JUDGMENT Akram, J. - This appeal by the principal Defendant No. 1 arises out of a suit for partition on declaration of the Plaintiff's eight annas share in the lands mentioned in the plaint upon the basis of purchase by two kobalas, Exs. 1 and 1 (a) executed by the pro forma Defendant No. 2 in 1936 in favour of the Plaintiff. The Plaintiff alleged that in pursuance of the kobalas aforesaid he obtained possession of only a portion of the land covered by the kobalas and that when he wanted his proper share and demanded partition the Defendant No. 1 refused and resisted the Plaintiff. 2. The Defendant No. 1 alone contested the suit mainly on the ground that the alleged kobalas were executed during the minority of the pro forma Defendant No. 2 and that as such the Plaintiff had acquired no title. 3. The trial Court found that the Defendant No. 2 was a minor at the date of the execution of the kobalas and dismissed the suit. The Plaintiff appealed and the lower Appellate Court reversed the decision of the trial Court and decreed the suit holding that the Defendant No 1, is estopped from raising the plea of Defendant No. 2's minority at the time of the execution of the kobalas Exs 1 and 1(a), which has not been challenged by Defendant No. 2, Atul who is of age and who has also realised the full kobala consideration and who has further not himself repudiated the contract of sale. 4. Against this decision the Defendant No. 1 has preferred the present appeal. 5. It has been found by both the Courts below that Atul, Defendant No. 2, was a minor at the date of the execution of the kobalas in January, 1936, the date of his birth being 22nd March 1918. 6. It is urged by the learned Advocate on behalf of the Appellant that the Court of Appeal below erred in law in taking the view that the Defendants were estopped from taking the plea of minority in defence of the suit and in support of this contention he has relied upon the cases of Monmatha Kumar Saha v. The Exchange Loan Co., Ltd., (1936) 41 C.W.N. 1162, Nawab Sadiq Ali Khan v. Jai Kishori 32 C.W.N. 871 (P.C.) (1928), Gadigeppa Bhimappa Meti v. Balangauda Bhimangauda I.L.R 55 Bom. 741 (F.B.) (1931) and Narendra Lal Khan v. Hrishikesh Mukherjee 46 I.C. 765 (1918). 7. On the other hand it is argued by the learned Advocate on behalf of the Respondent that the decision of the lower Appellate Court is correct and the cases of Musst. Kundan Bibi v. Sree Narayan 11 C.W.N. 135 (1908), Chuah Hooi Gnoh Neoh v. Khaw Sim Bee 19 C.W.N. 787 (P.C.) (1915) and Surendra Nath Roy v. Krishna Saki Dasi 15 C.W.N. 239 (1911) have been cited in support. It has also been suggested that Ext. 2, the receipt dated the 8th October, 1936, executed by Defendant No. 2, after attaining majority, showing payment of the balance of the purchase money by the Plaintiff, really amounted to a new transaction of sale, even though it could not be treated as a ratification of the previous sales by Exs. 1 and 1 (a). 8. Upon a consideration of the authorities placed before me regarding the question of the plea of estoppel raised by the Defendant it seems to me that the contention put forward by the Appellant is well-founded and sound in law, namely, that estoppel cannot prevail over statute, in other words, sec. 115 of the Evidence Act which is the law of procedure cannot over-ride sec. 11 of the Contract Act, the substantive law. 9. In my opinion the present suit founded upon Exs. 1 and 1 (a) cannot succeed having regard to the concurrent findings of fact arrived at by both the Courts below in respect of the minority of Defendant No. 2 at the time of the execution of the kobalas. I, therefore, set aside the judgment and decree of the lower Appellate Court and restore those of the Court of the first instance so far as the question of the validity of the sale is concerned, but as it appears that the Plaintiff has paid the consideration money to the Defendant No. 2 who has not chosen to contest the suit I think in all fairness the Plaintiff is entitled to amend his plaint in order to get back the purchase money which he has actually paid to the Defendant No. 2. This aspect of the matter has not been gone into in the Courts below as no such alternative prayer was made in the plaint. This aspect of the matter has not been gone into in the Courts below as no such alternative prayer was made in the plaint. For the ends of justice I, therefore, send back this case to the trial Court to enable the Plaintiff, if he so desires, to make necessary amendments in his pleadings and to enable the Defendant No. 2 to file a written statement on the amended plaint and after giving an opportunity to the parties for adducing evidence as to the amount of the purchase money actually paid to re-hear the case upon this point only and if a case for refund is made out by the Plaintiff to ascertain the actual amount paid by the Plaintiff and to pass a decree in his favour for the same. There will be no order as to costs throughout in these proceedings. The costs of the re-hearing will abide the result.