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PETITIONER: TAIBAI (DEAD) BY LRS.

       Vs.

RESPONDENT: ANNASAHEB GOUDAPPA PATIL

DATE OF JUDGMENT16/11/1995

BENCH: MANOHAR SUJATA V. (J) BENCH: MANOHAR SUJATA V. (J) PUNCHHI, M.M.

CITATION:  1996 SCC  (1) 585

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Mrs.Sujata V.Manohar, J.      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

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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

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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.