AIR 1987 MADHYA PRADESH 126 ::(1987) Jab LJ 44

Madhya Pradesh High Court

Hon'ble Judge(s): T. N. Singh , J

Contract Act (9 of 1872) , S.65, S.23— Obligation of person receiving advantage under void agreement - Applicability - Section does not apply to agreements that are ab inito void - Breach of contract for sale of woman - Suit by buyer for refund is not maintainable. AIR 1918 Mad 444, AIR 1944 Nag 159 and 1933 Lah 849 Dissented from. Constitution of India , Art.23, Art.21— Section 65 is not derogation of the common law maxims Ex dolo malo non oritur actio, and In pari delicto potior est conditio possidentis. Only those cases as are not covered by the maxims aforesaid can only attract application of the provision of S.65 on the footing that when an agreement in its inception was not void and it was not hit by the maxims but is "discovered to be void" subsequently, right to restitution of the advantage received under such agreement is secured on equitable consideration. AIR 1918 Mad 444, AIR 1944 Nag 159 and AIR 1933 Lah 849, Dissented from.(Para 7) It is possible for a party "In pari delicto" to invoke S.65 and to found his action on that. When a contract is entered into by parties in contravention of any statutory prohibition, it would not be a case of contract "becoming" or of being "discovered to be" void; it would be a case of a contract which is void ab initio and indeed dehors S.23. Similarly when a contract i....