Judgment Sarjoo Prosad, J. 1. The only material point which arises for consideration in this appeal is whether the defendants are entitled to refund of the consideration money which they paid to their vendor before the sale in defendants favour could be avoided by the plaintiffs. 2. The facts giving rise to this appeal are that one Dipan had two sons, Bhagirath and Megho. Bhagirath was the father of plaintiff No. 1 and Megho, the father of plaintiff No. 2. The dispute relates to khata No. 22 of village Dumaria Khalar which was recorded in the name of Bhagirath and Megho in the record of rights. The plaintiffs case was that after the survey there was a separation between the two brothers, Bhagirath and Megho, and the lands were divided half and half between the two. It was further alleged that Megho, who worked as a labourer of the defendants and was possessed of weak intellect, executed three kabalas in favour of the defendants on the 21st of April, 26th of April and 23rd of June 1943 respectively. The plaintiffs challenged these kabalas as being without consideration, and that no title or possession passed to the defendants under them. It is stated that Megho died some three years ago, and thereafter the plaintiffs came in possession. The defendants, however, endeavoured to interfere with plaintiffs possession which led to various litigations ending in the conviction of the plaintiffs under Sec.379, I.P.C. The plaintiffs, therefore were compelled to institute the suit for declaration of title and for confirmation of possession, or for recovery of possession. The plaintiffs further alleged that they were Bhogtas by caste and not Nayas, and that the survey entry in that connection was wrong, and they being scheduled caste, the sales in favour of the defendants were void ab initio. 3. The defence inter alia was that Bhagirath and Megho were joint and Bhagirath died in a state of jointness; and after his death Megho came in possession of his properties as Karta of the plaintiffs family. The defendants denied that Megho was of weak mind or worked as their labourer, and that the plaintiffs were not Bhogtas or scheduled caste but they were Nayas as recorded in the survey. The defendants denied that Megho was of weak mind or worked as their labourer, and that the plaintiffs were not Bhogtas or scheduled caste but they were Nayas as recorded in the survey. They, therefore, contended that the kabalas were for consideration and legal necessity and conveyed a good title to them, and they also stated that they had after their purchase built a house on the land in which the plaintiffs had been allowed to reside, but the plaintiffs were not vacating the same. 4. The trial Court found that there was no separation amongst the two brothers, Bhagirath and Megho, and that Bhagirath actually died in a state of jointness with the latter. It however found that plaintiff No. 1 was not the son of Bhagirath but was another son of Megho, & that the plaintiffs were Nayas & not Bhogtas by caste, and that the sale deeds were genuine and for consideration and legal necessity. On these findings it dismissed the suit. 5. The decision has been affirmed on appeal by the learned Subordinate Judge who appears to have accepted all the other findings of the trial Court except the finding that the plaintiff No. 1 was the son of Megho on which point he found as alleged by the plaintiffs that the plaintiff No. 1 was the son of Bhagirath. 6. The most important point which appears to have been urged before the lower appellate court was the question whether the plaintiffs were Bhogtas by caste or not; in ether words, whether they came in the category of scheduled caste so that a transfer made by them was hit by Sec. 46 of the Chota Nagpur Tenancy Act. In this connection the Court examined both the oral and documentary evidence and after a full consideration thereof, the learned Subordinate Judge found that the plaintiffs belonged to Bhogta caste who also called themselves Nayas; and the description in the survey of the plaintiffs as Nayas by caste was immaterial because the evidence showed that the Bhogtas sometimes also described themselves as Nayas. In view of that finding, the learned Subordinate Judge was justified in holding that the sale deeds executed by Megho could not be said to be legal and valid and convey a good title to the vendees, the defendants because Sec. 46 of the Chota Nagpur Tenancy Act invalidated the transfers. In view of that finding, the learned Subordinate Judge was justified in holding that the sale deeds executed by Megho could not be said to be legal and valid and convey a good title to the vendees, the defendants because Sec. 46 of the Chota Nagpur Tenancy Act invalidated the transfers. Sec. 46 requires that a sale deed by a member of the scheduled caste to which the Bhogtas belong could only be in favour of a member of that caste, and the defendants not being members of a scheduled caste, the sales were ab initio void. 7. The question then remains whether in a case like this, Sec. 65 of the Indian Contract Act should come into play and whether the defendants should get back the money which they paid as consideration for the sale deeds executed in their favour. Megho, the vendor of the defendants who executed the sale deeds, was not a party to the suit. The court below appears to be somewhat dubious about the actual passing of consideration, but eventually in agreement with the trial Court, It came to a definite finding that the kabalas were executed for consideration and that the finding of legal necessity was not questioned before that court. The plaintiffs also do not appear to have seriously questioned the fact that the defendants came into possession by virtue of these kabalas--a fact which was supported by overwhelming evidence, and that they were also recorded in the landlords seri-shta. In view of these findings, there can be no doubt that the plaintiffs profited by the consideration which was paid in respect of these documents. The learned Counsel for the appellants, therefore, contends that under the circumstances the principle of Sec. 65 of the Contract Act should have been applied to the case, and a decree setting aside the kabalas should have been passed subject to the refund of the consideration money paid under the documents. The Judicial Committee of the Privy Council has repeatedly held that Sec. 65 may apply even to those cases where a contract is discovered to be void by reason of the fact that it was void from its inception as distinct from a contract that becomes void. In HARNATH KUER V/s. INDAR BAHADUR SINGH, 50 Ind. App. The Judicial Committee of the Privy Council has repeatedly held that Sec. 65 may apply even to those cases where a contract is discovered to be void by reason of the fact that it was void from its inception as distinct from a contract that becomes void. In HARNATH KUER V/s. INDAR BAHADUR SINGH, 50 Ind. App. 69: AIR 1922 PC 403 the Judicial Committee applied Sec. 65 to give relief to a vendee who had purchased a mere right of reversion which was manifestly void from its inception, the subject-matter being incapable of being bound by sale, yet their Lordships directed that the vendee in the case was entitled to the purchase money and interest at 6 per cent. from the date of the suit. To a similar effect is another decision of the Judicial Committee in MOHAN MANUCHA V/s. MAN-ZOOR AHMAD KHAN, 70 Ind. App. 1: AIR 1943 P.C. 29 where Sir George Rankin is reported to have observed: "The principle underlying Sec. 65 is that a right to restitution may arise out of the failure of a contract though the right be not itself a matter of contractual obligation. If it be settled law that the incapacity imposed on a judgment-debtor by para. 11 of Schedule 3 is an incapacity to affect his property and not a general incapacity to contract, it follows that the covenant to repay is not made void by the mere operation of the paragraph. But the lender who has agreed to make a loan upon security and has paid the money, is not obliged to continue the loan as an unsecured advance. The bottom has fallen out of the contract and he may avoid it. If he does so avoid the contract, he brings himself within the terms of Sec. 65 and within the principle of restitution of which it is an expression--whether for all purposes adequate or exhaustive need not here be considered." 8. The observations are significant. Where the incapacity is in relation to the property and not a general incapacity, then even if a contract is ab initio void, Sec. 65 must come into operation. There is a distinction, however, where there is utter want of capacity to contract. To that class is the case of MOHORI BIBEE V/s. DHARAMODAS GHOSH, 30 Ind. App. Where the incapacity is in relation to the property and not a general incapacity, then even if a contract is ab initio void, Sec. 65 must come into operation. There is a distinction, however, where there is utter want of capacity to contract. To that class is the case of MOHORI BIBEE V/s. DHARAMODAS GHOSH, 30 Ind. App. 114 (PC) where Sec. 65 could not be invoked because a minor had no capacity to contract at all. The defendants having been already in possession of the property, I do not think that they should be entitled to any interest from the date of the kabalas. It would, therefore, be sufficient to direct that the plaintiffs are entitled to a declaration that the kabalas are void and conveyed no title to the defendants, and that they can recover possession of the lands sold under the aforesaid kabalas subject to their paying the entire amount of consideration paid under the documents in question. 9. The appeal will, therefore, be allowed and the decree of the learned Subordinate Judge will be modified but there will be no order for costs of this appeal.