SADIA Vs. AMBHIRIA

JUDGEMENT

(1.) 1. The plaintiffs came to the first Court alleging that they were the occupancy tenants of fields 397 and 403 of mouza Mohagaon, Tahsil Gondia that their father sublet the said fields to the defendant for the year 1923-1921, and that after this period was over the defendant was wrongfully withholding possession though asked to give it up. The claim was to eject the defendant from the fields. The defendant pleaded that he was lawfully in possession of the fields by virtue of an unregistered usufructuary mortgage-deed which the father of the plaintiffs had executed in his favour, on 15th February 1923, in consideration of having taken a loan of Rs. 300-It was, therefore, contended that so long as the debt was not paid off the defendant could not be ejected. In the alternative the defendant prayed that the plaintiffs should be put upon terms: if they repudiated the mortgage, they should get a decree for possession conditional upon their refunding the mortgage debt. The Second Class Subordinate Judge, Gondia, who tried the suit passed an unconditional decree in plaintiffs' favour for possession of the fields, but on appeal by the defendant, the learned District Judge, Bhandara, modified it by making it conditional upon the plaintiffs paying to the defendant Rs 300 which he found to have been received by the plaintiffs' father under the mortgage-deed (Ex. D-.1). The plaintiffs have, therefore, come up in second appeal to this Court.

(2.) THE only point argued by the learned advocate for the appellants was that the order for the refund of consideration of the mortgage debt passed by the lower appellate Court was wrong because once it was held that the transaction was void, being in contravention of the provisions of the Central Province Tenancy Act, the consideration for the contract was unlawful and the maxim in part delicto potior est conditio defendatis applied, and therefore the money paid under such an illegal contract could not be recovered by the defendant. Reliance is placed on the case of Bhure v. Sheogopal [1920] 54 I.C. 794, in support of this contention. That was a case in which the plaintiff sued to recover certain sir fields of which the defendants, soon after selling the village share to the plaintiff, had become occupancy tenants but had surrendered the same to the plaintiff. In the alternative a claim for refund of consideration was also made. The learned Judicial Commissioner found that the sale and the surrender being practically one transaction, the latter was void and confirmed the dismissal of the plaintiff's suit. In disposing of the claim for refund of consideration the learned Judge made the following observations: The actual position obtaining is that the defendants are in possession while the plaintiff seeks to enforce against them an agreement which is void. Both parties knew that when the sale and surrender were executed they were contravening the provisions of the Tenancy Act. The plaintiff as the defendants' creditor was certainly not less to blame than the defendants, and the maxim in pari delicto, potior est conditio defendatis would seem to apply. Section 65, Contract Act, has no application where the contract embodies a purpose known to be illegal to which both sides are parties. For similar cases I may refer to Murlidhar v. Pern Raj [1900] 22 All. 205 and Dipan Rai v. Ram Khelawan Rao [1910] 32 Ali. 383. The position in Bailor an Upadhya v. Uttamgir [1911] 33 All. 779, was practically the reverse of what obtains here: in that case the plaintiff sued the mortgagee of an occupancy holding to recover possession upon the ground that the mortgage was void under the Tenancy Act without repaying the mortgagee the money he had received, and it was held on the principle that ha who seeks equity must do equity that the mortgagor could not retain the mortgage money in addition to regaining the property.

(3.) APPLYING this principle to the present case, it is evident that the plaintiffs' father as well as the defendant being mere agricultural rustics could not be expected to know the intricacies of the tenancy law as to transfer of holdings, and have been caught by the fiction that they should have known the law. It would be manifestly unjust that the defendant should be made to lose both money and the fields, and equity demands that in such a case as the present restitution must be made. An earlier case of this Court reported as Durgai v. Ajab Singh [1902] 15 G.P.L.R. 33, was also decided on the same equitable principles and the plaintiffs there were given a decree for possession conditional upon their refunding a proportionate part of premium received by them under an illegal lease which they wanted to avoid.