J. B. MEHTA, J. ( 1 ) THIS appeal raises an interesting question as to whether the non agriculturist purchaser is entitled to the refund of the price in case the sale of the land in question is held to be invalid by the competent authority under the Tenancy Act as violating secs. 63 and 64 of that Act. Both the Inamdar as well as the tenant on the land had passed an agreement of sale of the land in question in favour of this non agriculturist purchaser plaintiff on September 7 1957 and thereafter two separate sale deeds were registered on September 27 1957 by which both the Inamdar and the tenant sold their interest to this plaintiff non agriculturist. Even the possession of the land was handed over to the plaintiff purchaser in pursuance to the registered deed. The Mamlatdar however under sec. 84 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter referred to as the Act) held the said sale as invalid and an order forfeiting both the land and the purchase price had been passed. Ultimately when the matter went to the Revenue Tribunal in view of the binding decision in Kuberdas v. State of Bombay 61 B. L. R. 1276 the order forfeiting the purchase price was set aside while the rest of the Mamlatdars order under sec 84c was maintained. Thus the land has been forfeited by the State. That is why the purchaser plaintiff has filed the present suit for recovery of the price which was paid to this defendant Inamdar in the present suit. We are not concerned with the other suit for refund of price by the tenant. The trial Court had dismissed the snit on the ground that the restitution had become impossible as the land was forfeited to the State while the lower appellate Court having decreed the claim the defendant Inamdar has filed this appeal. ( 2 ) SEC. 63 (1) of the Act provides that save as provided in the Act no sale including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue gift etc. shall b. valid in favour of a person who is not an agriculturist. . . . . shall b. valid in favour of a person who is not an agriculturist. . . . . Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale gift etc. on such conditions as may be prescribed. Sec. 64 (1) of the Act provides that where a landlord intends to sell any land the shall apply to the Tribunal for determining the reasonable price thereof in accordance with the provisions of sec. 63a. After the Tribunal has determined the reasonable price the landlord shall simultaneously in the prescribed manner make an offer (A) in the case of agricultural land (i) to the tenant in actual possession thereof notwithstanding the fact that such land is a fragment and (II) to all persons and bodies mentioned in the priority list. Sec. 64 (8) provides that any sale made in contravention of this section shall be invalid. Sec. 84c (1) provides that where in respect of the transfer or acquisition of any land made on or after the commencement of the Amending Act 1955 that is after August 1 1956 the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of the Act the Mamlatdar shall issue a notice and hold an inquiry as provided for in sec. 84b and decide whether the transfer or acquisition is or is not invalid. Under clause (2) if after holding such inquiry the Mamlatdar comes to a conclusion that the transfer or acquisition of land is invalid he shall make an order declaring the transfer or acquisition to be invalid. Under sub clause (3) on the declaration made by the Mamlatdar under sub-sec. 2 (a) the land shall be deemed to vest in the State Government (b) the amount which was received by the transferor as the price of the land shall be deemed to have been forfeited to the State Government and it shall be recoverable as an arrear of land revenue. In the present case there is no dispute that as the Collectors permission was not obtained for a sale to this non agriculturist the sale was declared invalid by the Mamlatdar and ultimately by the Revenue Tribunal as violating the provisions of sec. In the present case there is no dispute that as the Collectors permission was not obtained for a sale to this non agriculturist the sale was declared invalid by the Mamlatdar and ultimately by the Revenue Tribunal as violating the provisions of sec. 63 and 64 of the Act and that is why the Mamlatdar had ordered the land to vest in the State Government under sec. 84c (3) after declaring it invalid. The order of the forfeiture of the purchase price was set aside in view of the decision of the Division Bench consisting of Mudholkar J. as he then was and Modi J. in Kuberdas v. State of Bombay 61 B. L. R. 1276. The Division Bench in terms held that where a sale had been rendered invalid by law the immediate result would be that the land would revert to the occupant and all that the purchaser was entitled to was the refund of consideration from his vendor the occupant of the land. Sec. 84c enacted that after the sale was declared to be invalid by a Mamlatdar the land which was the subject matter of the sale should be forfeited to the Government but that must happen after its reversion to the occupant. then the land having reverted to the occupant because the sale had been declared invalid the forfeiture would operate against the occupant of the land. Therefore sec 84c in so far as it referred to the forfeiture of the land to the Government by reason of the sale being declared invalid was constitutional. The same however could not be said with regard to the purchase price which was forfeited to the State under sec. 84c and was made recoverable as an arrear of land revenue. The Division Bench observed that no sooner the sale was declared invalid the purchaser became entitled to the refund of the purchase price on the ground of failure of consideration and the price which was in the hands of the occupant of the land must thereafter be said to belong to the purchaser. The Legislature could not effectively enact a law concerning forfeiture of the purchase price of land which its owner or occupant was incompetent to sell unless it enacted a provision therein prohibiting the purchaser from purchasing such land. Such a penalty without any prohibition was totally unknown. The Legislature could not effectively enact a law concerning forfeiture of the purchase price of land which its owner or occupant was incompetent to sell unless it enacted a provision therein prohibiting the purchaser from purchasing such land. Such a penalty without any prohibition was totally unknown. That is why it was held that when the relevant scheme did not enact a prohibition against a purchaser the purchase price which belonged to the purchaser could never be forfeited to the State merely because the sale in purchasers favour was rendered invalid because of a prohibition against the occupant. That is why sec. 84c-3 (b) was not regarded as a law relating to the deprivation of the property of a purchaser validly made under Article 31 (1) of the Constitution and it was found to be an incompetent piece of legislation as it prescribed a penalty which would operate against a purchaser but it did not specify the act or the omission which would render him liable to this penalty. Therefore it was in terms held that it was not open to the State Government to recover the purchase price belonging to the purchaser either from him or from the seller. That is why the benefit of this decision had been obtained by this defendant Inamdar occupant who had sold the land and who got relief by the setting aside of the forfeiture order. The natural result of this would be that the purchase price in his hand when the sale was found invalid must belong to the purchaser and must be held to be rightly decreed in favour of the plaintiff purchaser. ( 3 ) MR. Patel however has raised various questions of law by urging that these were mere observations that the purchaser was entitled to refund of this consideration amount when the sale was held to be invalid. Mr. Patel vehemently argued that the Division Bench had considered the scheme of sec. 64 as a prohibition against the occupant and not against the purchaser. In the present case the sale has been held to violate both sec. 63 and 64. Even sec. 63 (1) hits the sale only by making it an invalid sale in favour of a person who is not an agriculturist. 64 as a prohibition against the occupant and not against the purchaser. In the present case the sale has been held to violate both sec. 63 and 64. Even sec. 63 (1) hits the sale only by making it an invalid sale in favour of a person who is not an agriculturist. In fact the proviso enacts that this is a limited incapacity because the Collectors permission would have taken out the sale from the scope of this wide embargo. Therefore there is no prohibition even under sec. 63 or sec. 64 against a purchaser. Therefore when the sale is declared invalid the purchaser would be entitled to the refund of the consideration as held by the Division Bench. ( 4 ) MR. Patel however vehemently argued that when the sale was in violation of this mandatory provision in sec. 63 and 64 of the Tenancy Act which was enacted as a piece of public welfare measure with a penalty that there would be a forfeiture of the land and that the sale would be invalid such a contract of sale was an illegal contract. The consideration being illegal the provision for restitution under sec. 65 of the Contract Act or because of the warranty of the title under sec. 55 of the Transfer of Property Act could not be relied upon for getting a refund of this illegal consideration. Mr. Patel argued that the parties were in pari delicto and therefore the loss must lie where it had fallen. Even the Inamdar had lost the land and the restitution could never be ordered when it had become impossible because of the forfeiture of the land by the State. The doctrine of restitution implied that the parties had not altered their position and the status quo anti could be restored. These points having not been considered by the Division Bench Mr. Patel raised these grounds in this appeal. ( 5 ) AFTER the decision in Gherulal Parekh v. Mahadeodas A. I. R. 1959 S. C. 781 at p. 791 it is a settled legal position that there is a distinction between an agreement which is only void and one in which the consideration is also unlawful as could be seen from the provisions in secs. 23 and 30 of the Contract Act. 23 and 30 of the Contract Act. Sec. 23 points out in what cases the consideration of an agreement is unlawful and in such cases the agreement is also void that is not enforceable at law. Sec. 30 refers to the case in which the agreement is only void though the consideration is not necessarily unlawful. Their Lordships approved the Allahabad decision pointing out this distinction where the collateral contract was not affected and a suit would lie for the consideration amount. That is why even when sec. 18 of the Gaming Act 1845 expressly made all contracts by way of gaming void the sums deposited with the bookie holders were not made irrecoverable at law. Merely making of such a contract null and void did not affect the collateral contract for the simple reason that such a contract by way of gaming although null and void was not an illegal contract whose consideration was unlawful. Therefore at p. 791 Their Lordships observed that a wagering contract in violation of the provisions of the Gaming Act and which was hit by sec. 30 of the Indian Contract Act was only void but not illegal and therefore a collateral contract could be enforced because it was not an illegal contract. When the ground of public policy was relied upon Their Lordships observed at p. 797 that it would be difficult to import the tenets of Hindu Law to give a novel content to the doctrine of public policy in respect of contracts of gaming and wagering. There was no law declaring wagering illegal because some of the gambling practices are a perennial source of income to the State. Therefore it was held that there was no head or principle of public policy evolved by Courts or laid down by precedents which would directly apply to wagering contracts. Even if it was permissible for Courts to evolve a new head of public policy under extraordinary circumstances giving rise to incontestable harm to the society Their Lordships held that wager was not one of such instances of exceptional gravity for it had been recognized for centuries and had been tolerated by the public and the State alike. If it had any such tendency it was for the Legislature to make a law prohibiting such contracts and declaring them illegal and not for the Court to report to judicial legislation. If it had any such tendency it was for the Legislature to make a law prohibiting such contracts and declaring them illegal and not for the Court to report to judicial legislation. The same view is expressed by the House of Lords in the latest decision in the Director of Public Prosecutions v. Bhagwan 1970 (3) A. E. L. R. 97 at p. 106. Their Lordships in terms pointed out that the public policy disclosed by an Act of Parliament which derogates from the freedoms previously enjoyed by citizens of this country under the common law could not fall within any of these established categories for ex hypothesis it was a new policy. If the means which were enacted by the Parliament to give effect to their policies were found to be inadequate to achieve what was conceived to be the policy of the Act the remedy was with the Parliament and not with the Court. In the present case also merely because a welfare statute enacts such an agrarian reform for protecting agricultural tenants and for giving effect to a welfare policy enacts any such prohibition in such a measure giving a right to the tenant to purchase the land and to become an occupant the statute could not be said to be one falling under the recognised heads of public policy. Therefore on that ground such a contract could never be held to be contrary to public policy. Mr. Patel tried to invoke the ground that such a provision would defeat the provisions of the Tenancy Act but that head covers devices which are intended to defeat the provisions of the Act. In fact the contract of sale is not at all hit by sec. 63 or sec. 64. What is hit is the final sale. The proviso to sec. 63 (1) even enacts that a sale could be permitted if the Collector gave the permission. Therefore the statute creates only incapacity of the seller under sec. 63 (1) to sell the land to a non agriculturist without obtaining the requisite permission of the Collector. In case of such a sale nothing in sec. 63a shall apply to a sale made under sec. 63 (1 ). Therefore the statute creates only incapacity of the seller under sec. 63 (1) to sell the land to a non agriculturist without obtaining the requisite permission of the Collector. In case of such a sale nothing in sec. 63a shall apply to a sale made under sec. 63 (1 ). In Nathulal v. Phoolchand 1969 (3) S. C. C. 120 at p. 122 Their Lordships pointed out that it was well settled that where by statute property was not transferable without the permission of the authority an agreement to transfer the property must be deemed subject to the implied condition that the transferor would obtain the sanction of the authority concerned. In the case before Their Lordships the Madhya Bharat Revenue and Tenancy Act created a bar against a sale under sec. 70 (4) of that Act without the permission of the Collector Their Lordships therefore held this to be an implied condition of the contract that the seller would secure the sanction of the Collector for transferring the land. At p. 124 Their Lordships pointed out that by virtue of sec. 4 of the Transfer of Property Act the chapters and sections of the Transfer of Property Act within relate to contracts were to be taken as part of the Indian Contract Act 1872 If therefore under the terms of the contract the obligations of the parties had to be performed in a certain sequence one of the parties to the contract could not require compliance with the obligations by the other party without in the first instance performing his own part of the contract which in the sequence of obligations was performable by him earlier. Therefore even if the sale may be invalid the Legislature has never prohibited the contract of sale and in fact such a specific performance was envisaged. Specific performance could have been given as the sale was only subject to the sanction of the Collector. Therefore the contract of sale in the present case could never be said to be a prohibited contract defeating the provisions of the Act or against the public policy so as to attract sec. 23 of the Contract Act. If sec. Specific performance could have been given as the sale was only subject to the sanction of the Collector. Therefore the contract of sale in the present case could never be said to be a prohibited contract defeating the provisions of the Act or against the public policy so as to attract sec. 23 of the Contract Act. If sec. 23 is not attracted the consideration of the sale being legal consideration if there is failure of consideration the purchaser would be entitled to get back the consideration amount because even if the sale is invalid the collateral contract or the statutory obligation under sec. 65 of Contract Act or sec. 55 of the Transfer of Property Act would not be affected. ( 6 ) FOR the aforesaid reasons Mr. Patel could never invoke the doctrine of in pari delicto when the sale is merely an invalid sale while there is no prohibition whatsoever against the contract of sale. The finding of the fact finding court is that none of the parties was aware of this prohibition. In fact a lawyer had drafted this document and had handled the transaction at all stages. The Inamdar having given permission for non agricultural use the lawyer had committed a mistake in thinking that the land had become non agricultural land. The land was under the town planning scheme and a doubt might have been entertained at that time as to whether these provisions of the Tenancy Act were applicable especially when the Inamdar was selling this land. Mr. Patel however vehemently argued that ignorance of law was no excuse. Mr. Pandya relied upon the decision in the Chamber of Commerce v. Nitya Nandan A. I. R. 1963 All. 294 by the Division Bench consisting of Mukherjee and Manchanda JJ. At p. 299 the Division Bench pointed out that this maxim did not extend to beyond making it impossible for the delinquent to plead ignorance of the law as a justification for his breach and thereby escaping either the penal con sequences or other consequences visited by that law:- It did no more than that. Their Lordships relied on the observations by Lord Denning in that connection. Therefore the knowledge of the parties in regard to the validity of this transaction must be proved before this doctrine could be invoked. In the present case both the parties had no knowledge of such a prohibition. Their Lordships relied on the observations by Lord Denning in that connection. Therefore the knowledge of the parties in regard to the validity of this transaction must be proved before this doctrine could be invoked. In the present case both the parties had no knowledge of such a prohibition. In any event as I have already pointed out this is not a case where the doctrine could apply especially when there was no prohibition against this contract at all and that too against this purchaser. ( 7 ) IF the contract is only invalid and not an illegal one it is well settled that a suit for consideration must lie. This equitable obligation has been statutorily enacted in sec. 65 of the Indian Contract Act and even the provisions of sec. 55 of the Transfer of Property Act could be relied upon for that purpose. In Fibrosa Spokla Akcyjna v. Fatrbairn Lawson Combe Barbour Limited 1943 Appeal Cases P C. 32 the House of Lords had distinguished the Coronation cases which relied on the principle the loss lies where it falls. Their Lordships pointed out that the claim of a party who had paid money under a contract to recover it on the ground that the consideration for which he paid it had wholly failed was not based on any provision in the contract but arose because in the circumstances the law gave a remedy in quasi contract to the party who had not got what he bargained for. Such a quasi contract was enforced even in the absence of such a statutory provision like sec. 65 of the Contract Act in cases where the consideration had wholly failed on the ground of money paid and received for the plaintiffs use or on the equitable doctrine of restitution By enforcing this obligation what was enforced was not a clause of the contract but a collateral obligation by way of a quasi contract or to make restitution for money had and received for the plaintiffs use and to which the plaintiff was entitled to. The suit of the plaintiff such circumstances was not on the contract but for recovery of the consideration. In Harnath Kaur v. Inder Bahadur G. I. R. 1922 P. C. 403 Their Lordships invoked sec. The suit of the plaintiff such circumstances was not on the contract but for recovery of the consideration. In Harnath Kaur v. Inder Bahadur G. I. R. 1922 P. C. 403 Their Lordships invoked sec. 65 of the Contract Act even where the agreement was manifestly void from its inception and it was void because the subject matter was incapable of being bound in the manner stipulated. In that case the agreement to sell the right of reversionary was held to be void from its inception and if as a result of misapprehension as to the capacity of the seller such a contract of sale was entered into the agreement was held to have been discovered to be void and sec. 65 of the Contract Act was in terms attracted for getting restitution of the benefit obtained under such a void contract. Therefore whether one treats it as money had and received or as a distinct statutory obligation under sec. 65 this obligation for restitution would arise when one had received the consideration for a bargain which had become void. Raja Mohan Manucha v. Manzoor Ahmad Khan46 B. L. R. 170 at p. 175 Their Lordships of the Privy Council pointed out that the principle underlying sec. 63 was that a right to restitution might arise out of the failures of a contract though the right be not itself a matter of contractual obligation. Their Lordships treated it as a settled position that where the incapacity imposed on a judgment debtor by para 11 of the Third Schedule was an incapacity to affect his property and not a general incapacity to contract it followed that the covenant to repay was not made void by the mere operation of the paragraph. While asking for restitution the parties were not enforcing a contractual stipulation but were relying on the terms of sec. 65 where restitution was to be made because no contract subsisted. Their Lordships also pointed out that the contention that sec. G5 could not apply where there was a transfer of property and not a mere agreement was without substance and contrary to authority. Therefore even that ground could not be urged by Mr. Patel to contend that section does not apply. Mr. Their Lordships also pointed out that the contention that sec. G5 could not apply where there was a transfer of property and not a mere agreement was without substance and contrary to authority. Therefore even that ground could not be urged by Mr. Patel to contend that section does not apply. Mr. Patel this connection vehemently relied upon the decision in Dhruv Dev v. Harmohinder Singh A. I. R. 1968 S. C. 1024 at p. 1026 where Their Lordships had only held that by its express terms sec. 56 of the Contract Act did not apply to cases in which there was a completed transfer. Their Lordships only pointed out that sec. 4 of the Transfer of Property Act did not enact and could not be read as enacting that the provisions of the Contract Act were to be read into the Transfer of Property Act. There was a clear distinction between a completed conveyance and an executory contract and events which discharge a contract did not invalidate a concluded transfer. Even as pointed out by Their Lordships of the Privy Council it is too late in the day to argue that sec. 65 did not apply to a completed transfer as both the aforesaid cases of the Privy Council were cases of completed transfer. In the present case as earlier pointed out the contract of sale was not invalid and even sec. 63 (1) provided that such a sale will be valid if permission of the Collector was obtained. Therefore the permission of the Collector was an implied condition of this contract and there was only a limited incapacity of the seller to sell this property without obtaining the permission of the Collector when the sale was to such a non agriculturist. Therefore there being no general prohibition which makes the contract illegal by hitting the consideration this collateral obligation or one because of sec. S5 of the Transfer of Property Act would always remain enforceable. Sec. 55 (2) in terms provides that the seller be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the seller. Sec. 55 (6) provides that the buyer is entitled to a charge on the property as against the seller for the amount of his purchase money. Sec. 55 (6) provides that the buyer is entitled to a charge on the property as against the seller for the amount of his purchase money. Therefore this part of the contractual obligation which is a collateral obligation created as an implied condition by the provisions of the Transfer of Property Act itself would always carry the obligation of restitution when the seller did not make good his bargain and the agreement was discovered to be void. ( 8 ) MR. Patel however vehemently argued that the scheme of this Act was to forfeit the land. The doctrine of restitution was an equitable doctrine and even though it is now enacted in sec. 65 of the Contract Act the doctrine could never apply where restitution has been impossible. At present because of the aforesaid decision of the Division Bench the seller Inamdar has got the benefit of this transaction and he wants to retain the purchase price which has now not been forfeited to the State because of the final older of the Revenue Tribunal. As pointed out by the Division Bench this price in the hands of the seller is money had and received for the use of the buyer. Therefore restitution could always be ordered so long as this amount is with the seller. In Satappa v. Appaya A. I. R. 1358 Their Lordships had considered in the same context of sec. 84c the effect of the provisions of the old sec. 35 which made invalid the acquisition of land over the ceiling limit Their Lordships observed at p. 1360 that the invalidity of the acquisition is therefore only to the extent to which the holding exceeds the ceiling prescribed by sec. 5 an involves the consequence that the land will vest in the Government. An agreement to sell land does not under the Transfer of Property Act create any interest in the land in the purchaser. By agreeing to purchase land a person cannot be said in law to hold that land. It is only when land is conveyed to the purchaser that he holds the land. An agreement to sell land does not under the Transfer of Property Act create any interest in the land in the purchaser. By agreeing to purchase land a person cannot be said in law to hold that land. It is only when land is conveyed to the purchaser that he holds the land. Undoubtedly the respondent was holding some area of land at the date of the agreement and at the date of the suit but on that account it cannot be inferred that by agreeing to purchase land under the agreement in question his object was to hold in excess of the ceiling. It was open to the respondent to transfer or dispose of the land held by him to another agriculturist. The Act contains no general restriction upon such transfers and unless at the date of the acquisition the transfer holds land in excess of the ceiling the acquisition to the extent of the excess over the ceiling will not be invalid. There is nothing in the agreement nor can it be implied from the circumstances that it was the object of the parties that the provisions of the Act relating to the ceiling should be transgressed. The mere possibility that the respondent may not have disposed of his original holding at the date of the acquisition of title pursuant to the agreement entered into between him and the appellant will not in our judgment render the object of the agreement such that if permitted it would defeat the provisions of any law. The Court it is true will not enforce a contract which is expressly or impliedly prohibited by statute whatever may be the intention of the parties but there is nothing to indicate that the Legislature has prohibited a contract to transfer land between one agriculturist and another. The inability of the transferee to hold that in excess of the ceiling prescribed by the statute has no effect upon the contract or the operation of the transfer. The statutory for feature incurred in the event of the transferee coming to hold land in excess of the ceiling does not invalidate the transfer between the parties. The inability of the transferee to hold that in excess of the ceiling prescribed by the statute has no effect upon the contract or the operation of the transfer. The statutory for feature incurred in the event of the transferee coming to hold land in excess of the ceiling does not invalidate the transfer between the parties. We hold that a contract for purchase of land entered into with the knowledge that the purchaser may hold land in excess of the ceiling is not void and the seller cannot resist enforcement thereof on the ground that if permeated it will result in the transgression if the law. Their Lordships in terms pointed out that an inquiry under sec. 84c to determine whether the transfer or acquisition was invalid might be made only after the acquisition of title pursuant to decree for specific performance or otherwise. There was nothing in sec. 70 or in other provisions of the Act which excluded the civil Courts jurisdiction to decree specific performance of a contract to transfer land. Therefore in the present case also if the contract of sale had this implied condition of permission of the Collector for validating the sale the contract is not a prohibited contract merely because the seller would be faced with the penalty of forfeiture of land. There being no prohibition against the purchaser and his contract of sale not being prohibited by any statute the purchaser would surely be entitled to get restitution. even if the seller had lost this land by forfeiture because of the penalty imposed on him as it was the seller who had violated the prohibition and had not made good the bargain. Therefore on none of these grounds Mr. Patel could invoke the doctrine of in pari delicto on the analogy of the cases where the contract is illegal so as to vitiate the consideration for defeating the claim of restitution by this innocent purchaser. The Appellate Court was therefore right in view of the aforesaid Division Bench decision in holding that in such a case the purchaser was entitled to get refund of the purchase amount. In that view of the matter this appeal fails and is dismissed with costs. .