JUDGMENT : BANERJI, J. 1. This was a suit for a declaration that a decree obtained by the defendant, Nur Bukhsh, on 31st August, 1908, was null and void as against the plaintiff. The facts are these :—The plaintiff, who is a minor, had to institute a suit for recovery of his immoveable property to which he was entitled. He was in need of funds, and for the purpose of procuring funds his maternal grandfather, Raghunath Singh, who had been appointed his guardian by the District Judge, executed a sale-deed in favour of the defendant, Nur Bakhsh, on the 2nd of February, 1907, in respect of mesne profits for three years alleged to be due to the minor by one Udit Singh. The consideration for the sale was Rs. 128, and it is found that this amount was paid by Nur Bakhsh and was appropriated to the defraying of the costs of the suit brought by the plaintiff's guardian to recover the immoveable property to which the plaintiff was entitled. In that suit the plaintiff obtained a decree. By virtue of the sale-deed executed in favour of Nur Bakhsh, he brought a suit in the Revenue Court to recover mesne profits. But the suit was dismissed on the ground that the Revenue Court had no jurisdiction to entertain it. Thereupon he brought a suit for a refund of the Rs. 128 which he had paid as consideration for the sale in his favour and interest thereon, in accordance with a covenant contained in the sale-deed. He also prayed that a decree might be passed for sale of certain property of the minor hypothecated by his guardian under the covenant. In the suit which Nur Bakhsh thus brought, Raghu Nath Singh, the guardian of the minor, confessed judgment, and a decree was accordingly made on 31st August, 1908. It is this decree which the plaintiff seeks to set aside on the allegation that it was obtained by the defendant through the fraud and collusion of his guardian. The court of first instance dismissed the claim. But the lower appellate court has decreed it. It is this decree which the plaintiff seeks to set aside on the allegation that it was obtained by the defendant through the fraud and collusion of his guardian. The court of first instance dismissed the claim. But the lower appellate court has decreed it. The learned Subordinate Judge was of opinion that Raghu Nath Singh, the guardian of the plaintiff, should not have confessed judgment, but should have contested the suit brought by Nur Bakhsh for the refund of the purchase money on the ground that under the terms of the covenant in his sale-deed he was not entitled to any refund as he had not sued for mesne profits in a competent court, and that inasmuch as the guardian did not contest the claim on this technical ground, he was guilty of fraud and gross negligence. The defendant has preferred this second appeal. It is manifest on the findings of the lower appellate court that the amount of consideration for the sale in favour of the defendant was obtained by the plaintiff's guardian for the plaintiffs benefit and was in fact applied for the purposes of the plaintiff, and enabled the guardian to recover immoveable property belonging to the plaintiff. Therefore, even if the plaintiff be entitled to a decree, he must make restitution for the amount by which he was benefited. Under the decree impugned an order was made for the sale of the plaintiff's property which was hypothecated by his guardian. As this hypothecation of immoveable property was not made with the permission of the District Judge, it was voidable at the instance of the minor under section 30 of the Guardians and Wards Act. The plaintiff through his mother and present guardian seeks in this suit to avoid the hypothecation to which effect was given by the decree in question. As the amount for which the hypothecation was made was received for the benefit of the minor, he can avoid the hypothecation only on making restitution for the money by which he was benefited. This was held in Sinaya Pillai v. Munisami Ayyan, [1898] I.L.R., 22 Mad., 289. The plaintiff is no doubt entitled to have that portion of the decree which directs sale of his immoveable property avoided, but he must do so on condition of making restitution to the defendant. This was held in Sinaya Pillai v. Munisami Ayyan, [1898] I.L.R., 22 Mad., 289. The plaintiff is no doubt entitled to have that portion of the decree which directs sale of his immoveable property avoided, but he must do so on condition of making restitution to the defendant. This he offered to do in his plaint in relief (b) of which he prays that an order might be made for payment of any sum on payment of which he might be held entitled to have the decree set aside. 2. In my opinion he is entitled to that relief, and he must pay to the defendant Rs. 170, namely, Rs. 128, paid by the defendant, and interest thereon; as mentioned in the decree of 31st August, 1908. The result is that the decree of the court below is varied to this extent that a decree be passed in the plaintiff's favour, declaring the decree, dated 31st August, 1908, to be void as against the plaintiff on condition that the plaintiff do pay to the defendant within six months from this date Rs. 170 and further interest on Rs. 128, at 6 per cent, per annum from this date to the date of payment. Otherwise the suit will stand dismissed. Having regard to the circumstances of the case I direct that the parties do pay their own costs in all courts.