REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NOS.  1040-1053  OF 2009 (Arising out of SLP (C) Nos. 3733-3746 of 2008)

Ni. Pra Channabasava D.S. Matadhipathigalu   ..Appellant  Kannada Mutt

Versus

C.P. Kaveeramma and Ors.  ..Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in these appeals is to the judgment of a Division Bench of

the Karnataka High Court dismissing the Writ Appeal Nos. 1936-40/2005

and 1941-48/2005 filed  by the appellant  while  allowing the Writ  Appeal

No.2202/2005 filed by the respondents.   

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3. The controversy lies within a very narrow compass.

The  appellant  claims  to  be  the  Mathadhipati  of  the  religious

institution called Kannada Muth. The dispute relates to certain lands which

were granted as Jagir lands by the ruler of Koorg in 1809. The lands were

allotted  in  favour  of  the  predecessor  of  the respondents.  The lands  were

Inam lands and the Imams stood abolished on the enactment of Karnataka

Certain Inams Abolition Act, 1977 (in short the ‘Act’). Upon abolition of

Inams, the lands stood vested with the State free from encumbrances. Since

the Act is one of agrarian reform and the purpose of the Act is to benefit the

original holders of the land, the holders i.e. Inamdars or their tenants were

given right to claim re-grant of the land. An application was made by the

institution for re-grant of the land under the Act. The respondents namely

the erstwhile mortgagees also sought for re-grant of the land. Their claim

was rejected and the land was granted in favour of the Mathadhipati by the

competent authority and the same was affirmed by the Division Bench of

the High Court. Since the occupancy certificate was not being granted, the

appellant    filed  a  Writ  Petition  in  the  nature  of  writ  of  mandamus and

subsequently occupancy certificate was granted. Appellant claimed that he

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was  put  in  possession  by  the  competent  authority  under  the  Act.  The

respondents claimed that by virtue of the order of re-grant in favour of the

appellant,  the  earlier  mortgage  was  revived  and  Tahsildar  had  no

jurisdiction to deliver possession to the appellant. The order of the Tahsildar

for delivery of possession was quashed.  

There  was  an  order  of  remand  passed  by  a  learned  Single  Judge

which was questioned by the respondents.  The Writ Appeals were filed by

the appellant on the ground that the scope and ambit of Section 4 of the Act

has not been considered.  Learned Single Judge found that the Tahsildar had

not  properly  conducted  enquiry  and  set  aside  the  impugned  order  and

remanded  the  matter  to  the  Tahsildar  for  fresh  enquiry.  Learned  Single

Judge further directed that the respondents 1 to 5 should be re-inducted to

possession of the land subject to final result of the enquiry.  The present

appellant aggrieved by the order of the learned Single Judge filed separate

Writ Appeals. Similarly, the respondents also filed Writ Appeal questioning

the order of remand.  

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The Division Bench with reference to Section 43 of the Transfer of

Property Act, 1882 (in short the ‘TP Act’) held that the said provision has

application.

4. Learned counsel for the appellant contended that Section 43 does not

apply and respondents 1 to 5 cannot canvas the doctrine of feeding the grant

by  estoppel.  According  to  him,  their  stand  was  that  Section  43  has  no

application to the facts of the case because the primary requisite of fraud or

erroneous representation which is essential ingredient for invoking Section

43 is absent.  The High Court held that Section 4(2)(b) does not  expressly

or impliedly  provide that after re-grant the encumbrance created would not

get revived.  Under the said provision the land after passing of the Act shall

stand vested in the State Government free from all encumbrances and the

transferees cannot enforce their contractual rights against the Government.

The High Court felt that Section 4(2)(b)  is silent with regard to contractual

rights of the alienee after re-grant  in respect of alienation validly created

prior to vesting in favour of the Government. Therefore, with reference to

Section 43 of the TP Act it was held that it is clearly applicable to the facts

of the case. Accordingly, as noted above Writ Appeals filed by the appellant

were dismissed while that filed by the respondents was allowed.

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5. Section 4 of the Act and Section 43 of TP Act read as follows:

“Section 4- Abolition, vesting of Imams and the consequences thereof:  (1)  Notwithstanding  anything  contained  in  any contract, grant or other instrument or in any decree or order of Court  or  in  any other  law for  the  time being  in  force,  with effect from and on the appointed date, the inam tenure of all imams  and  minor  imams  to  which  this  Act  applies  under Section 2 shall stand abolished.   (2) Save as otherwise expressly provided,  in this Act  with effect  from  and  on  the  appointed  date,  the  following consequences shall ensue, namely:

(a) The provisions of the Act relating to imams of alienated holdings  shall  be  deemed  to  have  been  repealed  in  their application to inam or alienated holding and the provisions of Act and all other enactments applicable to unalienated villages or lands shall apply to the said imams or alienated holding;

(b) all  rights,  title  and  interests  vesting  in  the  inamdar including  those  in  all  communal  lands,  cultivated  lands, uncultivated  lands,  whether  assessed  or  not  waste  lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries shall cease and be vested absolutely in the State Government, free from all encumbrances.   (c)  the  inamdar  shall  cease  to  have  any interest  in  the inam other than interests expressly saved by or under the provisions of this Act ;   (d) all land revenue including the cesses and royalties accruing in respect of lands comprised in such inam villages or minor inams on or after the date of vesting shall be paid to the State Government and not to the inamdar and any payment made in contravention of this clause shall not be valid ;  

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(e) all arrears of land revenue, whether as jodi or quit rent and cesses remaining lawfully due on the date of vesting in respect of any such inam village or minor inam shall, after such date continue to be recovered from the inamdar by whom they were payable  and  may,  without  prejudice  to  any  other  mode  of recovery, be realised by the deduction of the amount of such arrears  and cesses from the amount  payable to such inamdar under this Act;  

(f) no such inam shall be liable to attachment in execution of any decree or other process of any court  and any attachment existing,  on  the  date  of  vesting  or  any  other  order  for attachment  passed  before  such  date  in  respect  of  such  inam village or minor inam shall cease to be in force ;

(g) the State Government may, after removing any obstruction that may be offered, forthwith take possession of the inam and all  accounts,  registers,  pattas,  muchalikas,  maps,  plans  and other  documents  relating  to  the  inam  which  the  State Government may require for the administration thereof;  

(h)  the  inamdar  whose  rights  have  vested  in  the  State Government  under  clause  (b)  shall  be  entitled  only  to  such amount from the State Government as provided in this Act ;  

(i)  the  relationship  of  a  superior  holder  and  inferior  holder shall, as between the inamdar and the holder of a minor inam, be extinguished ;   (j) the tenants in the inam and persons holding under them and holders of minor inams shall, as against the State Government, be entitled only to such rights and privileges and be subject to such conditions as are provided for by or under the Karnataka Land Reforms Act,  1961 and any other  rights  and privileges which may have accrued to them in the inam before the date of vesting against the inamdar shall cease and determine and shall not  be  enforceable  against  the  State  Government  or  such inamdar.

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 43.  Transfer  by  unauthorised  person  who  subsequently acquires interest in property transferred-

Where a person fraudulently or erroneously represents that he is  authorised  to  transfer  certain  immovable  property  and professes  to  transfer  such  property  for  consideration,  such transfer  shall,  at  the option of  the transferee,  operate  on any interest  which the transferor  may acquire in such property at any time during which the contract of transfer subsists.

Nothing  in  this  section  shall  impair  the  right  of transferees in good faith for consideration without notice of the existence of the said option.”

6. A bare reading of Section 4 makes it clear that notwithstanding any

contract the Inam tenure of all imams and minor imams stood abolished and

the  consequences  were  the  passing  of  the  rights,  title  and  interests  as

provided in Section 4(2)(b). The High Court referred to Full Bench decision

of the High Court in Syed Bhasheer Ahamed and Ors. V. State of Karnataka

(ILR 1994 Kar 159). It is to be noted that the factual scenario of that case

was entirely different and it has no application to the facts of the present

case.  The sine quo non for application of Section 43 is that at the initial

stage the  person should have fraudulently or erroneously represented that

he  is  authorized  to  transfer  certain  immovable  property  or  professes  to

transfer  such  property  for  consideration.  Only  if  this  pre-condition  is

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satisfied, the question of option of the transferee arises in case the transferor

acquires any interest in the property at any time during which the contract of

transfer subsists.   Therefore, the High Court was not justified in concluding

Section 43 is relevant.  

7. Learned counsel for the respondents on the other hand submitted that

even if Section 43 has no application, Section 10 of the Act would take care

of the situation.  We find that Section 10 has really no application to the

facts of the case. The same reads as follows:

“10. Saving of right in certain cases.-  (1) Where before the appointed date an inamdar has created any right  in any land which vests in the State Government, other than land registered under  section  5  including  rights  in  any  mines  or  minerals, quarries,  fisheries,  ferries  or  forest,  the  transactions  shall  be deemed  to  be  valid  and  all  rights  and  obligations  arising thereunder on or after the appointed date be enforceable by or against the State Government :  

Provided  that  the  transaction  was  not  void  or  illegal under any law in force at the time :  

Provided further that where such right was created in any land, unless it  relates to lands registered under section 5, the State  Government  may,  if  in  its  opinion,  it  is  in  the  public interest  to  do  so,  by  notice  given  to  the  person  concerned, terminate  the  right  with  effect  from  such  date  as  may  be specified in the notice, not being earlier than three months from the date thereof.  

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(2) The person, whose right has been terminated by the State Government under the foregoing proviso, shall be entitled to an amount from the State Government equal to the estimated net income of such person from the land for the unexpired portion of the period for which the right was created, having regard to all the circumstances of the case.  

(3) Any right or privilege exercised or enjoyed by any person in respect  of  uncultivated  jamma lands  immediately  before  the appointed date shall, notwithstanding anything in this Act and until  other  provision  is  made  in  this  behalf,  continue  to  be exercised or enjoyed.”

8. It is submitted by learned counsel for the respondents that apart from

Section 43 of TP Act and Section 4(2)(b) of the Act, the respondents had

made other submissions which were not considered by the High Court, in

view of its conclusions about applicability of Section 4(2)(b) and/or Section

43 of the T.P. Act in the instant case. Without expressing any opinion about

the  acceptability  of  any  such  stand  we  think  it  proper  to  set  aside  the

impugned  judgment  and  remand  the  matter  to  the  High  Court  for  fresh

consideration.  It  is  made  clear  that  the  issue  relating  to  applicability  of

Section 43 stands closed by virtue of this judgment.  

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9. The appeals are allowed.             

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, February 13, 2009

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