Judgment

ALAGIRISWAMI, J. :- This appeal is against the judgment of the Patna High Court by Special leave granted by this Court. It arises out of a mining lease granted by the 1st respondent but alleged to have been done so in the name of the 1st respondent by the 2nd respondent in favour of Harisharan Singh J. D. and Co. on 7-9-1950. In pursuance of the lease a sum of Rs. 80,000/- was paid to the 1st respondent. The plaint allegation was that the 1st respondent was a limited company created by the 2nd respondent. There was an earlier lease in respect of the same property in favour of respondent. 3 and 4 which expired on 4-4-1950. Haricharan Singh J. D. and Co. later changed its name to Kuju Collieries Ltd. who are the appellants. As the plaintiff did not get the possession of the leased property it instituted a suit for recovery of possession of the leased property along with mesne profits and in the alternative for refund of the sum of Rs. 80,000/- and certain other sums. The present appeal is however, concerned only with that amount.

2. In the suit the 1st respondent and the 2nd respondent took the stand that the 1st respondent was not created by the 2nd respondent that the lease was by the 1st respondent and the amount was paid to the 1st respondent alone and not to the 2nd respondent. The 1st respondent also contended that the leased properties were handed over to the plaintiff that they were not aware that respondents 3 and 4 were resisting the plaintiffs claim and that the 1st respondent was not in any case responsible therefore and that therefore the plaintiff was not entitled to any relief. During the pendency of this appeal respondents 2 and 3 died and their legal representatives have not been brought on record. The appellant is not claiming any relief against any of the other respondents except respondent No. 1 and it is, therefore, unnecessary to refer to the attitude taken by them in the suit.

3. It is necessary at this stage to mention that after the institution of the suit the Bihar Land Reforms Act came into force as a result of which any leassee working a mine became a direct lessee under the State, and as the plaintiff was not working the mines any claim in respect of the possession of the mines became unenforceable. The appellant has, therefore, confined his claim to the sum of Rs. 80,000/- as payable to it by the 1st respondent.

4. The trial Court held that as the plaintiff was already in the business of mining and had the advantage of consulting its lawyers and solicitors and their lease deed was drawn up and prepared by solicitors, there was no occasion for the plaintiff to have been under any kind of ignorance of law and as the Mineral Concession Rules of 1949 rendered any stipulation for payment of salami illegal and the lease on that basis was also illegal, the plaintiff was not entitled to claim relief under Section 65 of the Indian Contract Act It, therefore, dismissed the suit.

5. On appeal the High Court also held that neither Section 65 nor Sec. 72 of the Contract Act applied 65 reads as follows :

6. We are of the view that Section 65 of the Contract Act cannot help the plaintiff on the facts and circumstances of this case. Section 65 reads as follows :-

"When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to, make compensation for it, to the person from whom he received it." The section makes a distinction between an agreement and a contract. According to section 2 of the Contract Act an agreement and a contract Act an agreement which is enforceable by law is a contract and an agreement which is not enforceable by law is said to be void. Therefore, when the earlier part of the section speaks of an agreement being discovered to be void it means that the agreement is not enforceable and it, therefore, not a contract. It means that it was void. It may be that the parties or one of