Dhanna Munda and Another vs Mt. Kosila Banian

Agarwala, J.—This is an appeal by the defendants and arises out of a suit to recover 1.28 acres of land which formed a part of the raiyati holding of the plaintiff.

The plaintiff executed a sale deed in favour of the defendants in respect of this land on 21st September 1930, for a consideration of Rs. 500. She alleged that the transfer was merely a benami one and that the consideration never passed. She also claimed to recover the land on the ground that the transfer offended the provisions of Section 46, Chota Nagpur Tenancy Act, as it stood before its amendment in 1938. The Courts below have found that the sale was not a benami one and that the plaintiff in fact received the consideration for it. The trial Court held that the plaintiff was estopped from challenging the sale.

The appellate Court has held that the plaintiff is entitled to recover the property in dispute. It is necessary to refer to the provisions of the Chota Nagpur Tenancy Act as they stood prior to the amendment of 1938. Section 46(1) declared that no transfer by a raiyat of his right in his holding or any portion thereof by sale should be valid to any extent. Sub-section (3) provided that no transfer in contravention of Sub-section (1) should be registered, or should be in any way recognized as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction. In 1920 Sub-section (6) was inserted in Section 46 of the Act. This new Sub-section provided:

The Local Government may by rules declare that any specified class or classes o� transfer (not being transfer by an aboriginal raiyat to a non-aboriginal transferee) in contravention of Sub-section (1) may be validly made by a raiyat of such tribe, caste, group or community, or section thereof, of such class, in such area or areas, and subject to such restrictions in respect of the person by whom and the person to whom the transfer maybe made, sanction of any officer or other authority, quantity of land or proportion of the holding transferred, as may be specified; and thereupon nothing in Sub-sections (1), (3) and (4) shall affect the validity of any such transfer so made by such raiyat after the date of publication of the rules in the Gazette or such later date as may be prescribed.

In pursuance of this new Sub-section, the Local Government issued notification No. 126-IIT-40/38-R dated 7th October 1938. Paragraph 2 of that notification is as follows:

A transfer of his (i.e. raiyats'') entire holding, or, with the Deputy Commissioner''s consent of part of his holding, may be made by a raiyat to another person who is of the same tribe or caste as himself and resides in the same village or an adjoining village belonging to the same landlord, or with the sanction of the Deputy Commissioner, to any person without limitation of residence, who is closely related to the transferor raiyat.

It may be mentioned that the plaintiff is a non-aboriginal raiyat and that the defendants are aboriginals. The effect of the notification, therefore, was to validate a transfer of a part of the raiyat''s holding to a person of the same tribe or caste as the transferor or to a person closely related to the transferor, in either case the sanction of the Deputy Commissioner being essential. In the present case the plaintiff obtained the sanction of the Deputy Commissioner to the sale to the defendants although the defendants are neither members of the same tribe ox caste as the plaintiff, and are not related to her.

It has been contended, as it was contended in the Courts below, that the plaintiff is estopped from challenging this transfer. It cannot, however, be said that the defendants were misled by any representation made to them by the plain, tiff, for they knew that they were not of that category of persons to whom the Deputy Commissioner was empowered by the notification to sanction the transfer of a part of the holding. It may be presumed that the plaintiff did make a false representation to the Deputy Commissioner and that as a result of that false representation the Deputy Commissioner sanctioned the transfer; but that representation was neither made to the defendants nor, if it had been made, could it have been believed by them as it was within their knowledge that the representation was false.

Reference was made to the decision of this Court in Dhanu Pathah and Others Vs. Sona Koeri, . The facts of that case were that a raiyat representing himself to be a tenure-holder, granted a permanent lease and subsequently sued to eject the lessee on the ground that the latter was merely an under-raiyat. It was held that the plaintiff was estopped from proving that his real status was that of a raiyat and not that of a tenure-holder. In that case not only did the lessor make a false representation as to his status but the lessee believed that representation and on the strength of that representation entered into the contract with the lessor. The facts of that case are entirely different from the facts of this case. 8. In my opinion the plaintiff is not estopped from challenging the validity of the transfer by showing that the defendants were not persons to whom a transfer of a part of the holding could be validly made. 9. In 1938 the Chota Nagpur Tenancy Act was amended. The present Section 46(d)(a) permits an occupancy raiyat, who is not an aboriginal, to transfer his right in his holding or any portion of it to any person who is resident within the local limits of the police station area within which the holding is situate by sale, exchange, gift, will, mortgage or lease. It has been contended that this provision operates retrospectively to validate the transfer in favour of the defendants.

In my opinion, there is nothing in the language of that Sub-section to justify this contention. Neither expressly nor by necessary implication does it lead to the con elusion that it was the intention of the Legislature to validate transfers which under the former law were invalid when they were made. The next point is with regard to the consideration for the sale. The defendants claim that they are entitled to recover the five hundred rupees which they paid to the plaintiff for the transfer. They base their claim on Section 65, Contract Act. That section provides:

When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.

If this section means what has been contended for on behalf of the defendants-appellants, it is clear that the door will be left wide open for evading the provisions of statutes like the Chota Nagpur Tenancy Act which have been enacted to prevent or restrict transfers of raiyati land. The scope of Section 65 has been explained in Ledu Coachman v. Hiralal Bose AIR 1916 Cal. 266, where it was said:

The case before us is however not that of an agreement ''discovered'' to be or ''becoming'' void. The agreement is void on the face of it and it was void ab initio, while the words of the section can only be aptly applied in such oases as that of an agreement which is subsequently found to be void on account of some latent defect or of circum-stances unknown at the date of the agreement or of an agreement which is afterwards made void by circumstances which supervene.

In this view of the law the section cannot be held to apply to a case of a contract void as being contrary to the statute law which the parties must be presumed to have known at the time when they entered into the contract.

In Nathu Khan v. Sewak Koeri 15 C.W.N. 408 it was held that the section has no application when the object of the agreement is illegal to the knowledge of both parties at the time when it was made. On behalf of the appellants, however, reference was made to the cases which I shall now mention.

The first is Dwijendra Mohan Sarma v. Manorama Dasi AIR 1922 Cal. 150. This was a case of a conveyance by the guardian of a minor without the previous sanction of the District Judge as required by the Guardians and Wards Act. Section 30, Guardians and Wards Act, makes such a transaction voidable and not void and the distinction between the consequences of void and voidable contracts was the basis of the decision, in that case as in Eastern Mortgage and Agency Co. Ltd. v. Rebati Kumar Ray (06) 3 C.L.J. 260 which was the next ease relied on by the appellants.

The next case relied on by the appellants is Barohan Upadhya v. Uttamgir (11) 33 All. 779. This was a case to which the provisions of the Agra Tenancy Act 1901 applied. Section 21 of that provides:

Where the interest of a tenant is not transferable, lie shall not be competent to transfer his holding or any portion thereof otherwise than by sub-lease as hereinafter provided.

An occupancy raiyat mortgaged his holding and put the mortgagee in possession but subsequently sued to recover possession on the ground that the mortgage was void under the provisions of the Agra Tenancy Act. It was held that he was not entitled to recover possession unless he restored to the mortgagee the mortgage money received by him.

That decision appears to be in conflict with the decisions in Ledu Coachman v. Hiralal Bose AIR 1916 Cal. 266 and Nathu Khan v. Sewak Koeri 15 C.W.N. 408. The case on which the appellants most strongly rely is that in Harnath Kuar v. Indar Bahadur Singh AIR 1922 P.C. 403. There a Hindu who had a mere spes successionis purported to transfer his interest for a consideration of Rs. 25,000. After the death of the transferee the latter''s widow sued to recover possession of the property. The Privy Council held that the agreement was void from its inception because its subject-matter was incapable of being bound in the manner stipulated. Their Lordships want on to state:

Though this aspect of the case has not bean satisfactorily presented or developed in the pleadings and the proceedings before the lower Courts, their Lordships think there are materials on the record from which it may be fairly inferred in the peculiar circumstances of this case that there was a misapprehension as to the private rights of Indar Singh in the villages which he purported to sell by the instrument of 2nd January 1880 and that the true nature of these rights was not discovered by the plaintiff or Rachpal Singh earlier than the time at which his demand for possession was resisted....

In the result their Lordships held that the plaintiff, though not entitled to recover possession of the villages, was entitled to recover compensation and in assessing the compensation their Lordships included the sum of Rs. 25,000 paid to Inder Singh. As I understand this decision, their Lordships held that the contract was based on a mutual mistake of the parties as to the tee nature of the rights of Inder Singh. It was clearly not a case where both parties were aware of the illegality of the contract at the time of its inception.

The case is, therefore, distinguishable from the case in Nathu Khan v. Sewak Koeri 15 C.W.N. 408 in which it was held that Section 65 does not apply where the object of the agreement was known to be illegal to both the parties at the time it was made.

In my opinion, the facts of this case with regard to this matter are indistinguishable from the facts of that case and I would, therefore, dismiss this appeal with costs. Leave to appeal under the Letters Patent is granted.