PHUNGAN Vs. CHHAJJU RAM

JUDGEMENT

(1.) Chhajju Ram, plaintiff-respondent, Mst. Phungan and Shiv Devi d/o Phungan Devi, defendants-appellants, entered into an agreement in writing on Feb. 12, 1969, by virtue of which they agreed to sell land measuring 75 kanals 12 marlas comprised in Khewat No.1, situate in village Deval, tehsil Samba for a consideration of Rs.5,000/- out of which they received an amount of Rs.3,000/- as advance as part of the sale consideration. The plaintiff filed suit for the specific performance of the contract alleging therein that on Aug. 12, 1969, he tendered the remaining amount of Rs.2,000/- to defendants and demanded execution of transfer deed but the defendants refused to do so.

(2.) The defendants took a plea that Shiv Devi, defendant No.2 was minor at the time of execution of the agreement and was incapable of entering into any valid agreement. The trial Court after framing preliminary issue to this effect came to the conclusion that Shiv Devi defendant was minor at the time of execution of the agreement. In appeal, this finding of the trial Court was confirmed by this Court. Afterwards, the trial Court framed issues and ultimately dismissed the suit holding that the agreement entered into between the parties was not valid being not enforceable in the eye of law as entered into with a minor and also declined to give relief to the plaintiff for refund of the advance. In appeal, learned Addl. District Judge, however, accepted the contention of the plaintiff to this extent that he was entitled to refund of the amount of Rs.3,000/- which he had advanced to defendants as a consequence of the void agreement. Aggrieved by this judgment, Mst. Phungan defendant has come up in second appeal before this Court.

(3.) I have heard learned counsel for the parties and perused the record before me, The only point canvassed before me by learned counsel appearing for the appellant is that the plaintiff-respondent did not seek refund of the advance amount in his plaint and as such this relief cannot be allowed to him. In this case it is now not disputed that one of the defendants, Shiv Devi, who was a party to the agreement, was minor at the time of its execution. The agreement as such was not a valid document in the eye of law. It cannot also be denied that this minor defendant cannot be burdened with refund of the amount advanced at the time of execution of the agreement. Now the point for consideration is whether Mst. Phungan, another defendant who allegedly received the advance amount can be asked for refund of the slimed In this regard the relevant law is contained in S.65 of the Contract Act which provides that when an agreement is discovered to be void or when a contract becomes void, any person who has received any advantage under such agreement is bound to restore it. It is clear from the abovesaid provision of law that the obligation of the person to refund the consideration which had been received by him, under a contract which is discovered to be void exists even in the absence of any specific contract between the parties for such a refund. In AIR 1926 Nag 108 it has been held that where the plaintiff was under a mistake of fact as to the defendant's minority, which was not discovered till after the institution of the suit, S.65 of the Contract Act would undoubtedly apply. In the instant case, the facts reveal that the plaintiff was not in the knowledge about the defendant Shiv Devi's being a minor and he came to know about it only when, during the proceedings, in the suit filed by him, such a plea was taken by the defendants.