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Chet Ram and anr. Vs. AmIn Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberExecution Second Appeal Nos. 1715 and 2124 of 1976
Judge
Reported inAIR1983P& H50
ActsPunjab Security of Land Tenures Act - Sections 19-A and 19-A(1); Transfer of Property Act - Sections 58; Pepsu Tenancy and Agricultural Lands Act, 1955; Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956
AppellantChet Ram and anr.
RespondentAmIn Lal and ors.
Cases Referred and Bajirao Domaji Shreerang v. Kashirao Ajaibrao Deshmukh
Excerpt:
.....amount to the considerable discomfiture of the mortgagor. we may point out that the similar anomalous results might well ensure mutatis mutandis in the case of a pre-emption decree obtained by a big landowner in his favour......or settlement made in contravention of the provisions of sub-section (i) shall be null and void. pepsu act 32-l : ceiling on future acquisition of land : (1) notwithstanding anything to the contrary in any law, custom, usage, contract, or agreement from and after the commencement of the pepsu tenancy and agricultural lands (second amendment) act, 1956, no person whether as landowner or tenant, shall acquire or possess by transfer, exchange, lease, agreement or settlement any land which with or without the land already owned or held by him, shall in the aggregate exceed the permissible limit. (2) any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub-section (1) shall be null and void. 19-b future acquisition of land by inheritance,.....
Judgment:

S.S. Sandhawalia, C.J.

1. Whether a transfer in contravention of the provisions of sub-section (1) of Section 19-A of the Punjab Security of Land Tenures Act is void ab initio, or is only void qua the State but valid and binding between the parties inter se, is the meaningful question necessitating this reference to the full Bench. Equally at this reference to the Full Bench. Equally at issue is the discordance of the two Division Bench judgments of this Court in Labh Singh v. Punjab Singh, 1971 Cur LJ719 and Godhy v. Kanshi Ram, 1979 Pun LJ 496, bearing on the point.

2. The aforesaid issue is common to this set of four Execution Second Appeals and it, therefore, suffices to advert briefly to the facts in E. S. A. No. 1715 of 1976, relevant to the legal issue. Amin Lal and others respondents had originally brought a suit for possession for agricultural land measuring 544 Kanals 7 Marlas against the appellants on the allegation that the said land had been mortgaged by their father Lachman Singh. The mortgagee inducted the appellants as his tenants thereon. The said mortgage was redeemed later and it was the case that the appellants were continuing in possession of the land as trespassers. Upon these premises a decree for possession of the land detailed in the suit was prayed for which was ultimately granted on the 31st of August, 1959, against all the appellants excepting Megha defendant.

3. The respondent-decree-holders thereafter applied for the execution of the aforesaid decree by means of an execution petition preferred in Court on the 5th of April, 1969. It was mentioned in the execution application that the land described therein had been allotted in lieu of the land in respect of which the decree was passed and hence the decree-holders' claim to be put in possession of an area measuring 391 Kanals 1 Marla. The appellants filed an objection petition to contest the execution proceedings. Therein inter alia they pleaded that the decree-holders were big landowners and that in any case the redemption of the mortgage of the suit land by the decree-holders amount to a transfer in favour of a big landowner in contravention of sub-section (1) of Section 19-A of the Punjab Security of Land Tenures Act (hereinafter referred to as the Act). On these premises it was the appellants' stand that the decree was inexecutable. On the pleadings of the parties as many as seven issue were framed but the material one which call for notice herein is No. 3 in the following terms :--

'Whether the decree is not executable at alleged ?'

The learned trial Judge on this issue held that the decree sought to be executed was not null and void and was, therefore, executable. In view of the findings on the other issues as well the objections petition of the appellants was dismissed. However, on appeal the learned senior Subordinate Judge relying basically on Labh Singh's case (1971 Cur LJ 719)(Punj & Har) held that the decree amounted to a transfer under Section 19-A(1) of Act and was, therefore, hit by the provisions of sub-section (2) of the said section and consequently was null and void and inexectuable. The appeal was consequently accepted and the execution application was dismissed leaving the parties to bear their own costs.

4. This set of appeals first came up for hearing before my learned brother S. P. Goyal, J. He pointedly noticed that the issue involved herein was whether the property redeemed by a mortgagor is a transfer within the meaning of Section 19-A of the landowner by redeeming that property whether the order or decree of redemption would be null and void in view of the provisions of sub-section (2) of the said section. In view of a conflict of judicial precedent the matter was referred for decision by a larger Bench.

5. Before coming to the core of the controversy, it seems apt to notice an area of agreement in regard to which the learned counsel for the parties are not at all at variance, not the decisions of this Court are in any way in conflict. It was the common case that a mortgage with possession would come within the ambit of the word 'transfer' generally and in particular as used in Section 19-A of the Act. Section 58 of the Transfer of Property Act defines the mortgage as follows :--

'A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.'

On the plain language of the aforesaid provision when a mortgage is created by the landowner, he transfers an interest in the land in question. It is more so in the case of a mortgage with possession, because then landowner not only transfers the interest in the immovable property but also transfers the possession thereof. Consequently when such a mortgage is redeemed, the mortgagor must necessarily take back the interest which he had earlier transferred and in essence it would amount to retransfer to him. Once it is so held, it would follow that the redemption of a mortgage with possession would involve the transfer of the same legal right back to the mortgagor and would amount to acquisition by transfer within the meaning of S. 19-A of the Act. This is so on the ratio of both Labh Singh's case (1971 Cur LJ 719)(Punj & Har) as also the case of Godhu (1979 Pun LJ 496)(supra).

6. Again learned counsel for the parties do not dispute the proposition that whether such a transfer is made voluntarily by the act of the parties, or involuntarily by operation of law, the result would be the same, and that it would amount to a transfer in the eye of law. Consequently it would follow that a decree of redemption would also amount to a transfer and thus be within the ambit of S. 19-A of the Act. The matter is not res integra. In Godhu's case (supra) this matter came up for consideration and in the particular context of Section 19-A of the Act, the Bench concluded as follows after consideration of a number of precedents :--

'From the aforesaid dictum of their Lordships it is evident that the would 'transfer' used in S. 19-A of the Act includes decrees.'

7. The arena of agreement having been noticed as above, one may come to gripes with the core of conflict. As is obvious from the earlier re'sume' of the case, the issue has been the subject matter of decisions within this Court and it is, therefore, unnecessary to examine the matter altogether afresh on just principles. It is the correctness of the view expressed in one or the other of the two conflicting cases, which lies at the heart of the controversy. Adverting chronologically to Labh Singh's case (1971 Cur LJ 719)(Punj & Har)(supra), it has to be borne in mind that the same was decided in the context of Ss. 32-L and 32-M of the Pepsu Tenancy and Agricultural Lands Act, 1955. Undoubtedly there are some basic differences betwixt the Pepsu Act and the Punj Act. It is true that in Punjab Act the big landowner even after the declaration of the surplus area is not divested of its ownership whereas under the Pepsu Act and the land beyond the permissible area is vested in the State. However, so far as the utilisation of the surplus area is concerned, the sue thereof for resettlement of tenants under the statute is for identical purpose. Learned counsel for the parties were agreed that for the limited purpose of the question before us the distinction between the two statutes is one without a difference.

8. Again it calls for a particular notice that Ss. 32-L and 32-M of the Pepsu Act, if not in pari materia with Ss. 19-A and 19-B of the Punjab Act are very closely similar. It would be apt to juxtapose them against each other :--

Punjab Act 19-A : Bar of future acquisition of land in excess of permissible area : (1) Notwithstanding anything to the contrary in any law, custom, usage, contract or agreement from and after the commencement of the Punjab Security of Land Tenures (Amendment) Ordinance, 1958 no person whether as landowner or tenant shall acquire or possess by transfer, exchange lease, agreement or settlement any land which, with or without the land already owned or held by him, shall in the aggregate exceed the permissible area : Proviso : xx xx xx (2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub-section (I) shall be null and void. Pepsu Act 32-L : Ceiling on future acquisition of land : (1) Notwithstanding anything to the contrary in any law, custom, usage, contract, or agreement from and after the commencement of the Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956, no person whether as landowner or tenant, shall acquire or possess by transfer, exchange, lease, agreement or settlement any land which with or without the land already owned or held by him, shall in the aggregate exceed the permissible limit. (2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub-section (1) shall be null and void. 19-B Future acquisition of land by inheritance, in excess of permissible area : Subject to the provisions of Section 10-A, if, after the commencement of this Act, any person, whether as landowner or tenant, acquires by inheritance or by bequest or gift from a person to whom he is an heir any land, or, if after the commencement of the Act and before the 30th July, 158 any person has acquired by transfer, exchange, lease, agreement or settlement any land, or if, after such commencement, any person acquires in any other manner any land, which, with or without the land already owned or held by him, exceeds in aggregate the permissible area, then he shall, within the period prescribed, furnish to the Collector, a return in the prescribed form and manner giving the particulars of all lands and selecting the land not exceeding in the aggregate the permissible area which he desires to retain and if the land of such person is situated in more than one Patwari circle he shall also furnish a declaration required by S. 5-A. 32-M. Ceiling on future acquisition by inheritance : (1) If after the commencement of the Pepsu Tenancy and Agrl. Lands (Second Amendment) Act, 1956, any person whether as landowner or tenant, acquires by inheritance or by bequest or gift from a person to whom he is heir any land or if after such commencement and subject to the provisions of S. 32-FF any person acquires in any other manner except as specified in S. 32-L, any land, which with or without the land already owned or held by him, exceeds in aggregate the permissible limit, then the shall within the period prescribed furnish to the Collector a return in the manner specified in Section 32-B giving the particulars of all lands and selecting the land he desires to retain and if the land of such a person is situated in more than one Patwari circle, he shall also furnish a declaration required by sub-section (1) of Section 32-BB.

9. As a matter of legal history it must be noticed that Ss. 32-L and 32-M of the Pepsu Act were inserted in the said Act by Pepsu Tenancy and Agricultural Lands (Second Amendment) Act, 1956. It was nearly three years later thereto that the similar provisions of Ss. 19-A and 19-B (along with Sections 19-C and 19-D) were introduced in Punjab Act vide Act No. 4 of 1959. It seems plain enough that these later provisions of the Punjab Act took their inspiration from the earlier Ss. 32-L and 32-M of the Pepsu Act.

10. The identical issue now before us fell for consideration in Labh Singh's case (1971 Cur LJ 719)(Punj & Har)(supra) in the light of Ss. 32-L and 32-M of the Pepsu Act. After consideration, the Bench arrived at the following categoric conclusion :--

'We are no hesitation in holding that the acquisition made by Labh Singh of 7.4 standard acres of land by redemption does amount to acquisition within the meaning of Section 32-L of the Pepsu Act. That begin the case, under sub-section (2) of the said section, this transfer by which Labh Singh has acquired interest in land and its possession, must be deemed to be null and void and, therefore non-existent. The transfer being non-existent, there is no acquisition in the eye of law and, consequently, this transfer has to be ignored and not to be taken into consideration. This effect has to take place, because Section 32-L of the Pepsu Act applies notwithstanding anything to the contrary in any law, custom or agreement.'

And again :

'It is not necessary for us to go into the question raised by the learned counsel for the appellant that such a transfer would be void only to the extent to which the aggregate area exceeds the permissible limit and not in its entirety. That is a question which shall have to be determined in a proper case if there is a dispute between the mortgagor and the mortgagee as to whether the act of redemption is null and void as a whole or to the extent of some part. So far as the to the extent of some part. So far as the present proceedings are concerned, the position is quite simple. The so-called acquisition is hit by Section 32-L of the Pepsu Act an is, therefore, non-existent in the eye of law being null and void, and does not have the effect of making Labh Singh the owner of an area exceeding the permissible limit.'

11-12. It is the correctness of the aforesaid conclusion, which is indeed the crux of the matte here. With the greatest respect, on a deeper analysis of the issue we are constrained to record our inability to subscribe to the aforesaid view. A reference to the judgment would indicate that on this specific point the matter does not seems to have been adequately debated and appears to have been decided on first impression. No principle or authority has been either considered or cited and an overly literal construction of the words 'null and void' used by the legislature in sub-section (2) of S. 32-L alone influenced the Bench to come to the categoric conclusion.

13. It would seem that the fallacy in the Labh Singh's case arises mainly from the construction of S. 32-L in isolation and not in harmony with the concerned provisions quoted the provisions of both the sections, yet in para 10 of the report observed as follows :--

'Before examining that happens under Section 32-M of the Pepsu Act, it is, therefore, necessary to see whether an acquisition of land made, on account of which the aggregate holding of the land exceeds the permissible limits, does or does not fall under Section 32-L of the Pepsu Act. If it does, no other question arises and we cannot go to Section 32-M.'

14. In consonance with the above they came to the conclusion that because the acquisition by transfer exceeded the permissible limit and was hit by sub-section (2) of Section 32-L, they could not go to S. 32-M and consequently shutout its provision from all consideration. The end result was that Section 32-L was interpreted as if it stood alone with no reference to the obviously connected provisions of S. 32-M which makes specific and express mention of the said proceeding, as also the larger scheme of the Pepsu Act. it is a well-settled canon of construction that a statute has to be read as a whole and a harmonious meaning in consonance with the other provisions has to be given to each section. In Labh Singh's case (1971 Cur LJ 719) the Bench seems to have not even chosen to read the closely connected and contiguous Ss. 32-L and 32-M together for their consideration against the broader canvass of the scheme of the Pepsu Act.

15. Again the precise and the finer issue which is now before us---namely whether sub-section (2) of S. 19-A is absolute in its terms or circumscribed by S. 19-B---does not seem to have been even considered by the Bench in Labh Singh's case. The distinction that in order to subserve to larger purpose of the Pepsu Act, the acquisition by way of transfer may be void qua the State and thus not in the least affecting the utilisation of the surplus area, without continuing to bind the parties inter se to the transfer was neither pointed raised before the Bench, nor adjudicated by it.

16. Equally the attention of the Bench was not drawn to the startlingly anomalous effects resulting from an overly literal and categoric construction which they placed one categoric construction which they placed on sub-section (2) of S. 32-L of the Pepsu Act. This becomes manifest when viewed in the context of a decree of redemption obtained by the mortgagor, who may either happen to be a big landowner or later might come to fall in that category after such a decree in his favour is executed. On the view propounded by the Bench in Labh Singh's case, the end result in a peculiar case may well be that even though the mortgagor may have paid the full redemption amount, yet the decree in his favour would be null and void and consequently inexecutable,. This would lead to the anomalous result that the mortgagee might be able to hold for the time being both the mortgaged land and the mortgaged amount to the considerable discomfiture of the mortgagor. Such, an illogical result is not to be easily countenanced in law. We may point out that the similar anomalous results might well ensure mutatis mutandis in the case of a pre-emption decree obtained by a big landowner in his favour. We are firmly of the view that where two constructions are possible (which is certainly so in the present case), the one which is likely to lead to the possibilities of such anomalous results is necessarily to be avoided.

17. It also calls for notice that the ratio of Labh Singh's case (1971 Cur LJ 719)(Punj & Har) in certain situations would tend to defeat the ultimate purpose of the Pepsu Act. One of the objects of the Pepsu Act undoubtedly is to take away the surplus land from the hands of the big landowners and to utilise it for the resettlement of the tenants and landless persons. Now if some land is sold by a small landowner to another small landowner, so that the land in the hands of the transferee becomes more than the permissible area, then on the ratio of Labh Singh's case such a transaction would be wholly null and void. This would mean that the land which could be utilised as surplus area in the hands of the transferee could not be declared surplus. If sub-section (2) of S. 32-L were to be interpreted in that way the construction would go against one of the declared purposes of the Pepsu Act.

17-A. Lastly it would be a bore repetition that Ss. 32-L and 32-M have to be read together so as to give a meaning and content to the provisions of each. If the construction spelled out in Labh Singh's case were to be accepted, then Section 32-M would be virtually rendered otiose. If the transfer in contravention of S. 32-L(1) is to be void ab initio or non-est, no question of the applicability of S. 32-M could arise and there would be no occasion for filing of subsequent returns by the said landowner and the declaration of surplus area in his hands. It is a hoary principle that a construction of the provision which renders some of its other provisions redundant and unworkable is to be avoided. Therefore, because of the all pervading consideration of harmonious construction, Ss. 32-L and 32-M would have to be construed together and this can only be done by placing a slight limitation on the otherwise categoric language used in sub-section (2) of S. 32-L of the Pepsu Act.

18. For the aforesaid reasons we are constrained to hold that on the aforesaid specific point the decision of the Bench in Labh Singh's case (1971 Cur LJ 719)(Punj & Har) does not lay down the law correctly and is hereby overruled.

19. The view we are inclined to take is totally synonymous with that in Godhu's case (1979 Pun LJ 496)(supra). This decision directly covers the issue in so far as it specifically construes Ss. 19-A and 19-B of the Punjab Act. It is true that the counsel were rather remiss in not bringing the earlier view in Labh Singh's case to the notice of the Division Bench. Nevertheless the matter was examined both on the anvil of principle and precedent between sub-section (2) of S. 19-A and S. 19-B, it was held as follows :--

'In order to resolve the conflict it is necessary to interpret both the sections in such a way that the purpose of the Act is promoted. It can be done if sub-section (2) of Section 19-A is so interpreted that the transfers, exchanges, leases, agreement or settlements in contravention of the provisions of sub-section (1) will not void between the parites but these will be void qua the State. That means that the transaction made between the parties will be binding on them but will not affect the right of the State Government to utilise the surplus area. The landowner can reserve his permissible area out of his land and the remaining area can be allotted by the Collector to landless persons as provided in the Act. If any other interpretation is put that would strike against the very principle on which the Act has been enacted.'

20. We are in respectful agreement with the aforesaid void. The added considerations are that Ss. 19-A, 19-B, 19-C and 19-D were inserted in the Punjab Act together by Act No. 4 of 1959 and form part of the larger and composite scheme and, therefore, have to be doubly construed together. If an isolated construction is given to sub-section (2) of S. 19-A so as to mean that a transfer in contravention of sub-section (1) thereof would be totally void and non-est even Section 19-B would be rendered totally redundant.

21. Again the construction, we are inclined to place to Ss. 19-A and 19-B seems to be harmonious and in line with the intent of the legislature in the preceding provisions of S. 10-A of the Punjab Act. Therein also sub-section (b) and (c) of Section 10-A lay down that the transfer of surplus area shall be affect the utilisation thereof for the resettlement of tenants and would have to be ignored if they have the effect of diminishing the surplus area for the purposes of resettlement.

22. A Full Bench of this Court in Chandi Ram v. State of Punjab, 1974 Pun LJ 251 : (AIR 1974 Punj & Har 243) has ruled that transfers of land comprised in the surplus areas of a big landowner were valid and binding so far as the transferor and transferee are concerned but would be void qua the Act if they affected the utilisation of the land for resettlement of tenants and were to be ignored for the purposes of the determination of the surplus areas in the hand of big landowners. Though undoubtedly the language of S. 10-A is different yet the subsequent insertion of Ss. 19-A and 19-B appears to be only a continuation of the pervading spirit of the statute that whilst there should be no leakage of surplus land for utilisation for the purposes of resettlement of tenants under the Act yet the binding effect of such a transfer between private parties inter se be maintained.

23. To conclude it must be held that even though the language of sub-section (2) of S. 19-A is absolute; yet for the reasons of sound interpretation it must be given a slightly constricted meaning in order to harmonise it with S. 19-B of the Punjab Act. The answer to the question posed at the outset is that a transfer in contravention of Section 19-A(1) would be void only qua the State for the purposes of the Punjab Act, but would be valid and binding between the parties inter se. The view in Labh Singh's case (1971 Cur LJ 719)(Punj & Har)(supra) in this context, is hereby overruled, whilst that in Godhu's case (1979 Pun LJ 496)(supra) is approved and affirmed.

24. This matter would now go back to the learned single Judge for decision on merits in accordance with the aforesaid answer to the legal question.

P.C. Jain, J.

25. I agree.

S. P. Goyal, J.

26. I also agree. Judgment dated 27-8-1982 :

S.P. Goyal, J.

27. This judgment will dispose of two appeals--E. S. As. No. 1715 and 2124 of 1976--as they have arisen out of the same judgment of the learned Senior Sub Judge, Hissar, dated Sept. 8, 1976.

28. Amin Lal and other decree-holders instituted these execution proceedings for the execution of the decree for possession of the land measuring 544 kanals, 7 marks. The judgment-debtors opposed the execution on a number of grounds and the only one which survives for the purpose of this appeal (E. S. A. No. 1715 of 1976) is that the decree was void in view of the provisions of S. 19-A of the Punjab Security of Land Tenures Act. As there was a conflict in the two Division Bench decisions of this Court, I referred this matter of a Full bench which was rendered the judgment against the judgment-debtors. In the appeal filed by the judgment-debtors, i. e. E. S. A. No. 1715 of 1976 no other point has been raised and the same is, therefore, dismissed.

29. The lower appellate Court in its judgment entertained another objection of the judgment-debtors that as the land except judgment-debtors that as the land except 8 killas, the subject-matter of the decree, has been declared surplus and had vested in the Haryana Government, the decree-holders have not right to execute the decree respecting the land comprised of Killa No. 129, rectangle No. 225; Killa No. 215, rectangle No. 247 and Killa No. 19, rectangle No. 128. This objection was upheld by the learned Senior Sub Judge, Aggrieved thereby the decree-holders have filed this appeal (E. S. A. No. 2124 of 1976). In view of the lower appellate Court is obviously against law because the provisions of R. 15, O. 21, Civil P. C., are only enabling and the transferees if they so desired, could get themselves impleaded as decree-holders in place of the original one. So long as this is not done, the person whose name appears as decree-holder in the decree is entitled to execute the decree. Reference in this respect may profitably be made to a Full Bench decision of the Andhra Pradesh High Court in Arvapalli Ramrao v. Kanumarlapudi Ranganaykulu, AIR 1964 Andh Pra 1; Mithan Lal v. Thana, AIR 1964 All 337 and Bajirao Domaji Shreerang v. Kashirao Ajaibrao Deshmukh, AIR 1978 Bom 350. Consequently, the judgment of the lower appellate Court in this respect has to be reversed with the result that the appeal (E. S. A. No. 2124 of 1976) filed by the decree-holders is allowed and the order of the lower appellate Court set aside to the extent stated above and that the of the executing Court restored. No costs.

30. Order accordingly.


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