Judgment :- 1. The property in suit, a shop building, belonged to the 1st defendant and his brother Assankunju Rawther (the father of the six plaintiffs and of the 2nd defendant, and the husband of the 3rd defendant) in equal shares. In 1117 M. E. (1941-42 A. D.) Assankunju Rawther possessorily mortgaged his undivided half share in the property to the 1st defendant for Rs. 780/-; and he died the following year of cancer for which for more than a year past he had been undergoing treatment in several places like Neyyur, Ernakulam and Nagarcoil. About eighteen months after his death, by Ext. A dated 14-8-1119 (28 31944), his major son, the 2nd defendant, and his widow, the 3rd defendant, the latter purporting to act also as guardian for the plaintiffs, all of whom were then minors, sold Assankunju's half share to the 1st defendant for Rs. 2750/-. According to the recitals in the deed the consideration was made up as follows: (1) Rs. 780/- in discharge of the possessory mortgage of 1117 in favour of the 1st defendant; (2) Rs. 588-10-10 for money paid by the 1st defendant in discharge of a debt of the deceased Assankunju; (3) Rs. 425 - for money borrowed by the deceased from the 1st defendant for his medical treatment; (4) Rs. 450/- for money paid by the 1st defendant under the receipt Ext. 1, in discharge of a loan taken by the deceased from his sister's husband, dw. 2; (5) Rs. 306-5-2 taken from the 1st defendant for the funeral expenses of the deceased; and (6) Rs. 200/- taken in cash for discharging certain sundry debts of the deceased. Eight years later, the plaintiffs discovered that their mother, the 3rd defendant, had no authority whatsoever to sell their property, and they brought the present suit for setting aside the sale under Ext. A. and for partition and separate possession of their 63 88th share of their father's half share in the property. In doing so, they offered to deposit, for payment to the 1st defendant Rs. 979 80nP. being their 63 88th share of the liability in respect of items 1 and 2 of the sale consideration which they accepted as genuine and binding; the remaining items they repudiated as fictitious. The first court, accepting their case in entirety, gave them a preliminary decree for partition in terms of their plaint. 979 80nP. being their 63 88th share of the liability in respect of items 1 and 2 of the sale consideration which they accepted as genuine and binding; the remaining items they repudiated as fictitious. The first court, accepting their case in entirety, gave them a preliminary decree for partition in terms of their plaint. The 1st defendant appealed; and, the lower appellate court, while affirming the decree of the first court in all other respects, found that the entire sale consideration of Rs. 2750 - was genuine and binding and directed the plaintiffs to deposit 63/88th of this sum, namely, Rs. 1968-74nP., for payment to the 1st defendant, before taking their share of the property. The plaintiffs have appealed, and the only question is whether they are liable to deposit Rs. 1968.74nP. as directed by the lower appellate court or only Rs. 979.81 as directed by the first court and as, indeed, offered by them in their plaint. 2. I think the lower appellate court was right in holding that the entire sale consideration was for purposes binding on Assankunju's estate, in other words, went in discharge of liabilities in which the plaintiffs were bound to share. In addition to the 1st defendant himself, who was examined as dw. 5, dw. 1, the brother of the 3rd defendant and an attestor to Ext. A who took part in the negotiations preceding that document, dw. 2, the husband of a sister of both the deceased and the 1st defendant dw. 3, a stranger from whom the deceased had taken an advance of Rs. 500 on a promise to sell his half share in the property but whose advance was repaid with the aid of a loan of Rs. 450/- taken from dw. 2 at whose instance the proposed sale was given up, and dw. 4 a retired Deputy Tahsildar and a relative of the deceased who had seen him during his illness and to whom the deceased had spoken about his indebtedness to the 1st defendant, to dw. 2 and to others, and of his intention to sell his half share in the property for discharging those debts, gave evidence in support of the 1st defendant's case. From their evidence it would appear that on Assankunju Rawther's death, the 1st defendant undertook the administration of his estate, paid money to meet his funeral expenses, and discharged his debts. 2 and to others, and of his intention to sell his half share in the property for discharging those debts, gave evidence in support of the 1st defendant's case. From their evidence it would appear that on Assankunju Rawther's death, the 1st defendant undertook the administration of his estate, paid money to meet his funeral expenses, and discharged his debts. Thus, apart from the debt due on the mortgage, the estate became indebted to the 1st defendant, and Assankunju's half share in the property was sold to the 1st defendant by his widow & major son in discharge of the debts. In settling this transaction, Dw.l, the maternal uncle of the plaintiffs, also took part, and I agree with the lower appellate court that it is too much to say that the brother, mother & the maternal uncle of the plaintiffs would have been parties to false recitals of consideration in order to deprive the plaintiffs of their property or would have allowed themselves to be overborne by the 1st defendant. Assankunju Rawther had along and protracted illness for which, as we have seen, he underwent treatment at several places. He had had to borrow Rs. 780/- from the 1st defendant about a year before his death, and the evidence of the 1st defendant's witnesses that he had to make further borrowings for his medical and other expenses seems very probable. The 1st plaintiff who was 16 years old at the time of Ext. A did not get into the box to speak in support of his repudiation of items 3 to 6 of the sale consideration; he sent instead the 2nd plaintiff who was only 13 years at the time and could obviously have known nothing. I think the lower appellate court was right in accepting the evidence of the 1st defendant and his witnesses and I agree with it that the first court has not appreciated the evidence in the light of broad probabilities but has chosen to reject the evidence of the 1st defendant and his witnesses because of petty discrepancies which are bound to occur when witnesses speak to matters that took place years earlier, in this case more than 12 years earlier. 3. 3. It has been pointed out that the 1st defendant and his witnesses spoke only to the 1st defendant having paid the several sums in question and that they did not say that the 1st defendant paid these sums by way of loan. But, there is no case that the payments by the 1st defendant were voluntary payments, and the entire suit was contested on the footing that the 1st defendant was entitled to recover whatsoever sums he had paid to the deceased or on his behalf. The plaintiffs' case was only that items 3 to 6 of the sale consideration were fictitious-. It was not that, even, if they were true, the 1st defendant was not entitled to reimbursement from the deceased's estate. 4. It has been argued on behalf of the plaintiffs that the sale under Ext. A being not merely voidable but void and non existent so far as they are concerned, there is no principle of law by which they can be asked to pay their share of the liabilities before recovering their share of the property. The relief of a cancellation sought in the plaint was unnecessary and it must be regarded as superfluous. The plaintiffs are entitled to ignore the sale altogether; the 1st defendant got nothing thereunder so far as the plaintiffs' shares were concerned, and if he paid something for nothing he must be left to bear the loss; it is not as if something he had got was being taken away so as to entitle him to compensation or make the plaintiffs liable to restore any advantage they had obtained; there is nothing for the court to cancel so as to award compensation as a condition of the cancellation; it is as if the 1st defendant had bought property belonging to one person from another; and the true owner cannot be asked to compensate a purchaser, who has foolishly paid money to a person to whom the property does not belong. In so far as this contention raises a pure question of law I have thought it as well to consider it although it was put forward for the first time in the course of the argument before me it was not taken in the courts below or even in the present memorandum of appeal, and is, in fact, inconsistent with the offer in the plaint to pay the plaintiffs' share of the genuine liabilities. 5. In my view the contention is unsound. I do not think that a person whose property has been sold by another claiming no authority to sell it so as to bind him is in the same position as a person whose property has been sold by another claiming such authority. The success of the former in a suit in respect of the property does not depend on an adjudication by the court that the sale is void so far as he is concerned and does not bind him; nor can there be any question of his having received any advantage under the transaction. There can therefore be no question of his restoring any advantage he has obtained to the buyer, or of justice requiring that he should make compensation to the buyer. But, the success of the latter in such a suit, whether he figures as a plaintiff or as a defendant, depends on an adjudication by the court that the sale is void as against him and does not bind him; and it is quite possible that, as in the present case, he has received some advantage under the transaction. Therefore, in my view, both S.41 of the Specific Relief Act and S.65 of the Indian Contract Act would apply to enable the court to require him to restore the advantage he has received or to make compensation for it to the person from whom he received it. For, it seems to me, that when a court adjudges an instrument void "as against a particular person, it adjudges the cancellation of that instrument so far as that person is concerned. It is not merely when a court sets aside a voidable instrument that it adjudges its cancellation. For, it seems to me, that when a court adjudges an instrument void "as against a particular person, it adjudges the cancellation of that instrument so far as that person is concerned. It is not merely when a court sets aside a voidable instrument that it adjudges its cancellation. I see no difference between a court saying that an instrument is void as against a particular person, whether it gives a formal declaration to that effect or not, and its saying that the instrument is set aside or cancelled as against that person. 6. Nor do I think that S.41 of the Specific; Relief Act uses the word "cancellation" in a sense different from adjudging void or voidable. It is clear from the language of S.39 and the illustrations thereto, that that section applies not merely to voidable but also to void instruments, in fact, even to a forged instrument which has in truth no existence, and that a third party to the instrument can also seek an adjudication thereunder. The section goes on to say that when a court adjudges an instrument void or voidable it may order it to be delivered up and cancelled. If we turn next to S.40 we find that the court may, in a proper case, cancel an instrument in part and allow it to stand for the residue. In such a case, the court cannot order that the instrument itself be defaced or delivered up, and, the cancellation in part can be nothing more than adjudging in terms of S.39, that the instrument is, in respect of that part, void or voidable. It follows that, when S.41 speaks of adjudging the cancellation of an instrument, it means the adjudging of that instrument void or voidable, and not merely the setting aside of a voidable instrument or a physical cancellation. 7. S.41 of the Specific Relief Act makes special provision for a case like the present of the cancellation of an instrument and it is unnecessary to have resort to the mere genera] provision in S.65 of the Contract Act. Nevertheless it is useful to consider that section since it gives a clear indication of what compensation justice may require in such cases. Nevertheless it is useful to consider that section since it gives a clear indication of what compensation justice may require in such cases. That section says that when an agreement (which word would include a contract of sale effected by an instrument) is discovered to be void (as in the present case it has been discovered to be void as against the plaintiffs) any person (not necessarily a party to the agreement see Girraj Baksh v. Kazi Hamid Ali, ILR. IX All. 340 at 347) who has received any advantage under such agreement is bound to restore it, or to make compensation for it, to the person from whom he received it. It would follow that the measure of compensation which justice requires that a party to whom the relief of the cancellation of an instrument embodying an agreement should make to the other party would be the advantage which he received under the agreement from the other party. 8. The courts have uniformly held and only one real exception, namely, the decision in Kharay Narain v. Hamida Khatoon (AIR. 1955 Patna 475), where it was not strictly necessary to consider the question having regard to the finding that the plaintiffs therein derived no benefit from the impugned sale, has been brought to my notice; the rest are all cases where, as in Mohori Bibee v. Dharmodas Ghose (ILR. 30 Calcutta 539), the discretion to award compensation was recognised though not exercised having regard to the special facts and circumstances or as in Kalipada Koer v. Purnabala Dassi (AIR. 1948 Calcutta 269), the question was posed but not answered that S.41 of the Specific Relief Act applies to a case like the present. It is not necessary to refer to all the cases cited at the bar, but I might say with great respect that the matter has been subjected to a penetrating analysis in Venkama v. S. V. Chisty (AIR. 1951 Mad. 399), a case on all fours with the present case. There it has been held with reference both to principle and authority that the section applies not. merely to the setting aside of a voidable instrument but also to the adjudging void of a void instrument. The leading case in Mohori Bibee v. Dharmadas Ghose (ILR. 1951 Mad. 399), a case on all fours with the present case. There it has been held with reference both to principle and authority that the section applies not. merely to the setting aside of a voidable instrument but also to the adjudging void of a void instrument. The leading case in Mohori Bibee v. Dharmadas Ghose (ILR. XXX Calcutta 539) on which the plaintiffs place so much reliance itself recognises that S.41 of the Specific Relief Act does give the court the discretion to award compensation on adjudging an instrument void and it also gives some indication that S.65 of the Contract Act would apply where, as in the present case, the agreement discovered to be void is between parties competent to the contract. As pointed out in the Madras case just referred to, this decision of the Judicial Committee has been "applied by the courts in India and compensation to disappointed alienees from minors or unauthorised guardians of minors purporting to act on their behalf, has been awarded in suits by the minors for recovery of possession of the property alienated." That in that particular case their Lordships of the Privy Council did not think fit to interfere with the discretion exercised by the courts below in holding that, in the circumstances of that case. justice did not require them to order the return by the respondent therein of money advanced to him with full knowledge of his infancy, makes no difference to the position. 9. The remaining cases cited on behalf of the plaintiffs are all cases where, as in the Privy Council case already referred to, the discretion to award compensation under S.41 of the Specific Relief Act was recognised but was not exercised having regard to the special facts and circumstances. 10. 9. The remaining cases cited on behalf of the plaintiffs are all cases where, as in the Privy Council case already referred to, the discretion to award compensation under S.41 of the Specific Relief Act was recognised but was not exercised having regard to the special facts and circumstances. 10. Reliance is placed on the following observation of Romer, L. J. in Thurston v. Nottingham Permanent Benefit Building Society, (1902) I Ch.1 at page 13, which was accepted and followed in the Privy Council case referred to above: "The short answer is that a court of equity cannot say that it is equitable to compel a person to pay any money in respect of a transaction, which as against that person, the Legislature has declared to be void." And it is argued, on the strength of this observation, that, even if I am to hold that S.41 of the Specific Relief Act is applicable to the present case, I must hold that justice does not require that a person should be compelled to pay any money in respect of a transaction which, as against that person, the law is clear that it is void. This aspect of the matter has been dealt with in the Madras case to which I have already referred and with great respect I agree with the conclusion reached therein that the courts in India are not bound to follow the aforesaid dictum of Romer, L. J. although cited by the Judicial Committee, in preference to the clear statutory provision in S.41 of the Specific Relief Act which authorises the award of compensation even where an English Court of Equity might not have awarded it. It is only when an instrument is void or voidable under the law that its cancellation will be adjudged, and it is precisely in such cases that S.41 of the Specific Relief Act contemplates the award of compensation. If a transaction is unlawful, or opposed to public policy, or a person enters into a transaction knowing fully well that it is void, the courts might well regard him as disentitled to the equitable relief provided by the section, but, if his conduct was bona fide, it does not seem to me to matter whether it was because of a mistake of fact or because of a mistake of law that he entered into it. All this apart, I do not think that this contention is open to the plaintiffs who came to court with the case that they were bound to repay that part of the sale consideration which went to relieve their share of the burden on their father's estate. Unlike the question of the applicability of S.41 of the Specific Relief Act, the contention that justice does not require them to make compensation is not a pure question of law and, if the plaintiffs had taken their present stand at the trial of the suit, it is conceivable that the 1st defendant would have been in a position to plead and prove facts and circumstances (such as, for example, that he was unaware that a Muslim mother, unlike other mothers was incompetent to act as guardian of her minor children) to establish the equity of his claim for compensation. And I have no doubt that, in a case like the present, where there has been no attempt by the 1st defendant to overreach the plaintiffs, and all that can be said against him is that he entered into a transaction which, had he taken competent legal advice, he could have discovered would be void it is only just and equitable that, when the plaintiffs recover their share of the property, they should be asked to restore the advantage they got under the transaction which they have repudiated. The case considered both in Thurston v. Nottingham Permanent Benefit Building Society, (1902), I Ch.1 and in Mohori Bibee v. Dharmodas Ghose (ILR. XXX Calcutta 539), namely, that of a person dealing with a minor knowing him to be a minor is different. Everyone knows that a minor is not competent to contract, and, if a person knowingly enters into a contract with a minor, it is but reasonable to assume that his intention must have been to obtain an undue advantage. He cannot therefore exhibit the pair of clean hands that equity demands of a person seeking her grace. But, although the case of Imambandi v. Mutsaddi (ILR. 45 Calcutta 878) was decided 45 years ago, it is not generally known outside legal circles, even among Muslims, that the mother of a Muslim minor has no authority to sell his property under any circumstances whatsoever. But, although the case of Imambandi v. Mutsaddi (ILR. 45 Calcutta 878) was decided 45 years ago, it is not generally known outside legal circles, even among Muslims, that the mother of a Muslim minor has no authority to sell his property under any circumstances whatsoever. The presumption of legal knowledge, while it extends to precluding a person from pleading ignorance of the law as an excuse so as to exempt him from the consequence of his acts, does not extend to requiring the courts to hold, what is not the truth, namely, that, for all intents and for all purposes, and in all circumstances, every person knows the whole of the law. I do not think that a person is precluded from pleading ignorance of the law regarding the incapacity of a Muslim mother to sell the property of her minor children for the purpose of establishing his bona fides and persuading the court to hold that justice requires that he should be compensated to the extent to which his money benefited the party obtaining the cancellation of the sale. 11. In the result, I dismiss the appeal with costs. Dismissed.