Karnataka High Court
Sri Harish vs Smt.Lakshmamma on 3 September, 2018
Equivalent citations: AIRONLINE 2018 KAR 2518, (2018) 6 KANT LJ 706
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
REGULAR FIRST APPEAL NO.1959/2013
BETWEEN:
SRI HARISH
AGED ABOUT 45 YEARS
S/O LATE D.NARAYANAPPA
R/AT NO.2/1, 14TH MAIN
HAL, 2ND STAGE,
BANGALORE - 560 038 ...APPELLANT
(BY SRI C.M.NAGABUSHANA, ADVOCATE)
AND:
1. SMT.LAKSHMAMMA
AGED ABOUT 81 YEARS
W/O LATE MUNIMARAIAH
2. MUNIMARAIAH
DEAD BY LR'S
2(a). SMT.SAKAMMA
W/O LATE MUNIMARAIAH
AGED ABOUT 60 YEARS
R/AT LAKSHMIPURA VILLAGE
DASANAPURA HOBLI
BANGALORE NORTH TALUK
2(b). SMT.PUTTAMMA
AGED ABOUT 42 YEARS
D/O LATE MUNIMARAIAH
R/AT VEERAVANJIPURA
2
BUDIGAL POST
NELAMANGALA TALUK
BANGALORE.
2(c). SMT.MAYAMMA
D/O LATE MUNIMARAIAH
AGED ABOUT 40 YEARS
2(d). MR.RAJU
AGED ABOUT 35 YEARS
S/O LATE MUNIMARAIAH
2(e). MR.KUMAR
AGED ABOUT 29 YEARS
S/O LATE MUNIMARAIAH
2(f). JAYARAMU
AGED ABOUT 27 YEARS
S/O LATE MUNIMARAIAH
2(c) TO 2(f) ARE RESIDENTS OF
LAKSHMIPURA VILLAGE
DASANAPURA HOBLI
BANGALORE NORTH TALUK
2(g). SMT.GOWRAMMA
MAJOR IN AGE
D/O LATE MUNIMARAIAH
R/AT BYLEKERE
SOLUR HOBLI, MAGADI TALUK
3. SMT.LAKSMIDEVAMMA
AGED ABOUT 28 YEARS
D/O LATE VARADAIAH
ALL ARE R/AT LAKISHMIPURA VILLAGE
DASANAPURA HOBLI
BANGALORE NORTH TALUK
BANGALORE - 562 123 ...RESPONDENTS
(BY SRI JAYAKUMAR S.PATIL, SENIOR COUNSEL FOR
SRI NISHANTH A.V., ADVOCATE)
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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE ORDERS DATED 26.09.2013 PASSED IN I.A.NO.04 IN OS
NO.247/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC, NELAMANGALA, ALLOWING THE I.A.No.4 FILED UNDER
ORDER 7, RULE-11(d) OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred against the order dated 26.9.2013 in O.S.No.247/2011 passed on I.A.No.4 by the Senior Civil Judge and J.M.F.C., Nelamangala, under Order VII Rule 11(d) of CPC. The said application was contested before the Trial Court and the Trial court has allowed the said application and plaint was rejected.
2. The brief factual matrix of the case, which are briefly stated, as follows:
The plaintiff has filed a suit for specific performance of the agreement dated 9.10.2002 alleged to have been executed by the defendants in favour of the plaintiff in order to alienate the suit schedule property i.e., land bearing Sy.No.52/3 measuring 4 acres situated at Lakshmipura Village, Dasanapura Hobli, Bangalore North 4 Taluk. The plaintiff has also sought for an alternative relief directing the defendants to refund the advance consideration with Bank rate interest in the ends of justice.
3. The admitted facts between the parties are that the suit land was a granted land and it falls under the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 ('the Act' for brevity). The grant was made to a Scheduled Castes and Scheduled Tribes person and it is also an admitted fact that it is a contingent agreement entered into between the parties stating that the permission of the Government for alienation of the said land or transfer of the said land is a condition precedent either for the purpose of transferring the said property or acquiring the title over the said property. After due contest of the said application, the Trial Court relying upon various decisions has rejected the plaint in toto.
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4. The learned Counsel for the appellant strenuously contends before this Court that the Trial court has not properly appreciated and interpreted the provision under sub-Section (2) of Section 4 of the Act with reference to Section 3 of the said enactment and the court has treated the agreement of sale on par with sale deed in order to interpret the word "transfer" as contained in Section 4(2) of the said enactment. Instead, the court ought to have given interpretation that the transfer should not include the agreement. The transfer is permitted under the enactment but the rider put under the Act is that the previous sanction of the Government is an absolute requirement for the purpose of transferring the said land.
Learned Counsel further strenuously contends that, for the purpose of entering into an agreement, no permission of the Government is required because Section 4(2) of the Act only contemplates that no person can acquire or transfer the said land without previous permission of the Government. Therefore, the word 6 "transfer" has to be interpreted in such a manner that the transfer of property only divests the title from one person to another person. The agreement will not in any manner divest any right, title or interest over the property in favour of any person. Therefore, such interpretation ought to have been given to the word "transfer" in Section 4(2) of the Act.
5. Per contra, learned Senior Counsel for the respondents strenuously contends before the court that in view of Section 3 of the Act, the special enactment itself describes what is meant by "transfer". Said Section also includes the agreement to sell as transfer though the general law and general interpretation of the word "transfer" defines it as divesting of the right, title and interest in favour of a person. Hence, agreement of sale though do not convey any right, title or interest over the property, but in view of Section 3 of the Act, it should be treated on par with a sale itself. Therefore, the word "transfer" has to be interpreted inclusive of the agreement 7 to sell. That is what exactly has been done by the trial court in rejecting the plaint. Therefore, no interference is called for by this court.
6. On a careful perusal of the order passed by the Trial court, makes it clear that, the trial court has relied upon various rulings to come to a conclusion that the transfer includes the sale agreement also. In order to appreciate the submission of the learned Counsel for the appellant, it is just and necessary to bear in mind the word "transfer" defined under the Act i.e., Section 3 sub-clause
(e) of the Act, which reads thus:
"3(e). "Transfer" means a sale, gift, exchange, mortgage (with or without possession), lease or any other transaction not being a partition among members of a family or a testamentary disposition and includes the creation of a charge or an agreement to sell, exchange, mortgage or lease or enter into any other transaction."
(emphasis supplied) Therefore, in this Act, unless the context otherwise requires the interpretation given by this particular section has to be given effect to, not only to understand by simply 8 reading said provision, but it should be understood with reference to Section 11 of the Act, which is a special enactment. The legislators wanted to give a broad meaning to the word "transfer" used in this particular enactment. Section 11 of the Act reads as follows:
"11. Act to override other laws: The provision of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or any decree or order of a Court, Tribunal or other Authority.
7. If the above said two provisions are understood keeping in juxtaposition with each other, it gives a meaning that, the provision of this particular enactment should be given effect to and interpretation shall be given to as given in Section 3 of the Act only, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any custom, usage or contract or any decree or order of a Court, Tribunal or other authority. That means to say that even though the word "transfer" is defined in any other law either under the Transfer of Property Act or under any other general law for 9 the time being in force, the interpretation of the word "transfer" should not be given any such meaning but the interpretation that should be given as contemplated under Section 3 sub-clause (e) of the enactment. Therefore, if such a meaning is given, the word "transfer" used in this particular provision is inclusive of an agreement to sell.
8. In order to differ from the above view, learned Counsel for the appellant taken me through several decisions, one of which is reported in AIR 1959 Madras 336 in the matter of Vanguard Fire and General Insurance Co.Ltd. -vs- M/s.Fraser and Ross, Chartered Accountants, Madras and Another. Learned Counsel has relied upon paragraph-5 of the said judgment, which says that:
"5. It now remains to consider the scope of Sec.2-D. The contention of Mr.Jagadisa Aiyar was that the word "insurer" in that section should be construed strictly according to the definition of "insurer" in Sec.2(9), with the result that no body could be deemed to be an insurer even for the purpose of Sec.2-D after the body had ceased to carry on new business.
He would limit the application of Sec.2-D to the particular case where a corporate body 10 was originally carrying on insurance business of several classes but subsequently it ceased to carry on one or more of such classes of insurance business, though continuing to carry on other classes of business. In such a case the body could be described as carrying on insurance business though the body had ceased to carry on business of a particular kind, because it was continuing to carry on insurance business of other kinds."
The Court has further observed that-
"We are unable to agree with this contention. Undoubtedly when a term is defined in an enactment, wherever that term occurs, the definition would ordinarily apply; but there is a well-known canon of construction that in certain circumstances when a strict adherence to the rule would lead to an anomaly or repugnance the rule would apply only when there is nothing repugnant to it in the context. Section 2 of the Act, which is the definition section, opens with the words 'Unless there is anything repugnant in the subject or context'."
9. The above said ruling, in my opinion, is not applicable in a straightjacket manner for the simple reason that, if there is any repugnancy between the definition given in the Act with that of General Law, that repugnance can be controlled by giving a proper meaning to the said word to understand the real intention of the legislator. But 11 as I have already noted that there is no repugnancy in the enactment itself, because Section 11 of the Act clearly discloses that even though a restricted meaning is given in the particular provision, but it is for a specific purpose. Therefore, Section 11 of the Act has to be understood in such a manner, the restricted meaning given, which is though opposed to the general meaning, but the restricted meaning should be given in view of Sections 3 and 11 of the enactment.
10. The learned Counsel relied upon another decision reported in AIR 1991 SC 1289 in the matter of N.K.Jain and Others -vs- C.K.Shah and others. At Head Note (D), the Court has said that -
"Definitions in Section 2 of the Provident Funds and Miscellaneous Provisions Act, 1952 should not be applied restricted meaning in view of opening words in Section 2 of the said Act.
Section 2 of the Provident Funds and Miscellaneous Provisions Act, 1952, opens with the words "In this Act, unless the context 12 otherwise requires" are examined in the light of the context, the title, the preamble and all other enacting parts of the statutes, there is much in the context to show that the restricted meaning in the definition should not be applied."
In fact, this ruling favours the respondents in my opinion, because though Section 3 opens with the words that "unless the context otherwise requires", the transfer means inclusive of agreement is to be understood. The context has to be understood by reading the entire enactment itself. What the Apex Court has said that "unless the context otherwise requires" words have to be examined in the light of the context in the said enactment itself; the context should not be examined with reference to any other enactments because of Section 11, which prescribes that anything contained in any other law for the time being in force cannot be used for the purpose of interpreting the provision under this particular Act. 13
11. The last but not the least, the learned Counsel relied upon a decision of the Apex Court reported in AIR 1970 SC 546 in the matter of Nathulal -vs-
Phoolchand; paragraph-5 of the said decision is mainly relied upon where it says that -
"Under the terms of the agreement, Nathulal had undertaken to get the name of his brother Chittarmal removed from the revenue records and to get his own name entered, but the lands continued to stand recorded in the name of Chittarmal till October 6, 1952, and before that date Nathulal rescinded the contract. Again by virtue of Section 70(4) of the Madhya Bharat Land Revenue and Tenancy Act 66 of 1950, Phoolchand not being an agriculturist the land could not be sold to him without the sanction of the State Government. In the absence of any specific clause dealing with this matter, a condition that Nathulal will secure the sanction under Section 70 (4) after paying the appropriate fee must be implied for it is well settled that where by statute property is not transferable without the permission of the authority, an agreement to transfer the 14 property must be deemed subject to the implied condition that the transferor will obtain the sanction of the authority concerned."
Therefore, relying upon the above said provision, learned Counsel would like to agree that agreement itself is not a transfer and agreement will not convey any implied right, title or interest on the transferee. But in this particular paragraph, the Apex Court has not dealt with any of the provision under the Madhya Bharat Land Revenue and Tenancy Act to see whether they were on par with the Karnataka S.C. & S.T. (PTCL) Act, because according to my perception of S.C. & S.T. (PTCL) Act, it is a different enactment where the definition of "transfer" itself is given in the enactment and Section 11 says that the Court cannot interpret the definition given to the word "transfer" under Section 3 other than said section by relying upon any of the provision of law. Therefore, in my opinion, this ruling is also not exactly applicable to the facts and circumstances of this case.
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12. Therefore, this Court is also of the opinion that for the purpose of entering into any agreement, sanction of the Government is required because of the definition given to the word "transfer" under Section 3 of the enactment. Therefore, the agreement is not complete for its enforcement unless the sanction is taken by the competent persons to enforce that agreement itself. Therefore, when it is a contingent agreement and the agreement is dependent upon the condition precedent, then unless that condition is fulfilled, it will not become enforceable. Hence, the Trial Court has rightly rejected the suit so far it relates to the enforcement of the agreement is concerned for the purpose of specific performance.
13. The other argument of the learned Counsel for the appellant is very sound. In none of the decisions cited and relied upon by the Trial Court, it is stated what should happen to the suit if the plaintiff has claimed alternate remedy apart from specific performance of the agreement 16 to sell. In the decision cited by the learned Counsel for the respondent before this Court in ILR 2012 KAR 4261 between Smt.Narasamma and Others -vs-
Sri.K.V.Ramprasad & Another, this Court has vividly dealt with the provisions under the Karnataka S.C. & S.T. (PTCL) Act, with that of general law with regard to the definition of the word "transfer" given under Section 3. But in none of these decisions, the Court has recorded its finding with regard to, if any alternate remedy is available to the party in the same suit, whether the whole plaint can be rejected? On the other hand, the Court has specifically observed that the party may be permitted to amend the suit for the purpose of claiming any alternative relief or the party may be permitted to file a fresh suit for the purpose of claiming alternative remedy of compensation or for recovery of the earnest money paid under the agreement. Therefore, it goes without saying that if any alternative remedy is sought in the same suit, the Court cannot reject the plaint inclusive of the said alternative relief as what has been done by the Trial Court in the present case. 17
14. There is absolutely no reference in the order impugned with reference to the alternative remedy claimed and what should happen to the said remedy so far as the party is concerned. Therefore, in view of the above said decision, i.e., in Smt.Narasamma's case, it is incumbent upon this Court to set aside the order passed by the Trial Court so far as the alternative remedy is concerned, which is very well still available to the plaintiff before the Trial Court. Therefore, the order passed by the Trial Court has to be restricted only to the extent of the relief of asking for specific performance of the agreement. Instead of driving the parties to file some other suit, I feel it just and necessary that the Trial Court be directed to proceed with the matter so far as second relief is concerned in the plaint and dispose of the said suit in accordance with law. With this observation, I proceed to pass the following;
ORDER The appeal is partly allowed. The order dated 26.9.2013 in O.S.No.247/2011 passed on I.A.No.4 by the Senior Civil Judge and J.M.F.C., Nelamangala, rejecting the 18 plaint is only restricted to the first prayer sought in the plaint is concerned. So far as second prayer is concerned, the matter is remitted to the Trial court for disposal of the same in accordance with law.
In view of disposal of the main appeal, I.A.No.4/2016 does not survive for consideration. Hence, it stands disposed off.
Sd/-
JUDGE KNM/-