Taibai
Vs. Annasaheb Goudappa Patil [1995] INSC 694 (16 November 1995)
Manohar
Sujata V. (J) Manohar Sujata V. (J) Punchhi, M.M. Mrs.Sujata V.Manohar, J.
CITATION:
1996 SCC (1) 585
ACT:
HEAD NOTE:
The
appellants in this appeal are the heirs of the original plaintiff. The suit
land being Survey No.133 admeasuring 20 acres 37 guntas is situated in Amtur Village in Bailahongal Taluk in the State of Karnataka. It is Vatan Land. On the coming into force of the Karnataka Village Offices
Abolition Act, 1961 on 1st of February, 1963 the said land was resumed by the
State on abolition of all village offices. Section 5(1) of the said Act
provides for re-grant of land resumed under Section 4(3) to the holder of the
village office. Accordingly, the land was re-granted to the original plaintiff
on 7.4.1978.
Prior,
however, to the re-grant of the land in favour of the plaintiff, the plaintiff
had entered into an agreement dated 5.8.77 with the defendant i.e. the present
respondent under which she had agreed to sell this land to the defendant for a
sum of Rs.60,000/-. The agreement recited that an amount of Rs.40,000/- was
paid by the defendant to the plaintiff as earnest money. Possession of the land
was also given to the defendant. Accordingly the defendant was in possession of
the land since 5.8.1977. The present suit was filed by the plaintiff for
possession of the suit land on the ground that the agreement of sale entered
into by her was null and void in view of the provisions of the Karnataka
Village Offices Abolition Act, 1961 and the Karnataka Act 13 of 1978
substantially amending the said Act which came into effect on 7.8.1978.
Under
the Karnataka Village Offices Abolition Act, 1961 Section 5(1) Provides for a
land resumed under Section 4(3) being granted to the person who was the holder
of the village office immediately prior to the appointed date on payment of the
occupancy price as specified therein.
Under
Section 5(3), as it is stood before its amendment on 7.8.78, the occupancy or
the ryotwari patta of the land, as the case may be, re-granted under
sub-section (1) shall not be transferable otherwise than by partition among
members of the Hindu Joint Family, without the previous sanction of the Deputy
Commissioner; and such sanction will be granted only on a payment of an amount
equal to 15 times the amount of full assessment of the land. By the amending
Act, sub-section 5(3) was substantially amended. The amended Section 5(3)
provides that occupancy or the ryotwari patta of the land, as the case may be,
re-granted under sub- section (1) shall not be transferable otherwise than by
partition among members of the Hindu Joint Family for a period of fifteen years
from the date of commencement of Section 1 of the Karnataka Village Offices
Abolition (Amendment) Act, 1978. In other words, all transfers of re- granted
land are prohibited for a period of fifteen years after 7.8.78 which is the
date of commencement of Section 1 of the amending Act.
In the
present case Section 5(3) is not attracted because case there is no transfer of
the occupancy or the ryotwari patta of the land re-granted under sub-section
(1).
In the
present case there is only an agreement of sale which was entered into prior to
the re-grant.
Under
Section 5(6) which was introduced with effect from 7.8.78 by virtue of the
amending Act, it is provided as follows:- "Notwithstanding anything
contained in any law for the time being in force any agreement for transfer of
land resumed under clause (3) of Section 4, entered into prior to re-grant
thereof under sub-section (1), shall be null and void and any person in
possession thereof in furtherance of such agreement shall be summarily evicted therefrom
by the Deputy Commissioner." There is, therefore, a clear bar on any
agreement for transfer of land being made by the prospective Patta holder prior
to re-grant. Section 5(6) provides that if any such agreement is entered into,
it shall be null and void and any person in possession in pursuance of such an
agreement is liable to be summarily evicted as provided therein. The agreement
of sale, therefore, which was entered into at the time when the seller did not
have any title to the land, will have no legal effect nor the provisions of
Section 53A of the Transfer of Property Act be attracted in such a case.
In the
case of Lakshmana Gowda v. State of Karnataka & Ors. (1981 [1] K.L.J. 1)
the Karnataka High Court had considered some of the provisions of the Principal
Act before its amendment, particularly Section 5(3) and some provisions of the
Amending Act of 1978. It has not dealt with the amended Section 5(6). Since
this decision is relied upon by the Division Bench we would like to refer to
the relevant observations made in the said judgment in so far as they pertain
to an agreement to sell entered into prior to re-grant. The Court considered,
inter alia, the case of an agreement for sale entered into by the holder of the
service Inam prior to the coming into force of the Principal Act.
Since
the lands granted under a service Inam were inalienable, the court has observed
at page 14 (paragraph 68) that an agreement to alienate Service Inam Land
entered into prior to the coming into force of the Principal Act, was wholly
void and not merely voidable. "Even if the proposed alienee under such an
agreement was put in possession of such land in pursuance of such agreement, he
could not derive the benefit of the doctrine of part performance embodied in
Section 53A of the Transfer of Property Act. As stated in Mulla's Commentary on
the Transfer of Property Act (6th Edn.) at page 295, Section 53A is applicable
to a case where a transfer had not been completed in the manner required by law
and not to a case where an agreement to so transfer was void under the law.
Therefore,
neither that section nor the doctrine of equity on which it is founded, would
validate that which the law said was invalid." In dealing with transfers
made after coming into force of the Principal Act, but before its amendment,
the Court said that since Section 5(3) before its amendment permitted transfers
of re-granted land with the sanction of the Deputy Commissioner, the transfer
made prior to the re-grant which was imperfect as the seller had no right over
the land, would be perfected on the seller acquiring such a right on re-grant.
This reasoning cannot apply to a case where the transaction prior to re-grant
is wholly null and void; nor can it apply to a case where transfer after
re-grant is prohibited, as under the amended Section 5(3).
Section
5(6) of the said Act which is introduced under the Amending Act 1978, clearly
provides that an agreement to transfer which is entered into prior to re-grant
is null and void. Nor can a transfer be effected pursuant to such an agreement
after 7.8.78. In view thereof the respondent i.e. defendant, has no right,
title or interest in the suit land under the agreement which is null and void.
Nor can he get a transfer of land pursuant to such an agreement in his favour
after re-grant since such transfers are prohibited for 15 years from 7.8.78
under the amended Section 5(3). The defendant has, therefore, no right, title
or interest in the suit land. Since the land has been re-granted to the
plaintiff, she is entitled to succeed in the suit.
In the
premisses, we allow the appeal and set aside the judgment and order of the
Division Bench of the Karnataka High Court and restore the judgment and decree
of the trial court. The respondent shall pay to the appellants costs of the
appeal.
Back
Pages: 1 2