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Lajjashanker Keshavji Joshi Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR658
AppellantLajjashanker Keshavji Joshi
RespondentState of Gujarat
Cases ReferredKubra Bibi v. Khudaija Bibi A.I.R.
Excerpt:
.....the said order, therefore, would be clearly in violation of section 8(3) of the agricultural lands ceiling act. provided that where any transfer or partition of land is effected by a document required by law to be registered which is however not registered and such document, purports to have been executed before 24th day of january, 1971 no court shall pass a decree in any suit filed for the grant of specific relief on the basis of any such document unless the court is satisfied on merits of the case that the document is a bona fide document executed in fact before 24th january, 1971 and that it is not antedated as a result of collusion between parties or otherwise in order to defeat the object of the amending act of 1972: provided further that nothing in this sub-section shall..........the said judgment and order passed by the deputy collector, land reforms. district junagadh in land ceiling section 8 case no. 28/77 the state of gujarat preferred revision application no. ten b.r. 61/78 before the gujarat revenue tribunal under section 38 of the agricultural lands ceiling act, in that revision application a contention was raised on behalf of the state that as the possession of the land was delivered merely by an agreement to sell, therefore the said agreement to sell cannot be held to be a transfer and hence section 8 of the agricultural lands ceiling act would not be applicable. the gujarat revenue tribunal held that by agreement to sell no right, title and interest in the property would be conferred on the purchasers and, therefore, proceedings under section 8 of.....
Judgment:

M.B. Shah, J.

1. The petitioner filed an application under Section 8 of the Gujarat Agricultural Lands Ceiling Act, 1960 hereinafter referred to as the 'Agricultural Lands Ceiling Act' before the Collector for a declaration that the transfer or partition effected by him prior to the specified date was not made in anticipation in order to defeat the object of the Act. After considering the said application on merits the Collector granted the prayer of the petitioner by his judgment and order dated 19th September 1977. Against the said judgment and order passed by the Deputy Collector, Land Reforms. District Junagadh in Land Ceiling Section 8 Case No. 28/77 the State of Gujarat preferred Revision Application No. TEN B.R. 61/78 before the Gujarat Revenue Tribunal under Section 38 of the Agricultural Lands Ceiling Act, In that revision application a contention was raised on behalf of the State that as the possession of the land was delivered merely by an agreement to sell, therefore the said agreement to sell cannot be held to be a transfer and hence Section 8 of the Agricultural Lands Ceiling Act would not be applicable. The Gujarat Revenue Tribunal held that by agreement to sell no right, title and interest in the property would be conferred on the purchasers and, therefore, proceedings under Section 8 of the Act were not maintainable. The Gujarat Revenue Tribunal, therefore, by his judgment and order dated 12th July 1979 set aside the order passed by the Collector.

2. Being aggrieved and dissatisfied by the said judgment and order, the petitioner has filed this Special Civil Application under Article 227 of the Constitution of India. In this petition, the Learned Counsel for the petitioner has raised the following contentions:

(1) The order passed by the Gujarat Revenue Tribunal without hearing the transferee is against the provisions of Section 8(3) of the Agricultural Lands Ceiling Act.

(2) The interpretation of Section 8(1) given by the Gujarat Revenue Tribunal by holding that the agreement to sell would not be covered within the meaning transfer is against the intent and purport of Section 8(1).

Section 8(3) of the Agricultural Lands Ceiling Act in terms provides that on receipt of an application under Section 8(2) the Collector shall hold an inquiry and after giving an opportunity to the transferor and the transferee or, as the case may be, to the parties to the partition, to be heard and after considering the evidence which may be produced, decide whether the transfer, or as the case may be the partition was or was not made in anticipation in order to defeat the object of the Act. Admittedly In this case the transferees are not heard by the Gujarat Revenue Tribunal. It is not very much clear whether the transferees were heard by the Collector or not, but in any set of circumstances the order passed by the Gujarat Revenue Tribunal clearly shows that the transferees were not heard. The said order, therefore, would be clearly in violation of Section 8(3) of the Agricultural Lands Ceiling Act. Hence on this short ground, the order requires to be set aside.

3. The next question which will require determination is whether 'transfer' as contemplated under Section 8( 1) would include an agreement to sell with possession of the land. For interpreting whether Section 8 would include transfer by agreement to sell, it would be necessary to refer to relevant provisions of the Agricultural Lands Ceiling Act. Section 8 reads as under:

8.(1) Where after 15th day of January, 1959 but before the commencement of this Act, or after 24th day of January, 1971, but before the specified date, any person has transferred whether by sale, gift, mortgage with possession, exchange, lease, surrender or otherwise or partitioned any land held by him. then notwithstanding anything contained in any law for the time being in force such transferor partition shall, unless it is proved to the contrary, be deemed to have been made in anticipation in order to defeat the object of this Act. Where such transfer or partition was made after 15th day of January 1959butbefore the commencement of this Act or in order to defeat the object of the Amending Act of 1972 where such transfer was made after 24th day/of January, 1971 but before the specified date.

Provided that where any transfer or partition of land is effected by a document required by law to be registered which is however not registered and such document, purports to have been executed before 24th day of January, 1971 no court shall pass a decree in any suit filed for the grant of specific relief on the basis of any such document unless the court is satisfied on merits of the case that the document is a bona fide document executed in fact before 24th January, 1971 and that it is not antedated as a result of collusion between parties or otherwise in order to defeat the object of the Amending Act of 1972:

Provided further that nothing in this Sub-section shall apply to any transfer of land by way of gift or partition made on or after the 24th January, 1971 to as on who was major on the said date.

(2) any person affected by the provisions of Sub-section (1) may, within the prescribed form, make an application to the Collector for a declaration that the transfer or partition was not made in anticipation in order to defeat the object of this Act, or as the case may be, of the Amending Act of 1972.

(3) On receipt of such application, the Collector shall hold an inquiry and after giving an opportunity to the transferor and the transferee or, as the case may be, to the parties to the partition, to be heard and after considering the evidence which may be produced, decide whether the transfer or, as the case may be, the partition was or was not made in anticipation in order to defeat the object of this Act, or as the case may be, of the Amending Act of 1972 and accordingly may:

(i) reject the application, or

(ii) by order in writing make a declaration that the transfer or, as the case may be, the partition was not made in anticipation in order to defeat the object of this Act, or as the case may be, of the Amending Act of 1972.

(4) Where the application is rejected, the transfer or, as the case may. be, the partition shall be ignored in computing under this Act the area of surplus land, if any, held by such person.

Undersection8theimportantrelevantwordswhicharerequiredtobeconsideredare'any person has transferred whether by sale, gift, mortgage with possession, exchange, lease, surrender or otherwise or partition and land held by him'. The different mode of transfer of immovable property under the Transfer of Property Act would be by way of sale, gift, mortgage, exchange lease, partition. Now, the Legislature by using the aforesaid phrase in Section 8 wanted to include all sorts of transfer seven by mentioning that transfer would include even 'surrender or otherwise'. This definitely indicates that the Legislature wanted to give the extended meaning so as to include transfer' by every means by which the possession of the property may be passed from one person to another. Under the Transfer of Property Act immovable property can be transferred by a sale, mortgage, lease, exchange or by way of gift. There is no other mode of transfer of immovable property prescribed under the Transfer of Property Act, yet under Section 8 of the Gujarat Agricultural Lands Ceiling Act the Legislature mentioned it that apart from sale, gift, mortgage, lease, exchange or partition if the property is transferred by surrender or otherwise it would be a transfer. This clearly indicates that the Legislature wanted to give wide meaning to the word 'transfer' and not the meaning which is given to it under the Transfer of Property Act.

4. Further, even if we refer to the proviso to Section 8(1), it amply bears that the Legislature wanted to include within the meaning word 'transfer' agreement to sell of land with possession. The said proviso states that where any transfer or partition of land is effected by a document required by law to be registered which however is not registered during the period specified therein, then unless the Court is satisfied on merits of the case that the document is bona fide document executed in fact before 24th January 1971 and that it is not ante dated as a result of collusion between the parties otherwise, in order to defeat the object of the amending Act of 1972, the Court shall not pass a decree in the suit filed for the grant of specific relief on the basis of any such document. This proviso, in my opinion, without any doubt includes that if there is any contract for sale, then also the Legislature considered it to be a transfer even though the said document was required to be registered. The Legislature was knowing it very well that there cannot be transfer of any immovable property without there being registered document, yet they have used the word 'transfer' or 'partition' of the land effected by a document required by law to be registered which is however not registered. This means that the Legislature thought that even if any person agrees to transfer the land by an unregistered document, even that type of transfer would be also included within the meaning of word 'transfer'. It is a well settled principle of interpretation of Statutes that the Court must deduce the intention of the Legislature from the words used in the Act. The word 'transfer' is not defined in the Agricultural Lands Ceiling Act. Normally as the word 'transfer' is a term of well-known legal significance, under the Transfer of Property Act no other meaning could be given to the said word but at the same time when the Legislature has used it in a broader sense or wider sense, the word 'transfer' would include even agreement to sell wherein the possession of the land is parted in favour of purchaser.

5. Even under Section 7 of the Agricultural Lands Ceiling Act the Legislature has used the word 'transfer' in a broader sense. Section 7 provided that notwithstanding anything contained in any law for the time being in force, no land shall, after the appointed day, be transferred whether by way of sale (including sale in execution of a decree of a Civil Court or of an award or order of any other competent authority) or by way of gift. exchange, lease or otherwise, or sub-divided whether by partition, family arrangement or otherwise except with the permission in writing of the Collector. This also indicates that the Legislature has used the phrases 'lease or otherwise' and 'partition or otherwise' even after mentioning all modes of transfer contemplated under the Transfer of Property Act and, therefore, this indicates that the Legislature wanted to cover all sorts of transfer of the land by which the possession of the land is transferred in favour of other persons. Even Section 9 of the Act indicates the same thing whereby it is provided that where after the appointed day, on account of gift, purchase, assignment, lease, surrender or any other kind of transfer inter vivos or by succession or partition, any land comes into the possession of any person, or any land held by any person ceases to be exempted land and in consequence thereof the total land held by such person exceeds the area which he is entitled to hold under Section 6, then (i) if the acquisition of such excess land was otherwise than by succession or partition it shall be invalid and the excess land shall be forfeited to the State Government, and (ii) if the acquisition was by succession or partition or the excess was due to the land ceasing to be exempted land the excess land shall be deemed to be surplus land held by such person. This section also clearly shows that what is important is the acquisition of such land by either gift, purchase, assignment, lease, surrender or any other kind of transfer inter vivos and thereby if land comes into possession of any person, then the excess land shall be forfeited to the State Government. So the Legislature all throughout provides that if the possession of the land is transferred, then it would be a transfer.

6. This aspect is also further borne out from the object of incorporating amending Section 8 which is to prevent the land holders from making fictitious transfers either before or after the specified date so as to evade the provisions of the Act and frustrate the very object and purpose for which the Act had been passed. The wider meaning which I am giving to the word 'transfer' used in Section 8 is further borne out from the definition provided under Section 2(15) which defines the words 'to hold land' as under:

2(15) 'to hold land' with its grammatical variations and cognate expression means to be lawfully in actual possession of land as owner or tenant, as the case may be:

Provided that in the case of land mortgaged with possession:-(a) it. it is not in the actual possession of the tenant, the mortgager shall be deemed to hold it as owner, and

(b) if it is in the actual possession of a person as a tenant thereof, such person shall be deemed to hold it as a tenant;

The whole emphasis in this section is 'a person must be in lawful actual possession of the land either as an owner or a tenant'. Now, if by an agreement to sell possession is parted in favour of the purchaser, owner would say that I am not in actual possession of the land even though legal ownership vests in him. Section 6 of the Agricultural Lands Ceiling Act provides that with effect from the appointed day no person shall be entitled to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area -subject to other sub-sections. As stated above, 'to hold land' is defined to mean that a person must be in actual possession of the land as an owner or as a tenant. Therefore, the whole purpose and object would be defeated if it is held that 'transfer' contemplated under Section 8 of the Act would not include transfer of possession of land under an agreement of sale. Now, it is well settled that by an agreement to sell even if the possession of the land is handed over to the vendee, no interest in the property is created but at the same time under Section 40 of the Transfer of Property Act such contract creates an obligation annexed to the ownership of immovable property not amounting to an interest in the property but which obligation may be enforced against a transferee with notice of contract or a gratuitous transfer of the property. This aspect is considered by the Supreme Court in the case of Bai Dosabai v. Mathurdas : [1980]3SCR762 . In paragraph 6 of the said judgment it has been held as under:

We do not wish to go in any detail into the question whether the English Equitable doctrine of conversion of reality into personality, is applicable in India. However, we do wish to say that the English doctrine of conversion or reality into personality cannot be bodily lifted from its native English soil and transplanted in statute bound Indian law. But, we have to notice that many of the principles of English Equity have taken, statutory form in India and have been incorporated in occasional provisions of various Indian statutes such as the Indian Trusts Act, the Specific Relief Act, Transfer of Property Act etc. and where a question of interpretation of such Equity based statutory provisions arises we will be well justified in seeking aid from the Equity source. The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immovable property, as understood in English is alien to Indian Law which recognises one owner i.e. the legal owner: vide Rambaran Prasad v. Ram Mohit Hazra : [1967]1SCR293 and Narandas Karsondas v. S.A. Kamtam : [1977]2SCR341 . The ultimate paragraph of Section 54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of Section 40 of the Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice of the contract or a gratuitous transferee of the property. Thus, the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a gratuitous transferee.

Under Section 53 the transferee is also in a position to protect his possession of the land. Hence the interpretation given by the Gujarat Revenue Tribunal to the word 'transfer' used under Section 8 of the Act is, in my opinion, in no way warranted by the language of Section 8.

7. While considering the phrase 'transfer the property' used in Order 21rule 102 of the Civil Procedure Code which provided that nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person, the Madras High Court in the case of Kangasabhai v. Poornathammal A.I.R. 1947 Madras 458, had held that the 'words 'transferred the property' should be understood in a wide sense so as to include both 'transfer of title' as well as 'transfer of possession'. The relevant discussion is in paragraph 6 which is as under:

(6) The only question, therefore, which remains is whether Rule 102 applies to the facts of this case. Has the judgment debtor 'transferred' the property to the petitioner after the institution of the respondent's suit? He has certainly not executed any conveyance to the petitioner. Nor has he purported to transfer or assign any title to the property to the petitioner. The only act which he has done is to quit and deliver possession of the property to the petitioner, after receipt of a notice from him to quit. In my opinion, having regard to the scope of the groups of sections beginning with Order 21, Rule 95, Civil P.C., the words 'transferred the property' in Rule 102 should be understood in a wide sense as to include both 'transfer of title' as well as 'transfer of possession'. I would even go further and say that primarily it refers to transfer of possession whether accompanied by a purported transfer of title or not. In this view I do not agree with the lower Court in thinking that it cannot be said that the judgment-debtor has transferred the property within the meaning of Rule 102. The judgment debtor, in surrendering possession to the petitioner, must be deemed to have 'transferred' the property to him within the meaning of this rule. The petitioner would therefore, be not entitled to any relief under Rule 101.

8. Similar is the view taken by the Division Bench of the Madhya Pradesh High Court in the case of Dhansingh v. Sushilabai : AIR1968MP229 , while interpreting the expression 'property cannot be transferred or otherwise dealt with by any party' used in Section 52 of the Transfer of Property Act. The Court held that delivery of possession of land would be otherwise dealing with the property which is prohibited under Section 52 of the Transfer of Property Act.

In the case of Kubra Bibi v. Khudaija Bibi A.I.R. 1917 Oudh 193. the Court has also considered Section 52 of the Transfer of Property Act and held that even agreement to sell would be also hit by the doctrine of lis pendens by holding that the creation of a contract, capable of specific performance, though not an alienation by itself, is a mode of dealing with the property pregnant with the very mischief which Section 52 of the Transfer of Property Act seeks to obviate. There the agreement was unregistered and ineffectual as a conveyance.

9. In view of the aforesaid discussion, in my view the narrow meaning given to the word 'transfer' by the Gujarat Revenue Tribunal meaning transfer of land contemplated only under the Transfer of Property Act is not legal and proper'. In the result, the Special Civil Application is partly allowed. The order dated 12-7-79 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN.B.R. 61/78 is quashed and set aside. The matter is remanded to the Gujarat Revenue Tribunal to decide it afresh hearing all the necessary parties contemplated under Section 8 of the Gujarat Agricultural Lands Ceiling Act according to law. Rule is made absolute to the aforesaid extent with no order as to costs.


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