Under Section 41 of the Specific Relief Act, the Court may require the party to whom relief is granted to make compensation to the other party which justice may require, even when a transaction is declared to be void.

Madhavan Nair, J.

1. The plaintiffs are the appellants. The parties to this second appeal are Mahomedans. The suit out of which this second appeal arises was instituted by the plaintiffs to set aside an alienation of property made by their mother, defendant 1, during their minority. They also sued for partition of the property, 7/8ths going to themselves and l/8th to their mother. The alienation is evidenced by Ex. 6 and the consideration, for it was Rs. 1430. The alienee, defendant 2, contended that she paid the full consideration for Ex. 5, that the money was utilized to pay off the plaintiffs deceased fathers debts binding on the estate and that she also effected improvements on the property from the date of her purchase. The lower Courts held that the alienation was invalid as it was made by the mother of Mahomedan minors" and gave a decree to the plaintiffs for 7/8th share of the properties but the recovery of the share was made conditional on the plaintiffs depositing in Court 7/8th of Rs. 1,430 that is Rs. 1,251-4-0. The plaintiffs were also directed to pay Rs. 750, the value of the improvements effected on the property.

2. In second appeal it is not argued that the alienation is valid nor is it seriously argued that the plaintiffs are not bound to pay the value of the improvements; what is strongly contended is that the lower Courts should not have directed the plaintiffs to refund to the alienee the proportionate amount of the purchase money in respect of their shares of the property.

3. It is settled law as laid down by their Lordships of the Privy Council in Imambandi v. Mutsuddi A.I.R. 1918 P.C. 11 that a Mahomedan mother has no power to alienate the property of her minor sons. The sale of the suit property by defendant 1 in favour of defendant 2 is therefore absolutely void. It is argued for the appellants that when a transaction is void, the person in whose favour it has been declared to be void is not bound to refund any moneys in respect of that transaction, and strong reliance in support of this proposition is placed on the ruling of the Privy Council in Mohori Bibee v Dharmodas Ghose [1903] 30 Cal. 539 in which it was held that a contracts by a minor, such as a mortgage, is void and a moneylender who has advanced money to a minor on the security of the mortgage is not entitled to repayment of the money on a decree being made declaring the mortgage invalid. It is true that their Lordships held relying on Thurstan v. Nottingham Permanent Benefit Building Society [1902] 1Ch.1 affirmed by the House of Lords in Nottingham Permanent Benefit Building Society v. Thurston [1903] A.C. 6:

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 but at the same time it is clear from that judgment that in a proper case having regard to Section 41, Specific Relief Act, the Court may in adjudging the can cellation of an instrument require the party to whom such relief is granted to (make compensation to the other which justice may require. The following observations of their Lordships are relevant in this connexion. Another enactment relied upon as a reason why the mortgage money should be returned is Section 41, Specific Relief Act (1 of 1877) which is as follows:

Section 41. 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.

Section 38 provides in similar terms for a case of rescission of contract. Those sections no doubt give a discretion to the Court, but the Court of first instance and subsequently the appellate Court in exercise of such discretion, came to the conclusion that under the circumstances of this case justice did not require them to order the return by the respondent of money advanced to him with full knowledge of his infancy, and their Lordships see no re