The Municipal Council vs D. Krishnamacharya

Lakshmana Rao, J.—This petition arises out of a suit instituted by the respondent for recovery of 90 per cent, of the price paid by his father

for a house site purchased by him from the Municipal Council of Kumbakonam under Ex. A, the sale deed dated 12th April, 1921, and the

undisputed facts are that on the application of the vendee and others, the petitioner approached the Government for the acquisition of some land

for the extension of house sites at the cost of the applicants. The scheme was sanctioned by Government and the land was acquired subsequently.

It Was divided into house sites and one of them was allotted to the vendee under Ex. A for constructing a house in a manner to be approved by

the Municipal Council. The allotment was subject to the condition that the vendee should always conform to and carry out the terms and conditions

specified in the sale deed and abide by the consequences which non-conformance to or breach of any of those terms and conditions may entail as

set forth therein and among other things the sale deed provides that the application for construction should be made within two years of the

completion of the sale. It should be accompanied by a plan of the proposed building and the construction was to be commenced after the approval

of the plan or expiry of the time limit fixed by Sections 200 to 202 of the Municipalities Act. The construction was to be completed within three

years of the date from which commencement was permissible and the final clause on which the suit is based provides that if the purchaser fails to

complete the construction of the house within that period his title to the site shall cease and determine and the site shall re-vest in the Municipal

Council and the purchaser shall be entitled only to a refund of 90 per cent, of the price originally paid by him to the Municipal Council. The

purchaser under Ex. A or the respondent did not make any application for construction of a house or desire to construct a house at any time and

the suit out of which this petition arises was instituted by the respondent in 1931 for refund of 90 per cent, of the price paid. It was resisted on the

ground that upon the true construction of the clause the transfer is voidable at the option of the Municipal Council and while conceding that the

petitioner had the option of terminating the transfer after the respondent''s failure to construct the house within the specified period, the Lower

Court decreed the suit holding that the option must be taken to have been exercised at the time of the transfer itself.

The view of the Lower Court that the petitioner must be deemed to have exercised the option at the inception was not attempted to be

supported and the question for determination is whether or not the true meaning of the stipulation in question is that on the happening of the event

the transfer is voidable at the option of the petitioner. No one can be permitted to take advantage of his own wrong and as pointed out in New

Zealand Shipping Co. v. Societe des Ateliers et Chantiers de France (1919) A.C. 1 the stipulation has to be construed according to its natural

meaning subject to the universal principle of law that a party shall never take advantage of his own wrong. It would be contrary to this principle to

hold that the vendee can terminate the sale at his will and pleasure and even when the word used is ""void"" it should be read as ""voidable"" if the

result of reading it as ""void"" would be to enable a party to avail himself of his own wrong to defeat the contract. That the stipulation in question was

prescribed by rules framed by the Government under the District Municipalities Act cannot alter its true meaning nor is there any justification for

assuming that such a principle was intended to be abrogated. It follows therefore that the transfer is voidable at the option of the petitioner and it is

not suggested that there was any avoidance by the Municipal Council. The respondent is not therefore entitled to a refund of the amount and the

decree cannot be upheld, it is therefore set aside and the suit will stand dismissed with the costs of the petitioner after remand.