A party to a void contract who is not aware of the other party's incapacity to contract is entitled to recover the consideration paid under Section 65 of the Contract Act.

( 1 ) THIS is an appeal from a decision of the District Judge of Ratlam dismissing the plaintiff-appellant's suit for the refund of the amount of consideration in respect of a contract, and for the recovery of the amount of expenses incurred by him in connection with the contract and the amount of damages sustained by him on account of defendant's certain actions.

( 2 ) THE plaintiff's case was that on 9th January 1949, the defendant granted him a lease of a forest area in his Jagir in consideration of a premium of Rs. 3,325 payable in three instalments, namely, one of Rs. 1,125 on 9th January 1949; the other of Rs. 1,100 on 9th March 1949; and the third of Rs. 1,100 in September 1949; and, that under the lease he, that is the plaintiff, was granted the right to fell trees growing in the forest area for a period of eighteen months, and to remove the wood from the area at any time at his own convenience. The plaintiff averred that he paid Rs. 1,125 to the defendant on 9th January 1949, and also an amount of Rs. 1,100 on 13th March 1949, and worked the forest area till 20th March 1949, when he was resisted by the defendant in felling the trees and removing the wood; that thereupon he gave a registered notice to the defendant which was refused by him; and that when he approached the defendant for ascertaining the reason for stopping him from felling the trees in the forest area and removing the wood, the defendant made a demand for the payment of the amount of the third instalment even before the due date and told him that he had no right to give the lease and that if the plaintiff were to pay the balance of rs. 1,100 he would help him in getting the felled trees and wood removed from the forest area. The plaintiff further stated that he declined to pay the amount of the last instalment as demanded by the defendant and that when he made enquiries, he learnt that, under two Rob-kars of the sovereign authority of the Ratlam State, the defendant who was 'a third grade Jagirdar' of the Ratlam State had no right to lease out the forest area and that by suppressing this fact the defendant had fraudulently induced him to enter into the contract. On these allegations, the plaintiff claimed the refund of Rs. 2,225 being the amount of consideration paid by him, and the recovery of Rs. 3,830-2-6 as the net amount expended by him for working the contract and Es. 10,000 as damages computed on the basis of profit he would have made if he had been allowed to fell trees and remove the wood according to the contract.

( 3 ) THE defendant admitted the contract as also the receipt of the consideration of rs. 2,225. He denied that he ever made a demand for the amount of the third instalment before it was due or that he obstructed the plaintiff at any time in the cutting of the trees or the removal of the wood. He further pleaded that if, according to the plaintiff's own allegation he had no right to lease out the forest area under the law of the Ratlam State, then the contract was illegal and the plaintiff was not entitled to recover any amount in respect of this illegal contract. The defendant denied the plaintiff's allegation of fraud and disputed the amount of expenses incurred by him in working the forest area and of the loss of profits incurred by him.

( 4 ) THE trial Judge has held that from 20th March 1949, the defendant did not allow the plaintiff to fell the trees or remove the wood; that he made a demand for the payment of the amount of the third instalment before it was due saying to the plaintiff that he had no right to give the lease and that if he were to make the payment he would be allowed to remove the wood; that it was on enquiry that the plaintiff learnt that the defendant was a 'third grade Jagirdar' and as such had no right to lease out the forest area under the two Robkars of the Ratlam State; and further that the defendant illegally and fraudulently obtained from the plaintiff the amount of Rs. 2,225. The trial Judge