The central legal point established is the application of the principles of restitution in integrum under the Specific Relief Act and the Indian Contract Act in cases of void agreements and the requirement for restoration of benefits received.

JUDGMENT :

A.K. RATH, J.

1. Defendant no. 1 is the appellant against a confirming judgment.

2. The plaintiff-respondent instituted Title Suit No. 67 of 1989 in the court of the learned Civil Judge (Sr. Division), Ganjam-Gajapati, Berhampur for Specific Performance of Contract. The case of the plaintiff was that the suit house was the ancestral property of J. Badrinarayana Prusty, husband of defendant no. 1 and others. In a family partition of the year 1959, the house was allotted to him. He executed a registered settlement deed settling half share in favour of his wife-defendant no. 1 and half share in favour of his minor sons in the year 1968. Defendant no. 1 was the mother guardian of her minor sons, defendant nos. 2 to 4. To press her legal necessity, she entered into a registered deed of agreement on 11.9.1984 with the plaintiff to sell the suit house for consideration of Rs. 50,000/- and accepted Rs. 10,000/- towards advance. The deed was registered. The agreement stipulated that the sale deed shall be registered within two years on receipt of the balance consideration. The plaintiff requested defendant no. 1 many a times to receive the balance consideration and execute the sale deed. She had also sent a registered notice and telegrams to her. With this factual scenario, the suit was filed seeking the relief mentioned supra.

3. Defendant no. 1 filed written statement denying the assertions made in the plaint. According to her, she had not entered into an agreement with the plaintiff to sell the suit house nor received any advance amount. Her husband and the plaintiff colluded together and took her signatures and thumb impression on the document telling her that the document was about partition of the property for providing maintenance to her and her children. She is a pardanasin lady. She was not aware of the contents of the document. Defendants 2 to 4 filed separate written statement. It was pleaded that the suit property was ancestral property. They being the coparceners the agreement for sale of the property was invalid. Their father was alive. He was the natural guardian. Defendant no. 1 had no right to enter into an agreement to sell the suit property. There was no legal necessity in the family. So, there was no occasion for sale of the suit property in the interest of the family and the minors.

4. Stemming on the pleadings of the parties, the learned trial court struck four issues. The parties led evidence, both oral and documentary. In an elaborate consideration of the oral and documentary evidence and pleadings, the learned trial court came to hold that defendant no. 1 had executed a registered document, vide Ext.1, after understanding the contents thereof. But then, she was not competent to alienate the co-parcenery property, where minors-defendants 2 to 4 had interest. The agreement for sale of the suit house was not enforceable. Held so, it rejected the Specific Performance of Contract. However, a direction was issued to defendant no. 1 to repay the advance of Rs. 10,000/- along with pendent lite and future interest at the rate of 6% per annum. Felt aggrieved, the plaintiff filed T.A. No. 39 of 1996 in the court of the learned District Judge, Ganjam-Gajapati, Berhampur. Defendant no. 1 also filed T.A. No. 42 of 1996 in the same court. Both the appeals were heard analogously and eventually dismissed.

5. The Second Appeal was admitted on the following substantial questions of law.

“1. Whether the claim of refund of consideration money made in 1993 whereas the cause of action arose in the year 1989 and the suit was filed in 1989 will be barred by limitation under Article 55 of the Indian Limitation Act?

2. Whether Section 65 of the Contract Act is applicable in the facts and circumstances of the case?”

6. Heard Mr. S.S. Rao, learned Advocate for the appellant. None appeared for the respondent.

7. Mr. Rao, learned Advocate for the appellant submitted that both the courts concurrently held that agreement to sell was void one.