GOBINDA LENKA AND ORS. Vs. BHIMA NAIK

JUDGEMENT

(1.) THIS is an appeal by the Defendants against the appellate judgment of the Additional District Judge of Berhampur setting aside the judgment of the Munsif of Aska and decreeing the Plaintiff's suit for recovery of Rs. 400/ - from the Defendants being the purchase -money under a registered sale -deed dated 19 -12 -46.

(2.) ON 19 -12 -46 the -Plaintiff paid Rs. 400/ - to Defendant -1 Gobinda Lenka who executed in his favour the disputed sale -deed purporting to convey 4 bharanams and 2 Nauties of Badhei service inam lands. The Plaintiff was however unable to obtain possession of the same, and he learned on enquiry that as the suit -lands were service inam lands, they were inalienable under Section 5 of the Madras Hereditary Village Officers Act, 1895 (Madras Act III of 1895). He therefore brought the suit for recovery of purchase -money.

(3.) THE main question for consideration is whether the Plaintiff is entitled to recover the purchase money either under Section 65 of the Indian Contract Act or Section 55(2) of the Transfer of Property Act. The evidence of Defendant -1 was to the effect that while negotiations for the sale of the property was going on between him and the Plaintiff, the Plaintiff asked him about the nature of the suit -land, and that this Defendant thereupon told him that the lands were enfranchised inam lands. It may he that this -Defendant himself was under a mistaken impression about the nature of the land though acting in good faith; but his conduct in telling the Plaintiff that the property was enfranchised, though in fact it was not enfranchised, would amount to misrepresentation as defined in Section 18(3) of the Indian Contract Act. It was on his assurance of Defendant -1 that the Plaintiff agreed to purchase the land and o pay the sum of Rs. 400/ -. The lower appellate court thought this was a case of mutual mistake by both the purchaser and the seller. This portion of the reasoning of the lower appellate court, however, appeal to be incorrect inasmuch as so far as the purchaser was concerned there was no mistake, but he merely acted on the assurance given to him by the seller. This is a simple case of misrepresentation under Section 18. The contract for the sale of unenfranchised service inam land is clearly void inasmuch as it offends the provisions of Section 5 of the Madras Hereditary Village Officers Act of 1895. It is true that in Vengali Venkanna v. Polamarasetti China Appala Swami : A.I.R. 1925 Mad. 749 which has been referred to by the lower appellate court, it was held that such transfer of enfranchised inam lands was not void ab initio, but would enure during the lifetime of the transferor. This view however appears to be incorrect as pointed out in a latter Division Bench decision of the Madras High Court in China Nagiah and Anr. v. Yerraguntla Pullayya and Ors. : A.I.R. 1931 Mad. 610, where the earlier Full Bench decision of the Madras High Court reported in : A.I.R. 1918 Mad. 123 was followed. Contracts for sale of unenfranchised inam lands would be hit by the provisions of Section 5 of the Madras Act, III of 1895, and would be void ab initio.