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Punau Vs. Ajitram and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 6 of 1971
Judge
Reported inAIR1975MP236
ActsMadhya Pradesh Land Revenue Code, 1959 - Sections 165(6), 165(10), 170(1) and 257(7)
AppellantPunau
RespondentAjitram and ors.
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateA.R. Choubey, Adv.
DispositionAppeal dismissed
Cases ReferredChindhu Sukal v. Dadu Ambar (supra
Excerpt:
.....in contravention of section 165.'however, the section clearly provides that if a bhumiswami transferred land in contravention of sub-section (6) of section 165 of the code, any of the heirs of the bhumiswami -whether nearer heirs or remoter heirs, would be competent to apply to a sub-divisional officer for being placed in possession of the holding. for this reason we are clearly of the opinion that the head-note on the title of this section i. the registration was clearly in contravention of sub-section (10) of section 165 of the m. merely because section 170 (1) of the code provides for a summary remedy in the matter of obtaining possession and such matter falls within the exclusive jurisdiction of the revenue court as per section 257 (l) of the code, the right of the heirs to..........the first one is whether a transaction of transfer under section 165 (6) of the madhya pradesh land revenue code, 1959, is void or voidable; and the second question is whether in view of the provision of section 170 (1) of the code read with section 257 (l) of the same, the heirs of the transferee can maintain a civil suit on title and for possession in a civil court consequent on death of the transferor. 2. the facts leading to the present appeal are as follows : mst. meharinbai, mother of the respondents, who are members of an aboriginal tribe, namely, panka, was a bhumiswami in respect of khasra nos. 2, 99. 100/2 and 144/1, area 2.31 acres. on 16-3-1961 she sold the said bhumiswami lands to the appellant for a consideration of rupees 500/-. it was the respondents' contention that.....
Judgment:

P.K. Tare, C.J.

1. On leave being granted by a learned Single Judge of this Court in Second Appeal No. 548 of 1970, dated 6-1-1971, this Letters Patent Appeal raises two questions of law. The first one is whether a transaction of transfer under Section 165 (6) of the Madhya Pradesh Land Revenue Code, 1959, is void or voidable; and the second question is whether in view of the provision of Section 170 (1) of the Code read with Section 257 (L) of the same, the heirs of the transferee can maintain a Civil suit on title and for possession in a Civil Court consequent on death of the transferor.

2. The facts leading to the present appeal are as follows : Mst. Meharinbai, mother of the respondents, who are members of an aboriginal tribe, namely, Panka, was a Bhumiswami in respect of Khasra Nos. 2, 99. 100/2 and 144/1, area 2.31 acres. On 16-3-1961 she sold the said Bhumiswami lands to the appellant for a consideration of Rupees 500/-. It was the respondents' contention that the real value of the lands was Rs. 1,500/-. Mst. Meharinbai died some time in October, 1965. and after her death the respondents, who are her sons and daughters, filed the present suit on the allegation that the said sale was not binding on them. The respondents claimed a declaration of their title and also possession of the suit lands.

3. On behalf of the defendant-appellant it was contended that the transaction of sale as per Section 165 (6) of the M. P. Land Revenue Code. 1959. was not void, but only voidable and as the heirs did not avoid the transfer as provided by Section 170 (1) of the Code, they could not maintain a suit in the Civil Court by virtue of the bar provided by Section 257 (L) of the M. P. Land Revenue Code, 1959. The appellant had also raided other pleas in reply to the plaintiffs allegation that the transaction was nominal and it was in lieu of a loan. However, all those questions stand decided in favour of the appellant except the two questions mentioned above.

4. The trial Judge, vide judgment, dated 31st October, 1966, in Civil Suit No. 34-A of 1966, dismissed the plaintiff-respondents' suit holding that the transaction of sale was not in lieu of any loan incurred by Mst. Meharinbai. It was also held that the sale-deed was not nominal. Further it was held that Mst. Meharinbai had transferred the possession to the transferee after the sale and that she did not make any repayment to the transferee. Lastly, it was held that the Civil Court had no jurisdiction and that the only remedy of the heirs was to obtain possession through the Revenue Court as provided by Section 170 (1) of the M. P. Land Revenue Code, 1959, and as that remedy was not resorted to, the present suit was not maintainable.

5. On an appeal before the First Additional District Judge, Durg, the learned Judge in Civil Appeal No. 11-A of 1967, renumbered as Civil Appeal No. 8-A of 1968, dated 7-8-1970, reversed the decree of the trial Court holding that the bar of Section 257 (L) read with Section 170 (1) of the M. P. Land Revenue Code, 1959, would not apply and that a civil suit based on title after the death of the transferor was maintainable. Therefore, the respondents claim for possession was decreed on the condition that they refunded the consideration of Rs. 500/- to the defendant. That decree of the first appellate Court was upheld by a learned Single Judge of this Court holding that the remedy provided in Section 170 (1) of the M. P. Land Revenue Code, 1959, is a summary remedy, which will not bar a title suit and the remedy is available only to the heirs of the transferor and is not available to the transferor. The learned Single Judge also held that the transaction in contravention of Section 165 (6) of the M. P. Land Revenue Code, 1959, would be void ab initio because of the provision of Section 165 (10) of the Code. In that view, the decree of the first appellate Court was affirmed by the Single Bench.

6. Before considering the two questions involved in the present appeal, we may usefully reproduce the relevant provisions of the M. P. Land Revenue Code. 1959. Section 165 (6) of the Code is as follows :

'Section 165 (6)-- Notwithstanding anything in Sub-section (1), the right of a Bhumiswami belonging to a tribe which has been declared to be an aboriginal tribe by the State Government by a notification in that behalf for the whole or a part of the area to which this Code applies shall not be transferred to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of a Collector, given for reasons to be recorded in writing.'

Sub-section (10) of the said section is as follows :

'S. 165 (10)-- Notwithstanding anything contained in the Indian Registration Act. 1908 (XVI of 1908) no officer empowered to register documents thereunder shall admit t' registration any document which purports to contravene the provisions of this section.'

7. Thus, the registration authorities are prohibited from registering a document, which would be in contravention of any of the provisions of Section 165 of the M. P. Land Revenue Code, 1959.

8. As regards the question whether the transaction in contravention of Section 165 of the M. P. Land Revenue Code, 1959, would be void or voidable, the learned counsel for the appellant urged that such a transaction should be held to be voidable, especially in view of the provision of Section 170 (1) of the M. P. Land Revenue Code, 1959. We may observe that the head-note of Section 170, M. P. Land Revenue Code, 1959, is slightly misleading. It reads as under :

'Avoidance of transfer in contravention of Section 165.'

However, the section clearly provides that if a Bhumiswami transferred land in contravention of Sub-section (6) of Section 165 of the Code, any of the heirs of the Bhumiswami -- whether nearer heirs or remoter heirs, would be competent to apply to a Sub-Divisional Officer for being placed in possession of the holding. The Sub-Divisional Officer is not required to decide any question of title. In some cases the nearer heirs may not file such an application. It is open to the remoter heirs to file such an application and obtain possession of the transferred holding, from the transferee. The transferor himself or herself has no remedy as he or she would be bound by his or her own transfer. Thus, Section 170 (1) of the Code merely lays down a summary remedy available to the heirs in the matter of obtaining possession of the transferred land. There is no question of avoiding the transfer in such a case. The Sub-Divisional Officer cannot set aside the transfer. What he has to decide is merely to place the heirs in possession and nothing else. Of course, he can impose conditions and heirs can obtain possession subject to acceptance of liabilities for arrears of land revenue or any other due which might form a charge on the holding. For this reason we are clearly of the opinion that the head-note on the title of this section i.s misleading. What the section really provides for is that the heirs can obtain possession of the transferred holding by resorting to the summary remedy and it is in this sense only that they can avoid the transfer.

9. Moreover, Sub-section (10) of Section 165 of the M. P. Land Revenue Code, 1959. prohibits registration of such a document. In the present case the caste or the tribe of Mst. Meharinbai was not at all mentioned in the sale-deed. That fact was suppressed and it was because of that suppression that the Sub-Registrar registered the said sale-deed. The registration was clearly in contravention of Sub-section (10) of Section 165 of the M. P. Land Revenue Code, 1959.

10. There were similar provisions in the Madhya Pradesh Land Revenue Code, 1954. namely, Section 152 (2), which was as follows :

'Section 152 (2)-- Notwithstanding anything in Sub-section (1), the right of a tenure-holder belonging to a tribe which has been declared to be an aboriginal tribe by the Slate Government by a notification in that behalf for the whole or a part of the area to which this Code applies shall not be transferred to a person not belonging to such tribe without the permission of a Revenue Officer not below the rank of a Collector, given for reasons to be recorded in writing.'

11. In Sukhsen v. Shravan Kumar, S. A. No. 906 of 1967, D/- 23-9-1969 = (1972 MPLJ 95), the learned Single Judge, namely, A. P. Sen, J. had to consider the question whether the sale of lands in contravention of Section 152 (2) of the M. P. Land Revenue Code, 1954, was void and unenforceable. The learned Judge held that such a transaction would be void and consequently, Section 65 of the Indian Contract Act might be attracted to such a case.

12. A. P. Sen, J. in Soma v. Bcer-chand, S. A. No. 556 of 1965, D/- 27-3-1970 (Madh Pra) was required to consider whether a transaction in contravention of Section 165 (6) of the M. P. Land Revenue Code, 1959, would be void or voidable. The learned Judge relying on his earlier decision in Sukhsen v. Shravan Kumar, (1972 MPLJ 95) (supra) held that such a transaction would be void by reason of Section 23 of the Contract Act and in order to work out equities between the parties, Section 65 of the Contract Act might be attracted.

13. Bhave, J. in the present appeal agreed with the view of A. P. Sen, J. expressed in Soma v. Beerchand, S. A. No, 556 of 1965, D/- 23-3-1970 (Madh Pra) (supra). The provisions regarding transfer of Bhumiswami lands and the prohibitions are more or less identical with the provisions in the C. P. Tenancy Act, 1920, in the matter of transfer. Section 12 and Section 13 of the C. P. Tenancy Act, 1920, prohibited transfer of tenancy lands. There was a controversy and contrary views were expressed on the question whether a transfer in contravention of Section 12 or Section 13 of the C. P. Tenancy Act, 1920, would be void or voidable. The learned counsel for the appellant relied on those decisions and urged that a transfer in contravention of Section 165 (6) of the M. P. Land Revenue Code, 1959, which has provisions similar to the provisions of the C. P. Tenancy Act, 1920, ought to be held voidable and not void. We are unable to accept this contention mainly for two reasons. Firstly, Sub-section (6) of Section 165 of the present Code specifically prohibits a transfer unless the consent of the Collector is obtained. The Collector is required to consider other questions while giving or refusing the consent, such as whether it is absolutely necessary for the aboriginal to transfer the land or to meet the situation by any other mode. Such a protection is necessary in the case of members of the aboriginal tribe. Moreover, Sub-section (10) of Section 165 of the Code prohibits registration of such a document, which is in contravention of subsection (6) of Section 165 of the Code. Such a transfer, in our opinion, cannot merely be described to be voidable. But, in our opinion, it would be void because of the two prohibitions provided by different sub-sections of Section 165 of the Code. The provision of Section 170 (1) of the Code is not in effect for avoiding such a transfer, but is a provision enabling the nearer or the remoter heir to obtain possession even in the face of such a transfer, which may be valid and binding so far as the transferor is concerned. Section 170 (1) merely provides for a summary remedy available to the heirs only in the matter of obtaining possession and the Sub-Divisional Officer is not required to set aside he transfer as such. For these reasons we are of the opinion that what Section 170 (1) of the Code provides for is merely a summary remedy for the purpose of obtaining possession and nothing more. Such a remedy is available to the heirs of the transferor, whether they are nearer or remoter. For instance, if the transferor himself wants to avoid the transfer on any grounds which might vitiate the transfer, the ordinary remedy of a civil suit would be open to the transferor and the transferor has no remedy under the M. P. Land Revenue Code, 1959. Thus, by virtue of Section 257 (L) of the M. P. Land Revenue Code, 1959, the jurisdiction of the Civil Court would be barred only in respect of the matters provided by Section 170 (1) of the M. P. Land Revenue Code, 1959. It means that the heirs, if they do not file an application to the Sub-Divisional Officer within two years of the transfer for obtaining possession, they cannot obtain possession as long as the Bhumiswami is alive and the transfer is binding on the Bhumiswami. But we do not think that there is any bar to the heirs filing a suit based on title and the consequential relief of possession after the death of the Bhumiswami. The simple reason is that a different kind of right accrues to the heirs after the death of Bhumiswami, namely, one of inheritance. Merely because Section 170 (1) of the Code provides for a summary remedy in the matter of obtaining possession and such matter falls within the exclusive jurisdiction of the Revenue Court as per Section 257 (L) of the Code, the right of the heirs to inherit the Bhumiswami lands after the death of the Bhumiswami cannot be said to have stood defeated on account of the summary remedy provided. The heirs of a Bhumiswami can always file a suit based on title and also obtain possession consequent on the declaration of their title. Therefore, we are of the opinion that the jurisdiction of the Civil Court would not be totally barred, although we would hold that the jurisdiction of the Civil Court would be barred to the extent that provision in Section 170 (1) read with Section 257 (L) of the M. P. Land Revenue Code, 1959, is made. In other matters, the jurisdiction of the Civil Court cannot be said to have been barred at all. For instance, the transferor can always file a suit for setting aside a transfer on the grounds available to the transferor under the Indian Contract Act, namely, that the transaction is vitiated by fraud, coercion and undue influence, that it is a nominal tranfer, that it is a transfer evidencing a transaction of loan and such other things. Similarly, the heirs would not be able to obtain possession by summary remedy or even by filing a suit as long as the Bhumiswami is alive. Their right to obtain a declaration of title and possession would only accrue after the death of the Bhumiswami. Such a suit also cannot be said to have been barred by the provision of Section 257 (L) of the M. P. Land Revenue Code, 1959.

14. As regards the question whether such a transfer in contravention of Section 165 (6) and Section 165 (10) of the M. P. Land Revenue Code, 1959, is void or voidable, we would affirm the view of A. P. Sen, J. in the said cases and the view of Bhave, J. in the present case that such a transfer should be held to be void and not voidable. Our reasons for coming to this conclusion are thus : In analogous provisions under the C. P. Tenancy Act, 1920, S. Ismay, Judicial Commissioner in Daji Vithal Dhole v. Moreshwar Venkatesh Gharpurey, (1905) 1 Nag LR 112 held that the effect of Section 46 of the C. P. Tenancy Act, 1920, was to abrogate the powers of a Registrar or Sub-Registrar to register certain documents, which were in contravention of Section 12 or 13 of the Act. If the Registrar or the Sub-Registrar were to be deceived into registering a document in respect of which there was prohibition, the document would not be effective for the purpose for which it was created. The same view was expressed by Drake-Brockman Judicial Commissioner, in Nilkanth v. Ghulya, 13 Nag LR 165 = (AIR 1916 Nag 22) opining that because of the prohibition about registering the document if registered in contravention to the statutory provision of Section 46 of the C. P. Tenancy Act, 1920, would be invalid.

15. We may further observe that the Board of Revenue itself in Narbad Prasad v. State of M. P., 1974 Rev Nir 123 also took the same view with reference to Section 165 (6) of the M. P. Land Revenue Code, 1959, read with Section 170 (1) of the Code by holding that a transfer in contravention of the statutory provision would be invalid.

16. A Full Bench of this Court in Mahabir Prasad Ramdhin v. Samaroo Kali-ram, 1960 MPLJ 230 = (AIR 1960 Madh Pra 165) (FB) approved of the view as expressed in Chindhu Sukal v. Dadu Ambar, ILR (1945) Nag 433 = (AIR 1945 Nag 119) to the effect that the transfer of an. occupancy holding for Rs. 100/- or more if effected by an unregistered document, would be null and void and would not, therefore, contravene Section 12 of the C. P. Tenancy Act, 1920. Under such circumstances the remedy of the landlord to eject the transferee would be to file a civil suit and he would not be able to maintain an application under Section 13 of the C. P. Tenancy Act, 1920. However, the Full Bench laid down that even in cases of transfer of lands worth less than Rs. 100/-, where no registration was required an application under Section 13 of the C. P. Tenancy Act, 1920, would be maintainable Therefore, the Full Bench accepted the view expressed in Chindhu Sukal v. Dadu Ambar (supra) in a modified form. But, all the same, the final view of the Full Bench was that such a transfer in contravention of the statutory provision, would be invalid.

17. We may observe that in deciding this question whether such a transfer would be void or voidable, there are three considerations. One is that because of the specific provision contained in Sub-section (6) of Section 165 of the M. P. Land Revenue Code. 1959, there is a specific prohibition against transfer. Moreover, by virtue of Sub-section (10) of the said section, there is a specific prohibition against registration of such a document. Therefore, it can be urged that Section 23 of the Contract Act ought to be invoked as a transfer in contravention of the specific statutory prohibition would be opposed to public policy. We are inclined to accept this line of reasoning. Secondly. Section 170 (1) of the M. P. Land Revenue Code. 1959. provides for a remedy to the heirs only and not to the transferor. Thus, the transferor cannot avoid the transfer under the M. P. Land Revenue Code. 1959. But the remedy is available to heirs only, whether nearer or remoter. Therefore, it might be urged that the transferor has no remedy' under the M. P. Land Revenue Code. 1959, and he can avoid the transfer only by resorting to a civil suit in a Civil Court on grounds. which might vitiate a contract under the Indian Contract Act relating to fraud, coercion, undue influence or nominal nature of the transaction etc. For this reason it might be urged that the transfer is voidable. On the other hand, the heirs have been given the right to approach the Revenue Court for obtaining possession. The Revenue Officer cannot decide about the title. He can only order delivery of possession to the heirs. Similarly, while granting permission under Section 165 (6) of the Act, he can refuse or grant permission without deciding the question of title As such, the heirs can certainly approach the Civil Court in order to have their title declared and in such a case the relief of possession would only be consequential, though it has to be specifically claimed. Therefore, because of these provisions it might appear that the transfer in contravention of the statutory provisions might be void as against the heirs. The third aspect to consider would be that if the Legislature had intended such transfer to be void, the transferor himself would have been given some remedy in the M. P. Land Revenue Code, 1959. But taking an over-all picture of these three aspects, we are of the opinion that because of the specific prohibition against registration as contained in Section 165 (10) of the M. P. Land Revenue Code, 1959, such a transfer ought to be held to be void because by incorrect or fraudulent registration the transferee would not get any title.

18. The transferor himself has no remedy under the M. P. Land Revenue Code, 1959. and he can avoid transfer only by way of a civil suit. But the heirs have been given the right to obtain possession through the Revenue Court. As such, the intention of the Legislature appears to be clear that the transferor would not be able to obtain possession through the Revenue Court and that as long as he is alive, the transfer wouid be binding on him, but it would not be binding on his heirs. However, the position would altogether change after the death of the transferor. The nearest heirs would be able to maintain a civil suit in a Civil Court for declaration of their title as also for a declaration that the said transfer is not binding on them because it was null and void as against them. Such a suit can by no strelch ot imagination be said to be barred by the provisions of the M. P. Land Revenue Code 1959. By virtue of Section 257 (L) of the Code what would be barred is merely the remedy of the heirs to obtain possession within two years of the transfer as per Section 170 (1) of the M. P. Land Revenue Code. 1959, and if they do not obtain possession as per this section, they would not be able to obtain it through the Revenue Court. But after the death of the transferor they would certainly be able to claim a declaration of their title and also to obtain possession through the Civil Court. This is exactly what has happened in the present case and. therefore, we would hold that the respondents' suit for a declaration of their title and possession was maintainable in the Civil Court.

19. For the reasons aforesaid, we would affirm the view of the learned Single Judge on both the points and would dismiss this appeal, with costs. The costs incurred before the learned Single Judge and the Courts below shall abide the direction given by the learned Single Judge. Counsel's fee shall be according to the Schedule or certificate, whichever be less.


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