Sana Ullah v. Jai Narain Singh — 1942 DIGILAW 65 (ALL)

JUDGMENT Allsop and Verma, JJ. - This is a reference under Order XLVI, Rule 1 of the 1st Schedule of the Code of Civil Procedure. 2. It arises out of a suit in the Court of small causes at Deoria. One of the Defendants and the predecessor-in-interest of the other executed a deed of usufructuary mortgage on the 27th of May, 1926, in favour of the predecessor-in-interest of the Plaintiff. This mortgage was intended to secure a debt of Rs. 99-15-0 and the property mortgaged was an occupancy holding. The mortgagee was put into possession and remained in possession for many years. Ultimately the proprietor of the land ejected the so-called mortgagors and the so-called mortgagee under the provisions of Section 171 of the Agra Tenancy Act The latter then instituted the suit which has given rise to this reference in order to recover the sum of Rs. 99-15-0 from the Defendants. The learned Judge of the Court of small causes has said that the suit is presumably brought under the provisions of Section 65 of the Contract Act. He has suggested that the questions raised are of considerable importance and that they are not free from difficulty and doubt. He has, therefore, referred two matters to us. The first is whether a mortgagee under a void mortgage of occupancy plots, on being dispossessed by the landlord through the Court, can recover the amount advanced u/s 65 of the Contract Act within three years of the date of dispossession. We may at this stage say that the suit was instituted in the year 1941 and we are satisfied that the suit is barred by limitation. It has been urged before us that the Plaintiff first obtained a right to recover the money which had been advanced to the Defendants at the time when they were ejected from the land which was the subject matter of the deed of mortgage. We cannot discover any ground for this contention. The Plaintiff could have no claim against the Defendants from the mere act of dispossession because they did not dispossess him. He could have no claim against them under the provisions of Section 68 of the Transfer of Property Act because obviously there never was a valid mortgage. A mortgage of occupancy light is and was forbidden by law and the agreement was, therefore void in its inception. He could have no claim against them under the provisions of Section 68 of the Transfer of Property Act because obviously there never was a valid mortgage. A mortgage of occupancy light is and was forbidden by law and the agreement was, therefore void in its inception. If the alleged mortgagor had himself ejected the mortgagee there might possibly have been some cause of action under the provisions of Section 64 of the easements Act but this is a question up m which we need express no opinion. In the present case it seems clear to us that the Plaintiff could have no claim against the Defendants except under the provisions of Section 65 of the Contract Act. The provisions of that section come into play when an agreement is discovered to be void or when a contract becomes void. In the case before us there is no question of any contract having become void because there never was a contract. The question is when it was discovered that the agreement was void? Now, in accordance with the decision of their Lordships of the Privy Council in the case of Ananda Mohan Roy v. Gour Mohan Mullick (1923) 50 Call 929 : AIR 1923 PC 189 , an agreement which is void in its inception is ordinarily to be considered to have been discovered to be void at the time when the parties entered into it. It has not been alleged in this case that any special circumstances are in existence, from which it could be inferred that the agreement was discovered to be void at some later date. The agreement was void under the provisions of the Agra Tenancy Act which was in force at the time when the parties entered into the agreement. It is an established principle of law that no person can plead ignorance of a statute. The parties, must, therefore, be deemed to have had information of the provisions of the statute in the year 1926 and consequently it must be assumed that they knew that the agreement was void when they entered into it. The result is that the cause of action arose at the time when the parties entered into the agreement. The parties, must, therefore, be deemed to have had information of the provisions of the statute in the year 1926 and consequently it must be assumed that they knew that the agreement was void when they entered into it. The result is that the cause of action arose at the time when the parties entered into the agreement. There are only two elements which are necessary in order to enable a person to make a claim under the provisions of Section 65 of the Indian contract Act namely (1) that the agreement has been discovered to be void or that the contract his become void and (2) that the other party has received some advantage under the agreement or contract. The advantage alleged in this case is that the Defendants or their predecessors-in-interest obtained a sum of Rs. 99-15 from the Plaintiff. That sum was paid at the time when the alleged deed of mortgage was executed. Consequently the fact that the agreement was void and the fact that the dependents had received an advantage under the agreement were both in existence in the year 1926 i.e., 15 years before the suit was instituted. Learned Counsel for the Plaintiff has urged that he could not claim the money so long as he was in possession of the property It may be that he did not feel inclined to claim the money so long as he was in possession but the fact that he was in possession of the property would not have prevented him from instituting a suit to recover the advantage received by the other party provided it was an advantage. It may be that the court, if such a suit was filed, might have put the Plaintiff upon terms and refused to give him a decree until he had returned the property or it might have held that the advantage was not so great as that alleged by the Plaintiff, but the fact remains that the cause of action of the Plaintiff arose when the void agreement was entered into and when the money was paid to Defendants or their predecessors-in-interest. No cause of action as against the Defendants arose at the time when the Plaintiff was ejected by the proprietor of t e land. No cause of action as against the Defendants arose at the time when the Plaintiff was ejected by the proprietor of t e land. In our judgment, the answer to the first question put to us by the learned Judge of the court of small causes is that the alleged mortgagee under a void mortgage of occupancy plot can recover the amount advanced under the provisions of Section 65 of the Contract Act within some period beginning from the execution of the agreement of mortgage. For the purposes of the case with which we are dealing, it is unnecessary to decide what that period is. In order to arrive at such a decision it would be necessary for us to discover which Article of the Indian Limitation Act applies We are not called upon to make any enquiries into that question because it is not contended that any Article could apply which would give a period of more than six years from the date when the cause of action accrued and whatever Article might be applied it is obvious that the period of limitation had expired long before the suit was instituted. We are of opinion that the cause of action arose and time began to run at the date when the alleged deed of mortgage was executed. 3. The second point which has been put to us is whether an alleged mortgage of occupancy plots amounts to a loan u/s 2, Sub-section 9 of Act 13 of 1940. In view of our decision on the first point the second point does not arise. We, therefore, express no opinion on that point. Our order shall be conveyed to the learned Judge of the Court of small causes. The costs in this Court will be regarded as costs in the suit.