Supreme Court of India
NI. PRA CHANNABASAVA D.S. MATADHIPATHIGALU KANNADA MUTTversusC.P. KAVEERAMMA AND ORS.
- Citation
- 2009 INSC 188
- Decided
- 13 February 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
Section 43 of the Transfer of Property Act does not apply, and the land vested in the State free of encumbrances under Section 4(2)(b) of the Karnataka Certain Inams Abolition Act, 1977; Section 10 is also inapplicable.
Summary
The Kannada Mutt, a religious institution, held jagir lands that were abolished under the Karnataka Certain Inams Abolition Act, 1977, vesting the lands in the State. The Mutt was later re‑granted the land, but the mortgagees claimed that the earlier mortgage was revived by the re‑grant and sought possession. The Karnataka High Court held that Section 43 of the Transfer of Property Act, 1882 applied, allowing the mortgagees to enforce the mortgage. The Supreme Court allowed the Mutt's appeal, holding that Section 43 is inapplicable because its pre‑condition of fraudulent or erroneous representation is absent, and that Section 4(2)(b) of the Karnataka Act vests the land absolutely in the State free of all encumbrances; Section 10 of the Act also does not apply. Consequently, the High Court judgment was set aside and the matter remitted for fresh consideration, with the issue of Section 43 deemed closed.
Issues considered
- Whether Section 43 of the Transfer of Property Act, 1882 applies to the re‑grant of land after abolition of inams.
- Whether Section 4(2)(b) of the Karnataka Certain Inams Abolition Act, 1977 vests the land free of encumbrances, thereby extinguishing the mortgage.
- Whether Section 10 of the Karnataka Certain Inams Abolition Act, 1977 is applicable to the facts.
- Whether the doctrine of estoppel or feeding the grant can be invoked against the State.
Legislation cited
- Karnataka Certain Inams Abolition Act, 1977s. 10, s. 4(2)(b)
- Transfer of Property Act, 1882s. 43
Subjects
Inam abolitionLand vestingMortgageTransfer of Property ActSection 43EstoppelKarnataka lawRe‑grantEncumbrance
Judgment
[2009] 2 S.C.R. 436
A NI. PRA CHANNABASAVA D.S. MATADHIPATHIGALU ~
KANNADA MUTT
v
C.P. KAVEERAMMA AND ORS.
Civil Appeal Nos. 1040-1053 of 2009
B FEBRUARY 13, 2009
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
~
SHARMA, JJ)
"
KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977: ·.'
c
S$. 4 (2) (b) and 1O - Abolition of Ina ms - lnamdar
regranted the land - Erstwhile mortgagee claiming the
mortgage to have been revived consequently - Held: High
Court was not justified in concluding that s. 43 of Transfer of
Property Act is relevant - Neither s. 43 of TP Act nor s. 10 of
D •....
Karnataka Act has application to the facts of the case -Matter
remitted to High Court for consideration afresh - Transfer of
Property Act, 1882 .,... s. 43· - Doctrine of feeding the estoppel.
A reliEJiQus institution, namely, Kannada Mutt, was
~
granted Gertain Jagir lands. Upon abolition of lnams by
virtue of Karnataka Certain lnams Abolition Act, 1977, the
lands stood vested with the State Government. However,
the appellant being the Matadhisathi of the Mutt was al- ....
lowed re-grant of the land, The respondents, who were .I.
the erstwhile mortgagees, claimed possession of the land
F
in question contending that by virtue of order of re-grant
in favoµr of the appellant, the earlier mort9age was re-
vived and possession of the land could not be granted to
the appellant. When the matter reached the Division Bench
of the High Court in writ appeals, it held that s. 43 of the
G Transfer of Property Act, 1882 was applica_ble. Aggrieved, '
~
·)...
the Mathadhipati filed the appeals.
Allowing the appeals, the Court
H 436
NI. P. CHANNABASAVA D.S. MATADHIPATHIGALU KANNADA 437
MUTT V. C.P. KAVEERAMMA AND ORS.
HELD: 1.1 A bare reading of s.4 of the Karnataka A
Certain lnams Abolition Act, 1977 makes it clear that
notwithstanding any contract, all lnam tenures stood
abolished and the consequences were the passing of the
rights, title and interests as provided in s.4(2)(b). Section
10 of the Act has no application to the facts of the case. B
[para 6-7] [ 442-E, F; 443-B]
Syed Bhasheer Ahamed and Ors. V State of Karnataka
/LR 1994 Kar 159 - distinguished.
1.2 The sine quo non for application of s.43 is that at C
the initial stage the person should have fraudulently or
erroneously represenfed that he is authorized to transfer
certain immovable property or professes to transfer such
property for consideration. Only then the question of
option of the transferee arises in case the transferor
acquires any interest in the property at any time during D
! which the contract of transfer subsists. Therefore, the
High Court was not justified in concluding that s.43 is
relevant. [para 6] [ 442-G, H; 443-A]
2. Without expressing any opinion about the
acceptability of any stand taken by the respondents, the E
judgment of the High Court is set aside and the matter is
remitted to it for consideration afresh. It is made clear that
the issue relating to applicability of s.43 stands closed.
[para 8] [444-8, CJ
F
Case Law Reference
ILR 1994 Kar 159 distinguished para 6
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
1040-1053 of 2009
_,.
J G
From the Judgement and Order dated 12.09.2007 of the
,-{·'
Hon'ble High Court of Karnataka at Bangalore in W.A. No. 1936-
40 & 1941-45 of 2005
Rama Jois, G.V. Chandrshekar, N.K. Verma, Anjana,
Chandrashekar, for the Appellant. H
'r
t
1
NI. P. CHANNABASAVA D.S. MATADl11PATHIGALU KANNADA 439
( MUTT V. C.P. KAVEERAMMAAND ORS. [DR. ARIJIT PASAYATJ.]
respondents claimed that by virtue of the order of re-grant in A
+
favour of the appellant, the earlier mortgage was revived and
Tahsildar had no jurisdiction to deliver possession to the
appellant. The order of the Tahsildar for delivery of possession
was quashed.
There was an order of remand passed by a learned Single B
Judge which was questioned by the respondents. The Writ
Appeals were filed by the appellant on the ground that the scope
>"·
JI
and ambit of Section 4 of the Act has not been considered.
.., Learned Single Judge found that the Tahsildar had not properly
conducted enquiry and set aside the impugned order and c
remanded the matter to the Tahsildar for fresh enquiry. Learned
Single Judge further directed that the respondents 1 to 5 should
be re-inducted to possession of the land subject to final result
of the enquiry. The present appellant aggrieved by the order of
the learned Single Judge filed separate Writ Appeals. Similarly, D
t the respondents also filed Writ Appeal questioning the order of
remand.
~1
The Division Bench with reference to Section 43 of the
Transfer of Property Act, 1882 (in short the 'TP Act') held that
the said provision has application. E
4. Learned counsel for the appellant contended that
Section 43 does not apply and respondents 1 to 5 cannot canvas
"' the doctrine of feeding the grant by estoppel. According to him,
~
their stand was that Section 43 has no application to the facts
of the case because the primary requisite of fraud or erroneous F
representation which is essential ingredient for invoking Section
43 is absent. The High Court held that Section 4(2)(b) does not
expressly or impliedly provide that after re-grant the encumbrance
created would not get revived. Under the said provision the land
after passing of the Act shall stand vested in the State Government G
' /
~~
free from all encumbrances and the transferees cannot enforce
their contractual rights against the Government. The High Court
----\
felt that Section 4(2)(b) is silent with regard to contractual rights
of the alienee after re-grant in respect of alienation validly
==={
created prior to vesting in favour of the Government. Therefore, H
440 SUPREME COUR,.T REPORTS [2009] 2 S.C.R.
A with reference to Section 43 of the TP Act it was held that it is
~
clearly applicable to the facts of the case. Accordingly, as noted
a.bove Writ Appeals filed by the appellant were dismissed while
that filed by the respondents was allowed.
5. Section 4 of the Act and Section 43 of TP Act read as
B follows:
"Section 4- Abolition, vesting of Imams and the
c.onsequences thereof: (1) Notwithstanding anything .'\
contained in any contract, grant or other instrument or in •
..
i..
c any decree or order of Cotirt or in any other law for the )
~.
time being in force, with effect from and on the appointed
date, the inam tenure of all imams and minor imams to
which this Act applies under Section 2 shall stand
abolished·.
D (2) Save as otherwise expressly provided, in this Act with
effect from and on the· appointed date, th·e following ,..
41\
"..
consequences shall ensue, namely:
r
(a) The provisions of the Act relating to imams of alienated
holdings shall be deemed to have been repealed in their
E application to inam or alienated holding and the provisions
of Act and all other enactments applicable to unalienated
villages or lands shall apply to the said imams or alienated
holding; .
,I._
F (bLall rights, title and interests vesting in the inamdar
including those in all communal lands, cultivated lands,
uncultivated lands, whether assessed or not waste lands,
pasture lands, forests, mines and minerals, quarries, rivers
and streams, tanks and irrigation works, fisheries and ·i=
ferrie~ shall cease and be vested ·absolutely in the State
G
Government, free from all encumbrances.
....r
(c) the inamdar shall cease to have any interest in the
inam other than interests expressly saved by or under the ~
provisions of this Act ;
H
NI. P. CHANNABASAVA D.S. MATADHIPATHIGALU KANNADA 441
MUTT V. C.P. KAVEERAMMAAND ORS. [DR. ARIJIT PASAYATJ.]
(d) all land revenue including the cesses and royalties A
accruing in respect of lands comprised in such inam
villages or minor inams on or after the date of vesting shall
be paid to the State Government and not_to the inamdar
and any payment made in contravention of this clause
shall not be valid ; B
(e) all arrears of land revenue, whether as jodi or quit rent
and cesses remaining lawfully due on the date of vesting
y,
.. in respect of any such inam village or minor inam shall,
after such date continue to be recovered froin the inamdar
.;i
by whom they were payable a.nd may, without prejudice to c
any other mode of recovery, be realised by the deduction
of the amount of such arrears and cesses from the amount
payable to such inamdar under this Act; (f) no such inam
shall be liable to attachment in execution of any decree or
other process of any court and any attachment existing, D
,. on the date of vesting or any other order for attachment
~
passed before such date in respect of such inam village
or minor inam shall cease to be in force ;
(g) the State Government may, after removing any
obstruction that may be offered, forthwith take possession E
of the inam and all accounts, registers, pattas, muchalikas,
maps, plans and other documents relating to the inam
.. which the St~te Government may require for the
.J.
administration thereof;
...
,~
F
(h) the inamdar whose rights have vested in the State
Government under clause (b) shall be entitled only to such
amount from the State Government as provided in this
Act;
(i) the relationship of a superior holder and inferior holder G
'
/
-{' shall, as between the inamdar and the holder of a minor
inam, be extinguished ;
O)the tenants in the inam and persons holding under them
and holders of minor inams shall, as against the State
H
442 SUPREME COURT REPORTS [2009] 2 S.C.R.
A Government, be entitled only to such rights and privileges
and be subject to such conditions as are provided for by
or under the Karnataka Land Reforms Act, 1961 and any
other rigl:its and privileges which may have accrued to
them in the inam before the date of vesting against the
B inamdar shall. cease and determine and shall not be
~nforceable against the State Government or such inamdar.
43. Transfer by unauthorised person who
subsequently acquires interest in property
transferred-
c
Where a pers.on fraudulently or erroneously represents
tha~ he is authorised to transfer certain immovable pr.operty
and professes to transfer such property for consideratipn, ·
such transfer shall, at the option of the transferee, operate
on any interest which the transferor may acquire in such
D
property at any time during which the contract of transfer
subsists.
./
Nothing in this section shall impair the right of transferees
in good faith. for consideration without notice of the
E existence of the said option."
6. :A bare reading of Section 4 makes it clear that
notwithstanding any contract the lnam tenure of all imams and
minor imams stood abolished and the consequences were the
passing of the rights, title and interests as provided in Section
F 4(2)(b). The High Court referred to Full Bench decision of the
High Court in Syed Bhasheer Ahamed and Ors. V. State of
Karnataka (ILR 1994 Kar 159). It is to be noted that the factual
scenario of that case was entirely different and it has no application
to the facts of the present case. The sine quo non for application
G of Section 43 is that at the initial stage the person should have
fraudulently or erroneously represented that he is authorized to
transfer certain immovable property or professes to.transfer such
property for consideration. Only if this pre-condition is satisfied,
the question of option of the transferee arises in case the
H transferor acquires any interest in the property at any time during
NI. P. CHANNABASAVA D.S. MATADHIPATHIGALU KANNADA 443
MUTT V. C.P. KAVEERAMMAAND ORS. [DR. ARIJIT PASAYAT J.]
which the contract of transfer subsists. Therefore, the High Court A
was not justified in concluding Section 43 is relevant. ·
7. Learned counsel for the respondents on the other hand
submitted that even if Section 43 has no application, Section
10 of the Act would take care of the situation. We find that
B
Section 10 has really no application to the facts of the case,
The same reads as follows:
'I-
... "10. Saving of right in certain cases.- (1) Where before
the appointed date an inamdar has created any right in
any land which vests in the State Government, other than c
land registered under section 5 including rights in any
mines or minerals, quarries, fisheries, ferries or forest,
the transactions shall be deemed to be valid and all rights
and obligations arising thereunder on or after the appointed
date be enforceable by or against the State Government : D
I
Provided that the transaction was not void or illegal under
any law in force at the time :
Provided further that where such right was created in any
land, unless it relates to lands registered under section 5, E
the State Government may, if in its opinion, it is in the
public interest to do so, by notice given to the person
~
concerned, terminate the right with effect from such date
"' as may be specified in the notice, not being earlier than
three months from the date thereof. F
(2) The person, whose right has been terminated by the
State Government under the foregoing proviso, shall be
entitled to an amount from the State Government equal to
the estimated net income of such person from the land for
G
~
the unexpired portion of the period for which the right was
....- created, having regard to all the circumstances of the case.
(3) Any right or privilege exercised or enjoyed by any
person in respect of uncultivated jamma lands immediately
before the appointed date shall, notwithstanding anything H
444 SUPREME COURT REPORTS [2009] 2 S.C.R.
A in this Act and until other provision is made in this behalf,
continue to be exercised or enjoyed."
8. It is submitted by learned counsel for the respondents
that apart from Section 43 of TP Act and Section 4(2)(b) of the
Act, the respondents had made other submissions which were
8 not considered by the High Court, in view of its conclusions about
applicability of-Section 4(2)(b) and/or Section 43 of the T.P. Act
, in the instant case. Without expressing any opinion about the
acceptability of any such stand we think it proper to set aside
the impugned judgment and remand the matter to the High Court
C for fresh consideration. It is made clear that the issue relating to
applicability of Section 43 stands closed by virtue of this
judgment.
9. The appeals are allowed.
\
R.P. Appeals allowed.
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