1. This is plaintiff's second appeal. His suit O.S. No. 28/69 on the file of the Munsiff, Bhatkal, came to be dismissed by the two Courts below mainly on the ground that it had been filed prematurely.
2. Sri K.I. Bhatta, Learned Advocate on behalf of the respondent-defendant submitted that he would not support the judgments and decrees of the two Courts below on the ground that the suit was not maintainable because it had been filed prematurely but the suit did not remain maintainable after 1-3-1974 as the subject matter of the suit became extinguished in view of the provisions of the Karnataka Land Reforms Act (hereinafter referred to as 'the Act').
3. The undisputed facts are that the plaintiff was the permanent tenant of the suit schedule property. It is an areca garden measuring 2 acres 7 guntas situated in Konar village in Bhatkal Taluk. He sold the permanent tenancy right to the defendant on 18-4-1969 and executed the registered sale deed Exhibit D-4. On 20-4-1969 the plaintiff and the defendant contracted as per Exhibit P-l, stipulating that the defendant would reconvey the land to the plaintiff on the plaintiff paying the consideration amount of Rs. 1,500/-before 15-7-1969. That date was extended to 31-10-1969 and once again it was extended to 3-12-1969.
4. The plaintiff filed the suit, for declaration that the sale evidenced by Exhibit D-4 was not a real sale as it had been intended to be only by way of security for the amount of Rs. 1,500/- and in the alternative for specific performance of contract evidenced by Exhibit P-l.
5. The argument of Sri K. I. Bhatta is that in view of Sections 44 and 45 of the Act, the permanent tenancy right that had been purchased by the defendant under Exhibit D-4 became extinguished with effect from 1-3-1974 and therefore, the subject-matter of the contract in Exhibit P 1 hasdisappeared and as such, the contract has become impossible of performance. He invoked the provisions of Section 56 of the Indian Contract Act and argued that the contract Exhibit P-l has become void. He placed reliance on the decisions in Rama Swamy Chettiar And Others v. Chidambaram Chettiar : AIR1954Mad1040 and Haji S.K. Subhan v. Madhorao : AIR1962SC1230 .
6. Sri T.S. Ramachandra, on the other hand, argued that alienation of permanent tenancy right by a permanent tenant is not prohibited by Section 21 of the Act and as such, right having been acquired by a permanent tenant prior to the coming into force of the Act is saved by Section 43 of the Act. Hence even though the land vests in the Government by virtue of Section 44 of the Act, the right to alienate the permanent tenancy acquired by a permanent tenant having been saved under Section 43 of the Act, it cannot, in law, be said that that right has become extinguished with effect from 1-3-1974. He nextly argued that even after 1-3-1974, the right to alienate the permanent tenancy right by a permanent tenant in favour of another, in law, be exercised inspite of the land vesting in the Government. In support of his argument, he relied on the decision in Srinivasa Murthy v. State of Mysore, 1975(1) KLJ. SN 175. He has lastly argued that the contract Exhibit P-l, in law, made the defendant to hold the property in trust for the plaintiff and hence Sections 90 and 94 of the Trusts Act would operate. In support of his argument, he placed reliance on the decisions in Venkatarathnam v. Guruvayya and others, AIR 1930 Madras 34 and Bai Dosabai v. Mathurdas Govindas and others : 3SCR762 .
7. The argument of Sri T.S. Ramachandra that the defendant would be holding the property in trust for the plaintiff in view of Exhibit P-l, need not, in my opinion, be gone into as that question would survive for consideration only if the contention of Sri K.I. Bhatta that the contract at Exhibit P-l has become void is negatived. This is the crucial question for consideration in this appeal.
8. 'Permanent tenant' is defined in Section 2(23) of the Act. 'Tenant' is defined under Section 2(34) of the Act. Section 45 of the Act occurs in Chapter III commencing from Section 44 of the Act. It lays down the conditions when the tenants are to be registered as occupants. One of the primary conditions is that a permanent tenant, protected tenant, tenant or sub-tenant should be cultivating the land personally before the date of vesting, namely, 1-3-1974 to entitle him to be registered as occupant of the land. Section 44(2)(g) of the Act reads as follows :
'Permanent tenants, protected tenants and other tenants holding such lands shall, as against the State Government, be entitled only to such rights or privileges and shall be subject to such conditions as are provided by or under this Act; and any other rights and privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person shall cease and determine and shall not be enforceable against the State Government.'
It consists of two parts. The first part declares that permanent tenants, protected tenants and other tenants holding such lands would be entitled to such rights or privileges and shall be subject to such conditions as are provided by or under the Act. The second part lays down that any other rights and privileges which may have accrued to them before the date of vesting against the landlord or other persons shall cease or determine and shall not be enforceable against the State Government. Perusal of the provisions of the Act shows that permanent tenants, protected tenants and other tenants are entitled only to be a registered as occupants of land as provided under Section 45 read with Section 48-A of the Act. Therefore, it follows that other rights or privileges which may have accrued to them for such lands before the date of vesting against the landlords or other persons cease and determine and will not be enforceable against the Government. Permanent tenancy rights are, in law, regarded as immovable property which is capable of being alienated. That right also has to cease in view of these reasons. I have to make it clear at this stage that the reasoning as advanced concerns only the rights accrued to a permanent tenant and saved under Section 43 of the Act.
9. This takes me to Section 21 of the Act. Section 21 occurs in Chapter-II of the Act. Perusal of the same shows that a vendee of permanent tenancy rights from a permanent tenant would, in law, become a tenant for the purpose of the Act. Nothing more flows from the said provision. This only means that the defendant had become a permanent tenant having purchased the said rights under Exhibit D-4 and continued to have that status upto 1-3-1974. The question whether he would be, by virtue of Section 21 of the Act entitled to alienate the permanent tenancy right cannot at all be answered by adverting to this provision.
10. Sri T. S. Ramachandra, relied on the decision in Ganga Singh and others v. Santosh Kumar and others : AIR1963All201 and argued that the doctrine of impossibility under Section 56 of the Indian Contract Act enables the Court to enforce the contract equitably and therefore, the Courts should at their best see that all contracts are honoured and enforced. The provisions of U. P. Zamindari Abolition and Land Reforms Act, 1950 (Act 1 of 1951) were under consideration in the above said decision. It is laid down that when there is option to reconvey to the seller the land sold butsubsequently the land vests in the State on passing of the Act, 1950 and the purchaser can take out an agreement to reconvey to the seller to the extent of that portion of land which is resettled on the purchaser. It has also been held that where defendants had agreed to reconvey the zamindari land sold to them by plaintiffs subsequent to vesting of the suit land in the State under the said Act and the same was not re-settled in any of the defendants, the land cannot be transferred to the plaintiff and to the extent the agreement to reconvey had become unable to perform. This part of the decision goes directly against Sri T.S. Ramachandra'scontention because with effect from 1-3-1974 the question of resettling the permanent tenancy right by the State Government in favour of the defendant cannot at all arise under theprovisions of the Act. In this connection, Sri T. S. Ramachandra argued that under Section 44(2)(b) of the Act, the amount payable by the tenant to the landlord is made payable to the Government and therefore, the tenant became a tenant of the Government.
11. This argument does not appeal to me. Section 44(2)(b) of the Act only creates the liability to pay the amount and entitles the Government to recover money from the tenant. It does not create relationship of landlord and tenant between the Government and such tenant. To accept the argument of Sri T. S. Ramachandra would amount to re-write the definition of Section 2(34) of the Act.
12. What remains to be considered is the argument of Sri T. S. Ramachandra based on the decision in Srinivasa Murthy -v.- State of Mysore. It has been held therein that a purchaser of Inam land, after the Inam vested in the Government under Section 3 of the Mysore Personal and Miscellaneous Inams (Abolition) Act (hereinafter referred to as 'the Abolition Act') would be entitled to make anapplication for registration under the provisions of the Abolition Act. Perusal of the provisions of the Abolition Act shows that the crucial condition of a tenant personally cultivating the land before the appointed day as found in Section 45 of the Act is not available. Such a condition is not required to be satisfied before entitling a permanent tenant for registration as an occupant under the Abolition Act. Therefore, the principle laid down in this decision cannot, in my considered view, made to apply.
13. What is laid down in Rama Swamy Chettiar and others v. Chidambaram Chettiar, is not of much assistance in considering whether the provisions of Section 56 of the Indian Contract Act would affect the contract in Exhibit P-l. The decision in Haji SK. Subhan -v.- Madho Rao lays down that a decree for possession based on proprietary right which had been passed in ignorance of the provisions in the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated lands) Act 1950 could, in law be refused to be executed by the Executing Court. In case a decree for specific performance of the contract evidenced by Exhibit P-l as prayed for by the plaintiff is passed, the principle laid down in this decision would be applicable.
14. In view of the foregoing reasons, the permanent tenancy right possessed by the defendant ceased to exist With effect from 1-3-1974. When that is so, the subject matter of the contract evidenced by Exhibit P-l has to disappear and has disappeared. Therefore, Section 56 of the Indian Contract Act comes into play and Exhibit P-1 becomes void in law. A void contract cannot be enforced. Hence, the contention raised by Sri K.I. Bhatta that the plaintiff's suit has to fail succeeds.
15. In the result, this appeals fails and is dismissed but not for the reasons recorded by the two Courts below.