Judgment :- 1. The plaintiff is the appellant. This appeal arises from a decree in a suit for redemption. The plaintiff instituted the suit on the strength of Ext. A2, a melotti, to redeem Ext. B2 mortgage in favour of the 1st defendant in respect of the plaint property. The trial court decreed the suit, but on appeal by the defendants that decree was reversed and hence this Appeal. 2.There are three items of properties scheduled to the plaint. These properties belong to Kanamanam temple. It was originally a private temple belonging to the 9th defendant's tarwad. But in 1935 it was declared by the Board's order under S.18 and 84 of the Hindu Religious Endowments Act, Madras Act 2 of 1927, hereinafter called the Act, to be a temple as "defined in the Act and that the provisions of the Act would apply to it. The tarwad executed Ext. BI mortgage on 1131888 M. E. to the plaintiffs predecessor¬in-interest. Several years after viz., on 28 81943 the 9th defendant executed a puisne mortgage, Ext. B2, for Rs. 400/- to the 1st defendant for a period of 6 years authorising him to redeem Ext. BI mortgage. Ext. Al is the kachit executed by the 1st defendant. The first defendant, in pursuance to the direction in Ext. B2, demanded the plaintiff to surrender possession of the property to him. By that time, the plaintiff had created a sub-mortgage under Ext. B11 on 1141938 in respect of items 2 and 3. Under Exts. B3 and B4 the properties were surrendered by the plaintiff and the sub-mortgagees to the 1st defendant, and the 1st defendant thereby came into possession of the three items. It was while matters stood thus that Ext. A2 mortgage was executed by the 9th defendant in 1945 for a period of twelve years in favour of the plaintiff authorising him to redeem Ext. B2 mortgage in favour of the 1st defendant. The suit was for redemption of Ext. B2 mortgage or in the alternative, for restitution of the property on the ground that Exts. B3 and B4 were void, on account of mistake. 3. The suit was resisted by the 1st defendant on the ground that the plaintiff had no title to redeem on the basis of Ext. The suit was for redemption of Ext. B2 mortgage or in the alternative, for restitution of the property on the ground that Exts. B3 and B4 were void, on account of mistake. 3. The suit was resisted by the 1st defendant on the ground that the plaintiff had no title to redeem on the basis of Ext. A2 as the property belonged to a temple coming within the purview of the Act and that the 9th defendant had no right to execute Ext. A2 mortgage without the sanction of the Board or the Committee functioning under the Act and that Exts. B3 and B4 were not vitiated by any mistake of fact. 4. The trial court found that the 1st defendant was estopped from contending that the 9th defendant had no authority to execute the mortgage in favour of the plaintiff as the 1st defendant himself was claiming under Ext. B2 mortgage executed by the 9th defendant, and decreed the suit. But the appellate court came to a different conclusion on the ground that the mortgage, Ext. A2, was invalid as it was executed in contravention of the provision of S.76 of the Act. The court also held on the strength of the ruling reported in Kelu v. Chekkara Cheppan (AIR. 1937 Mad. 451) that the 1st defendant by taking the surrender under Exts. B3 and B4 was an assignee of the mortgage, that whatever right the plaintiff had under Ext. BI became vested in the 1st defendant and that there was no liability on the part of the 1st defendant to make restitution and dismissed the suit. 5. Mr. Krishna Warriar appearing for the appellant argued that Ext.A2 was only voidable, and that until it was avoided, the plaintiff had title under Ext. A2 to redeem Ext. B2 mortgage. Alternatively, he submitted that if Ext. B2 was void, Exts. B3 & B4 were vitiated by a common mistake and the plaintiff was entitled to be restored to the position which he occupied before the surrender under Exts. B3 and B4. His argument was that both Exts. B3 and B4 proceeded on the assumption that the mortgage in favour of the 1st defendant (Ext. B2) was valid. In Ext. B3 & B4 were vitiated by a common mistake and the plaintiff was entitled to be restored to the position which he occupied before the surrender under Exts. B3 and B4. His argument was that both Exts. B3 and B4 proceeded on the assumption that the mortgage in favour of the 1st defendant (Ext. B2) was valid. In Ext. B2 it was stated that the 9th defendant was competent to transfer the property as the property belonged to Kanamanam temple and that it was a private temple owned by his tarwad. It was on the basis of this representation that Ext. B2 was taken by the 1st defendant. The 1st defendant was under that belief when he demanded surrender of possession of the property from the plaintiff in pursuance to Ext. B2. It would appear that the plaintiff was also under that impression. So, both parties thought that Kanamanam temple was a private temple and that the Urallan of it namely, the 9th defendant, was competent to transfer the property without the sanction of the Board whereas, it was actually declared to be a temple coming within the purview of the Act. Mr. Warrier therefore submitted that it was on the basis of this mistake that Exts. B3 and B4 were executed and therefore they were void: And if as a matter of fact the plaintiff had known that the temple was a temple as defined in the Act on account of the order passed by the Board, his client would not have surrendered possession of the property to the 1st defendant in pursuance to Ext. B2. 6. Therefore, the first point for consideration is whether Exts. B2 and A2 were void. It was on the assumption that Ext. A2 was invalid that the lower appellate court has denied the plaintiff the right to redeem Ext. B2 mortgage. I think that on a correct construction of S.76 of the Act it is clear that the alienations mentioned therein made by a trustee without the sanction of the Board or the Committee are not void but only voidable. A2 was invalid that the lower appellate court has denied the plaintiff the right to redeem Ext. B2 mortgage. I think that on a correct construction of S.76 of the Act it is clear that the alienations mentioned therein made by a trustee without the sanction of the Board or the Committee are not void but only voidable. S.76 is in the following terms: 76 (1) No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple shall be valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the Board in the case of maths and excepted temples and by the committee in the case of other temples. (2) The trustee of the Math or temple or any person having interest may, within one year of the date of the order of the Board or committee under sub-section (1), apply to the court for modifying or, cancelling such order. (3) The order of the Board or committee under sub-section (1) when no application is made under sub-section (2) and the order of the court when such application is made shall be final." Looking at the purpose & the policy underlying the section I think I am right in saying that the Section does not render the alienations specified therein void even if no sanction as required was obtained. The Section is intended to protect the interests of the temple concerned. It is not intended to give a handle to a person taking a mortgage from the trustee for refusing to surrender the property by pleading the invalidity of the mortgage. It was open to the Board or the committee functioning under the Act to give the sanction after the mortgage (See the construction of a similar provision in The Crown Lands Ordinance of Kenya in Denning v. Edwards 1961 A. C. 245). They may choose to affirm or disaffirm the transaction. If it is found that a particular transaction is beneficial to the temple there is no point in saying that it is void merely because the sanction of the Board or the committee was not obtained. This rule of construction has found favour with the Full Bench of this Court in Mathew v. Ayyappankutty (1962 KLT. 61). That decision has reviewed the case law on the point. This rule of construction has found favour with the Full Bench of this Court in Mathew v. Ayyappankutty (1962 KLT. 61). That decision has reviewed the case law on the point. Following that rule of construction I think that Exts. B2 and A2 were only voidable and that until avoided they were valid and binding and that the plaintiff has title under Ext. A2 to redeem Ext. B2. 7. Even if I am wrong in this construction of the Section and even if it be held that Exts. B2 and A2 were void, I think the plaintiff is entitled to restitution as Exts. B3 and B4 were void for the reason that they were executed by the parties under a common mistake as regards the title of the 1st defendant to redeem Ext. BI mortgage. If as a matter of fact the property belonged to a temple as defined in the Act on the date of Ext. B2, the 1st defendant would not have been entitled to redeem Ext. B1 mortgage on the property, as Ext. B2 was ex hypothesi invalid. If Ext. B2 was invalid and that the 1st defendant had no title to redeem Ext. BI, the question arises whether the contract to surrender and the actual surrender evidenced by Exts. B3 and B4 were valid. It was contended that the mistake of the parties was a mistake as regards the law and therefore under S.21 of the Indian Contract Act such a mistake would not invalidate the contract. S.21 is in the following words: "A contract is not voidable because it was caused by a mistake as to any law in force in India; but a mistake as to a law not in force in India has the same effect as a mistake of fact." Here, the mistake cannot be said to be a mistake as regards any law in force in the land. It was a mistake with respect to the private right of one of the parties flowing from the ignorance of the order evidenced by Ext. B12 declaring the temple to be a temple within the purview of the Act. That the mistake stemmed from the ignorance of the existence of the order declaring the temple to be a temple as defined in the Act does not alter the character of the mistake. B12 declaring the temple to be a temple within the purview of the Act. That the mistake stemmed from the ignorance of the existence of the order declaring the temple to be a temple as defined in the Act does not alter the character of the mistake. "It is as well to explain what we mean by 'mistake' before examining its relation to fact and to law. It not only signifies a positive belief in the existence of something which in reality does not exist but it may also include sheer ignorance of something relevant to the transaction in hand. This may seem to be an extension of 'mistake'beyond its popular meaning, but it certainly appears in several of the reported cases where total inadvertence to the fact in question was treated as mistake in relation to it. The maxim, ignorantia juris non excusat, which is of respectable antiquity in our law, is to some extent responsible for this wide meaning of mistake." (LIX L. C. R.327) See Winfield on mistake of law. It is no doubt difficult to demarcate the boundary between mistake of fact & mistake of law. Jessel M. R. attempted to distinguish between 'Law' and 'fact' in this connection in 1875-IV Ch. D. 693,703: "There is not ... a single fact connected with personal status that does not, more or less, involve a question of law. If you state that a man is the eldest son of a Marriage, you state a question of law, because you must know that there has been a valid marriage, and that that man was the first-born son after the marriage, or, in some countries, before. Therefore, to state it is not a representation of fact which does not involve it. If you state that a man is in possession of an estate of £10,000 a year, the notion of possession is a legal notion, and involves knowledge of law; nor can any other fact in connection with property be stated which does not involve a knowledge of law." Although it is difficult to draw the dividing line between the two, I think that the mistake in this case was essentially one as regards the private right of one of the parties entering into a contract. If there was a mistake as regards the private right of one of the parties even though the ultimate source of that mistake may be one as regards the law, it has been held that the contract would be rendered invalid. The classic statement of the law is the one made on the point in Cooper v. Phibbs (L. R.2 H. L. 149,170): The facts in that case were as follows: "The petitioner leased a salmon fishery from the defendants. Both parties erroneously believed that the defendants owned the fishery and had inherited it from their father, J. E. Cooper, who had believed that a private Act of Parliament vested the fee simple in him. In truth, the Act did not give J. E. Cooper the fee simple; and upon his death the fishery actually descended to the petitioner as tenant in tail. The petitioner filed a will in Chancery for cancellation of the lease and for 'such further relief as the nature of the case would admit of and to the court might seem fit." Lord Westbury said: "It is said 'Ignorantia, juris non excusat'; but in that maxim the word 'juris' is used in the sense of denoting general law, the ordinary law of the country. But when the word juris' is used in the sense of denoting a private right, that maxim has no application. Private right of ownership is a matter of fact; it may be the result also of matter of law; but if parties contract under a mutual mistake and misapprehension as to their relative and respective rights, the result is, that that agreement is liable to be set aside as having proceeded upon a common mistake." It is important to note that mistake as to private right may be due to an antecedent mistake either of law or of fact. An antecedent mistake of fact or law may lead to a mistake as regards private rights. In Cooper v. Phibbs the error stemmed from J. E. Cooper's misunderstanding of a private Act of Parliament. Even then it was held that it was a mistake as regards the private right and that the contract was rendered invalid. It is not necessary to enter into the controversy whether a mistake of this nature would render the contract voidable or void. Even then it was held that it was a mistake as regards the private right and that the contract was rendered invalid. It is not necessary to enter into the controversy whether a mistake of this nature would render the contract voidable or void. So far as we are concerned, I think the Contract Act makes it clear that a mistake of this character would render the contract void. 8. Therefore if the mistake was one as to private right and was of a fundamental character, in the sense that the parties contracted on the basis of that mistaken assumption, the contract would be rendered void. In Norwich Union Firm Insurance Society Limited v. F. B. Price Limited (1934 A. C. 355, 403) Lord Wright observed: "It is true that in general the test of intention in the formation of contracts and the transfer of property is objective; that is, intention is to be ascertained from what the parties said or did. But proof of mistake affirmatively excludes intention. It is, however, essential that the mistake relied on should be of such a nature that it can be properly described as a mistake in respect of the underlying assumption of the contract or transaction or as being fundamental or basic." In Allcard v. Walker (1896-2 Ch. D. 369) the principle laid down by Westbury was applied to the case of a consent order. There, the facts were: "The plaintiff and her husband had executed a postnuptial marriage settlement in which the wife covenanted to settle all her after acquired property. The couple mistakenly believed that statutes gave a married woman the power to settle certain future interests. The marriage was later dissolved and subsequently the marriage settlement was varied by a consent order. The variation included property which the parties erroneously assumed the wife had originally settled. The ex-wife asked for a declaration that certain funds were hers absolutely. The ex-husband objected on the ground that the mistake was one of law. Stirling J. replied that the mistake 'related to the existing rights and interests under the settlement within the meaning of the law as laid down by Lord Westbury in 'Cooper v. Phibbs.' The ultimate cause of this mistake as to rights under the settlement was the erroneous belief that statutes granted a married woman the power and right to convey certain future interests. The court declared that the funds in question belonged to the wife. The consent order was set aside on terms restoring to the husband some of his rights prior to the order." In the case of Belle v. Butcher (1950-I K. B. 671) Denning L. J. decided that the Westbury principle included rights arising under general statutory law, especially the Rent Restriction Acts. Therefore, I am clear that when the parties contracted to surrender the property, the underlying assumption was that the property belonged to a private temple and that Ext. B2 in favour of the 1st defendant was valid and conferred on him the title to redeem Ext. BI mortgage. Even if Exts. B3 and B4 are regarded as embodying a compromise, the parties proceeded upon a fundamentally mistaken assumption and therefore they were invalid. 9. An argument was advanced by counsel for the respondents that no party can plead his ignorance of the existence of Ext. B12 order declaring the temple to be a temple coming within the purview of the Act or of the provision of the Act rendering the mortgage Ext. B2 or A2 invalid as these were matters which every person must be presumed to know. He relied on the statement of the law made by a learned single judge of this Court in 1961 KLT.1013 at page 1017 para 9 to the effect that there is an absolute presumption that every person knows the law: "Heirs are fixed by law; and everybody is conclusively presumed to know the law." I am not sure whether that presumption has any application to the facts here. I am also not certain whether there is any such presumption at all. As stated by Lord Denning L. J. in Kiriri Cotton Co. Ltd. v. Dewani (1960 A. C. 192): "It is not correct to say that everyone is presumed to know the law. The true proposition is that no man can excuse himself from doing his duty by saying that he did not know the law on the matter. Ignorantia juris mominem excusat." Sir F. Pollock in his First Book of jurisprudence 6th Ed. The true proposition is that no man can excuse himself from doing his duty by saying that he did not know the law on the matter. Ignorantia juris mominem excusat." Sir F. Pollock in his First Book of jurisprudence 6th Ed. at page 163 has said: "Sometimes, it is said that every man is presumed to know the law, but this is only a slovenly way of stating the truth that ignorance of the law is not in general an excuse." I may also refer to the decision in Martindale v. Palkor (1846, 2 C. B. 706, 719) where Maule J. is reported to have said: "There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were so." I do not think that there is any presumption that the parties were aware either of the existence of Ext. B12 order or of the provision of the Act rendering Ext. B2 invalid. 10. I, therefore come to the conclusion that Exts. B3 & B4 were vitiated by mistake as regards the private rights of one of the parties to the contract and that that mistake was basic and fundamental and rendered the contract to surrender void. If the contract was void, then, under S.65 of the Contract Act, 1st defendant was bound to restore to the plaintiff the advantage which he received under Exts. B3 and B4. The fact that the contract was void from its inception is no bar to the applicability of that section. See Thakurian Harinath Kan v. Thakurian Inder Bahadur Singh (AIR. 1922 P. C. 403.) In view of my conclusion on the first point, namely, Ext. Al was only voidable and has not been avoided by the person competent to do so, the plaintiff is entitled to redeem on the strength of Ext. A2, the mortgage evidenced by Ext. B2. In the result I set aside the decree of the lower appellate court and restore the decree passed by the Munsiff. The appeal is thus allowed. The parties will bear their costs here and in the court below. Allowed.