RAM LABHAYA J. : This appeal is from the judgment and decree of Mr. M. K. Barkataki, B. L. Subordinate Judge, Upper Assam Districts, dated 31-1-1951, by which plaintiff's suit was dismissed. (2) The suit of plaintiff-appellant was on the basis of an alleged agreement, the terms of which are said to have been incorporated in a letter Ext. 1 dated 20-7-1945. The Divisional Forest Officer, Jorhat, issued this letter to the plaintiff. It is averred that the Divisional Forest Officer represented the State of Assam when making the contract for the supply of thatch to the extent of twenty lakh bundles at Rs. 112/- per 1000 bundles. The Union of India has also been impleaded on the ground that the supply was meant for use by the Central Government and that the Divisional Forest Officer ordered the supply in pursuance of an arrangement between the Central Government and the State of Assam. Originally two Divisional Forest Officers were also included in the list of defendants. They were later on dropped from the list. (3) The sum claimed in the suit for thatch alleged to have been supplied is Rs. 1,68,000/-. Interest has also been added to it. The total amount claimed is Rs. 1,98,000/-. (4) One of the pleas raised in defence was that the agreement which formed the basis of the suit was hit by S. 175(3), Government of India Act, 1935. The allegation of the plaintiff that thatch to the extent of 15 lakhs bundles was supplied was also repudiated. (5) The learned Subordinate Judge found that plaintiffs had collected 10 lakhs bundles of thatch at Donaigaon in accordance with the terms of the agreement. He also found that the plaintiff was not guilty of any default after making the collection and therefore he completed his part of the contract to the extent of half of the supply- contracted for (10 lakh bundles). But he dismissed the suit holding that the agreement was hit by S. 175(3), Government of India Act, 1935 and was therefore void. (6) Mr. Ghose, the learned counsel for the appellant has argued that there was substantial compliance with the requirements of S. 175(3).. But he dismissed the suit holding that the agreement was hit by S. 175(3), Government of India Act, 1935 and was therefore void. (6) Mr. Ghose, the learned counsel for the appellant has argued that there was substantial compliance with the requirements of S. 175(3).. The agreement was therefore binding on the State of Assam and also the Union and if it was found to be not binding on the defendants by reason of non-compliance with the require­ments of S. 175(3), plaintiff was entitled to be compensated for thatch supplied to the defen­dants under S. 65, Contract Act. (7) The terms of the alleged agreement are contained in Ext. 1 dated 20-7-1945. This commu­nication was addressed by the Divisional Forest Officer Mr. P. R. Datta to the plaintiff. There was some correspondence before this letter was issued by the Divisional Forest Officer. The correspondence started with Ext. 28 dated 31-5-1945. This communication was also addressed by the Divisional Forest Officer to the plaintiff. It is as follows : "I want 20 lakh bundles of thatch at Donai­gaon Station for Bengal and Assam Railway. I will give you the order. Please arrange to commence supply immediately, and let me know how many wagons you can load daily, also please report where your thatch is and I will give you an export permit to carry the thatch to Donaigaon. A formal order giving size of the bundles will follow." Ext. 12 dated 1st June is plaintiff's reply to the Divisional Forest Officer. He stated as follows: "In reply I beg to state that I am in a position to supply 20 lakh bundles of thatch. I take your memo, under reference as an order placed with me to supply 20 lakh bundles of thatch at scheduled Government rate and I have been completing necessary arrangements ac­cordingly. (It is worthy of note that the Divi­sional Forest Officer had not mentioned any rate). I propose to despatch @ 10 ordinary wagon loads of thatch daily from Donaigaon Station commencing from day after tomorrow the 3rd June, 1945. I request arrangements may ac­cordingly be made with the Railway Authorities for due placing of the wagons at the proper site. In addition to 2 lakh bundles (two ft. girth) I already have at Donaigaon, I have my thatches at the following places: (1) Three lakh bundles (2 ft. girth) at Donai­gaon (on this side of Brahmaputra). I request arrangements may ac­cordingly be made with the Railway Authorities for due placing of the wagons at the proper site. In addition to 2 lakh bundles (two ft. girth) I already have at Donaigaon, I have my thatches at the following places: (1) Three lakh bundles (2 ft. girth) at Donai­gaon (on this side of Brahmaputra). (2) About 4i lakh bundles (2 ft. girth) at Lachangaon and Sikarigaon (N. B. : This thatch was cut last year, but for want ofi permit from the Divisional Forest Officer these could not be brought). (3) Twelve lakh bundles (2 ft. girth) at Kamal-bari Debottor (in Majuli). (4) Two lakh bundles purchased from one Joigeswar Miri from Auniati Debotter, Majuli. In addition to these I have large quantity of thatch at Benganaati. I request necessary export permit may kindly be given." (8) There is an endorsement on this letter to the effect that permit for bringing thatch to Donaigaon may be indented (Ext. 12(a)). Another endorsement on it directs issue of indents for wagons (Ext. 12(b)). (9) Permit No. 154 dated 2-6-1945 (Ext. 27) authorised plaintiff to despatch 4i lakh 2 ft. girth bundles from Lachangaon to Donaigaon. Permit No. 155 dated 2-6-1945 (Ext. 27 (A)) authorised him to despatch thatch from Kamalbari to Donai­gaon. The quantity is not mentioned in the permit. These permits were issued in pursuance of the direction on the letter Ext. 12 dated 1st June from plaintiff to the Divisional Forest Officer. This is evident from Ext. 30, a letter dated 2nd June from the Divisional Forest Officer to the plaintiff, intimating that these were in­dented for 16 lakh bundles of thatch of 2 ft. girth from different stations and that they were valid upto 2nd July' only. (10) On 14-6-1945' plaintiff informed the Divi­sional Forest Officer, vide Ext. 10, by referring to his letter of 31-5-1945 that the required quantity of thatch was ready at Donaigaon for supply. He also stated that he could commence supply immediately and requested for wagons from trans­port and also for directions with regard to the size of the bundles of thatch. (11) The next communication on the record is Ext. 1 dated 20-7-1945 from Divisional Forest Officer to the plaintiff. It is this document which embodies the terms of the agreement. A brief reference may be made to the terms here. (11) The next communication on the record is Ext. 1 dated 20-7-1945 from Divisional Forest Officer to the plaintiff. It is this document which embodies the terms of the agreement. A brief reference may be made to the terms here. The offer of the plaintiff to supply 20 lakh bundles thatch of 2 ft. girth at the rate of Rs. 112/-per thousand or at such rates as may be fixed by the District Rates and Wages Board from time to time was accepted. The rate at which payment was to be made was to be the rate on the date of the delivery of the material. The supply was to commence immediately and was to be completed "before 15th September' with the further qualification that at least one-twelfth of the total quantity was to be delivered against Beat Officers' receipt which was to be submitted weekly after despatch of the thatch. In default . of this clause the agreement was liable to can­cellation. The plaintiff had to deposit a sum of Rs. 11,200/- as security in the post office savings bank pledged to the Divisional Forest Officer. This was to be liable to forfeiture to Govern­ment in the event of the plaintiff failing to commence the supply or to complete it in ac­cordance with the dates given in the agreement. There was the usual default clause in the agree- ; ment. The thatch was to be despatched from Donaigaon to E. E. and B. and E. Railway, Gauhati. The bills for the materials passed as of the standard quality and despatched were payable by the Divisional Forest Officer on receipt of proof of despatch. Loading was to be done under departmental supervision at plaintiff's cost. He was also required to inform the Range Officer concerned when wagons will be required, giving: at least one week's notice for making arrange­ments. The Divisional Forest Officer did not take any responsibility for loss or deterioration of materials or delay in payment on account, of delay in receiving wagons. He had the right to "withdraw the contract", meaning his order, if the signed copy of the terms of the agree­ment along with the pass book showing that the security had been deposited, was not received by him by 31st July. He had the right to "withdraw the contract", meaning his order, if the signed copy of the terms of the agree­ment along with the pass book showing that the security had been deposited, was not received by him by 31st July. He further reserved to him­self the right to cancel the contract by giving 15 days' notice in writing at any time without assigning any reasons. The specifications requir-1 ed that "good quality Brahmaputra thatch of 2 ft. girth" shall be supplied. The plaintiff ac­cepted these conditions in writing. For all practical purposes Ext. 28 and Ext. 1 are the documents by which an agreement for the supply of thatch was made between the plain­tiff and the Divisional Forest Officer. It is clear from Ext. 1 that the Divisional Forest Officer was representing the Government when arranging for supply of thatch under Ext. 1. The security according to Clause 3 of Ext. 1 was liable to forfeiture to Government in the event of default by the plaintiff. Clause 3 also provides that if it became necessary to purchase thatch at his risk, the Forest Department will have the right to recover the deficiency from him. Mr. Ghose's contention is that the 2 documents Ext. 1 and Ext. 28 read together reveal substantial com­pliance with the requirements of S. 175(3). (12) Section 175(3). Government of India Act, 1935, provides as follows : "Subject to the provisions of this Act with res­pect to the Federal Authority, all contracts-made in the exercise of the executive autho­rity of the Federation or of a Province shall be expressed to be made by the Governor General, or by the Governor of the Province, as the case may be, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the Governor General or Governor by such persons and in such manner as he may direct or authorise." (13) The learned Sub-Judge has not found any fault with the manner in which the agreement was executed. He has not held that it was not executed by or on behalf of the Governor. What he has held is that the agreement in question has not been expressed as made by the Governor General or the Governor. He has not held that it was not executed by or on behalf of the Governor. What he has held is that the agreement in question has not been expressed as made by the Governor General or the Governor. The distinct require­ment -of the law is that it shall be expressed to be made by the Governor General or by the Governor, as the case may be. It is obvious that even if the two documents are read together, i they cannot be regarded as having complied with I this requirement. He found therefore that there was non-com­pliance with the requirements of S. 175(3). He 1 was perfectly right in his view and Mr. Ghose has not been able to show that there has been strict compliance with the requirements of the section. His argument however is that as the agreement shows from its terms that it was on behalf of the Government, this should be treat­ed as substantial compliance with the law. In support of his contention, he has relied on - 'Devi Prasad Sri Krishna Prasad Ltd. v. Secy, of State', AIR 1941 All 377 (A) and - 'Peramal Mudaliar v. Province of Madras', AIR 1950 Mad 194 (B). In the course of the argument refer­ence also has been made to the decision reported in - 'J. K. Gas Plant Manufacturing Co. (Rampur) Ltd. v. Emperor', AIR 1947 FC 38 (C). (14) In AIR 1941 All 377 (Devi Prasad Sri Krishna Prasad Ltd. v. Secretary of State (A)), it was held that the provisions of S. 30, Govern­ment of India Act, 1915, as amended in 1919 were mandatory and for a contract to be enforce­able by or against the Secretary of State its terms must be complied with. An oral contract was not within the purview of this section, and :sub-s. (2) of the section implied execution of a •document and excluded all oral contracts. But a contract to satisfy the conditions of S. 30 need not be incorporated in a formal deed or be under seal. It may well be entered into by correspondence and by less formal documents. (15) Section 30(3), Government of India Act, 1915, provided that "every contract shall be executed by such per­son and in such manner as the Governor General in Council by resolution directs or authorises." It did not provide as 6. It may well be entered into by correspondence and by less formal documents. (15) Section 30(3), Government of India Act, 1915, provided that "every contract shall be executed by such per­son and in such manner as the Governor General in Council by resolution directs or authorises." It did not provide as 6. 175(3) does that the -contract must also be expressed to be made by the Governor General or the Governor as the case may be. It merely required execution by such person and in such manner as the Gov­ernor General in Council directed or authorised toy a resolution. It was not necessary that the agreement or contract should be expressed to be made by the Governor General or the Governor. The manner of execution was also not laid down. It was therefore possible to take the view that the agreement need not be in a formal deed or under seal and may be entered into by correspondence. The decision is of no assistance, con­sidering the language of S. 175(3). (16) In AIR 1950 Mad 194 (B), Subba Rao, J. observed in delivering the judgment of the court that "from a consideration of the aforesaid decisions two principles emerge: (1) that the contract by the Government or on behalf of the Govern­ment must be embodied in a formal document, and (2) that even if no formal document is necessary, the correspondence embodying the contract must 'ex facie' show that the contract was entered by the Government or on behalf of the Government. So far as the first propo­sition is concerned, there is a conflict of autho­rity, and it is not necessary in this case to attempt to resolve it. Assuming that no formal document is necessary, we are convinced that in this case neither the Government nor the Director of Industries, who had been autho­rised by the Government, entered into a con­tract with the defendant." It was found that the Superintendent entered into the contract and he had no authority to do so. The case was decided on a simple finding of fact that the contract had been entered into by an officer who had no authority. The case was decided on a simple finding of fact that the contract had been entered into by an officer who had no authority. The second proposition referred to above that even if no formal document is necessary the correspondence embodying the contract must 'ex facie' show that the contract was entered by the Government or on behalf of the Government, is thus reduced to a dictum which is obiter. But the agreement in this case cannot be said to be showing 'ex facie' that the contract was enter­ed into by the Government or on behalf of the Government. Apart from the fact that the secu­rity is mentioned as liable to forfeiture to Gov­ernment, there are no words in the document showing 'ex facie' that the agreement was being entered into by the Government or on behalf of the Government. It is true that in point of fact the contract was being entered into on behalf of the Government. But the agreement does not show it 'ex facie'. The view that a contract must 'ex facie' show that it was entered by the Government or on behalf of the Government is based on decisions under S. 30, Government of India Act, 1915. The language of S. 175(3) is different. It was pre­sumably in view of the conflict on the interpreta­tion of S. 30, Government of India Act, 1915, that it was emphasized in S. 175(3), Government of India Act, 1935, that the contract must be ex­pressed to be made by the Governor General or the Governor, as the case may be. The alteration in the language is significant. It is further required that the contracts shall be executed on behalf of the Governor General or the Governor, as the case may be. Compliance with these requirements would result in a docu­ment which it would be difficult to characterize as something not formal. In any case there is 110 escape from the position that the contract must be expressed to be made by the Governor General or the Governor, as the case may be, and must be executed on behalf of the one or the other. It is obvious to me that the agreement in question does not fulfil these require­ments. (17) In AIR 1947 FC 38 (C), S. 40(1), Govern­ment of India Act, 1935, came to be interpreted. It is obvious to me that the agreement in question does not fulfil these require­ments. (17) In AIR 1947 FC 38 (C), S. 40(1), Govern­ment of India Act, 1935, came to be interpreted. The section provides that all orders and other proceedings of the Governor General in Council shall be expressed to be made by the Governor General in Council, and shall be signed by a Secretary to the Government of India, or other­wise as the Governor General in Council may direct, and, when so signed, shall not be called into question in any legal proceeding on the ground that they were not duly made by the Governor-General in Council. It was held that the provision was directory and not mandatory. The words "expressed to be made by the Governor General" do appear in the provision in question. Notwithstanding the existence of these words it was found that the provision was not mandatory. It is suggest­ed that even the provisions contained in S. 175(3) requiring that the agreement shall be expressed to be made by the Governor-General or the Governor, are not mandatory in effect. Section 40 which was interpreted by their Lordships of the Federal Court is very differently worded. Its language is not identical with or similar to the language used in S. 175. The objects of the pro­vision are very different. Section 40 merely obviates the necessity of proof of certain orders or proceedings when they are expressed in the manner provided. This decision cannot be any authority on the interpretation of S. 175(3) and though decisions under S. 30 and S. 175(3) were also referred to, there is nothing in the judgment to show that their Lordships thought that the provisions contained in S. 175(3) were not mandatory. Their Lordships of the Supreme Court also had an occasion to consider the effect of the judg­ment of the Federal Court - 'Chatturbhuj Vithal-das v. Moreshwar Parashram', AIR 1954 SC 236 (D). Their Lordships were dealing with Article 299(1) of the Constitution, which corresponds to S. 175(3) Government of India Act, 1935. The contention before their Lordships was that the contracts were not expressed to be made by the President as was required by Art. 299(1). Their Lordships were dealing with Article 299(1) of the Constitution, which corresponds to S. 175(3) Government of India Act, 1935. The contention before their Lordships was that the contracts were not expressed to be made by the President as was required by Art. 299(1). Bose J. delivering judgment of the Supreme Court ob­served as follows : "The Federal Court was called upon to construe S. 40(1) of the Ninth Schedule of the Govern­ment of India Act, 1936. It held that the directions in it were only directory and not mandatory, and the same view was taken of Art. 166(1) of the present Constitution by this Court in - 'Dattatraya Moreswar v. State of Bombay', AIR 1952 SC 181 at p. 188 (E). None of these provisions is quite the same as Art. 299. For example, in Art. 166, as also in S. 40(1), Government of India Act of 1935, there is a clause which says that "orders" and "instruments" and "other proceedings" "made" and "expressed" in the name of the Governor or Governor General in Council and "authenti­cated" in the manner prescribed shall not be called in question on the ground that it is not an "order" or "instrument" etc. "made" or "executed" by the Governor or Governor-Gene­ral in Council. It was held that the provisions had to be read as a whole and when that was done it became evident that the intention of the Legislature and the Constitution was to dispense with proof of the due "making" and "execution" when the form prescribed was followed but not to invalidate orders and instru­ments otherwise valid. Article 299(1) does not contain a similar clause, so we are unable to apply the same reasoning here." (18) It follows that it cannot be argued on the strength of AIR 1947 FC 38 (C), that the provi­sions contained in S. 175(3) are directory and not mandatory. (19) Mr. Ghose has mainly relied on - 'Ram Nagina Singh v. Governor General in Council', AIR 1952 Cal 306 (F), in support of his conten­tion that the application of S. 65, Contract Act, was attracted. In this case also the Federal Court decision was distinguished and it was held that the provisions contained in S. 175(3) were manda­tory. This view was upheld in appeal in - 'Union of India v. Ram Nagina Singh', AIR 1955 NUC 506 (Cal) (G). Mr. In this case also the Federal Court decision was distinguished and it was held that the provisions contained in S. 175(3) were manda­tory. This view was upheld in appeal in - 'Union of India v. Ram Nagina Singh', AIR 1955 NUC 506 (Cal) (G). Mr. Ghose did not really dispute the proposition that the provisions contained in S. 175(3) were mandatory. His contention was that there was substantial compliance with the provisions of S. 175(3). In regard to the nature of the provisions contained in S. 175(3), the matter is now concluded by authority in view of. the recent pronouncement from their Lordships of the Supreme Court. Their Lordships held that the agreement not expressed to be made by the President was unenforceable against the Union AIR 1954 SC 233 (D). Even before, there was really no conflict on the manda­tory nature of the provisions contained in Sec­tion 175(3). What amounted to compliance with the require­ments of Ss. 30 and 175(3) has no doubt been a matter in which there has been controversy. But the view uniformly held and consistently adhered to under the Government of India Acts 1915 and 1935, has been that the provisions con­tained in S. 30 and after that of S. 175(3) were mandatory. (20) I may observe in passing that Mr. Ghose also contended somewhat faintly that S. 175. had no application to this case at all. The argument could not have been intended as something serious. The foundation of the very case on which he relied for his contention AIR 1952 Cal 306 (F), is that S. 175 was applicable to the contracts by or on behalf of the Government when the Government of India Act, 1935, was in force. His contention is based on the opening words of S. 175(3) which make the provisions of Cl. (3) subject to the provisions of the Act with respect to the Federal Railway Authority. The agree­ment in this case is not between the plaintiff and the Railway Authority. It is correct that the thatch was needed by the Railway, but the Rail­way did not enter into any contract with the plaintiff. The procurement of thatch was arranged by them through officers of the Assam Government. The agreement was between the plaintiff on one side and the Divisional Forest Officer who could only represent the State Government on the other. The procurement of thatch was arranged by them through officers of the Assam Government. The agreement was between the plaintiff on one side and the Divisional Forest Officer who could only represent the State Government on the other. He had no authority to enter into any kind of contract on behalf of the Railway Autho­rity or the Central Government. The contention has got no merit. Besides, the provisions of the Act relating to the Federal Railway Authority never came into force. No Federal Railway Authority was constituted and, therefore, S. 175(3) remained applicable also to contracts by the Railway on behalf of the Central Government by reason of the transitional provisions contain­ed in Part XIII of the Act. (21) I have come to the conclusion that the agreement in question does not satisfy the require­ments of Cl. 175(3). It follows, therefore, that it is not enforceable against the Union of India or the State of Assam. The Governments are not bound by it. According to AIR 1952 Cal 308 (F) and AIR 1955 NUC j06 (Cal) (G), the conse­quence of non-compliance with requirements of S. 175(3) is that the resulting agreement would be void. It would be unenforceable against the Government. Mr. Ghose not only concedes, but urges that If there has been a failure to comply with the requirements of S. 175(3), the agreement would be void. This is necessary for his alternative contention. He has therefore argued that if it is found that by reason of the contravention of S. 175(3) the agreement is unenforceable and not binding on the Governments, it would be void and plaintiff could claim compensation for thatch supplied under S. 65, Contract Act. Sec­tion 65 provides as follows : "Where an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it or to make compensation for it to the person from whom he received it." (22) It applies to two sets of circumstances. First is the case of an agreement which is subse­quently discovered to be void. The second is where a contract becomes void. If either of the two situations exists, then a person who has received advantage under such agreement or con­tract is bound to restore it. First is the case of an agreement which is subse­quently discovered to be void. The second is where a contract becomes void. If either of the two situations exists, then a person who has received advantage under such agreement or con­tract is bound to restore it. If the advantage cannot be restored, he has to make compensation for it to the person from whom he has received It. In the present case, it is not the plaintiff's case that there was a contract which became void afterwards. His learned counsel argues that it is the case of an agreement which is discovered to be void during the course of this litigation. A reference to S. 2, Cl. (g) would show that an agreement not enforceable by law is said to be void for purposes of the law of contract. On the other hand, an agreement enforceable by law is a contract, vide Cl. (h). On the same lines, the effect of the provisions contained in Cl. (j) of the section is that the contract which ceases to be enforceable by law becomes void when it ceases to be enforceable. It would appear that according to S. 2, Contract Act, lack of the quality of enforceability in an agreement makes it void. On the other hand if the agreement is enforce­able, it achieves the status of a contract. H an agreement is discovered to be unenforceable, it would attract the application of S. 65 if other requirements of S. 65 are fulfilled. It will then have to be seen whether any advantage has been received under the agreement by any person before the agreement is discovered to be void. In this case, there undoubtedly was an agree­ment. It has been found to be unenforceable against defendants. It is not binding on them. Being unenforceable it would be void as against them. The learned Advocate General however has argued on behalf of defendant-respondents that even if the agreement is discovered to be void, S. 65 would not apply to it. He urges that non-compliance with the requirements of S. 175 is such a feature of the agreement which makes it so completely devoid of effect that no relief under any provision of the law could be given to a per­son. He urges that non-compliance with the requirements of S. 175 is such a feature of the agreement which makes it so completely devoid of effect that no relief under any provision of the law could be given to a per­son. The leading case on which reliance has been placed in support of this contention is the decision of their Lordships of the Privy Council in - 'Mohori Bibi v. Dharmdas Ghose', 30 Cal 539 (PC) (H). In this case, it was held that the contract of a minor was void. It was argued before their Lordships of the Privy Council that even though a contract by a minor was void, the minor was bound under S. 65, Contract Act, to restore the advantage received under the void contract. The contention did not prevail with their Lordships. Their Lordships overruled it observing that "it was sufficient to say that this section like S. 64, starts from the basis of there being an agreement or contract 'between competent parties and has no application to the case in which there never was and there could not have been a contract'." The words used are very significant. The deci­sion can apply only to cases where there never was and there never could have been any con­tract. In the case of a minor, there is an inherent and complete want of competency. The language used by their Lordships was meant to apply to his case. It also could apply to the case of an insane person whose in competency is of a similar character. It may also apply to a person who is suffering from a complete and total want of competency like a minor or a lunatic. This is also clear from the language of S. 11, Contract Act, which apparently their Lordships had in mind. It provides that every person is compe­tent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is sub­ject. The section not only defines but describes competency by stating its positive and negative attributes. In order that a person should be competent, he must have attained the age of majority ac­cording to law to which he is subject. The section not only defines but describes competency by stating its positive and negative attributes. In order that a person should be competent, he must have attained the age of majority ac­cording to law to which he is subject. He should also be of sound mind, and further he should not be disqualified from contracting by any law to which he is subject. A person who is dis­qualified from contracting by any law is on a level with a minor and an insane. A ward of the Court is disqualified from contracting till he has attained the age of 21. Till the attainment of that age he is no better than a minor or an insane. The disqualification attaching to his competency to enter into a contract is total, not partial. It is not that he is competent to con­tract though under certain limitations or that the law requires that the contract should be in a certain form or in a certain manner. The case of an agent illustrates the case of a partial disqualification. An agent does possess the inherent qualification of contracting. But he is bound under the law to conduct the business of agency according to the directions of the prin­cipal or according to custom which prevails in the business of the same kind at the place where the agent conducts such business. Where the agent exceeds his authority, the contract is not void. It is voidable at the instance of the prin­cipal. He may choose not to be bound by it. If he does not repudiate it, it is enforceable. Section 11, Contract Act, aims at defining in­herent competency to contract. It does not cover cases of agents and representatives, who, though competent to contract, are contracting for and on behalf of others and, therefore, are under certain restrictions. These restrictions are not on their inherent capacity to contract. They are on their power to bind others. Section 11 does not deal with such cases. Where, therefore, a party is not competent to contract within the meaning of S. 11, not only no contract comes into exist­ence but there never can be a contract with that party. That could not be said of a person who is competent to contract under S. 11, even if some restrictions on his power to contract are imposed by some other law. That could not be said of a person who is competent to contract under S. 11, even if some restrictions on his power to contract are imposed by some other law. In the case of a person acting under Certain statutory restrictions, there could always be a contract if prescribed formalities are observed. The observations of their Lordships of the Privy Council do not in terms apply to such a person. Their Lordships were considering the case of a minor alone. The question whether S. 65 would apply if S. 30, Government of India Act, 1915, or S. 175(3), Government of India Act, 1935, was contravened, was not before their Lordships. They did not decide that such a con­travention would place, the case out of the ambit of S. 65. Mohori Bibi's case (H), is thus being given an extended meaning by Mr. Lahiri. To my micd, it appears that it is extending the scope of 'Mohori Bibi's case (H), if it is applied to a c'ase where there has been a non-compliance with the requirements of S. 175(3). Their Lord­ships did not lay down any such proposition. They aid not leave any basis for extension of the scope of their decision by inferential reason­ing. I entirely agree with Sinha, J., in the view that Mohori Bibi's case (H), "does not apply to a case where there is a com­petency to enter into a contract though condi­tions are prescribed as to the mode in which the contract must be entered into." (23) The second leading case relied on by the learned Advocate General is the one reported in - 'H. Young & Co. v. Mayor and Corporation of Royal Leamington Spa', (1883) 8 AC 517 (I). In this case, it was held on the strength of pro­visions contained in the statute that "the Legislature has made provisions for the protection of rate-payers, share-holders and others who must act through the agency of a representative body by requiring the observ­ance of certain solemnities and formalities which involve deliberation and reflection. That is the importance of the seal. It is idle to say there is no magic in a wafer...... The decision may be hard in this case on the plain­tiffs, who may not have known the law. They and others must be taught it, which can only be done by its enforcement." The view is expressed in terms clear and emphatic. It is idle to say there is no magic in a wafer...... The decision may be hard in this case on the plain­tiffs, who may not have known the law. They and others must be taught it, which can only be done by its enforcement." The view is expressed in terms clear and emphatic. It is, however, based on a provision contained in an enactment. Dealing with this case in - 'Madura Municipality v. K. Alagirisami Naidu', AIR 1939 Mad 957 (J), Abdur Rahaman J., observed that "the language employed in S. 65 was much wider than that employed in the Act of the Parliament which came up for consideration in (1883) 8 AC 517 (I)." There can, however, be no manner of doubt that S. 65, Contract Act, was not before the learned Judges in (1883) 8 AC 517 (I). It was not being considered or interpreted. When the question is whether S. 65 applies to the circum­stances of a particular case, the proper approach to it is that which was indicated by Sir Lawrence Jenkins in - 'Thakurain Harnath Kuar v. Indar Bahadur Singh', AIR 1922 PO 403 (K). According to him, plaintiff's claim to compen­sation in that case rested not on any principle or formula of English law, but on the words ofi S; 65. It had to be seen whether the facts of the case came within its scope. With profound respect, I think this is the correct approach to the question. All that has got to be seen is whether a plaintiff can bring his case within the four corners of the section. Where he succeeds in doing so, he should be entitled to compensa­tion, notwithstanding any principle of the English law to the contrary. The two cases which form­ed the foundation of Mr. Lahiri's argument there­fore do not advance his case, in my opinion. (24) Mr. Lahiri has also argued that if the agreement is unenforceable by reason of the contravention of S. 175(3), restoration of advan­tage or allowing compensation when advantage received cannot be restored, is doing indirectly what the law prevents from being done directly. His contention is that the effect of application of S. 65 to such a case is to render S. 175(3) absolutely nugatory. Pull effect then would not be given to it. I Have not been able to persuade myself to agree to this proposition. His contention is that the effect of application of S. 65 to such a case is to render S. 175(3) absolutely nugatory. Pull effect then would not be given to it. I Have not been able to persuade myself to agree to this proposition. The effect of non-compliance with the requirements of S. 175(3) is that the agreement is rendered un­enforceable. No relief can be granted on the basis of the agreement even though goods have been supplied or services rendered under the terms of the agreement. Nor could any claim be founded on the basis of breach of any such agreement. Where the agreement is unenforceable, relief permissible under S. 65 is limited to restoration of the advantage received. The restoration of the advantage cannot be asked for if the agreement is enforceable. Under S. 65 the right is to claim restoration of the advantage received by any per­son under the agreement. It does not amount to enforcement of the contract indirectly, for reliefs which flow from enforcement of the agree­ment are entirely different. In 'Arunachala Nadar v. Srivillputtur Municipal Council', AIR 1934 Mad 480 (L), there was-no written contract as required by S. 45, Madras Dis­trict Municipalities Act of 1884. The contract could not be sued upon. Relief then was claimed under S. 65. Jackson, J., when considering the ques­tion whether S. 45, Madras District Municipalities Act, would be nullified if relief was given under S. 65, Contract Act, observed as follows: "We can hardly say that if this claim is allowed we shall in effect be repealing the Municipalities Act or depriving the rate-payers of that protec­tion which the Legislature intended to secure for them. Because obviously by its language which is the best guide to a Legislature's inten­tion, it has not made this provision in regard to agreements and on general principles it is hard to see why it should make such a pro­vision." In 'AIR 1939 Mad 957 (J)', Abdur Rahaman J., also held that a distinction had to be drawn by the courts where they (contracts) became unen­forceable on account of the failure to comply with certain forms or for want of giving the ex­pression to them in the manner prescribed by law and in cases where the contracts were immoral or opposed to public policy and were inherently illegal. In cases where the contracts were illegal, the Court could not render any assistance in enforcing them. But when an agreement was not illegal but discovered to be unenforceable, there was no rea­son why the principle underlying S. 65 should not be given effect to. He did not agree that application of S. 65, Contract Act, involved doing indirectly what was forbidden by the provisions of the Muni­cipalities Act. He was of the opinion that it would be inequit­able to find that when a contract has not been entered into by authorised persons or is found not to be enforceable for want of certain formalities, the advantage gained by a party should not, when it was not intended to be gratuitous, be restored. He also held that relief which a person asked for under S. 65 was not forbidden by any law and it cannot be legitimately argued that in trying to secure such relief he is attempting to do in­directly what he had been forbidden by law to do directly. (25) There is no conflict between S. 175 (3), Gov­ernment of India Act, 1935, on "the one hand and S. 65, Contract Act, on the other. The effect of S. 175 (3) is to make the contract unenforceable against the Government if there is no1 due com­pliance with its requirement. The section does not go beyond that. The agreement which is hit by it cannot be enforced. But if the aggrieved party who has supplied goods or rendered services under the agreement, can ask for relief under the general law, it could not be validly refused in the absence of a statutory prohibition express or implied. There is no such prohibition contained in S. 175 (3) or in any other law and therefore the conclusion that one is led to is that S. 175 (3) does riot exclude the application of S. 65 where the requirements of this section are satisfied. ' Mr. Lahiri has referred us to the commentary in Pollock and Mulla's 'Indian Contracts and Speci­fic Relief Acts', 7th Edition (1944) under the head­ing 'contracts with corporations' on page 350. The view of the learned authors is based mainly on the two leading cases (30 Cal 539 (H) and (1883) 8 AC 517 (I) ) dealt with above. I have found it difficult to reach the conclusion that the learn­ed authors did. The view of the learned authors is based mainly on the two leading cases (30 Cal 539 (H) and (1883) 8 AC 517 (I) ) dealt with above. I have found it difficult to reach the conclusion that the learn­ed authors did. They appear also to have been influenced in their view more by the principles of the English law than the language of S. 65. They observed that , "as in English law the plaintiff, if he recovers at all, must do so either on the original con­tract or on some other implied contract." The basis of S. 65 is the equitable doctrine of restitution and not any implied contract. In fact it applies only where there is no enforceable agreement express or implied. The view of the learned authors was not followed in recent cases. They themselves thought that the result of their reasoning was not wholly satisfactory and observ­ed that on their interpretation of the law "a cer­tain sense of incongruity remained." (26) With all respect I do not feel compelled to take this view in the existing state of the law. S. 175 (3), Government of India Act, 1935, and S. 65, Contract Act, can co-exist. The one does not necessarily exclude the application of the other. (27) The decisions of courts in India are no doubt divergent. But it seems to me that the opinion is veering round to the conclusion that though an agreement with a corporation may be void, S. 65 would apply. In some cases even S. 70 has been applied. Some recent cases on the point are ' AIR 1934 Mad 480 (L); AIR 1939 Mad 957 (J)', - 'Shahban Mohib v. Karachi Municipal Corporation', AIR 1940 Sind 109 (M). In - 'Mohamed Ebrahim Molla v. Commrs. for the port of Chittagong', AIR 1927 Cal 465 (N), the agreement was found to have contravened the mandatory provisions of S. 29, Chittagong Port Act. It was found not enforceable. It was held that the Commissioners were entitled to recover quantum meruit for the services rendered by them. This case though criticized in Pollock and Mulla, has been followed in subsequent decisions. Sinha J., in ' AIR 1952 Cal 306 (P)', examined the whole question critically and elaborately. All phases of the problem were subjected to careful scrutiny. It was held that the Commissioners were entitled to recover quantum meruit for the services rendered by them. This case though criticized in Pollock and Mulla, has been followed in subsequent decisions. Sinha J., in ' AIR 1952 Cal 306 (P)', examined the whole question critically and elaborately. All phases of the problem were subjected to careful scrutiny. I respectfully agree with him in the con­clusion that S. 65 should be applied where an agreement is discovered to be void by reason of its failure to comply with the statutory require­ments of S. 175 (3). The view of Sinha J., was approved in regard to the applicability of S. 65 in 'AIR 1955 NUC 506 (Cal) (G)'. (28) Some Privy Council decisions which bear on the point may also be referred to. In 'AIR 1922 PC 403 (K)' a Hindu who was the next rever-sioner to an Oudh Estate sold half the estate. It was held that the transaction was not effectual, as the vendor had only an expectancy. S. 65 how­ever was applied and the money paid was held recoverable under S. 65. A more important case is reported in - 'Mohan Manucha v. Manzoor Ahmed Khan', AIR 1943 PC 29 (O). In this case a mortgage was executed by an Oudh Talukdar. Permission of the collector was not obtained as required by para. 11, Sen. 3, Civil P. C. The mortgage was found to be void. It however contained a personal covenant which could be enforced. The entire contract contained in the mortgage deed was therefore not void. The claim on the personal covenant was abandoned and as the security was invalid, the mortgagee asked for relief under S. 65. This relief was grant­ed, even though the personal covenant was enfor­ceable. The observations by their Lordships in regard to the principle of S. 65 are important and may be reproduced. These are as follows: "The principle underlying S. 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, Sch. 3 is an incapacity to affect his property and not a general- incapa­city to contract, it follows that the covenant is not made void by the mere operation of this para. If it be settled law that the incapacity imposed on a judgment-debtor by para 11, Sch. 3 is an incapacity to affect his property and not a general- incapa­city to contract, it follows that the covenant is not made void by the mere operation of this para. But the lender who has agreed to make a loans 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. If he does so avoid the contract he brings himself within the terms of S. 65 and within the principle of restitution of which it is an expression ............ They can refuse to be bound by the contract and rely on the right to recover their money which arose there from not under any contract but as a mat­ter of restitution by reason that no contract sub­sists." (29) In 'Nishar Ahmad v. Mohan Manuchal', AIR 1940 PC 204 (P), also the mortgage was void as permission of the collector was not obtained under para 3, Sch. 3, C. P. C. It was held that the mortgage fell within the ambit of S. 65 and the money paid was recoverable. The last two cases in which there is no total incapacity to contract, the principle of 'Mohori Bibi's decision (H)', would not be applicable. Their Lordships of the Privy Council did not themselves apply it. (30) Mr. Lahiri has further argued relying on ' AIR 1954 SC 236 (D)', that the contract is not void at all. It is enforceable against the agent under S. 230 (3) as held by their Lordships of the Supreme Court and therefore S. 65 has got no ap­plication. The contention appears to be plausible, but is not sound. Their Lordships were of the view that some reasonable meaning had to be attached to Art. 299 (1) and that the provisions were not inserted for the sake of mere form. They were meant to safeguard Government against unauthorised contracts, and if in fact a contract is unauthorised or in excess of autho­rity it is right that the Government should be safeguarded. The observations of Bose J., at page 243 on which Mr. They were meant to safeguard Government against unauthorised contracts, and if in fact a contract is unauthorised or in excess of autho­rity it is right that the Government should be safeguarded. The observations of Bose J., at page 243 on which Mr. Lahiri has relied, are as follows : "We accordingly hold that the contracts in question here are not void simply because the-Union Government could not have been sued" on them by reason of Art. 299(1)." The observations are based on the view that the case before their Lordships was of a type to which S. 230(3), Contract Act, would apply. The contracts were not expressed to be made by the President as required by Art. 299(1). The con­clusion reached was that the Union Government could not have been sued. The contracts were not enforceable against the Union. They were not treated as wholly void as they could be uti­lized for relief under S. 230(3), Contract Act, against the officers who entered into those con­tracts. When a contract is found to be unenforceable against the Government, it would be void with­in the meaning of S. 2(g), Contract Act. An un­enforceable agreement is void. It therefore will have no effect and would therefore be void in law so far as the Government was concerned. The contracts were however not regarded as utter nullities as in their Lordships' view the officers of the Government who entered into the contract could be sued under S. 230(3). Clause (3) of! S. 230 applies to cases where the principal who! is a party to the agreement cannot be sued. The agent who may be sued under S. 230(3) is not sued on the basis of the agreement alone. He is no party to the agreement. But by reason of his failure to enter into a contract in such a way that the disclosed principal would be bound by it, he can be proceeded against as a substitute for the principal on the footing of the agreement. The liability is more statutory than contractual, though the agreement could form a substantial part of the cause of action • when an agent is sued under S. 230(3). It was for this reason that the contracts were not described as utter nullities. But it does not follow from it that the contracts were not void against the Union as being unenforceable. It was for this reason that the contracts were not described as utter nullities. But it does not follow from it that the contracts were not void against the Union as being unenforceable. The conclusion arrived at by their Lordships therefore cannot be utilized for taking away the present case out of the ambit of S. 65, Contract Act. It must be observed that their Lordships were not at all considering the question whether S. 65 is applicable if the agreement is found to be unenforceable against the Union or any State Government. The decision therefore is no autho­rity on the question which is now before us. It is also noteworthy that in view of the deci­sion of their Lordships of the Privy Council in AIR 1943 PC 29 (O) the fact that it is possible for the plaintiff in this case to proceed against an officer of the Government, would not deprive him of the right to restitution which he may claim under S. 65. If the agreement with the Union Government is unenforceable, he can de­cide not to avail of the right against the officers of the Government and insist on being put in the same position as if no agreement had been made. He may not be compelled to enforce the agreement only against the agent. He has already exercised his right. He sued the Divisional Forest Officers. The claim against them has been abandoned and the agreement is sought to be enforced against the two Govern­ments and failing that relief is claimed only against the Governments under S. 65, in order that parties may be put back to the position which they had before the agreement was made. (31) Section 65 embodies the principle of resti­tution. Where parties have tried to enter into a contract taut their effort has not resulted into a binding contract, it is only just and equitable that they should be put back to the position which they would have occupied if there was absolutely no agreement between them. Ad­vantage received by one party under the agree­ment before it is discovered to be void ought to be capable of restitution. Illustrations to the section give a clue to the intention of the Legislature. They are of very wide application. Illustration (b) refers to a contract to deliver 250 maunds of rice before the 1st of May. Ad­vantage received by one party under the agree­ment before it is discovered to be void ought to be capable of restitution. Illustrations to the section give a clue to the intention of the Legislature. They are of very wide application. Illustration (b) refers to a contract to deliver 250 maunds of rice before the 1st of May. The promisor delivered 130 maunds only before that day and none after. The pro­misee retained the 130 maunds after the 1st of May. It was held that he was bound to pay for it. "The contract in this case did not be­come void at all. The promisee elected to affirm it in part and dispense with the residue. There was no implied contract under which he could be bound to pay for 130 maunds of rice. It would appear that the section is of broader application than the English principle which in­sists of an implied contract to pay. Illustrations (c) and (d) would give it still wider meaning. These illustrations indicate that legislative inten­tion was to give full and even literal effect to the equitable doctrine of restitution which serves as a guarantee against 'unjust enrichment'. (32) In view of the foregoing discussion my conclusion is that the agreement in question being void against the defendants by reaspn of its failure to comply with requirements of S. 175(3), plaintiff could claim restitution under S. 65, if he could show that any advantage was received by any of the two Governments before the agree­ment was discovered to be void. (33) Till the institution of the suit the defen­dants had not intimated to the plaintiff that the agreement was void or unenforceable. The plea -was raised in the written statement. It has been found that the agreement is unenforceable and not binding on the defendants. The discovery that it is void has for all practical purposes been made during the pendency of the suit. Mr. Lahiri has disputed this proposition. At the moment and for purposes of deter­mining whether the defendants have received any advantage under the agreement I would assume that the discovery that the agreement is void has been made after the institution of the suit. On this assumption I now address myself to the question whether any of the defendants received any advantage under the agreement. At the moment and for purposes of deter­mining whether the defendants have received any advantage under the agreement I would assume that the discovery that the agreement is void has been made after the institution of the suit. On this assumption I now address myself to the question whether any of the defendants received any advantage under the agreement. (After dis­cussing the evidence, his Lordship proceeded:) "(34) The essential condition of the application of S. 65 is that advantage should be received by someone under the agreement before it is discovered that the agreement is void. I have assumed that the discovery that the agreement was void was made sometime after the institu­tion of the suit. But it is impossible to say that there was any delivery under the agreement even to the Divi­sional Forest Officer. It is also obvious that the defendants received no advantage under the agreement since no thatch was received by any of the Governments. Not a blade of grass was actually taken over and utilised for the purposes of the Central or the State Government. The result of the foregoing discussion is that plaintiff has failed to prove that the defendants or any of them received any advantage under the agree­ment before it was discovered to be void. (35) In the view that I have taken of the matter, other subsidiary questions argued at the hearing do not arise and it is not necessary to deal with them. The appeal fails and is dis­missed with costs. SARJOO PROSAD C. J.: (36) I agree. Some interesting questions of law were canvassed in the case, but after the exhaustive judgment, just pronounced, I find that I have little to contribute to the discussion of those points. For the reasons stated by my learn­ed Brother, I have no doubt that under S. 175(3), Government of India Act (1935), the contract set up by the plaintiff cannot be enforced either against the Government of India or the Govern­ment of Assam. The only question which then remains Is- whether the plaintiff should be given some relief under S. 65, Contract Act. Mr. Lahiri contends that S. 65 has no application to the case as" the agreement alleged is entirely void and cannot be treated as one which is found or discovered to be void within the meaning of that section. The only question which then remains Is- whether the plaintiff should be given some relief under S. 65, Contract Act. Mr. Lahiri contends that S. 65 has no application to the case as" the agreement alleged is entirely void and cannot be treated as one which is found or discovered to be void within the meaning of that section. He lays much stress upon the observation of the Supreme Court, with reference to a similar con­tract in AIR 1954 SC 236 (D), that the contract was not void. As my learned Brother has pointed out in the case aforesaid, the Supreme Court was not in­vited to consider the application or otherwise of S. 65 of the Contract Act at all. An unenforce­able contract is also a 'void' contract, and a dis­tinction has to be made between contracts which are ab initio void, and those which are intrinsically not so, but are found to be void for other collateral reasons. The latter class does not pre­clude the application of S. 65, Contract Act, in order to compel a party to restore the benefits which he has derived under the contract, with a view to avoid 'unlawful enrichment' at the cost of the other party. The contract set up by the plaintiff, if otherwise held to be genuine, falls in the latter category. The decisions of the Privy Council in AIR 1943 PC 29 (O) and AIR 1940 PC 204 (P) amply support this view. (37) On facts, I entirely agree that no case has been made out for the grant of any relief under S. 65, Contract Act, either. (38) The appeal must, therefore, fail and has rightly been ordered to be dismissed with costs. Appeal dismissed