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Har Prasad And Ors. vs Bhikham Singh And Anr.

High Court Of Judicature at Allahabad|29 July, 1896


JUDGMENT Banerji and Aikman, JJ.
1. The defendants appellants by a sale-deed dated the 7oh of September 1892, conveyed certain zamindari property to the plaintiffs and covenanted to put the plaintiffs into possession of their sir lands, which they also conveyed by the deed. They disclaimed any rights which might accrue to them as ex-proprietary tenants in respect of the sir lands, and recited in the sale-deed that they had relinquished their ex-proprietary rights from the date of the sale. The plaintiffs not having obtained possession of the zamindari rights and sir lands brought the present suit to recover possession of them. They claimed in the alternative that in the event of actual possession not being awarded over the sir lands, compensation should be made to them by the defendants proportionately to the amount of the consideration paid for the sir lands. The Court below has made a decree in their favour for possession of the zamindari and for Rs. 771 as compensation in respect of the sir lands. The defendants have appealed, and the only contention raised on their behalf is that as the agreement for the sale of the ex-proprietary rights was contrary to law it was void, and therefore the claim for a refund of the consideration money was not maintainable.
2. There can be no question that the sale-deed, so far as it purported to convey the ex-proprietary rights to the plaintiffs, was in violation of Sections 7 and 9 of Act No. XII of 1881 and was therefore an unlawful and void contract. The plaintiffs, having entered into a contract which was void at the time it was made, and was known to them to be so, cannot legally claim to be placed in the position in which they were before the contract was made, that is they cannot claim that the defendant vendors should refund to them a portion of the sale consideration proportionate to the value of the ex-proprietary rights. This question is concluded by the authority of two important judgments of this Court, viz., Second Appeal No. 300 of 1889,[1] decided on the 21st July 1891, and Second Appeal No. 676 of 1894 decided on the 13th of July 1896. The latter case was even stronger than the present, as in that case the vendors covenanted to return a portion of the purchase-money in the event of their failing to deliver possession of the sir lands conveyed by the sale-deed. Notwithstanding that covenant, it was held that the plaintiff could not recover the covenant having been introduced into the sale-deed in order to defeat Section 7 of Act No. XII of 1881. Mr. Satya Chandar on behalf of the respondents relies on Fasih-ud-din v. Karamat-ullah Weekly Notes 1888 p. 128. That case in our opinion is distinguishable from the present. There the vendor sued to recover possession of the sir lands of which the vendee had already obtained possession. It was held that the vendor was not entitled to get back possession from the vendee, through the assistance of the Court, without tendering to the vendee that portion of the purchase money which was the price of the sir. That was a case in which the vendor sought by the aid of the Court to get possession of the sir land the sale of which was illegal, retaining at the same time in his own hands the benefit derived by him from the illegal agreement. In such a case the Court might equitably refuse to put back the vendor into the position in which he was before the sale, without placing the vendee in a similar position. Such is not, however, the case here. To allow a claim of this description would be to countenance an intentional violation of the law. There is no equity in favour of a person who with his eyes open enters into a contract, the object of which is to defeat the provisions of the law. The plaintiffs were in our judgment not entitled to the decree for Rs. 771 granted to them by the Court below. We allow the appeal to this extent that we reduce the amount decreed by Rs. 771. We affirm the decree below, except as regards the said sum of Rs. 771, and the costs of the suit. The parties will pay and receive costs in the Court below in proportion to the value of the claim now dismissed and decreed. We make no order as to the costs of this appeal.
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Har Prasad And Ors. vs Bhikham Singh And Anr.


High Court Of Judicature at Allahabad

29 July, 1896
  • Banerji
  • Aikman