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Case Summary
| Citation | Khan Gul V. Lakha Singh Air 1928 Lah 609 |
| Keywords | |
| Facts | Plaintiffs brought a suit for possession of half a square which had been sold to them by defendant 1 for Rs. 17,500 out of which Rs. 8,000 had been paid in cash before the Sub−Registrar and Rs. 9,500 was secured by a promissory note payable on demand from the plaintiffs. The plaintiffs alleged that defendant 1 had been duly paid Rs. 17,500 because the promissory note for Rs. 9,500 in his favour had been discharged by another promissory note executed by the plaintiff in favour of the defendant‘s brother−in−law Muhammad Hussain at the request and with the consent of the defendant, that the plaintiffs had paid Rs. 5,500 out of the Rs. 9,500 to Muhammad Hussain and were prepared to pay the balance. The trial Court decreed the suit for possession holding that defendant 1 had made a false representation that he was of full age to the plaintiffs and was therefore estopped from raising the plea of minority |
| Issues | Whether a minor, who, by falsely representing himself to be a major, has induced a person to enter into a contract, is estopped from pleading his minority to avoid the contract. a person to contract with him by means of a false representation that he was of full age, he is not estopped from pleading his infancy in avoidance of the contract . − As the opposite member knowingly may enter into contract. Whether a party, false representation as to his age, whether he be defendant or plaintiff, in a subsequent litigation, refuse to perform the contract and at the same time retain the benefit he may have derived therefrom. Doctrine of restitution an infant though not liable under the contract, may in equity required to return the benefit he has received by making a false representation as to his age. |
| Contentions | |
| Law Points | |
| Judgment | Wsinda Ram V. Sita Ram Whether a minor is estopped from pleading minority when he has made a false representation as to his age Original position − no contract or give and take if minor has come into contract by representing itself as major Doctrine of estoppel Section 115 of evidence act reads: “When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing”. Leslie V sheill − Doctrine of restitutionIf he obtain goods − It can restore Doctrine of equity If goods is sold − cant be restore − So no contract − Void Section 41 − Specific relief act − Doctrine of restitution |
| Ratio Decidendi & Case Authority |
Full Case Details
DALIP SINGH, J. – Plaintiffs brought a suit for possession of half a square which had been sold to them by defendant 1 for Rs. 17,500 out of which Rs. 8,000 had been paid in cash before the Sub-Registrar and Rs. 9,500 was secured by a promissory note payable on demand from the plaintiffs. The plaintiffs alleged that defendant 1 had been duly paid Rs. 17,500 because the promissory note for Rs. 9,500 in his favour had been discharged by another promissory note executed by the plaintiff in favour of the defendant’s brother-in-law Muhammad Hussain at the request and with the consent of the defendant, that the plaintiffs had paid Rs. 5,500 out of the Rs. 9,500 to Muhammad Hussain and were prepared to pay the balance. Defendant 1 had refused to deliver possession of the property and the plaintiffs prayed that possession of the property sold might be delivered to them, or, in the alternative, that a decree for Rs. 17,500, the consideration money, together with interest or damages arising from breach of contract at the rate of one per cent per mensem, amounting to Rs. 1,050, i.e., for Rs. 19,000, in all, might be passed against the other property of defendant 1.
Defendant 1 pleaded minority. Defendant 2, wife of defendant 1, pleaded minority of defendant 1, and also pleaded a prior gift by defendant 1. The trial Court decreed the suit for possession holding that defendant 1 had made a false representation that he was of full age to the plaintiffs and was therefore estopped from raising the plea of minority, following the authority of Wasinda Ram v. Sita Ram [(1920) 1 Lah. 389]. It also held that the consideration had been duly discharged by payment of Rs. 8,000 in cash and by substitution of the promissory note in favour of the defendant by one in favour of Muhammad Hussain and that Muhammad Hussain had realized Rs. 5,500 out of this sum from the plaintiffs. It also held that the gift to the wife was of no effect and was void ab initio. Defendants have appealed.
Their counsel has urged that the facts do not show that the plaintiffs were in any way deceived by any representation made by defendant 1. He relies on the evidence of Fakir Muhammad (P.W. 3) who states that Lakha Singh, one of the plaintiffs, had told the defendant that he (defendant) should state his age to be 19 at time of registration. There can be no doubt that the defendant stated his age to be 19 at the time of registration. Except the evidence of Fakir Muhammad there is no evidence to show us that the plaintiffs knew or were in a position to know what the age of the defendant was. The defendant had previously executed other mortgages and deals of gift in which he had represented himself to be 19. In one case he had obtained a medical certificate showing that he was over 19 years of age. He admits that he stated before the Sub-Registrar that he was 19 years of age because his cousin Muhammad Hussain had asked him to give his age as 19 years. We have no reason to suppose that the plaintiffs knew that this representation was false and we do not accept the evidence of Fakir Muhammad.
The question that arises then is whether a minor is estopped from pleading minority when he has made a false representation as to his age. Wasinda Ram v. Sita Ram is undoubtedly an authority for the proposition that he is so estopped. On the other hand, the Calcutta High Court in Dhurmo Dass Ghose v. Brahmo Dutt [(1899) 26 Cal. 381], held that S. 115, Evidence Act, did not apply to minors. The case went before the Privy Council and is reported as Mohori Bibee v. Dharmodass Ghose [(1903) 30 I.A. 114] but the Privy Council expressly did not decide this point. In Levene v. Brougham [(1909) 25 T.L.R. 265] the Court of Appeal in England held that there could be no estoppel in such a case. It has been contended before us that S. 115, Evidence Act, governs the matter and the word “person” in it is wide enough to include minors. I find it difficult to follow this argument because it seems to me that in every honest dealing with a minor there is presumably a representation, expressed or implied, on the part of the minor that he is competent to contract. Therefore, if the doctrine of estoppel could be applied to the case of minors there would hardly be a case in which the doctrine would not apply and the protection given by the law to minors would practically be done away with. Further, I am unable to see how the force of a statute can be avoided by what after all is a law of procedure, namely, estoppel. For these reasons, I am quite clear that there can be no estoppel in such a case, but owing to the existence of the Division Bench ruling of this Court and the importance of the matter, I would prefer to refer the question to a Full Bench. Counsel for the appellants has cited Leslie Ltd. v. Sheill [(1914) 3 K.B. 607] and Mahomed Sydol Ariffin v. Yeohoo Gark [AIR 1916 P.C. 242] The latter ruling is a Privy Council ruling on an appeal from the Strait Settlements in which their Lordships approved of the doctrine laid down in Leslie Ltd. v. Sheill. At first I was of opinion that this question was covered by the Privy Council ruling and that, therefore, there was no need to refer the matter to a Full Bench, but on carefully examining Leslie Ltd. v. Sheill. I find that the question of estoppel was not decided in that case. That question was decided in the Court of appeal in Levene v. Brougham and was only referred to in Leslie Ltd. v. Sheill. The question there was whether a suit would lie for money received by a minor where the contract for loan failed on the ground of being void by statute. The ruling of the Privy Council in Mohammed Syedol Ariffin v. Yeoh Ooi Gark [AIR 1916 P.C. 242] further is obiter on the point and therefore, though entitled to great respect, is not absolutely binding on us. I therefore consider that the question whether a minor who has made a false representation as to his age is estopped from pleading his minority should be referred to a Full Bench for decision.
The next point arising in this case is also a difficult one. As explained above the plaintiffs had pleaded in the alternative that they should get a decree for Rs.17,500 with interest or damages. Counsel for the appellants has contended on the authority of Leslie Ltd. v. Sheill that in such a case there could be no restitution by the minor. On considering Leslie Ltd. v. Sheill I am definitely of opinion that in spite of the doubt expressed as to the correctness of Birstow v. Eastman [(1794) 1 Esp. 174] in that case the case itself did not decide that Cowern v. Nield [(1912) 2 K.B. 419] was wrongly decided. That case is directly in point, whereas Leslie Ltd. v. Sheill is not directly in point, because, as pointed out in Leslie Ltd. v. Sheill the jurisdiction in equity to force the minor to make restitution was never clearly defined and all that Leslie Ltd. v. Sheill held was that the jurisdiction did not extend to repayment as distinguished from restitution. On general principles of justice it would seem to me monstrous that the minor should be able both to retain the property and the benefit which he derived by making false representations to parties as to his capacity to deal with the property. I would, therefore, be inclined to hold that there is jurisdiction in the Court to compel the minor to make restitution. It has been contended before us that the position alters when the minor is plaintiff or defendant. I am quite unable to accede to this argument which is moreover not borne out by any authority cited to us. It seems to me that where a minor is plaintiff or defendant all that the Court in effect orders is, that it refuses to allow a certain plea to prevail except upon terms. If such a jurisdiction exists it seems to me wholly immaterial whether the minor is plaintiff or defendant and it would certainly be extremely anomalous that such a question should rest on the relative position of the parties as plaintiff and defendant. The question, however, is by no means free from difficulty and undoubtedly there are expressions in Leslie Ltd. v. Sheill which would tend to show that their Lordships in that case disapproved of certain previous cases taking the more equitable view, if I may so call it, and, I, therefore, think, in view of the importance of the question that this matter also should be referred to the Full Bench. The question would be whether a party who, when a minor, has entered into a contract by means of false representation as to his age, can whether he be defendant or plaintiff in a subsequent littigation refuse to perform the contract and at the same time retain the benefit he may have derived therefrom. If the Full Bench hold that the minor is bound to make restitution it will be for the Division Bench to decide on the evidence how much is due.
SHADI LAL, C.J. – The questions, which have been formulated for decision by the Full Bench, are in these terms :
(I) Whether a minor, who, by falsely representing himself to be a major, has induced a person to enter into a contract, is estopped from pleading his minority to avoid the contract.
(2) Whether a party, who, when a minor, has entered into a contract by means of a false representation as to his age, whether he be defendant or plaintiff, in a subsequent litigation, refuse to perform the contract and at the same time retain the benefit he may have derived therefrom.
As regards the minor’s capacity to enter into a contract, there was some uncertainty prior to 1903 as to whether a minor’s contract was void or voidable. But all doubt on the subject has been dispelled by the judgment of their Lordships of the Privy Council in Mohori Bibee v. Dharmodas Ghose, which declares that a person who, by reason of infancy is, as laid down by S. 11, Contract Act, incompetent to contract, cannot make a contract within the meaning of the Act. The transaction entered cannot be recognized by law. The question arises whether an infant is precluded by the rule of estoppel from showing the invalidity of a transaction of this description. Now, the doctrine of estoppel is embodied in S. 115, Evidence Act.
There is a conflict of judicial opinion as to whether an infant comes within the ambit of the section; the Bombay High Court holding that an infant is not excepted by the language of the section while the Calcutta High Court has adopted the opposite view: vide Dhurmo Dass Ghose v. Brahmo Datt. In the latter Calcutta case Maclean, C.J., sought to get over the comprehensive language of S. 115 by holding that the term “person” in that section applies to “one who is of full age and competent to enter into a contract.” It will be observed that the expression “person” is used twice in that section, and it is clear that if in the first portion of the section it means a person sui juris, it must have the same meaning when used again in the same section. The interpretation placed upon the word “person” by the Calcutta High Court would, no doubt, help the minor in so far as he would be able to repel the plea of estoppel when it is urged against him; but he must, at the same time, forego the benefit accruing from the doctrine of estoppel and cannot invoke the plea for his own advantage. If the word “person” means only a person competent to enter into a contract, then the section cannot be used to the advantage of the minor any more than to his detriment; in other words the doctrine of estoppel, as enacted by S. 115, must be treated as non-existent in so far a person under disability is concerned.
That a minor cannot set up the plea of estoppel as against an adult is obviously an absurd result. Now, it is a cardinal rule governing the interpretation of statutes that when the language of the legislature admits of two constructions, the Court should not adopt a construction which would lead to an absurdity or obvious injustice. But I do not think that there is any ambiguity in the term “person”. In construing statutes, and indeed all written instruments, it is the duty of the Court to adhere to the grammatical and ordinary sense of the words; and the expression “person”, when used in its ordinary sense, includes every person whether sui juris or under a contractual disability. As pointed out above, the same word is used again in S. 115, and there can be no doubt that it cannot, in that connexion, bear any restricted meaning. Indeed the term “person” is to be found also in S. 116, which deals with the estoppel of a tenant as against his landlord, and in numerous other sections of the Evidence Act, e.g. Ss. 5, 8, 10, 112, 118, 122 and 139; and a perusal of those sections leaves no doubt that it is intended to include minors as well as other persons under disability.
I must, therefore, hold that the language of S. 115 is comprehensive enough to include a minor; and if the matter rested there, I would say that an infant, who has induced another person to deal with him by falsely representing himself as of full age, should not be allowed to deny the truth of his representation. But the rule of estoppel is a rule of evidence and must be read along with and subject to the provisions of other laws. The law of estoppel is a general law applicable to all persons, while the law of contract relating to capacity to enter into a contract is directed towards a special object; and it is well established principle that, when a general intention is expressed by the legislature, and also a particular intention, which is incompatible with the general one, particular intention is considered an exception to the general one: per Best, C.J. in Churchill v. Crease [5 Bing 177 (180)]. This rule applies whether the general and special provisions are contained in the same statute or different statutes. Now, when the law of contract lays down that a minor shall not be liable upon a contract entered into by him, he should not be made liable upon the same contract by virtue of the general rule of estoppel. I do not go so far and to say that the language of S. 115, would, if given its full scope, render absolutely nugatory the law declaring the incapacity of a minor to make a contract; for there may be instances in which a contract though entered into with a minor has not been induced by any misrepresentation made by him and no question of estoppel can arise in such cases. There can, however, be no doubt that the rule of estoppel would take away in many cases the protection which the legislature has deliberately created for the benefit of the minors, and would make them liable on a transaction which has no existence in the eye of the law. The Court should struggle against repugnancy and should construe an enactment as far as possible in accordance with the terms of the other statute which it does not expressly modify or repeal.
Now, both the statutes can stand together, if we apply the general rule of estoppel, as enacted by S. 115, Evidence Act, subject to the special law imposing disability upon the contractual capacity of an infant. This construction which recognizes an exception to the general rule, avoids all repugnancy and does not lead to any absurdity or injustice.
It is to be observed that, so far as the English law is concerned, there is no authority for the proposition that a contract, which is void under the statute on the ground of infancy, can be enforced simply because it has been entered into on the faith of a false representation as to age which the minor is precluded from denying. In the case of Levene v. Brougham [(1909) 25 TLR 265], the plea of estoppel was raised against the minor but was rejected by the Court of appeal. It must be remembered that, as observed by their Lordships of the Privy Council in Sarat Chunder Dey v. Gopal Chunder Laha [(1893) 20 Cal. 296], S. 115, Evidence Act, has not enacted as law in India anything different from the law of England on the subject of estoppel and the English decisions are therefore, relevant to the discussion of the subject before us.
In India, the rule against the application of the doctrine of estoppel to a contract void on the ground of infancy has been adopted, not only by the Calcutta High Court, but also by the High Courts at Madras, Allahabad and Patna. A Division Bench of the Lahore High Court has, however, favoured the view taken by the Bombay High Court in Wasinda Ram v. Sita Ram [(920) 1 Lah. 359]. I am not aware of any judgment of the Privy Council which gives expression to the considered view of their Lordships on the subject. In the case of Mohoree Bibee v. Dharmodas Ghose, which was an appeal from the judgment of the Calcutta High Court in Brahmo Datt v. Dhurmo Dass Ghose [(1899) 26 Cal. 381] their Lordships refrained from expressing their opinion and disposed of the question by making the following observations:
The Courts below seem to have decided that this section (S. 115) does not apply to infants but their Lordships do not think it necessary to deal with that question now. They consider it clear that the section does not apply to a case like the present, where the statement relied upon is made to a person who knows the real facts and isnot misled by the untrue statement.
Nor is there anything in the judgment in Mahomed Syedol Ariffin v. Yeoh Ooi Gark [AIR 1916 PC 242], which can be treated even as an obiter dictum on the subject of estoppel. That case was heard by the Privy Council on an appeal from the Supreme Court of the Straits Settlements and dealt with the Strait Settlements Ordinance (3 of 1893), which is in similar terms to the Indian Evidence Act. It was sought to establish the liability of the infant for damages on the ground of a fraudulent statement, but their Lordships held that no fraud had been established. It is clear that no case of estoppel was either set up or decided in that case.
It will be seen from the foregoing discussion that not only the English law, but also the balance of the judicial authority in India, is decidedly in favour of the rule that where an infant has induced a person to contract with him by means of a false representation that he was of full age, he is not estopped from pleading his infancy in avoidance of the contract and, though S. 115, Evidence Act is general in its terms, I consider for the reasons, which I have already given, that it must be read subject to the provisions of the Contract Act, declaring a transaction entered into by a minor to be void. My answer to the first question referred to us is, therefore, in the negative.
Coming now to the second question: I am clear that when a contract has been induced by a false representation made by an infant as to his age, he is liable neither on the contract nor in tort, if the tort is directly connected with the contract and is the means of effecting it and parcel of the same transaction: The Liverpool Adelphi Loan Association v. Fairthurst [(1854) 9 Ex. 422]. It is true that infancy does not constitute a valid defence to an action on tort, but the tort, which can sustain an action for damages must be independent of the contract and must not be another name for the breach of the contract. No person can evade the law conferring immunity upon an infant from performing a contractual obligation by converting the contract into a tort for the purpose of charging the infant. As observed by Byles, J., in Burnard v. Haggie [(1863) 32 L.J.C.P. 189], “one cannot make an infant liable for the breach of a contract by changing the form of action to one ex delicto.”
The Court has to look at the substance, and not at the form, of the action; and if it finds that the action is in reality an action ex contractu but disguised as an action ex delicto, it would decline to enforce the claim. Indeed, it has been repeatedly held in England that when an infant has induced a person to contract with him by making a false statement that he was of full age, the infant is not answerable either for the breach of the contract or for damages arising from the tort committed by him.
But a false representation by an infant that he was of full age gives rise to an equitable liability. The Court, while relieving him from the consequences of the contract may in the exercise of its equitable jurisdiction restore the parties to the position which they occupied before the date of the contract. If the infant is in possession of any property which he has obtained by fraud, he can be compelled to restore it to his former owner. The matter is, however, debatable: if the benefit acquired by him consists of money which is not earmarked, has the Court of equity authority to make him liable for the payment, to the defrauded person, of a sum equal to the amount of which the latter has been deprived by the former? The equitable jurisdiction is founded upon the desire of the Court to do justice to both the parties by restoring them to the status quo ante, and there is no real difference between restoring the property and refunding the money except that the property can be identified but cash cannot be traced.
The doctrine of restitution finds expression in S. 41, Specific Relief Act. Suppose, A, an infant, executes an instrument of mortgage in favour of B for Rs. 1,000 borrowed by B by making a false representation as to his age. This instrument is void, and S 39, which expressly applies, not only to a voidable but also to a void, instrument, allows A to move the Court to adjudge it to be void and order it to be delivered up and cancelled. Then comes S.41, by which it is provided that on adjudging the cancellation of the instrument the Court may require A, to whom such relief is granted, to make any compensation to B which justice may require. It is beyond question that under this section the Court has the discretion to impose terms upon A and to compel him to pay Rs. 1,000 as compensation to B. The statute nowhere says that pecuniary compensation should not be allowed, when the award thereof would be tantamount to a repayment of the money borrowed on the strength of a void transaction. Indeed, the Courts in India have ordered the minor to refund the money received by him before allowing him to recover the property sold or mortgaged to the other party.
It is true that in the case of Mohori Bibee v. Dharmodas Ghose [(1903) 30 I.A. 114] restitution was not allowed, but the party, who had lent the money to the minor, was aware of the minority; and their Lordships of the Privy Council, while recognizing that S. 41 does give a discretion to the Court, did not see any reason for interfering with the discretion of the lower Courts which, on the facts of the case, had declined to direct the return of the money.
There are some English cases in which an infant repudiating a transaction was held liable in equity to return the benefit he had obtained by reason of his fraud. In re King Ex Parte, The Unity Joint Stock Mutual Banking Association [(1858) 3 De. G. & J. 63], a person who had lent money to an infant on the faith of a fraudulent representation as to age, was held entitled to prove in his bankruptcy. Lord Justice Knight Bruce, while deciding that in equity the liability of the borrower had been established, made the following pertinent observations:
The question is whether in the view of a Court of equity, according to the sense of decisions not now to be disputed, he has made himself liable to pay the debt whatever, be his liability or nonliability at law. In my opinion we are compelled to say that he has.
Cowern v. Nield [(1912) 2 K.B. 419] was a case in which it was decided that an infant trader, who had entered into a contract for the sale of goods and failed to deliver them after receiving their price, was not liable on the contract, but that if the plaintiff can prove that the defendant obtained his money by fraud, the action can be maintained. The Court of appeal accordingly ordered a new trial: in order that the plaintiff may have an opportunity of proving if he can, that his money was obtained from him by the defendant by fraud.
In Stocke v. Wilson [(1918) K.B. 235] an infant, who had obtained furniture from the plaintiff by falsely stating himself to be of age, and had sold part of it for £ 30 was directed to pay this amount as part of the relief granted, to the plaintiff.
A different view was, however, taken by the Court of appeal in R. Leslie Ltd. v. Sheill [(1914) 3 K.B. 607]. In that case an action for the recovery of advances made to an infant on the faith of his fraudulent representation as to his age was dismissed, because the cause of action was held in substance ex contractu. The learned Judges of the Court of appeal distinguished the judgment in The Unity Joint Stock Mutual Banking Association [(1958) 3 De. G & J 63] on the ground that it expressed the law in bankruptcy and did not lay down a doctrine of general application. With all respect, I am unable to follow the distinction. Either the liability to return the benefit obtained by fraud exists or it does not exist. If it does not, then the mere fact that the quondam infant has been subsequently adjudged a bankrupt cannot bring it into existence. If, on the other hand, the infant is in equity liable to return his ill- gotten gains his liability holds good, even if he is not subsequently adjudged to be an insolvent. It must be remembered that the relief springs, not from the circumstance that the borrower is adjudicated a bankrupt, which may be a pure accident, but from the rule of equity that a person should not be allowed to take advantage of his own fraud. It would be sheer injustice if an infant should retain, not only the property which he has agreed to sell or mortgage, but also the money which he has obtained by perpetrating fraud. As stated by Lord Kenyon in Jennings v. Rundall [(1799) 8.T.R. 335], the protection given by law to the infant “was to be used as a shield and not as a sword.” It must be remembered that, while in India all contracts made by an infant are void, there is no such general rule in England. For instance, a contract for necessaries is not affected by the Infants Relief Act, 1874, and can be validly entered into by an infant. There should, therefore, be greater scope in India than in England for the application of the equitable doctrine of restitution.
It is, however, argued that this jurisdiction can be exercised only when the minor invokes the aid of the Court as a plaintiff. If he asks the Court to cancel a transaction brought about by his own fraud, he cannot complain if the Court does justice to both the parties; and, while granting him the relief the Court compels him, at the same time, to return the advantage which he has acquired in pursuance of the void transaction. But if the minor happens to occupy the position of a defendant in an action involving the cancellation of the transaction of the above description, he should not, it is urged, be required to make restitution.
It is difficult to understand why the granting of an equitable remedy should depend upon a mere accident, namely, whether it is the minor or his adversary who has taken the initiative in bringing the transaction before the Court. The material circumstances in both the cases are exactly the same. A contract has been entered into with an infant and, as it is an invalid transaction, it must be cancelled. The Court, however, finds that the infant has, by practising fraud upon the opposite party, received property or money; and that justice requires that he should not retain the benefit derived by him from a transaction which has been declared to be ineffectual against him. The transaction has been wiped out. It is only fair that both the parties should revert to their original position. These considerations are, in no way, affected by the circumstance that one party and not the other, has moved the Court in the first instance. There is neither principle nor justice which would warrant a discrimination.
The equitable jurisdiction of the Court to other restitution rests purely upon the principle of justice, and that principle is no more applicable to a case in which he is a defendant. But when we come to the case law, we find it in an unsatisfactory state. The decisions of the High Courts in India show that when the minor succeeds in an action brought by him, he is ordinarily required to restore the benefit obtained by him by committing fraud. The same unanimity is not, however, found in cases in which he occupies the role of a defendant. In some cases of this character restitution has been allowed, e.g. Saral Chand Mitter v. Mohun Bibi [(1898) 25 Cal. 371], but there are several cases in which relief has not been granted against frauds committed by minors when they were defendants. The language of Ss. 39 and 41, Specific Relief Act, no doubt shows that the jurisdiction conferred thereby is to be exercised when the minor himself invokes the aid of the Court. The doctrine of restitution is not, however, confined to the cases covered by that section. That doctrine rests upon the salutary principle that an infant cannot be allowed by a Court of equity to take advantage of his own fraud. It is possible that, though the Court ordinarily imposes terms upon an infant guilty of fraud if he seeks its aid as a plaintiff it may decline to exercise its equitable jurisdiction if he happens to be a defendant. All that can reasonably be said is that the Court, in deciding whether relief against fraud practised by an infant should or should not be granted, will consider, along with other circumstances of the case, the fact that the infant is a defendant and not a plaintiff in the case. But there is no warrant either in principle or in equity for the general rule that the relief shall never be granted in a case where the infant happens to be a defendant. No such distinction seems to have been drawn in the English cases. Indeed, Stocks v. Wilson [(1913) K.B. 235] was a case in which the infant was the defendant, and yet he was held liable to refund to the plaintiff the price of the furniture received from the latter. Similarly in Cowern v. Nield [(1912) 2 K.B. 419] the action was brought against the infant but it was never suggested that the circumstance of his being a defendant should make any difference in his liability.
The exact form which the relief should take must depend upon the peculiar circumstances of each case, but the contract or any stipulation therein should never be enforced. The remedy by way of restitution may sometimes involve the payment of a sum of money equal to that borrowed under the void contract. The grant of such relief is not, however, an enforcement of the contract, but a restoration of the state of affairs as they existed before the formation of the contract. The Court, while giving this relief, has not to look at the contract or to give effect to any of the stipulations contained therein. Indeed, the relief is granted, not because there is a contract which should be enforced, but because the transaction being void does not exist and the parties should revert to the condition in which they were before the transaction. This is not a performance of the contract but a negation of it. For example, the contract may provide for the payment of interest at a certain rate, but the Court does not give effect to such stipulation or to any other term of the contract. The defrauded party gets, not the remedy on the contract but the relief in equity against fraud. The mere fact that the result of granting the relief is similar to that flowing from the performance of one or more of the terms of the contract cannot constitute an adequate ground for refusing the relief, if the Court considers that justice requires that it should be granted. As stated by Knight Bruce, V.C., in Stikeman v. Dawson [(1881) 1 De. G. & Sm. 90] in what cases in particular a Court of “equity will thus exert itself is not easy to determine.” If the infant has obtained property by fraud the Court will require him to restore it to its owner. In other cases, his estate or he, after attaining majority, may be held liable for the return of the return of the pecuniary advantage acquired by him by fraud. For the aforesaid reasons my answer to the second question is that an infant though not liable under the contract, may in equity, be required to return the benefit he has received by making a false representation as to his age.
