Void agreement for sale cannot take benefit of section 53A of Transfer of Property Act

Ligy Paul Vs Mariyakutty (Kerala High Court)

Conclusion: Section 53A of the Transfer of Property Act, 1882 was not applicable in respect of an agreement for sale which was void in nature. It was settled law that what could not be sold directly was not also be sold indirectly by way of contract for sale. It was 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.

Held: In the instant case, the suit was filed for permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property; forcefully evicting the appellant from the property; from creating new documents with respect to the property and also from doing anything detrimental to the peaceful possession and enjoyment of the same by the appellant. Appellant claimed that the land in question was an assigned land and they had been in possession of the assigned land from the original assignee pursuant to Ext.A1 contract for sale as absolute owner in possession on payment of full consideration. Even assuming that the appellant has been in possession of the property as contended by her, still she could not contend that she was entitled to get a decree for permanent prohibitory injunction on the strength of Ext.A1 document which was totally prohibited in terms of the Act and the Rules framed thereunder. A decree for permanent prohibitory injunction was discretionary in nature. It was clear from the conduct of appellant that she had suppressed material facts and alleged falsehood before the Court. There was a prohibition in transferring the property or giving possession of the property to any person for 10 years as per the Government Order then in force subject to the usual conditions laid down in the Act and Rules as modified from time to time. In case the property was alienated against the stipulations, the pattayam would be liable to be cancelled by the competent authority. In interpreting the provisions of the Act and Rules, it must be held that a landless poor person, who purchased the land after obtaining permission under the Act and the Rules, was not entitled to transfer the land ignoring the provisions contemplated under the Act and the Rules framed thereunder. On the date of execution of Ext.A1, the defendants were aware of the fact that the land could not be alienated for a period of 10 years. Hence they fixed 10 years period for its performance. The alienation by way of Ext.A1 or otherwise violating the Act and the Rules were void. It is settled law that what cannot be sold directly cannot also be sold indirectly by way of contract for sale. Going by the Rules, it was clear that, it was 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.  In view of the above, it might be noted that the judicial precedents cited by appellant under Section 53A of the Transfer of Property Act were not binding and could not be taken into consideration while deciding substantial question of law based on Ext.A1 contract for sale which was void and inoperative. It was 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.

FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT

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