1. One Sheo Nath for himself and on behalf of his brothers Ram Chandra and Sheo Ram executed a perpetual lease in favour of the defendants on an annual rental and on payment of a nazrana of Rs. 1,000 on 25th April 1922. The plaintiff Ram Chandra brought the present suit for possession of the property-leased out to the defendants on the ground that the lease was invalid inasmuch as the family of the three brothers was separate and Sheo Nath alone was not entitled to grant a lease on behalf of the plaintiff. The plaint then went on to say that if the family be deemed to be joint, then there was no legal necessity for the transfer and finally it was contended that the transfer was of occupancy plots, and as such, forbidden by law.
2. Courts below have found that the family was joint and it would appear from the judgment of the trial Court that he was of the opinion that the family was joint even at the time of the institution of the suit. It was held that in the case of brothers there was a presumption of joint-ness and the solitary statement of the plaintiff on the question of separation was not worthy of belief, more especially when it was inconsistent with an earlier statement made by the plaintiff in a for mer suit. I am, therefore, of the opinion that the finding of the trial Court as well as of the lower appellate Court is that the family was joint at the time of the lease and at the time of the institution of the suit. Courts below have also held that the transfer was for legal necessity. It must, therefore, be deemed that the transfer was made by the family. The suit by the plaintiff on the ground that the transfer was forbidden by law, and as such the lease was liable to be cancelled and possession restored must also be deemed to be a suit by the family. The position in law, therefore, is that where a transferor makes a transfer which is void as being forbidden by law, accepts benefit from the transferee and puts the transferee in possession, is the transferor entitled to oust the transferee and to get back possession without restoring the benefit which he has received? The contention of learned Counsel for the appellant is that the transferor must repay the money which he has received from the transferor. My view is that the contention advanced by the appellant is correct. It was held in Bahoran Upadhya v. Uttamgir (1911) 33 All 779, that the mortgagor of an occupancy holding who has put the mortgagee in possession cannot recover possession on the ground merely that the mortgage was void under the provisions of the Agra Tenancy Act of 1901, without repaying to the mortgagee the money which he has received from him. This case followed the earlier case of Fasihuddin v. Karamat Ullah (1888) AWN 128. The principle invoked in Bahoran Upadhya v. Uttamgir (1911) 33 All 779, was applied by Ash worth and Kendall, JJ., in Bisheshar Pathak v. Rup Narain Singh 1928 All 286. The learned Chief Justice in the Full Bench case of Dip Narain Singh v. Nageshar Prasad 1930 ALJ 45, where the question for decision was a different one, observed at p. 47 as follows: If a void contract has been carried out and consideration has passed, the promisor may not in equity be allowed to go back upon it without restoring the benefit which he has received.
3. The plaintiff, whose suit must, therefore, be considered to be a representative suit on behalf of the entire family, must pay back the money which the family has received before he can be held entitled to get back possession of the property leased out. I, therefore, allow this appeal to this extent, that I modify the decree of the Courts below and decree the plaintiff's suit on payment of Rs. 1,000. No question of mesne profits can arise because on my view of the case the plaintiff is not entitled to any mesne profits till he has refunded the benefit which has-been received by the family. The plaintiff must pay this amount of Rs. 1,000 within four months, otherwise his suit will be dismissed with costs. If the plaintiff pays this amount then the parties will bear their own costs throughout. Leave to file an appeal by way of Letters. Patent is allowed.