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Aumanchi Auryaprabhakara Rau and anr. Vs. Gummudu Sanyasi and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1925)48MLJ598
AppellantAumanchi Auryaprabhakara Rau and anr.
RespondentGummudu Sanyasi and ors.
Cases ReferredAnanda Mohan Roy v. Gour Mohan Mullick
Excerpt:
- - gour mohan mullick (1923) lr 50 ia 239. on this point i think it is perfectly clear that the contract is not enforceable......affect the question at all. on this point i think the subordinate judge is right and that the contract is void and unenforceable.3. the next contention is that under section 65 of the indian contract act, the plaintiff is entitled to the refund of the money advanced by him. if he had brought his suit within time, he would no doubt be entitled to the amount from the 1st defendant who received it. the period of limitation for such a suit is three years from the date when the contract is discovered to be void and as pointed out by the privy council in ananda mohan roy v. gour mohan mullick (1923) lr 50 ia 239 , ordinarily the time from which limitation would start is from the date of the agreement in the absence of special circumstances. the contract is one forbidden by law, and the.....
Judgment:

Phillips, J.

1. S.A. No. 1469 of 1922 : The appellants in this appeal obtained an agreement for the sale of certain Karnam service inams from the 1st defendant. This inam undoubtedly formed the emoluments of the Karnam's office and its transfer is forbidden by Section 5 of Madras Act III of 1895. Prima facie, it would appear that this contract was a contract to perform something which is forbidden by law and would consequently be void under Section 23 of the Indian Contract Act. It is, however, contended for the appellants that this agreement was not to transfer the inam when it constituted the emoluments of the Karnam's office, but to transfer this land after it had been enfranchised by the Inam Deputy Collector, and that, consequently, Madras Act III of 1895 does not apply. It is quite true that if the land had been enfranchised at the time of the contract, it would have been transferred without offending against Madras Act III of 1895, but when the parties entered into the contract, there was no certainty that the land would be enfranchised, or even if so enfranchised, that it would be enfranchised in the name of the contracting party. He was no doubt expecting that it would be so done and agreed to transfer his interest in the property when the event had taken place. This cannot be said to be more than a transfer of his expectation and as such would offend against Section 6 of the Transfer of Property Act, and so the agreement would be void as held in Sri Jagannadha Raju v. Sri Raja Prasada Rao : (1915)28MLJ650 , a case which was quoted with approval by the Privy Council in Ananda Mohan Roy v. Gour Mohan Mullick (1923) LR 50 IA 239. On this point I think it is perfectly clear that the contract is not enforceable.

2. It is argued, as far as I understand the agreement, that because the would-be vendor was in physical possession of the property and was merely subject to the disability to alienate, that that would make a difference to the case and that it must be deemed that such physical possession of one form of estate must be deemed to go some way towards possession of a different form of estate and, therefore, it is not a mere spes successions that is being transferred, but rather a hope that one estate would be transformed into another estate. This appears to be equally a mere expectation and the mere fact that there is physical possession cannot affect the question at all. On this point I think the Subordinate Judge is right and that the contract is void and unenforceable.

3. The next contention is that under Section 65 of the Indian Contract Act, the plaintiff is entitled to the refund of the money advanced by him. If he had brought his suit within time, he would no doubt be entitled to the amount from the 1st defendant who received it. The period of limitation for such a suit is three years from the date when the contract is discovered to be void and as pointed out by the Privy Council in Ananda Mohan Roy v. Gour Mohan Mullick (1923) LR 50 IA 239 , ordinarily the time from which limitation would start is from the date of the agreement in the absence of special circumstances. The contract is one forbidden by law, and the appellants must be deemed to have been aware of the fact when they entered into it. It was therefore void from that date and appellants must be deemed to know that fact. If that is not the case, there is no allegation as to when they became aware of it. It is suggested that the plaintiffs were unaware of the illegality of the contract until the Subordinate Judge gave his decision in the suit. If that is so, the cause of action would only arise on the determination of that suit but assuming that to be so--I have no reason to think that it is--the cause of action would be based on the result of the suit and relief could not be claimed in the suit itself. His claim for refund of money must be disallowed, and the second appeal is dismissed with costs of the 1st and 2nd respondents. Second Appeal No. 1470 of 1922 follows this decision and is dismissed with costs.


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