Sheo Bux brought a suit against Bhura and Gorkha sons of Sugan on 4.6.49 in the Court of the Nazim (Assistant Collector) Hindaun with the allegations that Hakku brother of the plaintiff mortgaged the land in dispute (khasra Nos. 422, 423 and 424 measuring 4 bighas 3 biswas Barani in village Minagavda) in lieu of Rs. 80/-on Jeth Sudi 10, Svt. 1990 in favour of Sugan deceased father of the defendants. It was further alleged in the plaint that the defendants were requested to rede m the land on numerous occasions but they refused to comply with this request. The defendants denied almost every allegation of the plaint including the factum of the mortgage itself and the relationship between Hakku and the plaintiff. The trial court framed the following issues :—

(1) Whether Hakku mortgaged the land in dispute with the father of the defendants for Rs. 80/- in Svt. 1990 ? If so in what form and for what period was the mortgage effected?

(2) Whether the plaintiff is entitled to redeem the land?

(3) To what relief is the plaintiff entitled?

The trial court without examining the evidence led by the parties on these issues or recording any findings on any one of them rejected the application on 17.10.55 with the following observation :—

"This application for redemption can be summarily rejected on the score that any transfer made in Svt. 1990 in settled village was void under sec. 24 of the Jaipur Tenancy Rules for Chakband villages issued under notification, dated 23.2.1931. These Rules remained in force till 1945. This objection goes to the root of the case. It is needless to enter into discussion about the merits and the facts of the case in detail. A transaction which is void ab initio does not entail a right to redeem. The application is therefore, summarily rejected."

The plaintiff went up in appeal before the Additional Commissioner who agreed with the view of the trial court and rejected the appeal. Hence this revision before us.

2. We have heard the learned counsel for parties and have gone through the record as well. The Tenancy Rules for Chakbandi Villages, 1931 issued under notification No. 18818 dated 23 12-1931 have also been examined by us. These Rules are 26 in number and are divided under the following heads :—

(A) Licenses Rules 1 and 2.

(B) Extinction of tenancy. Rules 3, 4 and 5.

(C) Ejectment. Rules 6 to 10.

(D) Surrender. Rules 11 and 12.

(E) Abandonment. Rules 13 to 15.

(F) Abatement of rent. Rule 16.

(G) Appeals. Rule 17.

(H) Transfer. Rules 18 to 24.

(I) General. Rules 25 and 26.

The portion dealing with transfer allows a tenant the right of subletting under certain restrictions and Rule 24 which is relevant for purpose of this case lays down that "Every transfer other than a sub-lease made in accordance with these rules shall be void." It has been admitted by the applicant before us that the alleged mortgage was created after the enforcement of these rules in 1932-33 and prior to the enforcement of the Jaipur Tenancy Act, 1945. The questions therefore, that comes for determination before us is as to whether the applicant can seek redemption of the alleged mortgage ? If not, what other remedy is open to him. ?

3. As observed by their Lordships of the Allahabad High Court in a Full Bench case—

..............A.I.R. 1930 Allahabad 1 there is a clear distinction between an agreement which may be forbidden by law and one which is merely declared to be void. In the former case, the Legislature penalises it or prohibits it. In the latter case, it merely refuses to give effect to it. 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, but if the promisee goes to the court to enforce it he would receive no help from a court of law. As is clear from the 1931 Rules the transfer of tenancy rights was not actually forbidden but was simply declared to be void. The