Judgment Exhibit A-1, dated 27th July, 1947, is a charcoal licence agreement between the first defendant and the first plaintiff on behalf of the plaintiffs in O.S. No.8 of 1949 on the file of the Sub-Court, Dindigul, by which it was agreed that the first plaintiff shall be at liberty to cut at his own cost for a period of two years from the date of the document the trees in the forest described in the schedule to the document and belonging to the first defendant except a few varieties of wood specified therein for manufacturing charcoal and for the purpose of removing the charcoal from the place of manufacture the first defendant was to issue a pass from time to time. It was also stipulated that the first plaintiff was to pay to the first defendant at the rate of Rs.0-7-0 per bag of charcoal removed by him from the place of manufacture. A sum of Rs.3,000 was paid to the first defendant as advance. It was agreed that for every bag of charcoal Re. 0-3-6 should be deducted out of the sum of Rs.3,000 paid by way of advance and only Rs.0-3-6 per bag would be paid to the first defendant. It was also provided that the first plaintiff before the 5th of every month shall make an account of the charcoal bags taken as per the agreement and shall pay at the rate of Rs.0-3-6 per bag in cash and that the balance of the amount should be adjusted out of the advance amount. If the first plaintiff has not been able to adjust the entire advance amount by manufacturing charcoal and its removal from the place of manufacture within two years from the date of the agreement any balance of the advance amount remaining unadjusted and outstanding shall belong to the first defendant. According to this agreement the first plaintiff cut the trees, manufactured charcoal and removed a number of bags from the place of manufacture. Exhibit A-3 dated 26th September, 1947, shows that 1087½ bags were manufactured and removed and the price paid at the rate of Re.0-7-0 per bag and a sum of Rs.475-12-6 has been paid over to the first defendant. Similarly Exhibit A-4 shows that from 27th September, 1947, to 25th October, 1947, 431 bags of charcoal Were removed and at the rate of Re. Similarly Exhibit A-4 shows that from 27th September, 1947, to 25th October, 1947, 431 bags of charcoal Were removed and at the rate of Re. 0-7-0 per bag, a sum of Rs.188-9-0 had been paid. While matters were at this stage the Government issued a notice on the 8th November, 1947, to the Manager of the firm of the plaintiffs under the Madras Act XVIII of 1946 that trees were being cut from the forest and charcoal manufactured out of the same without the permission of the Collector and that if the same was continued any further prosecution will be launched under that Act. An application was made to the Collector for permission to fell the trees and convert them into charcoal in accordance with the agreement but under Exhibit A-7 the permission sought for was refused. It is alleged that the first defendant did not take any steps to obtain permission from the Collector for the felling of trees and converting them into charcoal, and, therefore, the suit out of which the present second appeal arises was filed for refund of the balance out of the sum of Rs.3,000 paid by way of advance after deducting the amount due at the rate of Re. 0-3-6 per bag on the number of charcoal bags removed and for damages incurred by the plaintiffs by way of loss and interest on the balance of the advance amount. Both the lower Courts have dismissed the suit mainly on the ground that the contract was illegal under section 23 of the Indian Contract Act and hence the balance of the advance amount cannot be refunded. It is urged in this second appeal that the contract in question is not a forbidden one as contemplated under section 23 of the Contract Act because the consideration or the object of the agreement was not forbidden by law ; nor is it of such a nature that if permitted it would defeat the provisions of any law and the contract certainly does not come within any other prohibitions contained in section 23 of the Act. Such being the case the provisions of section 65 of the Contract Act have to be attracted and the person who has received the advantage under the agreement or contract is bound to restore it or to make compensation for it to the person from whom he has received it. Such being the case the provisions of section 65 of the Contract Act have to be attracted and the person who has received the advantage under the agreement or contract is bound to restore it or to make compensation for it to the person from whom he has received it. The contract was discovered to be void or became void not at the very inception but only when the Collector prohibited the further cutting of trees. Viewed in this light there is no obstacle to the application of section 65 of the Contract Act. Section 3, sub-section 2 of the Madras Act XVIII of 1946 is in the following terms: “No owner of any forest or any person claiming under him whether by virtue of a contract licence or any other transaction entered into before or after the commencement of this Act or any other person shall without the previous permission of the District Collector cut trees or do any act likely to denude the forest or diminish its utility as a forest.” What is prohibited by this sub-section is the cutting of trees or doing acts likely to denude the forest or diminish its utility as a forest, without the permission of the Collector and such being the case it is argued that after the contract was entered into it was possible for the parties to get the permission from the Collector to cut trees in which case there was nothing to make the contract impossible of performance. There should be a contract between the parties for the cutting of trees and it is only thereafter that the Collector can be approached for the purpose of obtaining permission for the felling of trees. The fact that subsequently the Collector either granted permission or refused it would not make the anterior contract in any way illegal. It is also argued that there is nothing prohibiting an entering into a contract if the parties expect that the Collector would grant permission. It is therefore a case where the contract becomes void after it was entered into or it was found to be void sometime thereafter in which case section 65 of the Contract Act would be applicable. It is also argued that there is nothing prohibiting an entering into a contract if the parties expect that the Collector would grant permission. It is therefore a case where the contract becomes void after it was entered into or it was found to be void sometime thereafter in which case section 65 of the Contract Act would be applicable. Reliance is also placed on the illustration (e) of section 56 of the Contract Act where it is stated that if A contracts to act at a theatre for six months in consideration of a sum paid in advance by B and on several occasions A is too ill to act then the contract to act on those occasions becomes void. Mr. Gopalaswami Iyengar for the appellants further urged that the contract is an executory one and therefore with regard to such portions of the contract as have not been performed it becomes void in which case section 65 of the Contract Act is applicable. A number of cases has been cited in support of this contention. In the decisions in Srinivasa Iyer v. Sesha Iyer1, and Gulab Chand v. Fulbai2, the contracts were marriage brokerage contracts which were ab initio void. I do not think that the principles laid down in those cases can have application to the facts of the present case. The next case on which reliance was placed is Petherpermal Chetti v. Muniandy Servai3, where the parties entered into a fraudulent document and it was held that the purpose of the fraud not having been effected there was nothing to prevent the plaintiff from repudiating the transaction as being benami and recovering possession of the property. The case in Madura Municipality v. Alagiriswami4, related to a contract entered into by the municipal council on behalf of the municipality which did not bind the municipality under section 69(2) of the District Municipalities Act because it was entered into in contravention of the provisions of section 68(2) of the Act and hence there was no valid contract between the parties. In such a case the High Court held that compensation could be recovered under section 65 of the Indian Contract Act. In such a case the High Court held that compensation could be recovered under section 65 of the Indian Contract Act. The case in Harnath Kuar v. Indar Bahadur Singh5, related to a contract which was ab initio void as the vendor in that case had only an expectancy and therefore under section 65 of the Contract Act the purchase money was recoverable with interest from the date of the suit. My attention has also been invited to the judgment of the Calcutta High Court in Rem Nagina Singh v. Governor-General in Council6, where the principles underlying section 65 of the Indian Contract Act have been discussed. The learned Judge held that section 65 of the Indian Contract Act applies only to a case where benefit or advantage is derived under an agreement before it is discovered to be void. If the benefit is received after the agreement is discovered to be void then it is clear that advantage cannot be said to have been received under the agreement. It was further held that though an agreement may be void from its inception there may yet be circumstances in which it may be held that the discovery took place long after the date of the agreement and therefore section 65 embodying the principle of restitution applies to the case where an agreement entered into between the parties is void by reason of noncompliance with the express statutory provision. Relief under section 65 has not been forbidden by any law and it cannot be legitimately argued that in trying to secure such reliefs there is any attempt to do indirectly what has been forbidden by law to do directly, “and that the principle of restitution enunciated in section 65 should be liberally construed in order to do equity and justice between the parties.” The decision in Hadi Bandhu Behera v. Copal Sahu1, and J.C. Field Electric Supply Company v. Agarwala Lakshmi Kanta Jha2, were also brought to my notice but I do not think that these decisions do apply to the present case, because the principle of compensation on account of frustration of contract does not apply to a case where the contract has been part performed. The most authoritative decision on the subject is the one contained in Fibrosa Spolka Akoyjna v. Fairbairn Lawson Combe Barhour, Ltd3. The most authoritative decision on the subject is the one contained in Fibrosa Spolka Akoyjna v. Fairbairn Lawson Combe Barhour, Ltd3. There are observations of the various Law Lords at pages 46, 49, 51, 52 and 56. See also the decisions in Sankaran v. District Board, Malabar 4 , President Dt. Beard, S. Kanara v. Santhappa5, and Secretary of State v. Tatya Saheb6. In Sankaran v. District Board, Malabar 4 , what happened was the District Board sued the licensees of the toll-gate for balance of the rentals and it was contended on behalf of the licensees that because of heavy floods bridges had broken down resulting in the suspension of traffic and therefore the contract became incapable of performance. The learned Judges held that the occurrence which renders a contract incapable of execution must be of a kind not within the contemplation of the parties when the contract is entered, into. The learned Judges further held that the contract having been part performed, section 65 of the Contract Act would not apply. In this view the principle applicable to the present case is the same. Mr.Gopalaswamy Iyengar relies upon certain observations of Cheshire on Law of Contracts at pages 376 and 377 where the decision in Fibrosa Spolka Akoyjna v. Fairbairn Lawson Combe Barhour, Ltd.3 has been discussed. I do not think that that discussion is of much help to the appellants’ case. It seems to me that since the contract has been performed in part the principle of frustration does not come in and section 65 of the Contract Act cannot be invoked. The second appeal fails and is dismissed but in the circumstances of the case each party will bear his costs throughout. No leave. R.M. ----- Appeal dismissed.