Karnataka High Court
Shri Krishna S/O. Subray Adimoole vs Smt. Saraswati W/O. Venkatraman ... on 24 March, 2025
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RSA No. 100996 of 2022
C/W RSA No. 100919 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 24TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 100996 OF 2022 (INJ-)
C/W
REGULAR SECOND APPEAL NO. 100919 OF 2018
IN R.S.A. NO. 100996/2022 (INJ-)
BETWEEN:
SHRI KRISHNA S/O. SUBRAY ADIMOOLE,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURIST AND VAIDIKA,
R/O. RATHABEEDI, GOKARNA,
TQ: KUMTA, DIST: U.K.
...APPELLANT
(BY SRI. SANKET M. YENAGI, ADVOCATE)
AND:
1. SMT. SARASWATI
W/O. VENKATRAMAN MANJREKAR,
AGED ABOUT 81 YEARS,
OCC: AGRICULTURIST,
R/O. GOKARNA PAIKI BIJJUR,
TQ: KUMTA, DIST: U.K.
Location:
HIGH
MOHANKUMAR COURT OF
B SHELAR KARNATAKA
VENKATRAMAN NAGAPPA MANJREKAR,
DHARWAD SINCE DEAD BY HIS LR'S.
BENCH
2. U.F.M. GAJANAN
S/O. VENKATRAMAN MANJREKAR,
AGED ABOUT 59 YEARS,
OCC: AGRICULTURIST,
R/O. GOKARNA PAIKI BIJJUR,
TQ: KUMTA, DIST: U.K.
3. NAGARAJ
S/O. VENKATRAMAN MANJREKAR,
AGED ABOUT 53 YEARS,
OCC: AGRICULTURIST,
R/O. GOKARNA PAIKI BIJJUR,
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RSA No. 100996 of 2022
C/W RSA No. 100919 of 2018
TQ: KUMTA, DIST: U.K.
...RESPONDENTS
(BY SRI. S.N. BANAKAR, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 29.10.2021 PASSED BY THE COURT OF SENIOR CIVIL JUDGE,
KUMTA IN R.A.NO.12/2018 BY CONFIRMING THE JUDGMENT AND
DECREE DATED 13.04.2018, PASSED BY THE COURT OF ADDITIONAL
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KUMTA, IN
O.S. NO.24/2000 BY ALLOWING THIS APPEAL AND ETC.
IN R.S.A. NO. 100919/2018 (SP-)
BETWEEN:
KRISHNA S/O. SUBRAY ADIMULE,
AGED ABOUT 60 YEARS,
OCC: AGRICULTURIST AND PRIEST,
R/O. RATHA BEEDI, GOKARNA,
TQ: KUMTA, DIST: UTTARA KANNADA-591220.
...APPELLANT
(BY SRI. SANKET M. YENAGI, ADVOCATE)
AND:
SMT. SARASWATI
W/O. VENKATRAMAN MANJREKAR,
AGED ABOUT 74 YEARS, OCC: AGRICULTURE,
R/O. TARMAKKI, GOKARNA,
TQ: KUMTA, DIST: UTTARA KANNADA-591220.
...RESPONDENT
(BY SRI. S.N. BANAKAR, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE
PASSED BY THE DISTRICT JUDGE, UTTARA KANNADA AT: KARWAR,
DATED 06.07.2018 IN R.A.NO.18/2010 AND THE JUDGMENT AND
DECREE PASSED BY THE CIVIL JUDGE (SR.DN.) KUMTA, DATED
18.01.2010 IN O.S. NO.36/2006 AND ALLOW THE SUIT AS PRAYED
FOR, IN THE INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
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RSA No. 100996 of 2022
C/W RSA No. 100919 of 2018
ORAL JUDGMENT
1. RSA No.100996/2022 is preferred by the
defendants challenging the judgment and decree dated
29.10.2021 in R.A.No.12/2018 on the file of the Senior
Civil Judge, Kumta dismissing the appeal and confirming
the judgment and decree dated 13.04.2018 in
O.S.No.24/2000 on the file of the Additional Civil Judge,
Kumta decreeing the suit of the plaintiff.
2. RSA No.100919/2018 is preferred by the
plaintiff challenging the judgment and decree dated
06.07.2018 in R.A.No.18/2010 on the file of the Principal
District and Sessions Judge, Uttara Kannada, Karwar
dismissing the appeal and confirming the judgment and
decree dated 18.01.2010 in O.S.No.36/2006 on the file of
the Civil Judge (Sr.Dn.), Kumta dismissing the suit of the
plaintiff.
3. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court in
O.S.No.36/2006.
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4. The judgment and decree that may be passed
in RSA No.100919/2018 is having bearing on the issue
involved in RSA No.100996/2022 and accordingly, for the
sake of convenience of parties, RSA No.100919/2018 was
taken up for analysing the issues involved in the appeals.
5. Facts in RSA No.100919/2018
5.1 It is the case of the plaintiff that the father of
the defendant was a grantee of the suit schedule property
as per the order passed by the Land Tribunal. On the
demise of Sri.Narayan Bhandari - father of the defendant,
the defendant is enjoying the suit schedule property. It is
also stated that the defendant and her husband
approached the plaintiff for financial assistance and as
such intended to sell the suit schedule property for a total
consideration of ₹72,501/- and as such the plaintiff has
paid ₹25,000/- as advance amount. It is also case of the
plaintiff that a sum of ₹20,000/- was paid to the defendant
on 23.06.1990 and the remaining balance of ₹27,501/-
shall be payable by the plaintiff to the defendant at the
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time of registration of the sale deed. It is the case of the
plaintiff that the defendant has handed over the
possession of the suit schedule property to the plaintiff
and thereafter the plaintiff made a request to the
defendant to execute the registered sale deed and same
was refused by the defendant and as such the plaintiff got
issued a legal notice dated 20.10.2001 calling upon the
defendant to execute the registered sale deed. It is also
stated in the plaint that the husband of the defendant has
filed O.S.No.6/2000 seeking injunction against the plaintiff
which came to be dismissed as withdrawn. Thereafter,
O.S.No.24/2000 was filed by the defendant against the
plaintiff and the said suit is pending consideration before
the competent Court. Hence, the plaintiff has filed
O.S.No.36/2006 seeking relief of specific performance of
agreement.
5.2 After service of notice, the defendant entered
appearance and filed detailed written statement denying
the averments made in the plaint. It is the specific
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contention of the defendant that, the defendant never
executed the agreement of sale in favour of the plaintiff
and also denied the averments made in the plaint with
regard to parting with the possession of the suit schedule
property and accordingly sought for dismissal of the suit.
5.3 The Trial Court based on the pleadings on
record, has framed issues for its consideration. In order to
establish their case, the plaintiff has examined 5 witnesses
as PW.1 to PW.5 and produced 161 documents and same
were marked as Exs.P.1 to P.161. The defendant has
examined 3 witnesses as DW.1 to DW.3 and got marked
18 documents as Exs.D.1 to D.18.
5.4 The Trial Court after considering the material on
record, by its judgment and decree dated 18.01.2010
dismissed the suit and feeling aggrieved by the same, the
plaintiff has preferred R.A.No.18/2010 on the file of the
First Appellate Court and same was resisted by the
defendant. The First Appellate Court after re-appreciating
the material on record, by its judgment and decree dated
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06.07.2018, dismissed the appeal, consequently confirmed
the judgment and decree in O.S.No.36/2006. Feeling
aggrieved by the same, the plaintiff has preferred RSA
No.100919/2018.
6. Facts in RSA No.100996/2022
6.1 Appellant is the defendant in O.S.No.24/2000.
The plaintiff have filed suit seeking relief of permanent
injunction against the defendant stating that the defendant
is interfering with the suit schedule property.
6.2 After service of notice, the defendant entered
appearance and filed detailed written statement denying
the averments made in the plaint. It is the specific
contention of the defendant that, the plaintiffs have
entered into an agreement of sale with the defendant on
26.03.1990 and 23.06.1990 to sell the suit schedule
property for a sum of ₹72,501/- and received ₹25,000/-
as advance amount and thereafter received ₹20,000/- as
additional advance amount and therefore the balance
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consideration to be payable is ₹27,501/-. It is also stated
that the plaintiffs have handed over the possession of the
suit schedule property to the defendant and accordingly
sought for dismissal of the suit.
6.3 The Trial Court based on the pleadings on
record, has framed issues for its consideration. In order to
establish their case, the plaintiffs have examined 3
witnesses as PW.1 to PW.3 and produced 29 documents
and same were marked as Exs.P.1 to P.29. The defendant
has examined himself as DW.1 and got marked 47
documents as Exs.D.1 to D.47. Commissioner was
appointed as CW.1 and produced two documents as
Exs.C.1 and C.2.
6.4 The Trial Court after considering the material on
record, by its judgment and decree dated 13.04.2018
decreed the suit and feeling aggrieved by the same, the
defendant has preferred R.A.No.12/2018 on the file of the
First Appellate Court and same was resisted by the
plaintiff. The First Appellate Court after re-appreciating the
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material on record, by its judgment and decree dated
29.10.2021, dismissed the appeal, consequently confirmed
the judgment and decree in O.S.No.24/2000. Feeling
aggrieved by the same, the defendant has preferred RSA
No.100996/2022.
7. I have heard Sri.Sanket M Yenagi, learned
counsel appearing for the appellant and Sri.S.N.Banakar,
learned counsel appearing for the respondents.
8. Learned counsel appearing for the appellant
contended that, both the Courts below have committed an
error in not considering the fact that the defendant has
executed two documents on 26.03.1990 and 23.06.1990,
agreeing to sell the suit schedule property in favour of the
plaintiff. It is also contended by the learned counsel
appearing for the appellant that the bar under Section 61
of the Karnataka Land Reforms Act, 19611 is not applicable
to the case on hand and further Section 61 of the Act is
inapplicable to the sale agreement between the parties
Hereinafter referred to as 'Act'
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and therefore, the finding recorded by both the Courts
below requires to be interfered with in this appeal.
9. In respect of RSA No.100996/2022, it is argued
by the learned counsel appearing for the appellant that,
the plaintiffs in O.S.No.24/2000 have delivered the
possession of the suit schedule property to the defendant
pursuant to the execution of the agreement of sale
referred to above and therefore the finding recorded by
both the Courts below requires to be interfered with.
10. In order to buttress his arguments, learned
counsel appearing for the appellant has places reliance on
the judgment of the Hon'ble Supreme Court in the case of
Suraj Lamp and Industries Private Limited vs. State
of Haryana and Another reported in AIR 2012 SC 206
and in the case of Puravankara Projects Limited vs.
Hotel Venus International and Others reported in
(2007) 10 SCC 33 and argued that the judgment and
decree passed by both the Courts below requires to be
interfered with in these appeals.
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11. Per contra, learned counsel appearing for the
respondents sought to justify the impugned judgment and
decree passed by both the Courts below. It is the specific
contention of the respondents that, the agreement of sale
is not enforceable as the same is invalid under Section 61
of the Act and accordingly sought for dismissal of the
appeals.
12. In the light of the submissions made by the
learned counsel appearing for the parties, I have carefully
examined the findings recorded by both the Courts below.
It is the case of the plaintiff in O.S.No.36/2006 that the
plaintiff has entered into an agreement of sale dated
26.03.1990 and 23.06.1990 agreeing to purchase the suit
schedule property for sum of ₹72,501/-. Undisputedly, the
land in question is a tenanted land granted in favour of the
father of the defendant - Narayan Bhandari by the Land
Tribunal. Thereafter, a suit for partition in O.S.No.58/1990
was filed and the said suit came to be ended in
compromise by allotting the suit schedule property in
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favour of the defendant. Since the land in question is a
tenanted land granted by the Land Tribunal, as per the
provision contained under Section 61 of the Act, prohibits
the transfer of land by the grantee.
13. Though the learned counsel appearing for the
appellant places the judgments referred to above,
however, as there is prohibition of transfer of tenanted
land by the grantee as per Section 61 of the Act, I am of
the opinion that the judgments referred to by the learned
counsel appearing for the appellant cannot be accepted.
14. At this juncture, it is relevant to cite the
judgment of the Hon'ble Supreme Court in the case of
Narayanamma and Another vs. Govindappa and
Others reported in (2019) 19 SCC 42, wherein the
Hon'ble Supreme Court at para Nos.13 to 24 held as
follows:
"13. A perusal of the said provision would clearly
show that, notwithstanding anything contained in any
law, no land of which the occupancy has been granted
to any person under the said Chapter shall, within 15
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years from the date of the final order passed by the
Tribunal under sub-section (4) or sub-section (5) or
sub-section (5-A) of Section 48-A of the Reforms Act be
transferred by sale, gift, exchange, mortgage, lease or
assignment. However, the land may be partitioned
among members of the holders of the joint family. No
doubt, that sub-section (2) of Section 61 of the Reforms
Act permits the registered occupant or his successor-in-
title, to take a loan and mortgage or create a charge on
his interest in the land in favour of the State
Government, a financial institution, a cooperative land
development bank, a cooperative society or a company
as defined in Section 3 of the Companies Act, 1956 in
which not less than 51% of the paid-up share capital is
held by the State Government or a corporation owned
or controlled by the Central Government or the State
Government or both. However, such a loan can be taken
only for the purpose of development of land or
improvement of agricultural practices or for raising
educational loan to prosecute higher studies of the
children of such person. It further provides that, in the
event of such a person making default in payment of
such loan in accordance with the terms and conditions
on which such loan was granted, it shall be lawful to
cause his interest in the land be attached and sold and
the proceeds to be utilised in the payment of such loan.
Sub-section (3) of the said section specifically provides
that any transfer or partition of land in contravention of
sub-section (1) shall be invalid and such land shall vest
in the State Government free from all encumbrances
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and shall be disposed in accordance with the provisions
of Section 77 of the Reforms Act.
14. This Court in Kedar Nath Motani v. Prahlad
Rai had an occasion to consider the question of
application of the maxims ex turpi causa non oritur
actio and ex dolo malo non oritur actio. This Court has
referred to various English judgments in paras 11, 12
and 14, which read thus : (AIR pp. 217-18)
"11. Coming now to the question whether the
appellants' suit was rightly dismissed by the High Court
on the application of the maxim, ex turpi causa etc., we
have first to see what are the specific facts on which
this contention is based. The case of the appellants was
that the property was taken benami in the names of
Prahlad Rai and others to avoid the implication of Clause
16. In making the application to the Bettiah Raj the
signatures of Prahlad Rai and others were made by
Radhumal or someone under his instructions, because
the relationship between Radhumal, Prahlad Rai and
others was so intimate that it was considered
unnecessary to trouble them. Inasmuch, as the matter
was brought to the notice of the Assistant Manager of
the Court of Wards, all these facts were capable of
being investigated, including the making of the
signatures by Radhumal. No doubt, the making of the
signatures of another person without his consent,
express or implied, is an offence under the ordinary law,
but the intention was not so much to forge the
signatures but to present the application in the names
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of those persons. However it be, we proceed on the
assumption that there was some illegality committed by
Radhumal in approaching the Bettiah Raj and also in the
execution of the B.H. forms, which were also signed
with the names of these persons. The question is
whether this illegality is sufficient to non-suit the
plaintiffs on the application of the maxim.
12. The law was stated as far back as 1775 by
Lord Mansfield in Holman v. Johnson, in the following
words:
'The principle of public policy is this : ex dolo
malo non oritur actio. No court will lend its aid to a man
who founds his cause of action upon an immoral or an
illegal act. If, from the plaintiff's own stating or
otherwise, the cause of action appears to arise ex turpi
causa, or the transgression of a positive law of this
country, there the court says he has no right to be
assisted. It is upon that ground the court goes; not for
the sake of the defendant, but because they will not
lend their aid to such a plaintiff. So if the plaintiff and
defendant were to change sides, and the defendant was
to bring his action against the plaintiff, the latter would
then have the advantage of it; for where both are
equally in fault, potior est conditio defendentis.'
There are, however, some exceptions or "supposed
exceptions" to the rule of turpi causa. In Salmond and
William on Contracts, four such exceptions have been
mentioned, and the fourth of these exceptions is based
on the right of restitutio in integrum, where the
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relationship of trustee and beneficiary is involved.
Salmond stated the law in these words at p. 352 of his
Book (2nd Edn.):
'So if A employs B to commit a robbery, A cannot
sue B for the proceeds. And the position would be the
same if A were to vest property in B upon trust to carry
out some fraudulent scheme : A, could No. sue B for an
account of the profits. But if B, who is A's agent or
trustee, receives on A's account money paid
by C pursuant to an illegal contract between A and C the
position is otherwise and A can recover the property
from B, although he could not have claimed it from C. In
such cases public policy requires that the rule of turpis
causa shall be excluded by the more important and
imperative rule that agents and trustees must faithfully
perform the duties of their office.'
Williston in his Book on Contracts (Revised Edn.), Vol.
VI, has discussed this matter at p. 5069, Para 1785 and
in Paras 1771 to 1774, he has noted certain exceptional
cases, and has observed as follows:
'If recovery is to be allowed by either partner or
principal in any case, it must be where the illegality is of
so light or venial a character that it is deemed more
opposed to public policy to allow the defendant to
violate his fiduciary relation with the plaintiff than to
allow the plaintiff to gain the benefit of an illegal
transaction.'
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Even in India, certain exceptions to the rule of turpi
causa have been accepted. Examples of those cases are
found in Palaniyappa Chettiar v. Chockalingam
Chettiar and Bhola Nath v. Mul Chand.
***
14. Recently, the Court of Appeal in Bowmakers
Ltd. v. Barnet Instruments Ltd. [Bowmakers
Ltd. v. Barnet Instruments Ltd., 1945 KB 65 (CA)]
reviewed the law on the subject, and laid down that
every illegality did not entitle the Court to refuse a
judgment to a plaintiff. Du Parcq, L.J., observed as
follows : (KB p. 71)
'In our opinion, a man's right to possess his own
chattels will as a general rule be enforced against one
who, without any claim of right, is detaining them, or
has converted them to his own use, even though it may
appear either from the pleadings, or in the course of the
trial, that the chattels in question came into the
defendant's possession by reason of an illegal contract
between himself and the plaintiff, provided that the
plaintiff does not seek, and is not forced, either to found
his claim on the illegal contract or to plead its illegality
in order to support his claim.'
We are aware that Prof. Hamson has criticised this case
in "Illegal Contracts and Limited Interests" and has
forborne its application, except in the clearest possible
circumstances. The law has been also considered by
Pritchard, J., in Bigos v. Bousted, where all the
authorities are referred to."
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15. The three-Judge Bench of this Court, after
referring to the aforesaid judgments, speaking through
M. Hidayatullah, J. (as his Lordship then was), observes
thus : (Kedar Nath Motani case, AIR pp. 218-19, para
15)
"15. The correct position in law, in our opinion, is
that what one has to see is whether the illegality goes
so much to the root of the matter that the plaintiff
cannot bring his action without relying upon the illegal
transaction into which he had entered. If the illegality
be trivial or venial, as stated by Williston and the
plaintiff is not required to rest his case upon that
illegality, then public policy demands that the defendant
should not be allowed to take advantage of the position.
A strict view, of course, must be taken of the plaintiff's
conduct, and he should not be allowed to circumvent
the illegality by resorting to some subterfuge or by
misstating the facts. If, however, the matter is clear and
the illegality is not required to be pleaded or proved as
part of the cause of action and the plaintiff recanted
before the illegal purpose was achieved, then, unless it
be of such a gross nature as to outrage the conscience
of the Court, the plea of the defendant should not
prevail."
16. It could thus be seen, that this Court has held
that the correct position of law is that, what one has to
see is whether the illegality goes so much to the root of
the matter that the plaintiff cannot bring his action
without relying upon the illegal transaction into which
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he had entered. This Court further held, that if the
illegality is trivial or venial and the plaintiff is not
required to rest his case upon that illegality, then public
policy demands that the defendant should not be
allowed to take advantage of the position. It has further
been held, that a strict view must be taken of the
plaintiff's conduct and he should not be allowed to
circumvent the illegality by resorting to some subterfuge
or by misstating the facts. However, if the matter is
clear and the illegality is not required to be pleaded or
proved as part of the cause of action and the plaintiff
recanted before the illegal purpose is achieved, then,
unless it be of such a gross nature as to outrage the
conscience of the Court, the plea of the defendant
should not prevail.
17. Subsequently, another three-Judge Bench of
this Court in Immani Appa Rao v. Gollapalli
Ramalingamurthi again had an occasion to consider the
issue with regard to applicability of the aforesaid two
maxims. This Court speaking through P.B.
Gajendragadkar, J. (as his Lordship then was) observed
thus : (AIR p. 375, paras 12-14)
"12. Reported decisions bearing on this question
show that consideration of this problem often gives rise
to what may be described as a battle of legal maxims.
The appellants emphasised that the doctrine which is
pre-eminently applicable to the present case is ex dolo
malo non oritur actio or ex turpi causa non oritur actio.
In other words, they contended that the right of action
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cannot arise out of fraud or out of transgression of law;
and according to them it is necessary in such a case
that possession should rest where it lies in pari delicto
potior est conditio possidentis; where each party is
equally in fraud the law favours him who is actually in
possession, or where both parties are equally guilty the
estate will lie where it falls. On the other hand,
Respondent 1 argues that the proper maxim to apply
is nemo allegans suam turpitudinum audiendum est,
whoever has first to plead turpitudinum should fail; that
party fails who first has to allege fraud in which he
participated. In other words, the principle invoked by
Respondent 1 is that a man cannot plead his own fraud.
In deciding the question as to which maxim should
govern the present case it is necessary to recall what
Lord Wright, M.R. observed about these maxims
in Berg v. Sadler & Moore [Berg v. Sadler & Moore,
(1937) 2 KB 158 (CA)] , at KB p. 162. Referring to the
maxim ex turpi causa non oritur actio Lord Wright
observed that:
'[this maxim], though veiled in the dignity of
learned language, is a statement of a principle of great
importance; but like most maxims it is much too vague
and much too general to admit of application without a
careful consideration of the circumstances and of the
various definite rules which have been laid down by the
authorities.'
Therefore, in deciding the question raised in the present
appeal it would be necessary for us to consider carefully
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the true scope and effect of the maxims pressed into
service by the rival parties, and to enquire which of the
maxims would be relevant and applicable in the
circumstances of the case. It is common ground that the
approach of the Court in determining the present
dispute must be conditioned solely by considerations of
public policy. Which principle would be more conducive
to, and more consistent with, public interest, that is the
crux of the matter. To put it differently, having regard
to the fact that both the parties before the Court are
confederates in the fraud, which approach would be less
injurious to public interest. Whichever approach is
adopted one party would succeed and the other would
fail, and so it is necessary to enquire as to which party's
success would be less injurious to public interest.
13. Out of the two confederates in fraud
Respondent 1 wants a decree to be passed in his favour
and that means he wants the active assistance of the
Court in reaching the properties possession of which has
been withheld from him by Respondent 2 and the
appellants. Now, if the defence raised by the appellants
is shut out Respondent 1 would be entitled to a decree
because there is an ostensible deed of conveyance
which purports to convey title to him in respect of the
properties in question; but, in the circumstances,
passing a decree in favour of Respondent 1 would be
actively assisting Respondent 1 to give effect to the
fraud to which he was a party and in that sense the
Court would be allowed to be used as an instrument of
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fraud, and that is clearly and patently inconsistent with
public interest.
14. On the other hand, if the Court decides to
allow the plea of fraud to be raised the Court would be
in a position to hold an enquiry on the point and
determine whether it is a case of mutual fraud and
whether the fraud intended by both the parties has been
effectively carried out. If it is found that both the parties
are equally guilty and that the fraud intended by them
has been carried out the position would be that the
party raising the defence is not asking the Court's
assistance in any active manner; all that the defence
suggests is that a confederate in fraud should not be
permitted to obtain a decree from the Court because the
document of title on which the claim is based really
conveys no title at all. It is true that as a result of
permitting Respondent 2 and the appellants to prove
their plea they would incidentally be assisted in
retaining their possession; but this assistance is of a
purely passive character and all that the Court is doing
in effect is that on the facts proved it proposes to allow
possession to rest where it lies. It appears to us that
this latter course is less injurious to public interest than
the former."
18. This Court held that, which principle is to be
applied in the facts of the case would depend upon the
question, as to which principle is more consistent with
public interest. The Court finds that, when both the
parties before the Court are confederates in the fraud,
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the Court will have to find out which approach would be
less injurious to public interest. The Court observed
that, whichever approach is adopted, one party would
succeed and the other would fail and, therefore, it is
necessary to enquire as to which party's success would
be less injurious to public interest. The Court in the
facts of the said case finds that if the decree was to be
passed in favour of Respondent 1 (who was the
plaintiff), it would be actively assisting Respondent 1 to
give effect to the fraud to which he was a party and it
has been held that in that sense the Court would be
allowed to be used as an instrument of fraud and that is
clearly and patently inconsistent with public interest.
19. It has further been held, that if both the
parties are equally guilty and the fraud intended by
them had been carried out, the position would be that,
the party raising the defence is not asking the Court's
assistance in any active manner. It has been held, that
all the defence suggested is that a confederate in fraud
shall not be permitted to obtain a decree from the Court
because the documents of title, on which the claim is
based really conveys no title at all. In the facts of the
said case, it was held, that though the result thereof
would be assisting the defence therein to retain their
possession, for such an assistance would be purely of
passive character and all that the Court would do in
effect is that on the facts proved, it proposes to allow
possession to rest where it lies. It has been held that,
latter course appears to be less injurious to public
interest than the former one. This Court in the said
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judgment has digested the English law on the issue in
the following paragraphs, which read thus : (Immani
Appa Rao case, AIR pp. 377-78, paras 19-21)
"19. In support of the contrary view reliance is
usually placed on an early English decision in Doe d.
Roberts v. Roberts [Doe d. Roberts v. Roberts, In that
case it was held that : (ER p. 401)
'no man can be allowed to allege his own fraud to
avoid his own deed; and, therefore, where a deed of
conveyance of an estate from one brother to another
was executed, to give the latter a colourable
qualification to kill game. The document was as against
the parties to it valid and so sufficient to support an
ejectment for the premises'.
In dealing with the question raised Bayley, J. observed :
(ER p. 401)
'By the production of the deed, the plaintiff
established a prima facie title; and we cannot allow the
defendant to be heard in a court of justice to say that
his own deed is to be avoided by his own fraud;'
and Holroyd, J. added that : (ER pp. 401-02)
'A deed may be avoided on the ground of fraud,
but then the objection must come from a person neither
party nor privy to it, for no man can allege his own
fraud in order to invalidate his own deed.'
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20. This decision has, however, been commented
on by Taylor in his Law of Evidence. According to Taylor
'it seems now clearly settled that a party is not
estopped by his deed from avoiding it by proving that it
was executed for a fraudulent, illegal or immoral
purpose [Taylor's "Law of Evidence", Vol. I, 11th Edn.,
p. 97, para 93]. The learned author then refers to the
case of Roberts and adds "in the subsequent case
of Prole v. Wiggins, Sir Nicholas Tindal observed that
this decision rested on the fact that the defence set up
was inconsistent with the deed" '.
Taylor then adds that
'the case, however, can scarcely be supported by this
circumstance, for in an action of ejectment by the
grantee of an annuity to recover premises on which it
was secured, the grantor was allowed to show that the
premises were of less value than the annuity, and
consequently, that the deed required enrolment,
although he had expressly covenanted in the deed that
the premises were of greater value....'
According to the learned author
'the better opinion seems to be that where both parties
to an indenture either know, or have the means of
knowing, that it was executed for an immoral purpose,
or in contravention of a statute, or of public policy,
neither of them will be estopped from proving those
facts which render the instrument void ab initio; for
although a party will thus in certain cases be enabled to
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take advantage of his own wrong, yet this evil is of a
trifling nature in comparison with the flagrant evasion of
the law that would result from the adoption of an
opposite rule' (p. 98).
Indeed, according to Taylor,
'although illegality is not pleaded by the defendant nor
sought to be relied upon by him by way of defence, yet
the court itself, upon the illegality appearing upon the
evidence, will take notice of it, and will dismiss the
action ex turpi causa non oritur actio. No polluted hand
shall touch the pure fountain of Justice' (p. 93).
21. To the same effect is the opinion of Story [Story's
Equity Jurisprudence, Vol. I, Section 421; English
edition by Randall, 1920, Section 298.]:'In general,
where parties are concerned in illegal agreements or
other transactions, whether they are mala
prohibita or mala in se, courts of equity following the
rule of law as to participators in a common crime will
not interpose to grant any relief, acting upon the known
maxim in pari delicto potior est conditio defendentis et
possidentis. The old cases often gave relief, both at law
and in equity, where the party would otherwise derive
an advantage from his inequity. But the modern
doctrine has adopted a more severely just and probably
politic and moral rule, which is, to leave the parties
where it finds them giving no relief and no countenance
to claims of this sort."
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20. It could thus be seen that, although illegality
is not pleaded by the defendant nor is relied upon by
him by way of defence, yet the court itself, upon the
illegality appearing upon the evidence, will take notice
of it, and will dismiss the action ex turpi causa non
oritur actio. It has been held, that no polluted hand shall
touch the pure fountain of justice. It has further been
held, that where parties are concerned in illegal
agreements or other transactions, courts of equity
following the rule of law as to participators in common
crime will not interpose to grant any relief, acting upon
the maxim in pari delicto potior est conditio defendetis
et possidentis.
21. In Nathu Prasad v. Ranchhod Prasad the
three-Judge Bench of this Court had an occasion to
consider somewhat similar provisions which read thus :
(SCC pp. 12-13, para 2)
"2. Section 73 of the Revenue Administration and
Ryotwari Land Revenue and Tenancy Act, Samvat 2007
(Act 66 of 1950) provides:
'No pakka tenant shall sub-let for any period
whatsoever any land comprised in his holdings except in
the cases provided for in Section 74.
Explanation.-- * * *.'
Section 74 deals with sub-letting by disabled
persons. Since the plaintiff is not a disabled person, the
section need not be read. Section 75 provides:
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'A sub-lease of the whole or any part of the
holding of a pakka tenant effected properly and legally
prior to the commencement of this Act shall terminate
after the expiry of the period of sub-lease or 4 years
after the commencement of this Act, whichever period is
less.'
Section 76 provides:
'(1) If the sub-lessee does not hand over
possession of the land sub-let to him after the sub-lease
ceases to be in force under Sections 74 and 75 to the
lessor or his legal heir ... he shall be deemed to be a
trespasser and shall be liable to ejectment in
accordance with the provisions of this Act.
(2) * * *.'
Section 78 provides:
'(1) Any person who in contravention of the
provisions of this Act, obtains possession of any land by
virtue of a bequest, gift sale, mortgage or sub-lease, or
of any agreement purporting to be a bequest, gift, sale,
mortgage or sub-lease shall be deemed to be a
trespasser and shall be liable to ejectment in
accordance with the provisions of Section 58.' "
22. In the said case, the appellant-plaintiff before
the Supreme Court was a recorded pattedar tenant and
had granted a sub-lease of land to Respondents 1 and 2
for five years. The suit was filed on the ground that sub-
lease was in contravention of Section 73 of the Revenue
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Administration and Ryotwari Land Revenue and Tenancy
Act, Samvat 2007 (66 of 1950) and that the said
respondents had trespassed in the land. The trial court
had decreed the suit. The first appellate court had also
confirmed the same. However, the same was reversed
by the High Court in the second appeal. Allowing the
appeal and reversing the judgment of the High Court,
this Court held that a person inducted as a sub-lessee
contrary to the provisions of Section 78 of the Tenancy
Act did not acquire any right under a contract of sub-
letting and his possession was not protected.
23. We have to apply the principles of law as
deduced by this Court in Kedar Nath and Immani Appa
Rao, to the facts of the present case.
24. The transaction between the late Bale
Venkataramanappa and the plaintiff is not disputed.
Initially the said Bale Venkataramanappa had executed
a registered mortgage deed in favour of the plaintiff.
Within a month, he entered into an agreement to sell
wherein, the entire consideration for the transfer as well
as handing over of the possession was acknowledged. It
could thus be seen, that the transaction was nothing
short of a transfer of property. Under Section 61 of the
Reforms Act, there is a complete prohibition on such
mortgage or transfer for a period of 15 years from the
date of grant. Sub-section (1) of Section 61 of the
Reforms Act begins with a non-obstante clause. It is
thus clear that, the unambiguous legislative intent is
that no such mortgage, transfer, sale, etc. would be
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permitted for a period of 15 years from the date of
grant. Undisputedly, even according to the plaintiff, the
grant is of the year 1983, as such, the transfer in
question in the year 1990 is beyond any doubt within
the prohibited period of 15 years. Sub-section (3) of
Section 61 of the Reforms Act makes the legislative
intent very clear. It provides, that any transfer in
violation of sub-section (1) shall be invalid and it also
provides for the consequence for such invalid
transaction.""
15. Following the declaration of law made by the
Hon'ble Supreme Court in the above case, the Trial Court
after considering the material on record, rightly given a
finding that the agreement of sale is hit by Section 61 of
the Act and same was rightly confirmed by the First
Appellate Court and therefore, I am of the opinion that
there is no perversity in the judgment and decree passed
by the Courts below in RSA No.100919/2018 and therefore
the said appeal is dismissed as devoid of merits.
16. Insofar as RSA No.100996/2022, having arrived
at a conclusion as stated above that the agreement of sale
sought to be enforceable by the appellant herein is hit by
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Section 61 of the Act and the judgment of the Hon'ble
Supreme Court in the case of Narayanamma supra and
on careful examination of the findings recorded by the
Trial Court that, the plaintiff (respondent herein) is in
possession of the suit schedule property and therefore no
interference is called for in this appeal as both the Courts
below after appreciating the material on record rightly
arrived at a conclusion that the appellant herein has not
proved his possession over the suit schedule property.
17. It is also to be noted that the Hon'ble Supreme
Court recently in the case of Naganna (Dead) by LRS./
Smt.Devamma and Others vs. Siddaramegowda
(since deceased) by LRS. And Others in Civil Appeal
No.3688/2024 disposed of on 19.03.2025, at para Nos.9
and 12 held as follows:
"9. At the cost of repetition, it can be stated that
there was no certainty of the scheduled property.
Respondent No.1 in his written submission had said that
the plaintiff failed to produce any documents of title.
The plaintiff also failed to disclose the date or year of
the alleged "oral partition" in the family. It was also
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submitted by the learned counsel for the respondent
that the so-called partition deed placed on record at
Ex.7 relates to entirely different property and it is in no
way related to the suit property. Another interesting
feature which is revealed after perusal of the written
submission is that the plaintiffs have filed another suit
against the purchaser of northern half the property
bearing no.111, namely Vedavathi. The said suit was
numbered as OS No. 108 of 2003 in the Court of Civil
Judge at Pandavapura. The learned Civil Judge,
Pandavapura by his judgment and decree dated
2.3.2024 dismissed the suit filed by the appellant -
plaintiff against the said Vedavathi holding that the
appellant - plaintiff failed to prove his title to the said
property. Thus, in the cognate suit also it is held that
the appellant-plaintiff has no title to the northern half of
the very same property. The copy of the judgment and
decree dated 02.03.2024 is also placed on record along
with the written submissions.
12. As stated above, the High Court in the present case
found that the documents relied upon by the plaintiff to
showcase that he was in possession of the property i.e.
the revenue record extracts fall short to establish the
case of the plaintiff. There was also no certainty about
the suit of the property. On the contrary, there were
ambiguity on the suit property. The High Court, thus
considering these aspects has addressed the issue
correctly and we are unable to find any error in the
reasoning as well as the conclusion drawn by the High
Court."
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18. Following the declaration of law made by the
Hon'ble Supreme Court in the above case, I am of the
opinion that there is no perversity in the judgment and
decree passed by the Courts below and accordingly the
appeals are dismissed as devoid of merit at the stage of
admission as the appellant has not made out a case for
formulation of substantial question of law as required
under Section 100 of CPC.
Sd/-
(E.S.INDIRESH)
JUDGE
SH
