H NARAYANA GOWDA Vs. H M MUNIHANUMAPPA

JUDGEMENT

(1.) I have heard the petitioner's learned Advocate as also the learned advocate who represents the original allottee and the learned government advocate. This is a proceeding under the karnataka scheduled castes and scheduled tribes (prohibition of transfer of certain lands) Act, 1978. The act envisages a total prohibition of alienation of lands that have been allotted to persons belonging to this category within the period prescribed and depending on the terms of the grant or the Provisions of law for the time being in force when the grant was made, the bar would be held to be applicable. The brief facts of the present case are that an area of 4 acres of land in survey No. 10 of kallukunte village was leased by the government to the late muniyappa @ a. k. muniga who is the father of the first respondent, in the year 1942-43 under the grow more food scheme and a temporary saguvali chit was issued to him. This lease was confirmed on 26-11-1952 and the saguvali chit was ultimately issued on 23-8-1953. The petitioner's learned Advocate has pointed out to me that the original date of allotment and the terms thereof would have to be taken into consideration and he has relied on a decision of this court in W. P. No. 6477 of 1985, dated 3-8-1989, wherein this court very clearly held that the lands given for temporary cultivation cannot be treated on par with regular allotments or grants in general and that therefore, the Provisions which apply to the latter category of grants would not hold good in the first instance. The respondents' learned Advocate vehemently submitted that the correct method of construing the position would be on the basis of the saguvali chit dated 22-8-1953 insofar as the earlier grant was for a temporary period of 5 years which may have continued but that we are really concerned with the grant of 1953 which is really the permanent allotment. Though different views have been expressed by the courts from time to time, the respondents' learned Advocate is right when he points out that for purposes of this case it is this point of time which would have to be accepted.

(2.) THERE is no dispute about the fact that in the year 1967, in connection with a certain loan transaction with the bank the father of respondent 1 entered into a deed dated 23-12-1967 whereby the petitioner was required to advance certain amounts of money to him and pay up the balance to the bank and the deed indicates that the possession of the lands was transferred for a period of two years to the petitioner. Respondents' learned Advocate points out to me that there is an important clause in this deed whereby it is specified that if the money is not repaid and the lands are not restored within a period of two years that the same may be treated as having been sold to the petitioner. He relies on a decision of this court in K. N. Rame Gowda (Dead) by L. Rs v Assistant Commissioner, sakaleshpur sub-division, hassan district and others, wherein this court had occasion to deal with the definition of the term alienate and to hold that a delivery of possession coupled with an agreement of sale amounts to transfer. The petitioner's learned Advocate vehemently submitted that a transfer connotes a situation wherein the right, title and interest in the movable property have been validly conveyed through a sale deed, that the agreement of 1967 was only the recording of a loan arrangement with the land forming the security for the transaction and that at the highest it would be akin to a mortgage and that it cannot be treated as a transfer. I am unable to accept this argument because the respondents' learned Advocate is right when he points out that this act prohibits alienation and as rightly pointed out in the decision referred to above the term 'alienate' is required to be given its widest possible connotation and not a narrow legal or technical one which flows from a situation of transfer. Had this been the only transaction between the parties, the petitioner would have been virtually out of court because that transaction is clearly hit by the Provisions of the Present Act. In fact, the respondents' learned Advocate himself submitted that this transaction is a void transaction and that consequently, by virtue of the same, the lands are liable to be restored to the original allottee.

(3.) THE matter does not stop there insofar as after the death of the original allottee his legal heirs entered into a registered sale deed on 25-7-1975 and it is the validity or otherwise of this transaction which the court, has to take into consideration. The petitioner's learned Advocate submits that even assuming that the starting point for consideration is the year 1953 and not 1942, that 20 years had elapsed in the year 1973 and that therefore the sale deed executed in the year 1975 is a perfectly valid sale deed, that it is not barred by any conditions of the allotment and that consequently, this transaction is neither void nor voidable. The learned government Advocate and the respondents' learned Advocate have submitted that this is not the correct position in law because the court cannot ignore the earlier transaction and it is their submission that it is the transaction of 1967 which is material because it is that transaction which was entered into during the prohibited period and if it is treated as an alienation then it gives rise to an order for restoration. What he further submits is that once the transaction of 1967 has taken place, that there was no scope for either the allottee or for that matter his legal heirs to enter into a subsequent sale deed in respect of the very land because there was nothing left in them to convey insofar as the alienation has taken place in 1967. Reliance was sought to be placed on an earlier decision of this court in Chikkamadakka v Durgappa , wherein the court was dealing with a case where the first transfer was within the alienated period and the subsequent transfer after the alienation period and the court held that the subsequent transfer does not validate the first transfer. Heavy reliance is sought to be placed on this ruling on behalf of the respondents. I need to clarify here that the ratio of that ruling would not apply to this case in the first instance because the facts were different but more importantly, because the court on that occasion failed to take notice of a very significant position in law. The question that really falls for determination is the validity of the second transaction and not the first transaction. I do concede, as held by the learned judge, that the first transaction is rendered invalid but it does not necessarily follow, that this would invalidate the second transaction. The correct position would be that the first transaction is undoubtedly rendered not only invalid but void by virtue of the Provisions of the act and this would necessarily mean that there is no title that has passed by virtue of that transaction and that therefore the petitioner cannot claim any rights in respect of the land on the basis of the transaction of 1967. The legal effect of this is that the parties were competent to enter into a perfectly valid transfer when the bar had ceased to exist at any point of time after the 20 year period had elapsed because when we come to the year 1975 there was no prohibition whatsoever on the alienation of the lands in question. If a sale deed had been entered into at that point of time, this sale deed would be perfectly valid by virtue of the fact that the earlier transaction is rendered void. This in fact is the correct position in law and an aspect of the law which has not been determined by the court in the decision referred to by me supra. Having regard to the aforesaid situation, the authorities were in error in having struck down the transfer of 1975 insofar as there was no ground on which this could have been done. The impugned orders are therefore set aside. The petition is allowed. In the circumstances of the case, there shall be no order as to costs.