The Kerala High Court recently comprising of a bench of Justice Anil Kumar has ruled that Section 53A of the Transfer of Property Act, 1882 is not applicable in respect of an agreement for sale which is void in nature. (Ligy Paul v. Mariyakutty & Ors)
The bench while dismissing a second appeal, remarked, "It may be noted that Section 53A of the Transfer of Property Act is applicable only where the contract for transfer is valid in all respects. It must be an agreement enforceable by law under the Indian Contract Act, 1872."
Facts of the case
One C.L.Mathachan, along with the 1st defendant, his wife, had entered into an agreement to sell out their property to the plaintiff and one Susan P.Aliyattukudy in 1984.
Simultaneously, the power of attorney was also executed by the assignors in favour of the father of Susan.P.Aliyattukudy to do everything including selling the said properties.
No time was specifically fixed and it was tentatively agreed to execute the sale deed after 10 years.
The plaintiff agreed to purchase 28.672 cents out of the said property and the rest was taken by Susan. The said 28.672 cents is the plaint schedule property. Since 1984, the plaintiff has been in exclusive possession and enjoyment of the said property.
Over time, A.K.Poulose and C.L.Mathachan expired. In the meanwhile, the respondents expressed their willingness to execute the purported sale deed.
However, they demanded more payment although the entire amount was already paid to them earlier.
In the above circumstances, they became a nuisance which ultimately resulted in filing a suit before the trial court for a permanent prohibitory injunction against the defendants.
The trial court decreed the suit. The defendants carried the matter in appeal. The first appellate court allowed the appeal, setting aside the judgment and decree of the trial court.
The plaintiff challenging the divergent findings filed a Regular Second Appeal.
Contention of the Parties
The appellant argued that the finding made by the first appellate court in tendering evidence was legally unsustainable.
It was further submitted that in a suit for an injunction, the material question to be considered was whether she has been in possession of the scheduled property on the date of the suit and the plaintiff has a valid cause of action to institute the suit.
The appellant elaborating on the submission, urged that she was entitled to protect her possession in accordance with Section 53A of the Transfer of Property Act, 1882.
However, Government Pleader for Revenue submitted that once the Government land is characterised as an assigned land, the same continues and remains to be an assigned land.
He submitted that even the appellant who allegedly came into possession on the strength of an agreement for sale is bound by the provisions contemplated under the Kerala Government Land Assignment Act, 1960.
It was further asserted that any contract for sale between the predecessor of the defendant and the plaintiff is void under the Act and the Kerala Land Assignment Rules, 1964.
Issue before the court
Whether the finding of the lower appellate court that the appellant/plaintiff is not entitled to have the benefit of Section 53A of the Transfer of Property Act, 1882 was legally correct?
Courts Observation and Judgment
The Court placing reliance on the Apex Court decision in Papaiah v. State of Karnataka & Ors [(1996) 10 SCC 533], noted that the lands originally assigned continue to be assigned lands even assuming that there was a contract for sale in favour of the plaintiff and possession was passed thereunder.
In the same ruling, the Supreme Court had categorically held that such contract for sale is opposed to public policy under Section 23 of the Contract Act. Thereby, any alienation made in violation thereof is void and the purchaser does not get any valid title or interest thereunder.
The bench dismissing the appeal noted, "Going by the Rules, it is clear that, it is within the realm of the competent authority to take appropriate action to resume the assigned land. Section 53A of the Transfer of Property Act, 1882 is not applicable in respect of an agreement for sale which is void in nature. It may be noted that Section 53A of the Transfer of Property Act is applicable only where contract for transfer is valid in all respects. It must be an agreement enforceable by law under the Indian Contract Act, 1872.
In view of the above, it may be noted that the judicial precedents cited by the learned counsel for the appellant under Section 53A of the Transfer of Property Act are not binding and cannot be taken into consideration while deciding substantial question of law based on Ext.A1 contract for sale which is void and inoperative. The substantial question of law formulated by this Court is answered as above. In the result, this R.S.A. is dismissed. The judgment and decree dated 27.8.2019 in A.S.No.62/2018 on the file of the Additional District Court, North Paravur stand confirmed. The suit is dismissed. It is within the realm of the competent authority to take appropriate action for restoration of the land assigned to the original assignee in accordance with law. There will be no order as to costs. Pending applications, if any, stand closed."
Accordingly, the second appeal was dismissed.
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