P CHANDRAMMA Vs. SAMBAIAH

JUDGEMENT

(1.) . The second defendant is the appellant. At an action laid at the behest of the first respondent-plaintiff, the trial Court granted a preliminary decree in his favour for half of the plaint schedule property subject to refund half of the sale consideration passed under Ex. B-1 dt. September 30, 1955 Assailing the first part of the decree, the appellant filed this appeal.

(2.) The fac's now proved and accepted by the Court below are that the first respondent is the adopted son of the first defendant- The property belongs to the joint family. Initially the first defendant denied the adoption in a - suit, 0 S No, 105/65. In that suit the plaint schedule property was also one of the items but the appellant-alienee was not impleaded. The trial Court decreed the suit 0 S No. 105/65 under Ex.A-3 dt, December 23, 1967. On appeal in A S No. 19/68, the appellate Court by judgment dated May 16, 1969. under Ex A-2 confirmed if. but left open to file a separate suit for partition of the plaint schedule property impleading the appellant-alienee. Thus the suit came to be filed, the defence taken by the appellant is that he is a bonafied purchaser for a valuable consideration. Therefore respondent No 1 being the adopted son is bound by the sale. The consideration under the sale was utilised to celebrate the marriage of the daughter of the first defendant i.e, the sister of the first respondent and the doctrine of pious obligation was applied, the first respondent is bound by the sale under Ex,B-1. The trial Court accepted the case of the appellant to that extent. But it set aside the sale on the ground that neither permission under Sec. 47 nor validation under Section 50-B of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act (21 of 1950), for short, "the Act" was obtained from the competent authority, as a result the sale is void. As against this part of the decree, the appeal has been filed.

(3.) The learned counsel for the appellant, Sri Vasudeva Rao, contended that the appellant having purchased the property, though found to be invalid by operation of Section 47 of the Act, he is entitled to defend his possession by the doctrine of sec. 63-A of the Transfer of Property Act, 1882 (for short, the T P Act) and therefore, the decree for possession cannot be granted against him. It is undoubtedly true that the transferee is entitled by the doctrine of part performance to defend his possession under Sec. 53-A of the T P Act so long as he is ready and willing to perform his part of the contract and he has done his part of the contract in furtherance of the contract of sale. Section 47 of the Act prchibits -permanent alienation. Alienation includes sale. Any alienation made without obtaining (he prior sanction of the Tahsildar is void. Therefore, Sec. 50-B gives the right to the alienee to obtain validation was not availed of. As a result, the sale become void.. The question then is, whether the doctrine of part performance under an agreement of sale can be relied on after the sale is declared as void. If it was the case where the agreement of 'Sale was subsisting and as long as the transferor has not denied the execution of the agreement of sale and the transferor is ready and willing to perform his part of the contract of sale, till the contract gets fructified into full title since he was given possession under the contract, he is entitled to retain possession as a shield against the transferor or the persons claiming title under him. But. once the agreement stood merged with the execution of the sale deed and the sale deed is now dec'ared to be void, the contract of sale does not get revived and it does not have any independent existence. The right to have the Part performance also no longer subsists and the possession thereafter becomes illegal In Syed Jalal Vs. Taragopal (1) AIR 1970 A P. 19 a Division Bench of this Court has held that once the contract is found to be void, possession obtained under the contract of sale also becomes unlawful. Therefore, decree for specific performance cannot be sought for. The same ratio applies in this case also. This view was approved by the Full Bench in M Rajayya Vs. V S G Krishna Murthy (2) AIR 1974 A P 240 and another Division Bench in M Pocham Vs. Agent State Govt Adilabad (3) A I R 1978 A. P. 242, and in Ushanna Vs. Sambu Gond (5) 1985(3) A P L J. 32. It was also held in G Narsa Reddy Vs. Collector: Adilabad District (4) AIR 1982 A P 1 (FB) and in Ushanna's case that the doctrine of part performance does not apply to the proceedings before the statutory authorities under Regulation 1 of 1959 or the Act respectively. In C V Narayana Reddy Vs State of A. P. (0) 1979(2) A P L J 63 another Division Bench of this Court on which reliance is placed by the learned counsel for the appellant, no doubt, has held that possession is valid. But in that case it was not argued before the Bench that the vendor is not entitled to protection under Sec. 53-A of the Act. The learned judges proceeded on the premise that the transferor is entitled to the protection of Section 53-A which in fact dots not apply to the vendor or the person who claims title through him. The statutory right to possession under Sec, 53-A can be sued by the transferee only as a shield and not as a sword. Therefore the fundamental premise on which the learned judges, proceeded, with all due respect does not appear to be sound in view of the language of Section 53-A. This was not brought to the notice of the learned judges. It was also not a case relating to Civil suit. There the question was. whether the transferor who has been parted with the possession under an agreement of sale can be said to be in possession or the vendee holds on behalf of the owner for the purpose of the Land Ceiling Act. In that context, the Division Bench held that the vendee is not holding the land on behalf of the vendor and cannot be included in the holding of the vendor for the purpose of Land Ceiling. Perhaps the ratio thereunder could be sustained with reference to the latter contingency but not with reference to the right under Section 53-A of the T P Act. However, the Supreme Court has held that the lands are to be included in the holding of both the vendor and vendee. As already said, Section 53-A of the T P Act can be used only as a shield but not as a sword, the agreement-holder derives no title to the property but only defends his possession under the agreement. He acquires title only on getting the sale deed executed and registered if the value of more than Rupees one hundred and the registration thereof is compulsory under Section 17 read with Sec. 49 of the Registration Act and, if it is unregistered, it is inadmissible for proof of title except for a collateral purpose. Since his possession is unlawful, he must be treated to be trespasser. Since the agreement of sale is already merged with the sale-deed, it is now found to be void by operation of Sec. 47 of the Ant, the question then is whether the agreement does have any independent existence and does get revived?