Full Judgment Text
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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