section 41 of the Specific Relief Act justifies it. It is unnecessary for us, in this appeal to consider the scope of Section 65 of the Contract Act, as the first respondents advocate has not chosen to support the judgment by reference to that section but took his stand on Section 41 of the Specific Relief Act, which according to him is sufficient to justify the conclusion of the trial Court. This argument has found favour with the Subordinate Judge, and we also are of opinion that it is sound.

4. Section 41 runs as follows:

On adjudging the cancellation of instrument, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require.

5. Read in the light of Section 39 which authorises the cancellation of a written instrument, whether void or voidable, Section 41 cannot be understood as limited in its operation to void instruments only, and accordingly it was conceded before us that that section is applicable to both classes of instruments. What is however urged is that though such may be the effect of the section, it must be deemed merely to embody the familiar rule of equity that he who seeks equity must do equity but limited and circumscribed by the qualification laid down Thurstan v. Nottingham Permanent Benefit Building Society (1902) 1 Ch. 1 . namely:

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.

6. So qualified, the rule would seem to preclude Courts from granting compensation in all cases of void transactions, for we cannot see any difference in principle or reason, between transactions void by statute and those void under the general law. An argument of the kind proves too much, runs counter to the concession made earlier by the appellants counsel and is, in our opinion, against the plain intendment of the section and must accordingly be rejected. In our judgment the statutory discretion vested in the Courts of this country by Section 41 is of wider amplitude than the corresponding rule of equity administered in England, where there is no such statutory counterpart. That discretion is of course not to be arbitrary but sound and reasonable and guided by well-settled judicial principles. But once it is found that the r