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Ollala Ambiah Vs. Avadhanula Mallanna - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 65 of 1962
Judge
Reported inAIR1964AP514
ActsCode of Civil Procedure (CPC) , 1908 - Sections 60; Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 2, 47 and 104; Transfer of Property Act, 1882 - Sections 2 and 5
AppellantOllala Ambiah
RespondentAvadhanula Mallanna
Appellant AdvocateB.V. Subbarayudu, Adv.
Respondent AdvocateK. Madhava Reddy and ;G. Haridatta Reddy, Advs.
DispositionAppeal allowed partly
Excerpt:
.....lands - house used for storing grain - no justification for exemption under section 60. (ii) transfer of property - sections 47, 2 and 104 of hyderabad tenancy and agricultural lands act, 1950 and sections 2 (d) and 5 of transfer of property act, 1882 - whether attachment of property in execution of decree amounts to transfer and thereby invalid under section 47 of act of 1950 - act of 1882 not exhaustive of all mode of transfers - word 'transfer' having wide meaning relevant both in context of transaction by act of parties and transfer by operation of law - word 'other transfer' not to be limited to 'transfers inter partes' - held, attachment or sale of agricultural land in execution of decree covered under term 'transfer' and barred by section 47 of act of 1950. - - 6. this..........judge, restored.8. this takes us to the question relating to the stability of agricultural lands in execution of decrees. it is urged by sri b. v. subbarayudu that execution sales do not fall within the terms of section 47 of the act. he first seeks to sustain the argument with reference to some of the provisions of the act and the transfer of property act.9. it is convenient at this stage to read section 47 of the act. that section recites:'(1) notwithstanding anything contained in any other law for the time being in force or in any decree or order or a court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the collector.'the proviso need not detain us here as it does not play any part in the.....
Judgment:

Chandra Reddy, C. J.

1. This is an appeal, under Clause 15 of the Letters Patent, against the judgment of Sanjeeva Row Nayudu J., reversing that of the Subordinate Judge, Karimnagar, overruling the objections raised by the respondent to the attachment of a cattle shed, a house and some agricultural lands.

2. In order to appreciate the contentions urged in this appeal, it is necessary to state a few material facts. The appellant obtained a decree against the respondent in O. S. No. 30/1 of 1953-54 and, in execution of that decree, attached a cattle shed in the village of Gummanur, a house situated in Manthena and agricultural lands (3 acres wet and 10 acres dry) belonging to the judgment-debtor and situated in the Gummanur village. The judgment-debtor filed objections to the attachment on the allegations that the shed and the house in question Tell within the exemption contemplated by Section 60 C. P. C. andthat the agricultural lands could not be sold in execution of a decree of Civil Court by virtue of Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, XXI of 1950 (hereinafter referred to as the Act).

3. The trial Court overfilled these objections and directed the execution to proceed.

4. On appeal by the aggrieved judgment-debtor, Sanjeeva Row Nayudu J. set aside the order of the Subordinate Judge in the view that the house was occupied) by the judgment-debtor, that his cattle and agricultural implements were housed in it and, consequently, the building and the site appurtenant thereof were exempt from attachment by reason of Clause (c) of the proviso to Section 60 C. P. C. and that the lands also were exempt from attachment, as they fell within the prohibition enacted in Section 47 of the Act. In the result, he accepted the appeal and directed the dismissal of the execution petition. It is this order of the learned Judge that is the subject-matter of this appeal.

5. In this appeal, the conclusions of the learned Judge are assailed. It may be mentioned here that in execution of the decree, in addition to the lands and the thatched house in the village, a house at Manthena was also attached. The learned counsel for the. appellant did not press the appeal as regards the house in the village, as obviously it was being used for housing the agricultural implements etc. He contends that the house at Manthena falls outside the pale of Clause (c) of the proviso to Section 60 C. P. C., since this property, situated four or five miles away from the lands, could not be said to he occupied by the judgment-debtor for agricultural purposes. It must be mentioned here that the learned Judge had proceeded on the assumption that what was attached was only a house in the village in which the agriculturist and his family were, in fact, living and his cattle and agricultural implements were housed in it. As we have pointed out above, besides this house, a house at Manthena belonging to the Judgment-debtor was also attached. In regard to this property, all that is proved is that the judgment-debtor, who owns agricultural lands, resides in it and stores grain in it. That, in our opinion, does not justify the application of Clause (c) of the proviso to Section 60 C. P. C. The intendment of Clauses (b) and (c) is that protection should be given to persons who are real tillers of the soil and depend on agriculture for their living. It is for that reason that all things necessary for the calling of agriculture such as those enumerated in Clauses (b) and (c) are exempt from attachment. It is, therefore, necessary that there should be a nexus between the agricultural implements etc. on the one hand and the house on the other in order to get the benefit of these clauses. It is only the articles used or may be used for agricultural purposes and the house occupied for carrying on cultivation that are within the scope of the proviso. Thus, exemption can be claimed only in regard to houses which are occupied for the purpose of cultivating those lands.

6. This principle is well settled and, if authority is needed, reference may be made to Official Receiver, Kistna v. Lakshmayya, 55 Mad 634, Subbarao v. Venkatasesha-charlu, AIR 1949 Mad 207 and Muthuvenkatarama v. Official Receiver, South Arcot, AIR 1926 Mad 350.

7. It is difficult to posit that that test is satisfied in regard to the house at Manthena because it is at a distance of four miles from the lands and it cannot te said to be occupied by the judgment-debtor for the purpose of enjoyment of the lands. In this view of the matter, it is not necessary for us to consider whether the-appellant is a person who depends upon tilling for his living and is unable to maintain himself otherwise. For these reasons, we must hold that the house at Manthena does not attract Clause (c) of the proviso to Section 60 C. P. C. and therefore the conclusion of the trial Court in that behalf is unimpeachable. So, to that extent, the order under appeal is varied arid that of the Subordinate Judge, restored.

8. This takes us to the question relating to the stability of agricultural lands in execution of decrees. It is urged by Sri B. V. Subbarayudu that execution sales do not fall within the terms of Section 47 of the Act. He first seeks to sustain the argument with reference to some of the provisions of the Act and the Transfer of Property Act.

9. It is convenient at this stage to read Section 47 of the Act. That section recites:

'(1) Notwithstanding anything contained in any other law for the time being in force or in any decree or order or a Court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Collector.'

The proviso need not detain us here as it does not play any part in the context of the present enquiry.

'(2). Applications for such previous sanction shall be made and disposed of in accordance with such procedure as may be prescribed'

10. It is seen that the embargo imposed by the section is not an absolute one, the alienation and transfer being only subject to certain restrictions.

11. indubitably, an agriculturist is precluded from alienating or transferring in any manner agricultural lands without obtaining the previous sanction of the Collector. That a transfer by the act of parties comes within tha contemplation of Section 47 does not admit of any controversy. The only point is whether the sales in execution of decrees are hit at by this section. That depends Upon whether the expressions 'permanent alienation' and 'other transfer' have connotations limited to transfers by acts of parties.

12. It is contended by Sri B. V. Subbarayudu that the transfer contemplated by Section 47 is of the hind envisaged by Section 5 of the Transfer of Property Act and so Court sales, which arc involuntary alienations, fall outside the purview of Section 47.

13. To substantiate this proposition, reliance is placed on Section 2(d) of the Transfer of Property Act. That clause reads:

'In the territories to which this Act extends for the time being, the enactments specified in the schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect. ..........

(d) save as provided by Section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction:

14. By reason of this clause, a transfer by operation of law or in execution of a decree or order of 3 Court of competent jurisdiction is excluded from the operation of the Transfer of Property Act. It is stated in the preamble to the Transfer of Property Act that the Act is limited to transfer of property by act of parties and it is this concept that is embodied in Section 5 of the Transfer of Property Act, which will be adverted to in its proper context. So, the submission of the learned counsel will be well-founded if we attribute to the expression 'transfer' the same signification as that of transfer in Section 5 of the, Transfer of Property Act, in which case, court-sales, which are not brought about by the will of parties, will be excluded. In the appropriate place, we will show that these terms are used in the wider sense and not as contemplated by Section 5 of the Transfer of Property Act. But Clause (d) of Section 2 serves one purpose and that is it establishes that sales in execution of decrees are to be regarded as transfers by operation of law. So, we cannot assent to the argument founded on Section 2(d) of the Transfer of Property Act.

15. Another point presented by Sri B. V. Subbara-yudu, is that Section 2 and Section 104 of the Act establish his contention that terms 'alienations' and 'transfers' are to be read as to fall within the laws made by the State Legislators under List II of the Seventh Schedule to the Constitution and that the Act should be so interpreted as not to derogate from the law made by the Parliament tinder the relevant items of List III (concurrent list) in the shape of Section 60 C. P. C. which provides for attachment of properties.

16. To understand this argument, it is necessary to look at the terms of these two provisions;

Section 2(2): 'In any provision of this Act which is expressed by whatever form of words to have effect notwithstanding anything contained in any other law, the reference to any other law shall be read as including only laws with respect to matters enumerated in List II in The Seventh Schedule to the Constitution of India.'

Section 104 : 'This Act and any rule, order or notification made or issued thereunder shall have effect notwithstanding anything inconsistent there with contained in any other enactment with respect to matters enumerated in List II in the Seventh Schedule to the Constitution of India or in any instrument having effect by virtue of any siren other enactment.'

17. Do these provisions of law render any assistance to the appellant? The effect of Sub-section (2) of Section 2 is that the Act will prevail over any other law made only under list II. There is no question of any conflict in this case between the other laws made under the same, list and this enactment and so no question of one enactment yielding to another made under list II would arise.

38. Coming now to Section 104, what flows from this section is that if there is any conflict between this Act and any other Act with respect to matters enumerated in list II in the Seventh Schedule to the Constitution, this Act and any orders or notifications made or issued thereunder would take precedence over the other. Indubitably, the State Legislature has legislative competence to enact this law by virtue of entry 18 of List II which deals with 'land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of tents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization'.

So, this enactment deals with a topic which falls within entry 18 of list II.

Sri B. V. Subbarayudu argues that notwithstanding this if the section is so interpreted as to take in Court sales, there will be repugnancy between this section and Section 60 C. P. C. and that, having regard to these provisions, a reading which results in inconsistency between the two should be avoided.

It is worthy of note that list III excludes transfer of agricultural land from its purview. Entry 6 of list III says: 'Transfer of Property other than agricultural land; registration of deeds and documents'. So, list III has nothing to do with agricultural lands and they come exclusively within the ambit of List II. It is entry 13 of List III that deals with 'Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.' Thus, the law of Civil Procedure falls within the scope of entry 13 but it cannot be overlooked that the law in question is traceable to item 38 of List II. As such interpreting Section 47 of the Act as embracing transfers by operation of law, would not trench upon any of the en-tries of List III. Section 60, C. P. C. does not deal with the topic of agricultural lands as such. It only provides exemption from attachment of certain types of property such as houses and other buildings. It makes no mention of agricultural lands. It cannot, therefore, be said that Section 47 of the Hyderabad Tenancy and Agricultural Lands Act, 1950 end Section 60 C. P. C. occupy the same field. As far as possible, a harmonious construction of the two statutes must be adopted. Having regard to the fact that 'agriculture' is entirely within the legislative competence of State legislature, the Parliament should not be regarded as having encroached upon that field and made a law on a subject which is within the exclusive authority of the State legislatures. That being the correct legal position, we do not think that the appellant could derive any support from these two sections.

19. We now pass on to the consideration of the precise denotation of the expression 'no other transfer' in SBC. 47. In the context of this question, we have to quote Section 5 of the Transfer of Property Act, as it is argued that the import of that expression in Section 47 of the Act is the same as that contained in Section 5. This section reads: (omitting the unnecessary portions)

'In the following sections 'transfer of property' means an act by which a living person conveys property, in present or in Mure, to one or more other living persons, or to himself, or to himself and one or more other living persons; and 'to transfer property' is to perform such act.'

This section makes it clear that the Transfer of Property Act governs only transfers by act of parties and excludes transfers or alienations not brought about by the will of parties. In this context, it cannot be overlooked that the Transfer of Properly Act is not exhaustive of all the modes of transfer.

20. In support of the view that Court sales' are not transfers, the learned counsel cited to us some rulings of the Madras and the Allahabad High Courts. In Surayya v. Venkata Ramanamma, 1940-1 Mad LJ 831 : (AIR 1940 Mad 701), a single Judge of the Madras High Court ruled that Section 100 of the Transfer of Property Act would not govern Court-sales because Section 2(d) of the Transfer of Property Act made that Act inapplicable to transfers by operation of law save in certain circumstances and that Section 5 of that Act would not include an auction sale andthat a Court auction purchaser was in no better position than the judgment-debtor himself and was, therefore, subject to the same equities as the judgment-debtor was. To a like effect is the judgment of the Allahabad High Court in Rai Indra Narain v. Mohammad Ismail, AIR 1939 All 687. It was held in Benjamin v. Devadoss, : AIR1955Mad245 that a Court auction purchaser was outside the scope of Section 9-A Sub-section 10(ii) (b) of the Madras Agriculturists Relief Act, since such a purchase was not a transfer by act of parties and as such it could not come within the exception covered by that Section.

21. It is seen that the first two cases cited above are concerned with the applicability of Section 100 of the Transfer of Property Act, which deals with transfers as defined in Section 5 and, therefore, those cases have no parallel here. The third case' bears en the provisions of the Madras Agriculturists Relief Act which Act is concerned with the act of parties. That case also does not furnish any analogy here.

22. The learned counsel then drew our attention to the decision in Mohideen Pichai Taraganar v. Tinnevelly Mills Co. Ltd., 28 Mad LW 932 : (AIR 1928 Mad 571) in support of his argument that the expression 'transfer' denotes only a transfer by act of parties. The observations called in aid by the learned, counsel are contained at page 937 of the report, (Mad LW) : (at p. 571 of AIR). They run as follows:

'To begin with, it must be pointed out that the expression 'transfer' by itself is not altogether appropriate to indicate a sale in invitum by the Court. No doubt, the expression 'transfer' has been used in such collocations as 'transfers by operation of law,' but at the same time the expression 'transfer' is undoubtedly more appropriate to indicate what is effected or brought about fey the will of the person in whom the property is vested, as in the Transfer of Property Act.'

We do not think that these remarks would in any way advance the case of the appellant any further. No doubt, normally, the word 'transfer' is used to indicate what is effected by the will of a person in whom the property has vasted. That is because of the concept underlying Section 5 of the Transfer of Properly Act. That does not mean that the expression has no reference to transactions other than those brought about by act of parties.

23. It is not necessary for us to refer to the cases cited by the learned counsel for the appellant which applied the principle underlying Section 52 of the Transfer of Property Act to court-sales also, notwithstanding the fact that such sales are not governed by the Transfer of Property Act. These cases do not throw any light on the question whether the word 'transfer' should be construed in its general acceptation or as defined by Section 5 of the Transfer of Property Act.

24. A sale in invitum by a Court is also a transfer but by operation of law, is there any reason why we should limit the scope of the word 'transfer' in Section 47 of the Act to a transfer by act of parties? There are do restrictive words in. Section 47 to justify such a construction. As stated in the Stroud's Judicial dictionary, the operative word 'transfer' is one of the widest terms that could be used. The word 'transfer' is relevant both in the context of a transaction by act of parties end a transfer by operation of law. There does not seem tobe any warrant to cut down the content of that expression and limit it to the former category. We think that there will be no justification to adopt the narrow interpretation sought to be placed upon it on the basis of Section 5 of the Transfer of Properly Act. But for the definition in Section 5, the word would have included all transfers irrespective of whether they were by act of parties or by operation of law. It cannot be posited that a court-sale does not effect a transfer of the interest of the judgment-debtor in the properties conveyed under the sale certificate. There is a transfer of the judgment-debtor's interest to the auction-purchaser by reason of the court-sale. A reference to Section 2(d) of the Transfer of Property Act and the decided cases will show that a court-sale is, in fact, a transfer by operation of law. We are not persuaded that the ambit of the expression 'transfer' should be limited to act of parties as defined by Section 5.

25. It should also be remembered that this is a beneficent legislation which should receive a liberal construction. The legislature obviously thought that the agriculturists were not able to protect themselves and, therefore, restrictions should be imposed on the sale of these lands. The scheme and purpose of the Act seem to be to bring about consolidation of holdings and to prevent fragmentation etc. The object of the legislature will be defeated if Court sales are excluded from the purview of this section.

26. A reference to Sec, 48 Of the Act clearly establishes that the agricultural lands should be in the possession of persons who have adopted agriculture as their vocation and that each agriculturist must be left with at least one family holding. The internment of Section 49 is that only persons who want to adopt the profession oT agriculture alone could acquire those lands. Thus, these two sections indicate that the discretion of the. Collector to give permission is hedged in by several conditions. All these provisions have been conceived in the interests of the agriculturists and to prevent fragmentation of the holdings.

27. There are other consignations which support the view indicated above. Section 47 talks of 'no permanent alienation and no other transfer'. Surely, the expression 'permanent alienation' is comprehensive enough to take in all forms of transfer by act of parties. It may be mentioned here that an involuntary alienation also could be described as an alienation. That apart, there was no need for the legislature to have used another expression 'no other transfer' unless it was with a view to emphasise that it included transfers of all kinds, be they by act of parties or by operation of law. It is well settled that a provision of law should be so construed that no part of it becomes inoperative or superfluous and that the entire statutory scheme should be given effect to. We should not read any part of the provision as being merely redundant. That being the position, we feel that the use of the two expressions was to lay stress on the comprehensiveness of the transfers.

28. Lastly, there is the non-obstante clause which furnishes us a key to open the mind of the legislature in this behalf. Whatever might be the import of the clause 'notwithstanding any thing contained in any other law for the time being in force', there can be little doubt as to the meaning of the words 'or in any decree or order of a Court.' The second clause makes it clear that involuntary transactions are also covered by this section.

It cannot bs postulated that transfers or alienations pursuant to a decree or order of a Court are transfers by act of parties. The section prohibits alienations or transfers made pursuant to decrees or orders of Court, which indicates that the section is not confined to transfers by act of parties. Thus, the non-obstante clause also lends support to the conclusion we have reached. If follows that Court sales will offend against Section 47. Therefore, the decree-holder cannot bring agricultural lands to sale in execution of his decree except as provided by that section.

29. It was next urged by Sri Subbarayudu that what is prohibited by Section 47 is a sale and not attachment of the holdings of an agriculturist and so there is nothing which stands in the way of his client attaching his properties. It is to he observed that attachment is part and parcel of the process of execution and not an independent process and, therefore, an attachment for the purpose of bringing the properties to sale comes within the inhibition enacted in Section 47. Here, admittedly, the attachment was made with a view to bring the properties to sale. There is, therefore, no force in the contention that Section 47 does not tender the attachment illegal.

30. Sri Subbarayudu then urges that nothing pre-vents his client from executing his decree by appointment of a Receiver to realise the income from the properties to be adjusted towards His decree. It is argued by the learned counsel for the respondent that Section 2(j) of the Act includes income from the lands and consequently the agriculturist cannot be deprived of such income by appointment of a Receiver it is unnecessary for us to express any opinion on this question, as there is no application before us for execution of the decree by appointment of Receiver. As already mentioned, the relief claimed in the execution petition was attachment of the properties and the sale thereof.

31. Sri Subbarayudu wants us to observe that if Section 47 covers Court sales also, there would be no obstacle in the way of the permission of the Collector being sought for effecting Court sales. The learned counsel for the respondent answers that there can be no objection to the decree-holder or other concerned persons applying to the Collector for permission subject to the provisions of Sections 48 and 49.

32. In the result, the judgment of the learned Judge, who has dismissed the execution petition, is varied as indicated above and the execution petition is remitted to the trial Court for disposal according to law. There will be no order as to costs. Appeal allowed partly.


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