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1987 DIGILAW 255 (KAR)

CHIKKAMADAKKA v. DURGAPPA

1987-08-18

S.R.RAJASEKHARA MURTHY

body1987
RAJASEKHARA MURTHY, J. ( 1 ) FATHER of the first and second respondents peddanabovi was granted 5 acres in sy. No. 429 in a Dharkast in the year 1956-57 with a condition that the granted land should not be sold for a period of 15 years. Petitioner purchased 2 acres 20 guntas of land in Sy. No. 429 (old Sy. No. 55) in somanahalli village, Gudibande taluk, Kolar district, from respondents 1 and 2 under a registered sale-deed dated 4-12-1967. By another sale deed dated - 17-8-70 the petitioner's son purchased an extent of 1 acre 10 guntas from the same survey number from respondent-1. ( 2 ) THE same lands, namely, 3 acres 10 guntas, out of 5 acres granted to the said Peddanabovi was again sold by respondents 1 and 2 in favour of the petitioner by another registered sale - deed dated 1-6-76. The petitioner is in possession and enjoyment of the said lands purchased under the sale deeds dated 4-12-1967, 17-8- 1970 and 1-6-1976. After the Karnataka Sheduled Castes and scheduled Tribes (Prohibition of Transfer of certain lands) Act, 1978 the 'act' was enacted, respondents 1 and 2 made an application to the Assistant Commissioner, chikballapur Sub-Division for restoration of the lands sold to the petitioner under the sale deeds referred to above. The Assistant commissioner by his order dated 25-10-83 declared the sale -deeds void under Section 4 (1) of the Act and ordered restoration of possession to respondents -1 and 2. Aggrieved by the said order, the petitioner filed an appeal before the Special deputy Commissioner, Kolar, who, by his order dated 26-12-86 dismissed the appeal, and upheld the order of the Assistant Commissioner. In this writ petition the petitioner has challenged the orders of the Asst. Commissioner and the Deputy Commissioner. ( 3 ) THE sole ground on which the petitioner has challenged the two orders is, that the sale deed dated 1-6-76 was executed after 15 years from the date of grant during the year - 56-57, and the orders declaring the sales null and void under the Act is, therefore, liable to be set aside. ( 3 ) THE sole ground on which the petitioner has challenged the two orders is, that the sale deed dated 1-6-76 was executed after 15 years from the date of grant during the year - 56-57, and the orders declaring the sales null and void under the Act is, therefore, liable to be set aside. Sri P. Subba Rao, learned Counsel for the petitioner, elaborating his contention submitted that the title of the first respondent in the land in question was not lost and respondents - 1 and 2 were competent to transfer the very same land through the subsequent sale deed dated 1-6-1976. It was further urged that this sale deed which was executed beyond the period of alienation and cannot be declared void under the Act and the transaction conferred valid title on the purchaser. ( 4 ) THIS submission of Sri. Subba Rao has to be carefully examined in the light of the decision of this Court in KRISHNAPPA v state OF KARNATAKA and ORS. (1982 (2) k. L. C. 339) as to the effect of Section 4 of the Act on the alienations which are declared void under the Act. This court held at page 348, as follows:"section 4 of the Act has altered the legal position by rendering null and void such alienation which was merely voidable. As stated earlier, Sub-sec. (1) of Section 4 declares that notwithstanding anything in law, agreement, contract or instrument, any transfer of granted land, before or after the commencement of the Act, in contravention of the terms of such grant, shall be null and void and that no title, right or interest in such land shall be conveyed or deemed even to have been conveyed by such transfer. " ( 5 ) THE ratio of this decision was reiterated by in a laterdivision Bench decision in LAX- mamma v STATE OF KARNATAKA and ors. (1983 (1) Kar. LJ. 417. though, the main issue that was considered was different there was no further appeal to the supreme Court so far as the validity of the act was concerned, which was upheld by this court in the said decision. (1983 (1) Kar. LJ. 417. though, the main issue that was considered was different there was no further appeal to the supreme Court so far as the validity of the act was concerned, which was upheld by this court in the said decision. But, in MANCHEGOWDA v STATE (1984 (2) Kar.- L J. page -l),though the main contention before the Supreme Court was, the transfers effected before the Act came into force should not be declared void, the supreme Court did refer to the scheme of the Act, and the effect of Section 4 on all transfers whether made prior to the coming into force of the Act or after, was also considered. However, dealing with the right of the transferees under the Act, the Court held at page -12 (para-21) as follows:- "with the enactment of the Act, the voidable right or title of the transferee in the granted lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in Sections 4 and 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. We have held that it is clearly open to the legislature to declare void, the transfers of granted lands in contravention of the condition of prohibition on transfer. As soon as such transfers are rendered void by virtue of the provisions of the Act, the transferee does not have any right in the granted lands so transferred and possession is sought to be recovered of such lands in which the transferees have lost their right and interest. " ( 6 ) THE Act has thus been subjected to interpretation as to its validity, both before this court and the Supreme Court. Keeping this enunciation in view, let me examine the contention of Sri Subba Rao, whether the grantee retained any right or title to convey the same land by a subsequent sale deed after the prohibited period. That the subsequent sale deed dated 1-6-76 was got executed with the intention of avoiding application of the act, is not in dispute. Keeping this enunciation in view, let me examine the contention of Sri Subba Rao, whether the grantee retained any right or title to convey the same land by a subsequent sale deed after the prohibited period. That the subsequent sale deed dated 1-6-76 was got executed with the intention of avoiding application of the act, is not in dispute. Section 4, as amended, declares all sales made in contravention of the conditions of grant, null and void, and further declares that no right, title or interest in such land shall be conveyed or deemed to have conveyed by such transfer. Any transfer made in contravention of the terms of the grant, is thus declared void by the Legislature under the statute. Sub-Section (2) also prohibits transfer of any granted land by the grantee and acquisition of such land by the alienee without the previous permission of the Government. Sub-Section (3) further imposes prohibition of sale of such land in execution of a decree or order of a civil-court or of any award or order of any other authority. The above provisions thus prohibit the grantee from making any transfer after the commencement of the Act and the prohibition equally applies to any further transfer after the period of prohibition, which will be as ineffective and invalid in law, as the first transfer. Such subsequent transfers are also held bad in Laxmamma's case. (1983 (1) Kar. L. J. 417 ). If the contention of Sri Subba Rao is accepted, every grantee can, with impunity, claim immunity from the application of Section 4, and the transferee by the mere fact of the subsequent sale executed by the very same vendor after the expiry of prohibition period, defeat the purpose and object of the act. ( 7 ) REVERTING to this Court's decision in krishnappa's case, this Court distinguished the two decisions relied upon by the learned advocate General, they are:- (i) BATCHU RAMAYYA v DHARA sitchi (1913 Mad. LJ. 635), (ii) ANJANEYALU v VENUGOPAL rice MILLS - (1922 Mad 197), on the ground that both the decisions related to alienations of service inam-lands which had not been enfranchised. The alienations were held to be bad in view of Section 6 (h) of the Transfer of Property Act, which prohibits transfer of property where it is opposed to public policy and therefore the alienations were held to be wholly void under the law. The alienations were held to be bad in view of Section 6 (h) of the Transfer of Property Act, which prohibits transfer of property where it is opposed to public policy and therefore the alienations were held to be wholly void under the law. Same is the-view expressed by the Supreme court in Manchegowda's case. Section 6 (h) of the T. P. Act lays down that no transfer can be made for an unlawful object consideration within the meaning of section 23 of the Indian Contract Act. Sub- clause (1) further provides that nothing in that Section would authorise a tenant having an untransferable right of occupancy to assign his right as such tenant. Justice Sulaiman's observation made in a full Bench decision of the Allahabad High court in DIP NAvain SINGH v NAGESHWAR prasad and Anr. (1929 (42) I. L. R. 338), are worth repeating:"there is a clear distinction between an agreement which may be forbidden by law and one which is merely declared to be void. In the former case the Legislature penalises it or prohibits it. In the latter case, it merely refuses to give effect to it. If a void contract has been carried out and consideration has passed, the promisor may not in equity be allowed to go back upon it without restoring the benefit which he has received. But if the promisee comes to court to enforce it he would receive no help from a court of law. As pointed out above, the transfer of an occupancy tenancy is not actually forbidden by law but is declared to be void. "his Lordship was making a distinction in the said case in the context of the provisions of Agra Tenancy act. The Court declared that the transfer of occupancy lands was void on the ground of incompetency of the tenant to make the transfer by virtue of Section 21 of the Act. The High Court held further, that these provisions merely made an attempted transfer, absolutely void and incapable of being enforced by a court of law. It , therefore, follows that in view of the provisions of Section 4 of the Act any transfer made in contravention of the terms of the grant is null and void and no right, title or interest in such land could be conveyed nor be deemed ever to have conveyed by such transfer. It , therefore, follows that in view of the provisions of Section 4 of the Act any transfer made in contravention of the terms of the grant is null and void and no right, title or interest in such land could be conveyed nor be deemed ever to have conveyed by such transfer. Such transfers are liable to be declared null and void, both on the ground that the grantee was incompetent to transfer the granted land in view of the prohibition imposed by the Act and also on the ground that such transfers are opposed to public policy. ( 8 ) THE transferee cannot rely upon the mere fact of transfer taking place beyond the non-alienation period. The vendor was incompetent to make any transfer, both on the day the first sale was made as well as on the subsequent date. The incompetency applies with greater force to the second sale since the first sale itself was void under the Act and the grantee cannot take shelter to perpetuate the void transaction by executing another sale deed in favour of the same purchaser after the non- alienation period. The Writpetition, therefore, fails and is accordingly dismissed. Writ Petition dismissed. --- *** --- .