Misra, J. - (1.) PLAINTIFF is the Petitioner. The suit is for recovery of Rs. 199.50 nP. inclusive of interest. Defendant No. 1 is the father of Defendant No. 2 and they are members of a joint family. Both of them entered into an agreement with the Plaintiff to remain as her farm servants. They were in service till the end of Falgun 1365. From Chaitm 1365 to Falgun 1366 Defendant No. 1 wanted to serve under the Plaintiff as a farm servant for half of each day and Defendant No. 2 wanted to serve for the full day during the same period. Defendant No. 1 had taken an advance of Rs. 60/ - in the previous year and that was renewed for the current year. Defendant No. 2 received Rs. 120/ - and both of them executed the document containing the terms of the agreement. In accordance with the terms of the agreement, Defendants 1 and 2 served till the end of Falgun 1366 and continued to serve for another year till the end of Falgun 1367. According to the practice prevailing in the locality, these field -servants were to refund the account advanced after the termination of the period of service. As the Defendants did not return the same the suit is for recovery of the amount with interest. The Defendants were ex -parte.
(2.) THE learned S.C.C. Judge found in favour of the Plaintiff that the Defendants had taken Rs. 180/ - jointly under the agreement which they did not refund after the termination of their services. He, however, dismissed the suit holding that the agreement (ext. 1) was hit by Section 6 of the Bihar and Orissa Kamiauti Agreements Act, 1920 (Bihar and Orissa Act VIII of 1920). Mr. Misra, for the Petitioner, urged that Ext. 1 was not a Kamiauti agreement as there is a provision in the agreement for payment of wages separately from the advance, and as the consideration for the advance is a forbearance on the part of the Defendants no to work for others. I do not see any force in this argument. Ext. 1 clearly recites that the amounts were advanced to the Defendants as they agreed to serve the Plaintiff as her farm servants for a particular period. Advance for such purpose clearly comes within the purview of agreement as defined in the said Act.
(3.) IT is, therefore, necessary to examine the various provisions of this Act. The preamble of the Act states: Whereas it is expedient to Limit the period and regulate the terms of, and otherwise to make provision regarding agreements for the performance of certain kinds of labour: It is hereby enacted as follows. Section 2, Sub -section (5) defines labour. 'Labour' means agricultural labour and includes domestic service or labour whether indoor or outdoor. As the Defendants were engaged as field servants, clearly they were to do labour within the meaning of the Act. Section 2(1) defines advance. 'Advance' means an advance of money or in kind or partly of money and partly in kind, and includes any transaction which is, in the opinion of the Court, substantially an advance. In this case, Rs. 180/ -, advanced to the Defendants, clearly come within the definition of advance. Section 2(4) defines Kamiauti agreement which mens an agreement written or oral, or partly written and partly oral, wherein the consideration for the performance of labour by any person is or includes one or more of the following: namely, an advance made or to be made to any person, the interest on such advance, a debt due by any person, the interest em such debt. Ext. 1 is clearly an agreement within the meaning of this definition. The agreement is in writing and payments of advance also constitute the consideration for the performance of labour by the Defendants, though there is a further stipulation for payment of wages in addition to the advance. Section 4 lays down as to when an agreement entered into after the Commencement of the Act shall be wholly void. Section 4(1) runs as follows: A kamiauti agreement entered into after the commencement of this Act shall be wholly void: (i) unless the full terms of the agreement between the parties are expressed in an instrument duly stamped according to the law for the time being in force; (ii) unless the person making the advance or to whom the debt is due, delivers to the executant a counterpart of the said instrument at the time of the execution of the instrument; (iii) if the period express or implied during which the labour is to be performed exceeds, or might in any possible event exceed one year; (iv) unless it provides that on the expiry of the period during which the labour is to be performed, all liability shall be extinguished in respect of any advance, debt or interest which is the consideration or part of the consideration of the agreement; (v) unless it provides for a fair and equitable rate of remuneration for the labourer. The agreement Ext. 1 is void as it contravenes (1) Clause (i) as not being expressed in a duly stamped paper, (2) Clause (ii) as no counterpart of the said instrument has been delivered to the executants, and (3) Clause (iv) as it makes no provision that on the expiry of the period during which the labour is to be performed, all liability shall be extinguished in respect of the advances. Under Section 6, when a kamiauti agreement is void under Section 4, no suit shall lie for restoration of or compensation for any advantage received by the executant, or, in particular, for the recovery of any advance, debt or interest which is the consideration or part of the consideration of the agreement. Consequently a suit for recovery of the advance does not lie. The learned S.C.C. Judge has, therefore, taken the correct view of law.;