IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO R.S.A.No.1376/2014 BETWEEN:
1 . SMT.MUNIYAMMA AGED ABOUT 80 YEARS W/O MUNISHAMY RESIDING AT SINTHAMUTHAM SINGASAMUDRAM POST KUPPAM TALUK CHITTOR DISTRICT 2 . MR GOVINDAPPA AGED ABOUT 70 YEARS S/O NANDIGIYAPPA RESIDING AT MEDATTI KASABA HOBLI MALUR TALUK 3 . SMT DHANALAXAMMA AGED ABOUT 60 YEARS D/O MALUR MUNIYAMMA W/O GOVINDAPPA RESIDING AT MEDATTI KASABA HOBLI, MALUR TALUK PRESENTLY RESIDING AT CHINNASANDRA C/O GOVINDAPPA VIJALAPURA POST. ..APPELLANTS (BY SRI VIJAYAKUMAR K., ADVOCATE) AND:
SRI MUNINANJASHETTY AGED ABOUT 60 YEARS S/O PAPA SHETTY SINCE DEAD, HENCE REPRESENTED BY LRS 1. MR VENKATESH AGED ABOUT 40 YEARS S/O LATE MUNINANJASHETTY RESIDING AT MEDATTI KASABA HOBLI MALUR TALUK – 563 130.
2 . SMT. MUNILAKSHMAMMA AGED ABOUT 50 YEARS RESIDING AT MEDATTI KASABA HOBLI MALUR TALUK – 563 130.
...RESPONDENTS (BY SRI RAMAIAH GOWDA L M, ADVOCATE FOR C/R) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED:10.7.2014 PASSED IN R.A.No.76/2011 (OLD R.A.No.134/2007) ON THE FILE OF THE SENIOR CIVIL JUDGE, MALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.4.2007 PASSED IN OS.No.336/1993 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (JR.DN) MALUR.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The matter is listed for admission. Considering the age and stage of the case, with the consent of the learned counsel, it is taken up for final disposal.
2. This appeal by the defendants/appellants is directed against the judgment and decree passed by the learned Senior Civil Judge and JMFC at Malur, dated 10th July, 2014, in R.A.No.76/2011 under which, (old R.A No.134/2007), appeal preferred against the judgment and decree passed by the learned Additional Civil Judge, Junior Division, Malur, in O.S.No.336/1993 dated 16th April, 2007, came to be confirmed.
3. In order to avoid over-lapping and confusion the parties are referred in accordance with the rank and status held by them before the trial court.
4. In so far as Original Suit – O.S.No.336/1993 is concerned, it is a suit filed for specific performance of the agreement dated 17.08.1981 wherein defendants 1 and 2 agreed to sell the schedule property for a sum of Rs.3,800/- and received advance amount of Rs.3,700/- and the balance of Rs.100/- was agreed to be paid at the time of execution of the registered sale deed of the schedule property. On the same day defendants 1 and 2 Agreement of sale, since as on the date of agreement there was bar to Register sale deed and Fragmentation Act, agreed to execute registered sale deed after repealing the said Act, and put the plaintiff in possession. Thereafter on 17.11.1993 execute gift deed in favour of his daughter defendant No.3 and the same is not binding on the plaintiff.
5. Defendants contested the suit denying the averments made in the plaint and contending that on 23.11.1993 1st defendant gifted suit property to her daughter and by virtue of the same they are in possession and that the suit is barred by law of limitation.
6. The suit of the plaintiff was decreed with cost by the learned trial Judge considering the pleadings, contentions oral and documentary evidence on both side and defendants 1 and 2 were directed to execute registered sale deed of the schedule property by receiving balance sale consideration of Rs.100/- within three months from the date of judgment. Being aggrieved by the said judgment and decree, appeal was preferred by the defendants in R.A.76/2011 on the file of learned Senior Civil Judge and JMFC at Malur, wherein, the judgment and decree passed by the learned Civil Judge, Junior Division, Malur, was confirmed. Under the said circumstances, this Regular Second Appeal is preferred by the defendants.
7. The execution of the sale agreement is not seriously disputed. The point that requires to be discussed is that, whether the agreement dated 17.08.1981, wherein the defendant Nos.1 and 2 agreed to sell the schedule property to the plaintiff was not permitted and it was void. The Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 and the subsequent amendment dated 05.02.1991.
8. It is not disputed that the transfer of agricultural land falling under certain category was ordered to be stalled by virtue of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966, wherein the lands falling under the category of dry land, wet land, irrigated land and garden land were classified and particular extent was notified. The object of the Act is to prevent dividing of land so that the land would not become unfit for agriculture in terms of the extent required for agriculture. In this connection, the suit schedule property is admitted to be a dry land forming 1 acre out of 1 acre 26 guntas.
9. The learned counsel for the plaintiff submits, the plaintiff succeeded before the trial Court and the First Appellate Court as well and that there is no illegality involved in entering into the sale agreement. Hence, the parties entered into a sale agreement on 17.08.1981 and even the possession of the schedule property was delivered to the plaintiff. However, the registration of the sale deed was not effected as there was a bar. He would further submit that there is no breach of law nor the institution of suit was time barred. Learned counsel would further submit that the ban imposed by the Act of 1981 was in respect of agricultural land of certain categories and with reference to the extent as well. As far as the present land is concerned, the minimum extent of permitted land is 2 acres. That on 05.02.1991, notification of the Government was repealed and there was no bar for executing the registered sale deed in respect of the schedule property and that becomes the due date for execution and as per the period of limitation contemplated, it would be 3 years from the due date and the date of demand and refusal as claimed.
10. In so far as defendants are concerned, the learned counsel Sri. K.Vijayakumar would submit that the agreement was void and could not be entered into. Further the plaintiff was aware that property could not be sold. He also submits that the suit was time barred (for which the learned counsel for plaintiff would say that there was no bar of limitation), considering the relevant provision under the Limitation Act. Learned counsel would further submit that the suit of the plaintiff was hit by the provisions of Contract Act as it was not permitted under the provisions of the Act.
11. The trial Court looked into the oral evidence of P.Ws. 1 to 5 and documentary evidence – Exs.P.1 to P.8 on behalf of the plaintiff and oral evidence of D.Ws. 1 to 3 and documentary evidence – Exs. D.1 to D.4 and the oral evidence of the Court Commissioner and Commissioner’s Report – Ex.C.1. It is necessary to observe, the report of the Court Commissioner was also tabled before the learned trial Judge. In the context of the proceedings up to the disposal of R.A.No.76/2011, in so far as the execution of the agreement is not seriously disputed. Regard being had to the fact that Report of the Commissioner also went in favour of the plaintiff, wherein the disputed signature on the sale agreement was reported to be of the same person who signed the specimen. Thus, it was held that the defendants signed the exhibit. Thus, the suit and more particularly, the bone of contention is around the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, Land Reforms Act and Specific Relief Act.
12. In so far as the agreement is concerned, it is attracted by the Contract Act and also the Land Reforms Act, by the definition that it is not enforceable.
13. The moot point for consideration is, what is the effect of entering into the sale agreement on 17.08.1981, whether it is void ab initio or a void contract or a voidable contract.
14. In the present case, it is the flip side as the sale deed was not permitted on 17.08.1981 and the plaintiff relies on the agreement on the ground that it was temporary prevention and not permanent.
15. Learned counsel for the defendants also contended regarding the void nature of the agreement that cannot be looked into under any circumstances. A void agreement is one which does not have any legal effect, in other words, void from the beginning. In this connection, it is necessary to take a cursory glance at Section 23 of the Contract Act, 1872, which reads as under :
`23. What consideration and objects are lawful, and what not. – The consideration or object of an agreement is lawful, unless – it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies, injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.’ 16. Under the said provision of law, the meaning of void or unlawful agreement is presented. As such, the object or consideration becomes void when it is (i) forbidden by law, (ii) is of such a nature that, if permitted, it would defeat the provisions of any law or is fraudulent, (iii) involves or implies, injury to the person or property of another or the Court regards it as immoral or opposed to public policy. Thus, consent of the parties is subject to vetoing effect by Section 23 of the Indian Contract Act.
17. Now applying the said provision of law to the given case, it is undisputed that on the date of agreement i.e. 17.08.1981, there was a prohibition for sale of fragmented land. The enabling provision of law is 1981. Thus the prohibition was by means of a statute and not by virtue of any amendment. It is necessary to indicate whether it is an actual ban or a constructive ban or an additional ban. In other words, though the transfer was not actually banned, but if permitted whether it could have defeated the provisions of any law for the time being in force or is likely to violate. It is necessary to mention here, till the enforcement of the Fragmentation Act, the agricultural land was freely transferable. But the prohibition was imposed by the said Act which makes clear that the fragmented land cannot be transferred. That becomes policy of law.
18. The extent is mentioned in the schedule to the Act of 1981 and the present extent of land is said to be 1 acre out of 1 acre 26 guntas in Survey No. 80/3 and in so far as the extent of land is concerned, it falls under the category of land being regarded as fragment when it is even a gunta less than two acres.
As such, it is absolutely not disputed that the extent of land definitely comes under a ‘fragment’.
19. The next question is, whether the agreement was entered into during the period when there was a ban. Regard being had to the fact that notification came to be enforced from 05.02.1991. It is necessary to say that the ban was time bound, though it is subsequently revoked. It is also necessary to understand that act of parties may be modified by the same parties, but when it becomes point of law, it is not the domain of parties to alter it. In other words, it is not a concept where one should proclaim `bend the law when you cannot break it’. Thus, it was not open for the parties to enter into a sale agreement.
20. At this stage, the learned counsel for plaintiff would urge that the Court when takes up the point for discussion regarding void agreement, he would submit on the said point of law, and he is given opportunity.
21. Learned counsel for respondent has relied upon the decision of this court in RSA No.893/2009 the case Sri Pranesh Rao Vs Dhavalamma dead by Lrs and another wherein his Lordship has observed as under:
“9. Admittedly agreement of sale Ex.P1 is dated 09.10.1990 much after the amendment and therefore, needless to state that Section 6 of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 prohibits the transaction in the matter of fragmentation since expressly prohibited and therefore, Ex.P1 is void ab initio and cannot be enforced.”
23. The nature of agreement in this case is for sale of immovable property-agricultural land to the extent of 1 acre 26 guntas and date of agreement is 17.08.1981 and time limit provided is three months after removal of ban. In this connection prohibition of fragmentation land came into force on 11.04.1969. Land that was agreed to be sold is to an extent of 1 acre 26 guntas at Medatti Village, Kasaba Hobli, Malur Taluk which is stated to be northern side in the total land. “Fragment” is defined with reference to Section 2(g).
“Fragment” means a holding of land of less extent than the appropriate standard area determined under Section 3:
Provided that no holding shall be deemed to be fragment by reason of any diminution in its area by diluvian.
In this connection the extent of fragment also has to be read with reference to the extent of land. In this connection Sections 3, 4, 5 and 6 are to be read together which are as under:
“Section 3 Determination of standard area – For the purpose of this Act, standard area means the area specified in column (3) of the Schedule to this Act, in respect of the class of land specified in the corresponding entry of column (2) of the said Schedule.
4. Entry in the Record of Rights (1) As soon as may be after the commencement of this Act all fragments in a village shall be entered as such in the Record of Rights, or where there is no Record of Rights in such village record as the State Government may prescribe.
(2) Notice of every entry made under sub- section (1) shall be given in the manner prescribed for the giving of notice under chapter XI of the Karnataka Land Revenue Act, 1964 (Karnataka Act 12 of 1964), of an entry in Register of Mutations.
5. Sale, lease, etc- (1)(a) No person shall sell any fragment in respect of which a notice has been given under sub-section (2) of Section 4, except in accordance with the provisions of clause (b).
(b) Subject to the provisions of sections 39 and 80 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962), whenever a fragment is proposed to be sold, the owner thereof shall sell it to the owner of a contiguous survey number or recognized sub-division of a survey number (hereinafter referred to as the contiguous owner). If the fragment cannot be sold to the contiguous owner for any reason, the owner of the fragment shall intimate in the prescribed form, the reasons therefor along with an affidavit in support thereof to the Tahsildar and also send copies of such intimation and affidavit to the Sub- Registrar, in the prescribed manner and may thereafter sell such fragment to any other person.] (2) Notwithstanding anything contained in any law for the time being in force or in any instrument or agreement, no such fragment shall be leased to any person other than a person cultivating any land, which is contiguous to the fragment.
(3) No such fragment shall be sub-divided or partitioned.
24. Section 5 of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 would apply if the extent connected to the survey number were to be independent. Section 5 of the said Act is as under:
5. Sale, lease, etc- (1)(a) No person shall sell any fragment in respect of which a notice has been given under sub-section (2) of Section 4, except in accordance with the provisions of clause (b).
(b) Subject to the provisions of sections 39 and 80 of the Karnataka Land Reforms Act, 1961 (Karnataka Act 10 of 1962), whenever a fragment is proposed to be sold, the owner thereof shall sell it to the owner of a contiguous survey number or recognized sub-division of a survey number (hereinafter referred to as the contiguous owner). If the fragment cannot be sold to the contiguous owner for any reason, the owner of the fragment shall intimate in the prescribed form, the reasons therefor along with an affidavit in support thereof to the Tahsildar and also send copies of such intimation and affidavit to the Sub- Registrar, in the prescribed manner and may thereafter sell such fragment to any other person.] (2) Notwithstanding anything contained in any law for the time being in force or in any instrument or agreement, no such fragment shall be leased to any person other than a person cultivating any land, which is contiguous to the fragment.
(3) No such fragment shall be sub-divided or partitioned.
25. Transfer of lands were permitted by Notification dated 05-02-1991 and the suit was filed on 16-12-1993. The date of Sale Agreement as stated earlier is 17-08-1981. The terms are morefully discussed at length above. Thus, the readiness and willingness cannot be exclusively based on the payment of sale consideration. Thus, I find that in a suit for specific performance in strict sense would lead to violation of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966 and its amendment. However, it is necessary to note that the defendants cannot be allowed to enrich himself unjustly at the cost of the plaintiff.
26. In this case, the land agreed to be sold is land bearing Survey No.80/3 measuring 01 acre 26 guntas situated at Medatti village, Kasaba Hobli, Malur Taluk, out of which 1 acre of land on the northern side. In this connection, even a specific performance is rejected, the plaintiff should have been made entitled for refund of the advance amount with reasonable interest from the date of agreement till reimbursement at the rate of 9% p.a. and the suit is liable to be dismissed in as much as on merits. Hence, no substantial questions of law arises for consideration in this appeal.
27. In the result, the appeal is partly allowed.
The judgment and decree dated 10-07-2014 passed in R.A.NO.76/2011 by the learned Senior Civil Judge and JMFC At Malur is set aside in part.
The prayer for specific performance is rejected.
Consequently, suit is dismissed.
The defendants are directed to refund the advance amount of Rs.3,700/- with interest at 9% p.a. from the date of agreement i.e. from 17.8.1981 till payment within 60 days from the date of the receipt of certified copy of the Judgment.
Sd/- JUDGE MGN/SBN/tsn*