Karnataka High Court
Late Laxman Lakkappa Durgannavar vs Late Donkappa Fakirappa Duragannavar on 12 March, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
R
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 12TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR SECOND APPEAL NO.2221 OF 2005
(DEC/INJ)
BETWEEN:
LATE LAXMAN LAKKAPPA DURGANNAVAR
SINCE DECEASED BY HIS LRS.
1. KUMAR LAKKAPPA LAXMAPPA DURAGANNAVAR
AGED 14 YEARS
2. KUMAR HANUMANTH
S/O LAXMAPPA DURAGANNAVAR
AGED 12 YEARS
3. KUMAR NARAYAN LAXMAPPA DURAGANNAVAR
AGED 10 YEARS
4. SHRI MUTTAWWA LAXMAPPA DURAGANNAVAR
AGED 8 YEARS
5. SHRI RAYAPPA LAXMAPPA DURAGANNAVAR
AGED 6 YEARS
(APPELLANTS 1 TO 5 BEING MINORS &
R/O UPPARAHATTI, TQ: GOKAK - 591 307
ARE REPRESENTED HEREIN BY THEIR NEXT
FRIEND SRI.LAKKAPPA YALLAPPA KADAKOL,
2
AGE: MAJOR, OCC AGRICULTURE,
R/O.UPPARHATTI, TQ: GOKAK - 591 307)
... APPELLANTS
(BY SRI.ASHOK.R.KALYAN SHETTY
AND SRI.SURESH KUMAR, ADVS.)
AND:
LATE DONKAPPA FAKIRAPPA DURAGANNAVAR
(ORIGINAL DEFENDANT)
SINCE DECEASED BY HIS LRS:
1. SMT. YELLAWWA
W/O LATE DONKAPPA DURGANNAVAR
SINCE DECEASED BY LRS. R2 TO R10.
2. SHRI.PARASAPPA DONKAPPA
DURGANNAVAR, AGED ABOUT 30 YEARS
OCC: AGRICULTURE.
3. SMT.DODDAWWA
W/O LATE HANAMANTH DURGANNAVAR
AGED ABOUT 40 YEARS, OCC: AGRICULTURE
& HOUSE HOLD WORK
4. MASTER BASAVARAJ
S/O HANAMANTH DURGANNAVAR
AGED 16 YEARS, MINOR
5. MASTER RAMESH (RAMAPPA)
S/O HANAMANTH DURGANNAVAR
AGED 14 YEARS, MINOR
6. MASTER FAKIRAPPA
S/O HANAMANTH DURGANNAVAR
AGED 11 YEARS, MINOR
3
RESPONDENTS 4 TO 6 BEING MINORS ARE
REPRESENTED BY THEIR MOTHER AND NATURAL
GUARDIAN RESPONDENT - 3
7. SMT.PAKKAWWA
W/O SIDDAPPA HORATTI
MAJOR
OCC: HOUSE HOLD WORK
R/O MALADINNI
TQ: GOKAK - 591307.
8. SMT.SATTEWWA
W/O LAKKAPPA KADKOL
MAJOR
OCC: HOUSE HOLD WORK
9. SMT.PARVATI
W/O APPAYYA MANNIKERI
MAJOR
OCC: HOUSE HOLD WORK
R/O MALDINNI, TQ. GOKAK
DIST. BELGAUM - 590 001.
10. SMT.SATTEWWA
W/O BHIMAPPA TIGADI
MAJOR
OCC: HOUSE HOLD WORK
R/O KOLVI,
TQ: GOKAK - 591 307.
RESPONDENTS 1 TO 6 AND 8 ARE
ALL R/O UPPARAHATTI,
TQ: GOKAK - 591 307
DIST. BELGAUM - 590 001. ... RESPONDENTS
(R-2 TO R-10 ARE SERVED)
4
THIS RSA IS FILED UNDER SECTION 100 CPC
AGAINST THE JUDGMENT AND DECREE DATED:
30.07.2005 PASSED IN RA. NO.52/2000 ON THE FILE OF
THE ADDL. CIVIL JUDGE (SR.DN), GOKAK, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED:14.03.2000 PASSED IN O.S. NO.267/1995
ON THE FILE OF THE PRL. CIVIL JUDGE (JR. DN) AND
JMFC, GOKAK.
THIS RSA COMING ON FOR FINAL HEARING, THIS
DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellants have filed this appeal challenging the judgment and decree dated 30.07.2005 passed by the learned Additional Civil Judge (Senior Division), Gokak, dismissing the appeal in R.A.52/2000 and confirming the judgment and decree dated 14.03.2000 passed by the learned Principal Civil Judge (Junior Division), Gokak, in O.S. No.267/1995.
2. It will be convenient to refer to the parties in their original characters of plaintiff/s and defendant/s bearing in mind that the plaintiff/s are now appellant/s and defendant/s are now respondent/s.
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3. It is the case of plaintiff that the original propostius Laxmappa had three sons namely Fakirappa, Lakkappa and Balappa. Balappa had gone in adoption to one Balawwa in the same village. The original propositus Laxmappa died long back leaving behind his two sons Lakkappa and Fakirappa as his legal heirs.
During the life time of original propositus, they formed a Hindu joint family and that the joint family possessed certain immovable properties. After the death of the original propositus, the father of plaintiff and father of defendant continued the joint family for some time. The father of the plaintiff died in the year 1978 leaving behind plaintiff as his legal heir and the father of the defendant died in the year 1994 leaving behind defendant and five daughters as his legal heirs.
It is averred in the plaint that originally family of plaintiff and defendant possessed immovable properties bearing Block No.5/11 area measuring 03 acres 16 guntas., Block No.5/12 area measuring 03 acres 04 6 guntas., and land Block No 302/2 area measuring 04 acres 20 guntas., all situated within the revenue limits of Upparatti village, Gokak Taluk.
It is the case of plaintiff that all these lands were tenanted lands of the original propositus. The lands were in joint possession and enjoyment of the father of plaintiff and father of defendant. Hence, they are ancestral and joint family properties of plaintiff and defendant. It is stated that there was a partial partition in landed properties between the father of plaintiff and father of defendant. In that partition, the suit property was fallen to the share of father of plaintiff and block No.5/11 had fallen to the share of father of defendant. The land bearing Block No.302/2 remained in joint possession and enjoyment of both the father of plaintiff and father of defendant.
The partition was orally effected by the original propositus. After the said oral partition, the father of plaintiff was in possession of suit property bearing block No.5/12. The father of defendant was in possession of land 7 bearing Block No.5/11 as tenants. The land Block No.302/2 remained in joint possession and enjoyment of both plaintiff's and defendant's father. But the name of defendant's father appeared in the record of rights as a tenant on behalf of the joint family after the death of the original propositus.
The father of plaintiff filed Form No.7 before the Land Tribunal, Gokak for grant of occupancy rights in respect of the suit property. The same was granted in his favour in the year 1978. Since then, he was in actual possession and enjoyment of the property and after his death, the plaintiff is in actual possession and enjoyment of the same.
The father of defendant filed Form No.7 before the Land Tribunal, Gokak for grant of occupancy rights in respect of land bearing Block No.5/11 and the same was granted in his favour in the year 1975. Since then, he was in possession and enjoyment of the said property. After his 8 death, defendant is in actual possession and enjoyment of the property.
Plaintiff further pleaded that, in the month of September 1995, defendant started interfering and obstructing the peaceful possession and enjoyment of the suit property and also obstructed plaintiff's agricultural operations. It is also averred that defendant challenged the right, title and interest over the suit schedule property contending that he is the owner of the property to an extent of 1/4th share in the suit property.
On enquiry, plaintiff came to know that name of father of defendant was mutated under M.E. No.3511 on 13.04.1988 as he has got 1/4th share in the suit property. After the death of defendant's father, the name of the present defendant was mutated in the revenue records with respect to suit schedule property vide M.E. No.3744 on 02.07.1994.
The contention of plaintiff was that the mutation entry No.3511 was effected behind his back and at the 9 time of mutation entry, he was a minor. The plaintiff's mother has not given joint wardi for effecting the mutation entry. It is also contended that the mutation entry No.3511 was effected in favour of father of defendant in collusion with the revenue authorities.
Hence, plaintiff contended that defendant's father has no right, title or interest to claim 1/4th share in the suit schedule property on the strength of the mutation entry. When the father of defendant did not get any right, title and interest over the suit property, defendant also does not get any right, title and interest under M.E.No.3744. Further, it is also stated that defendant is in no way concerned with the suit property and he is illegally obstructing the peaceful possession and enjoyment of the suit property by plaintiff.
As such, plaintiff filed a suit, the reliefs sought in the plaint are as under:
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PRAYER "Setting aside all the contentions of the defendant, if any the suit of the plaintiff be decreed in the following terms: -
a) it be declared that the plaintiff is the absolute owner of the suit property and consequently the permanent injunction be issued against the defendant, his men, agents, servants or anybody action on his behalf restraining them from obstructing, interfering and disturbing the plaintiff's peaceful possession and enjoyment of the suit property.
b) Alternatively, it is prayed that if this Hon'ble Court comes to the conclusion that the plaintiff is not in possession of the suit property to the extent of 1/4th share, then this Court may kindly be issued a direction to the defendants for handing over the possession to the plaintiff.11
c) Any other relief/s that this Hon'ble Court deems fit and proper to amend the plaint if and when necessary.
d) Cost of the suit be award;
e) Permission to amend the plaint if and when necessary."
4. On service of summons, defendant appeared through his counsel and filed written statement inter alia contended that plaintiff was in need of money as he had incurred loan for his family necessity and was trying to alienate the suit land.
Therefore, plaintiff expressed his intention to alienate the land to the father of defendant and father of defendant agreed to purchase 1/4th share in the suit property along with the right to take water from the well situated in the suit land.
Thus, plaintiff agreed to sell 1/4th share in the suit schedule land for valuable consideration of Rs.28,000/- and accordingly, received a sum of Rs.21,000/- as earnest 12 money and executed an of Agreement for Sale on 29.03.1988 and also handed over the possession of 1/4th share to defendant's father.
It was further contended that there was an understanding between father of plaintiff and defendant's father that they would cultivate the land separately. Thus, father of defendant was cultivating western portion of the suit land and the remaining portion was cultivated by plaintiff. Even after the death of defendant's father, defendant continued in peaceful possession and enjoyment of the suit property.
Hence, contention of defendant was that he was raising the crops and was personally cultivating the land. It is also contended by defendant that to pay the consideration amount, his father had raised loan and advanced the amount to plaintiff for the purchase of the land. Subsequently, defendant and his father sold the land bearing Block No.66/3 situated at Tupasi village on 04.05.1988 in favour of one Laxmappa Ramappa Tigadi to 13 meet out the loan raised by them for purchasing the suit land.
It is the case of defendant that the suit land is a granted land i.e., occupancy rights were granted in favour of plaintiff by the Land Tribunal, Gokak. Therefore, plaintiff had undertaken to execute the sale deed after obtaining permission from the concerned authorities. He had also undertaken to intimate through post the readiness and willingness to execute the sale deed.
Therefore, defendant contended that plaintiff suppressed the material facts and has filed the suit for declaration, recovery of possession and injunction without seeking the relief of setting aside the agreement for sale. Therefore, contended that the suit is not maintainable. Accordingly, defendant prayed for the dismissal of the suit. 14
5. On the basis of the pleadings, the trial Court framed the following issues:
"1. Does the plaintiff prove that he is the absolute owner of the suit property?
2. Does the plaintiff prove that he is in possession of the suit property on the date of filing the suit?
3. Does the defendant prove that the suit of the plaintiff is not maintainable as contended in para No.8 of W.S.?
4. Does the defendant prove; this Court has no pecuniary jurisdiction to try this suit?
5. Does the court fee paid is insufficient?
6. Does the plaintiff is entitled for relief of declaration as prayed?
7. Does the plaintiff prove that he is entitled for permanent injunction as prayed?
8. Does the plaintiff further proves that he is entitled for alternative claim as prayed?
9. What order or decree?"15
6. To substantiate the case, plaintiff got examined himself as PW-1 and produced 8 documents which were marked as Exhibits P-1 to P-8. The power of attorney holder of defendant was examined as DW1 and he got examined 2 witnesses as DWs.2 and 3 and produced 8 documents which were marked as Exhibits D-1 to D-8.
7. After hearing learned counsel for the parties, the trial Court answered issue Nos.1 and 6 in the affirmative and issue Nos.2, 3, 4, 5, 7 and 8 in the negative. The trial Court held that plaintiff is the absolute owner of Block No.5/12 measuring 03 acres 04 guntas situated at Upparahatti Village. The trial Court rejected the claim of plaintiff in so far the relief of injunction and dismissed the suit for recovery of possession.
8. Aggrieved by the said judgment and decree, plaintiff preferred an appeal in R.A.No.52 of 2000 on the file of Additional Civil Judge (Senior Division), Gokak, insofar as the rejection of relief of possession. The First Appellate Court dismissed the appeal. During the pendency 16 of the appeal, the original plaintiff died and hence his legal representatives are brought on record. Aggrieved by the judgment and decree of the First Appellate Court, this appeal is filed under Section 100 of the Code of Civil Procedure, 1908.
9. The appeal is admitted on 28.5.2008 to consider the following substantial questions of law:
1. Whether the Courts below are justified in concluding that the defendant is entitled to protect his possession of the suit property by virtue of Section 53-A of Transfer of Property Act notwithstanding the appellant being declared as the owner of the suit property?
2. Whether the sale agreement-Ex.D.2 could have been banked upon by the Court below having regard to the provisions of the Karnataka Land Reforms Act, which prohibits alienation for a period of 15 years?"17
10. I have heard the submission and the contention put forth by the learned counsel for appellants. Respondents though served, have remained unrepresented.
11. Learned counsel for appellants submitted that the judgment and decree of both the Courts below regarding the rejection of relief of possession is opposed to law, facts, material evidence on record and probabilities of case and hence liable to be set aside.
He has submitted that both the Courts below having declared plaintiff as the owner of suit schedule property, ought to have held that he is entitled for the relief of possession and thus the rejection of relief for possession has resulted in miscarriage of justice.
He further submitted that both the Courts below have erred in law in applying the provisions of Section 53- A of the Transfer of Property Act. The reasons assigned by both the Courts below are unsustainable in law. 18
A further submission was made that the agreement for sale which is at Ex. D-2, is in the name of Fakirappa Laxmappa Durgannavar i.e., the father of original defendant and it is not in the name of defendant. Therefore, the said agreement does not enure to the benefit of defendant upon the death of his father.
He further submitted that both the Courts below have not properly considered the doctrine of Part Performance. Consequently, the conclusion arrived at in putting the transferee in possession of the land in question in pursuance of the agreement for sale cannot be sustained.
In fact, plaintiff had denied the fact that the father of defendant was put in possession of the property in pursuance of the agreement for sale. Further, defendant has not proved by adducing requisite legal evidence that his father took possession of the land pursuant to the sale agreement.
19
Lastly, he contended that the agreement for sale which is at Ex D-2 is in violation of the provisions of the Karnataka Land Reforms Act, 1961. The same is unenforceable. He submitted that in fact, plaintiff had denied the execution of the agreement for sale. Assuming that there is an agreement for sale, the agreement is within the non-alienation period i.e., 15 years from the date of the order of the Land Tribunal. Hence, the same is in violation of the provisions of the Karnataka Land Reforms Act, 1961.
Thus, the agreement is illegal and cannot be enforced. Hence, he submitted that defendant is not entitled to claim benefit of Section 53- A of the Transfer of Property Act. Therefore, the Courts below are not justified in holding that defendant is entitled for the benefit of Section 53-A of the Transfer of Property Act.
In support of the contention, learned counsel for appellants relied upon the decision of the Hon'ble Supreme Court in NARAYANAMMA AND ANOTHER VS.
20GOVINDAPPA AND OTHERS reported in 2019 AIAR (Civil) 1031. He submitted that the Hon'ble Supreme Court has held that an agreement for sale is nothing short of a transfer of property. Under Section 61 of the Karnataka Land Reforms Act, 1961, there is a complete prohibition of transfer of land for a period of 15 years from the date of the grant.
Therefore, he submitted that if the decree is confirmed in favour of defendant on the basis of an agreement which is hit by a statute, it will be rendering an active assistance of the Court in enforcing an agreement which is contrary to law. Therefore, he submitted that the law laid down by the Hon'ble Apex Court is directly applicable to the facts of the present case.
Accordingly, he submitted that the judgment and decree of both the courts below are liable to be set aside and prayed that the appeal may be allowed
12. I have carefully considered the submissions made by learned counsel for appellants and perused the 21 judgment and decree of both the Courts below and the material evidence on record.
13. Plaintiff had filed suit seeking declaration that he is the absolute owner of the suit property and had sought for permanent and for recovery of possession to an extent of 1/4th share in the suit schedule property.
It is an admitted fact that Block No.5/12 measuring 03 acres 04 guntas situated at Upparahatti Village was tenanted land and the occupancy right was granted to the father of plaintiff on 15.4.1978 by the Land Tribunal, Gokak. It is also admitted by defendant that plaintiff is the absolute owner of land bearing Block No.5/12.
Defendant had urged that his father was put in possession of the suit property by virtue of agreement for sale. Though plaintiff had denied the execution of the agreement for sale, but the trial Court has held that the plaintiff has executed the agreement for sale in favour of the father of defendant and has put him in possession of the property pursuance to the said agreement. The trial 22 Court has held that plaintiff is not in possession of the suit property as on the date of filing of the suit.
14. The trial Court, while answering Issue Nos.2 and 7 has come to the conclusion that defendant has proved his possession over the suit property on the basis of agreement for sale (Exhibit D-2) by examining the scribe and attesting witnesses as per the provisions of the Indian Evidence Act, 1872. The trial Court has also held that as plaintiff is not in possession of the suit property, he is not entitled for any injunction. The trial Court thus rejected the prayer for possession.
However, the trial Court decreed the suit in part and has held that plaintiff is the absolute owner of the land bearing Block No.5/12 measuring 03 acres 04 guntas situated at Upparahatti Village.
The material on record does not disclose that defendant has preferred any appeal as against the decree 23 passed in favour of plaintiff in the suit in so far as the relief of declaration is concerned.
Aggrieved by the judgment and decree of the trial Court, plaintiff preferred an appeal before the First Appellate Court challenging the rejection of relief of possession.
15. The First Appellate Court confirmed the judgment and decree passed by the trial Court. As could be seen from the judgment and decree, the First Appellate Court, has relied upon Section 53-A of the Transfer of Property Act, 1882 and has come to the conclusion that defendant's father had taken possession of the land in question, in part performance of the contract and that defendant is entitled to the benefit of Section 53-A of the Transfer of Property Act, 1882. Accordingly, the Court rejected the relief of possession as sought by plaintiff. Hence, plaintiff has filed this appeal.
16. This Court has framed two substantial questions of law. Hence, the questions for decision in this appeal are 24 'whether the enforcement of agreement for sale would result in transgression of the provisions of the Karnataka Land Reforms Act, 1961? and 'whether defendant is entitled to the protection of part performance under Section 53-A of Transfer Property Act?' In order to have a clarity in the matter, I would like to answer the second substantial question of law first and later answer the first one.
17. Before, I answer the second substantial question of law, it would be necessary to refer to Section 61 of the Karnataka Land Reforms Act, 1961 which reads as under:
"61. Restriction of transfer of land of which tenant has become occupant - (1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this chapter shall within fifteen years from the date of the final order, passed by the Tribunal under sub-section (4) or sub-section (5) or sub-section (5-A) of section 48-A be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder's joint family.
(2) Notwithstanding anything contained in sub-section (1) , it shall be lawful for the 25 occupant registered as such or his successor-
in-title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government (a financial institution, a co-operative land development bank, a co- operative society) or a company as defined in Section 3 of the Companies Act, 1956 in which not less than fifty one per cent of the paid up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or by both for development of land or improvement of agricultural practices; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilized in the payment of such loan.
(3) Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77."
The Karnataka Land Reforms Act, 1961 creates an embargo on transfer of land within 15 years from the date of the order of Land Tribunal.
The language used in Section 61 of the Act would also disclose that the legislature has imposed a restriction 26 on transfer of land. Erstwhile tenant, who has become occupant of land, is prohibited from selling land within 15 years from the date of final order passed by the Tribunal. Sale made in contravention of prohibition being invalid, would invite the State Government to resume the land free from all encumbrances, for granting same to other landless persons eligible for occupancy.
18. Let me consider what facts I have here. The Land Tribunal, Gokak granted occupancy rights in favour of plaintiff's father on 15.4.1978 and he was in peaceful possession and enjoyment of the same. After his death, plaintiff continued in possession of the suit property. There is an agreement for sale dated 29.3.1988 in favour of the father of the defendant and he was put in possession of the land in question to an extent of 1/4th share in pursuance of the agreement for sale.
19. I have carefully perused the original records. As could be seen from the records, the original agreement 27 for sale was produced and the same was marked as Exhibit D-2. After the production and marking of the document, defendant has taken back the original agreement to produce the same in the suit which he had filed against plaintiff for the relief of specific performance.
20. The occupancy rights were granted by the Land Tribunal, Gokak on 15.4.1978 in favour of the father of plaintiff. The agreement for sale is at Ex.D-2 dated 29.3.1988.
It follows therefore, that the contract is in violation of Section 61 of the Karnataka Land Reforms Act, 1961 as the contract is entered within the prohibited period of 15 years.
21. The law on the subject has been recently stated by Justice B.R. Gavai in NARAYANAMMA AND ANOTHER VS. GOVINDAPPA AND OTHERS referred to supra.
The Apex Court at paragraph 23 has held that the transaction i.e., agreement for sale is nothing short of a 28 transfer of property. Under Section 61 of the Karnataka Land Reforms Act, 1961, there is a complete prohibition of transfer of land for a period of 15 years from the date of grant. I respectfully agree with the statement of law laid down by the Hon'ble Supreme Court.
22. The decision of the Apex Court and the law laid down is applicable to the facts and circumstances of the present case.
Even according to defendant, the order of the land tribunal is made in the year 1978. As such, the transfer in question in the year 1988 is beyond any doubt within the prohibited period of 15 years. This Court is of the view that the agreement for sale (Ex.D-2) is in violation of the provisions of the Karnataka Land Reforms Act, 1961 and hence, the same would result in transgression of Section 61 of the Karnataka Land Reforms Act, 1961.
23. I, come therefore, to the conclusion that the agreement for sale is hit by Section 61 of the Karnataka 29 Land Reforms Act, 1961. Accordingly, the second substantial question of law is answered.
24. The next question which requires to be answered is, whether the courts below are justified in holding that defendant is entitled to protect his possession by virtue of section 53 -A of Transfer of Property Act despite plaintiff being declared as the owner of the suit property?
25. In order to examine the scope and extent of rights under section 53-A of the Transfer of Property Act, 1882, it will be more advantageous to reproduce the same, which reads as under.
"53-A. Part performance - Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, 30 then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
Section 53-A was first enacted in 1929 by the Transfer of Property (Amendment) Act, 1929, and imports into India a modified form of the equity of part performance as developed in England in Maddison Vs Alderson (1883) 8 App. Cas 467.
The Section has been described by the Privy Council in PIR BUX, khan Bahadur Mian V. MOHOMED TAHAR, Sardar reported in AIR 1934 PC 235 and the Hon'ble Supreme Court in MANEKLAL MANSUKHBHAI VS HONNUUSJI JAMSHEDJI reported in AIR 1950 SC 1, as 31 a partial importation of the English equitable doctrine of part performance.
By virtue of Section 53-A of Transfer of property Act, part performance does not give rise to an equity, as in England, but to a statutory right. This right is more restricted than the English equity in two respects, (1) there must be a written contract, and (2) it is only available as a defence.
So far as India is concerned, the section creates rights which were not in existence before the enactment was passed. These rights to retain possession rest on the express provisions of the statute. Section 53-A of the Transfer of Property Act insists upon proof of some acts having been done in furtherance of the contract. The acts claimed to be in part performance must be unequivocally referable to the pre-existing contract, and point in the direction of the existence of contract.
26. In this background, this Court has to ascertain whether defendant is entitled to the benefit of part 32 performance and maintain his possession on the basis of an illegal agreement.
As already observed above, section 53-A was introduced into the Transfer of Property Act by (Amendment) Act, 1929.
The conditions to attract section 53-A are that there should be an agreement for sale in writing, transfer of possession (physical) of property to prospective purchaser, readiness and willingness of purchaser to complete his obligations to purchase and that such purchaser who is put into possession doing some act (independent of the contract) in furtherance of the contract.
Section 53-A furnishes a statutory defense to a person who has no registered deed of title in his favour to maintain his possession if he can prove an agreement in writing and some act on his part in furtherance of contract but independent thereof.
The section specifically allows the doctrine of part performance to be applied to agreements which are valid and where possession is supported by a valid agreement. 33 The doctrine of part performance cannot be availed of in respect of a transaction which is null and void.
27. In the instant case, defendant has specifically contended that his father was put in possession of the suit property to an extent of 1/4th share in pursuance of the agreement for sale which is at Ex D-2 and defendant is seeking protection of his possession on the basis of the agreement for sale.
The trial court has rejected the relief of possession on the ground that plaintiff was not in possession of the suit property as on the date of filing of the suit.
The First Appellate Court has relied upon the decision in SHRIMANT SHAMRAO SURYAVANSHI AND ANOTHER VS PRALHAD BHAIROBA SURYAVANSHI AND OTHERS reported in AIR 2002 SC 960.
The finding of the Court is that the transferee is not precluded from taking a plea in his defense to protect his possession over the suit schedule property which was obtained in pursuance of part performance of the contract 34 even after the expiry of period of limitation for bringing a suit for specific performance of the contract.
I need not discuss in detail the findings recorded by both the Courts below.
28. But, I have no doubt in my mind that the doctrine of part performance could have no place in the present case as defendant is seeking protection of his possession on the basis of an agreement for sale which is hit by Section 61 of the Karnataka Land Reforms Act, 1961.
All said and done, a prospective purchaser cannot utilize the agreement for sale (with possession) as protection of possession under section 53-A of Transfer of Property Act.
A transfer in contravention of Section 61 of the Karnataka Land Reforms Act, 1961 being void, Section 53- A of the said Act cannot be invoked in such a case.
Hence, defendant cannot avail the benefit of doctrine of part performance to maintain his possession. 35
It follows, therefore, that when the transaction is expressly prohibited under the Karnataka Land Reforms Act, 1961, the doctrine of part performance cannot be permitted to be invoked under these circumstances.
29. It seems to me that both the Courts below do not in this passage sufficiently bear in mind that question is not mere the application of Section 53-A of the Transfer of Property Act, 1882, but also the question relating to the application of the provisions of the Karnataka Land Reforms Act, 1961.
Therefore, the Courts below are not justified in protecting the possession of defendant on the basis an illegal agreement.
The Court below have totally ignored this aspect. Indeed, the Appellate Judge has made a short shrift of Section 53-A of Transfer of Property Act, 1882. 36
The trial Court and the first Appellate Court have failed to have regard to relevant considerations and disregarded relevant matters.
Therefore, the finding of fact recorded by both the Courts below that the defendant is entitled to the benefit of part performance is wholly unsustainable in law.
30. In my view, this is a fit case for interference. It is settled law that where the concurrent findings of fact are vitiated by non-consideration of the relevant provisions of law or by essentially wrong approach, the High Court is not precluded from recording proper findings under Section 100 of the Code of Civil Procedure (Jagdish Singh Vs. Nathu Singh AIR 1992 SC 1604).
31. Plaintiff has established his title to the suit property. The transaction i.e., agreement for sale is hit by section 61 of the Karnataka Land Reforms Act. Therefore, 37 the agreement is outside the scope of the doctrine of part performance.
So, it follows that defendant is not entitled for the benefit of statutory right of part performance to maintain his possession over the suit schedule property. Accordingly, the first substantial question of law is answered.
32. In the present case, defendant has claimed the benefit of part performance to protect his possession by virtue of agreement for sale dated 29.3.1988. The possession was delivered in pursuance of an illegal agreement. There is no other foundation except agreement for sale.
As already observe above, the transaction is clearly hit by Section 61 of the Karnataka Land Reforms Act 1961 and defendant is not entitled for protection of his possession on the basis of an illegal agreement.
Therefore, if the decree is confirmed in favour of defendant on the basis of an illegal agreement which is hit 38 by a statute, it will be rendering an active assistance of the court in enforcing an agreement which is contrary to law.
33. The general principle, founded on public policy, is that any transaction that is tainted by illegality in which both parties are equally involved is beyond the pale of the law. No person can claim any right or remedy whatsoever under an illegal transaction in which he has participated. Ex turpi causa non oritur action. The Court is bound to veto the enforcement of a contract once it knows that it is illegal, whether the knowledge comes from the statement of the guilty party or from outside sources.
In SITA RAM V. RADHA BAI reported in AIR 1968 SC 534 [by three Judges Bench], wherein the Hon'ble Apex Court has dealt with maxim "in pari delicto potior est conditio defendentis" and explained the same with reference to the Contract Act and Civil Procedure Code.
The Apex Court has explained the principle that the Court will refuse to enforce an illegal agreement at the 39 instance of a person who is himself a party to an illegality or fraud.
Recently, the Hon'ble Apex Court in 2019 AIAR (Civil) 1031 referred to supra, has elaborately considered the application of the maxim ex dolo malo non oritur actio and public policy.
In delivering the judgment, Justice. B.R.Gavai, has referred to earlier cases bearing on the subject and has held that Court will refuse to enforce an illegal agreement.
I am bound to take the law as it has been laid down by the Hon'ble Apex Court. The same is applicable to the facts and circumstances of the present case.
34. Both the Courts below have protected the possession of defendant applying the doctrine of part performance. As held by Supreme Court in Narayanamma's case, if the possession of defendant is protected on the basis of an illegal agreement which is hit by a statute, it will be rendering an active assistance of the Court in enforcing an agreement which is contrary to law. 40
As against this, if the balance is tilted towards plaintiff, no doubt that he would stand benefited in spite of committing an illegality. However, what the Court would be doing is only rendering assistance which is purely of a passive character.
35. In the result, the suit for recovery of possession is hereby decreed. Defendants are hereby directed to put plaintiff in possession of 1/4th share in the suit schedule property. Accordingly, I pass the following:
ORDER
i) The appeal is accordingly allowed.
ii) The judgment and decree dated 14.03.2000 passed by the learned Principal Civil Judge (Jr.Dn.) & JMFC, Gokak, in O.S. No.267/1995 and confirmed by the learned Additional Civil Judge (Sr.Dn.), Gokak, in R.A.52/2000 are hereby set aside.41
iii) Parties to be bear their own costs.
Sd/-
JUDGE bkp