@JUDGMENTTAG-ORDER
Hari Nath Tilhari, J.@mdashThis Petition under Article-226 of the Constitution of India, has been filed with a prayer for the grant of issuance of Writ of Certiorari quashing the order dated 25.4.1994, in No. C.DIS.LRY.CR. 263/93-94, passed by the Assistant Commissioner - Respondent No. 1, copy of which has been annexed as Annexure-A to the Writ Petition as well as for quashing of the order dated 21.3.1994, passed by the Tahsildar, Mangalore Taluk, - Respondent No. 2 in No. LRY LR.392/91-92, copy of which order has been annexed as Annexure-B to the Writ Petition.
2. The land involved in the present Writ Petition has been described and mentioned in paragraph-1 of the Writ Petition with its Survey numbers and area and is situate in village Jeppina Mogru, in Mangalore Taluk, District Dakshina Kannada, hereinafter referred to as the land in dispute. According to the petitioner''s case, the petitioner who is the second son of late Mundappa Poojary, as mentioned in the Writ Petition was the tenant in respect of several properties under respondent No. 4. According to the petitioner''s case, Mundappa Poojary on coming into force of the provisions of Act No. 1/74, which came into operation with effect from 1st March, 1974, the father of the petitioner late Mundappa Poojary had moved an application under Section-48A of the Karnataka Land Reforms Act, claiming occupancy rights in respect of the land in dispute referred to in para-1 of the Writ Petition. It has further been alleged that the land in dispute except Survey No. 72/8C1, were settled with respondent No. 4 namely., Smt. R.S. Peirera by late Sri. R.J. Peirera, by a registered Deed of Settlement dated 26.6.1961, executed by Sri Late R.J. Peirera, who was the absolute owner of the said property in dispute along with other lands. The case of the petitioner is that the lands in dispute were given absolutely in favour of Respondent No. 4 under the deed of 1961. The Land Tribunal according to the petitioner''s case rejected the application which had been moved by late Mundappa Poojary u/s 48A of the Act and from that order on an earlier occasion the Writ Petition namely., W.P.No. 7314/82 had been filed. During the pendency of that Writ Petition (W.P.7314/82), legal changes did take place under the Karnataka Land Reforms Act and the Appellate Authority had been created and the case was transferred to the Land Reforms Appellate Tribunal and was numbered as LRA.TT.869/86. But before the appeal could be disposed off, the Appellate Tribunal was abolished and then again a Writ Petition was preferred and it was numbered as W.P.No. 33042/92. During the pendency of the proceedings in W.P.No.7314/82 and coming into picture of W.P.33042/92, it appears that Respondent No. 3 issued a notice purporting to be u/s 15(2) of the Karnataka Land Reforms Act 1961 to the father of the petitioner namely to late Mundappa Poojary. That subsequently on 23.12.85, without having moved an application u/s 15(4) of the Act, respondent No,3 addressed a notice to Tahsildar, whereby respondent No. 3 requested for the delivery of possession of the land and for payment of rent. The Tahsildar, according to the petitioner seems to have acted on that said notice and thereafter issued a notice to the petitioner on 4.4.86, calling upon the petitioner to hand over the possession of the land in dispute to the third respondent. The petitioner has annexed the copy of that notice Annexure-H to the Writ Petition. According to the petitioner''s case, having felt aggrieved there from, the legal representatives of late Mundappa Poojary preferred a revision before the Divisional Commissioner, Mysore, which was numbered as Revision petition No. LRF RVN.43/89-90 and according to the petitioner''s case, the Divisional Commissioner, Mysore was pleased to set aside the notice dated 4.4.86 by his order dated 2.6.92. As per the allegations made in paragraph-5 of the Writ Petition, feeling aggrieved from the order dated 2.6.92, passed by the Divisional Commissioner, Respondent No. 3 preferred Writ Petition No. 23944/93 in this Court. The Writ Petitions No. 33042/93 and 23944/93 had been allowed by this Court, setting aside the orders passed by the Tribunal, which are dated 31.12.91 as well as order dated 4.4.86, passed by the Divisional Commissioner, Mysore. The matter was remanded to the Tribunal, with a direction to await the proceedings under Section-15 of the Karnataka Land Reforms Act, which had been remanded to the Tahsildar. According to the petitioner''s case, the Tahsildar by order dated 21.3.94 directed the petitioner to deliver the possession of the land to the third respondent and thereupon the petitioner preferred an appeal before the Assistant Commissioner, Mangalore, which has been dismissed by the Assistant Commissioner vide., order dated April 25, 1994.
3. Having felt aggrieved from the order dated 25.4.1994, the petitioner preferred this Writ Petition under Article 226 of the Constitution of India, challenging the order dated 21.3-1994 passed by the Tahsildar and the appellate order dated 25.4.1994, passed by the Appellate Authority, namely, Assistant Commissioner.
4. Notice of this Petition had been accepted on behalf of respondents 1 and 2 by the learned Government Pleader Sri. H.H. Kaladgi, who had put in appearance on behalf of respondents 1 and 2. Sri. S.G. Bhagavan has put in appearance on behalf of respondent No. 3 and Smt. I. D''Silva has appeared for respondent No. 4. On behalf of respondent No. 3, the counter statement has been filed and no counter has been filed on behalf of either respondents 1 and 2 nor on behalf of respondent No. 4. On behalf of respondent No,4 reliance has been placed on the averments made in the counter affidavit filed by respondent No. 3. Learned Government Pleader has also made the lower Court record available.
5. I have heard Sri. P. Viswanatha Shetty, learned Senior Advocate, assisted by Sri. G. Balakrishna Sastry, who has argued on behalf of the petitioner and Sri. H.H. Kaladgi the learned Government Counsel on behalf of respondents 1 and 2 as well as Sri. S.G. Bhagavan on behalf of respondent No. 3 and Smt. I. D''Silva on behalf of respondent No. 4.
6. On behalf of the petitioner Sri. P. Viswanatha Shetty, submitted that the opposite parties - 1 and 2 committed jurisdictional error as well as error of law apparent on the face of record by entertaining and allowing the application moved on behalf of respondent No. 3 under Section-15 of the Karnataka Land Reforms Act and by directing the petitioner to deliver the possession of the land to respondent No. 3, Sri Shetty further submitted that the Appellate Authority also committed error of law apparent on the face of record by not interfering with the order passed by the Tahsildar. Elaborating his point Sri Vishwanath Shetty made many submissions, but in my view the principal submission is that respondent No. 3 had not been entitled to move the application under Section-15 of the Act. Sri Shetty submitted that to the present case neither Section 5 of the Act nor Section 15 of the Ant had been applicable, as will appear from the facts of the case. He submitted that the property in dispute did originally belong to Sri R.J. Peirera who settled that property in 1961 by Deed dated 26.6.1961, copy of which has been annexed as Annexure-C. Shri Viswanath Shetty submitted that by this registered document i.e., Deed of Settlement the property in dispute had been settled in favour of respondent No. 4 as the absolute owner thereof and Sri.R.J. Peirera has relinquished all his rights in favour of respondent No. 4. He submitted that as under the Deed of June, 1961 the property had been absolutely transferred by Sri.R.J. Peirera in favour of respondent No. 4 and had been settled with respondent No. 4 with full and absolute rights, she was the full and sole owner of the property in dispute. He further submitted that the Deed alleged to have been executed on 27th of February, 1974 and the same had been registered on 27th June, 1974, though he does not concede about the genuineness of the Deed and he has been challenging the Deed on its genuineness etc., but he submitted for the moment and for the sake of arguments, if that Deed is taken on its face value to have been executed on 27.2.74 and to have been registered on 26.6.74, it did not have the effect of partitioning the property. Sri Vishwanath Shetty, submitted that partition can be done of a property which belongs jointly to the person entering into the transaction of partition or in between whom the agreement of partition is entered into. In support of his contention on this aspect, learned Counsel for the petitioner placed reliance on the Decision of the Supreme Court in case of
7. On behalf of the respondents 3 and 4, Sri S.G. Bhagavan and Smt. I. D''Silva submitted hat the contentions of the petitioner''s Counsel has got no substance. It was submitted on behalf of respondent Nos. 3 and 4 by the above mentioned learned Counsel that the Deed, Annexure-D which was executed on 27.2.74, had been registered on 27.6.74, but in view of the provisions of Section 47 of the Indian Registration Act the deed transferred will be deemed to have been effected from the date of execution of the Deed of Settlement or Partition dated 27.2.74 and not from 27.6.74 the date of its registration. Therefore, it had been submitted that on 27.2.74, respondent No. 3 had become the owner of that property under the Deed Annexure-D and therefore, it has got to be taken, considered and deemed that he i.e., respondent No. 3 consented to the continuation of petitioner''s father as a tenant and the petitioner''s father was in possession with the consent of respondent No. 3 and therefore, this land was covered by Section-5 of the Act. It was further submitted that in view of Section-47 of the Indian Registration Act, the Deed in question, though registered on 27.6.74, was operative with effect from the date of execution of the Deed i.e, from February 27, 1974 and sub-section (2) of Section 44 of the Land Reforms Act did not have its play. Learned Counsel submitted that Section 47 of the Indian Registration Act being a provision of the Central Act, in case of there being any conflict, it will operate and as Section 47 of the Indian Registration Act will operate, the title will stand transferred with effect from the date of actual transfer not from the date of registration. In alternative the respondents'' Counsel Sri S.G. Bhagwan and Smt. I.D''Silva submitted that in the property in dispute respondents 3 and 4 had joint interest and it is not that respondent No. 4 was the absolute owner thereof. He has taken me through the Deed itself in his efforts to satisfy the Court that the respondent No. 4 was not absolute owner, but the property jointly belonged to them at the time the Deed of 1974 was executed.
8. On behalf of the respondents, reference has been made to the Division Bench Decision of the Punjab and Haryana High Court in the case of
9. Sri. P. Vishwanatha Shetty, in his argument in rejoinder submitted that the case of Thakur Krishna Singh v. Arvind Kumar did not apply to the present case and is distinguishable as firstly it is a case which is related to the question of lease created by Deed executed prior to the date of vesting in that case, but registered on a date subsequent to the date of vesting and the effect of Section 6 of Madhya Pradesh Abolition of Proprietary Rights Act, 1950, whereunder the Deed executed subsequent to the date of vesting was declared to be void u/s 6 of that Act. The present case is one of transfer of right in land as proprietor by respondent No. 4 in favour of respondent No. 3 by Deed executed on 27.2.74 and registered on 27.6.74, while vesting of proprietary rights in lands in the tenancy from proprietor or land owner and their vesting in State did ordinarily take place on 1.3.74.
10. Certain other contentions has been raised by learned Counsel for the petitioner, which I need not state or deal with them because the Writ Petition can be disposed off on the above points.
11.I have applied my mind to the contentions made by learned Counsel for the parties and to the relevant record.
12. Before I proceed to discuss the matter, it will be proper to refer to the provisions of Section 5, Section 15 and Section 44 of the Karnataka Land Reforms Act, which read as under:-
"Section 5. Prohibition of leases, etc.- (1) Save as provided in this Act, after the date of commencement of the Amendment Act, no tenancy shall be created or continued in respect of any land nor shall any land be leased for any period whatsoever.
(2) Nothing in sub-section (1) shall apply to a tenancy created or continued by a soldier or a seaman, if such tenancy is created or continued while he is serving as a soldier or a seaman or within three months before he became a soldier or a seaman.
(3) Every lease created under sub-section (2) shall be in writing."
"Section 15. Resumption of land by soldier or seaman.- (1) A soldier or a seaman who has created or continued a lease in accordance with the provisions of Section-5 shall, subject to the provisions of this Act, be entitled to resume land to the extent of the ceiling whether his tenant is protected tenant or not.
(2) The soldier or the seaman shall, if he bona fide requires the land to cultivate personally, issue a notice to the tenant requiring him to deliver possession of the land within the period specified in the notice, which shall not be less than the prescribed period.
(3) The notice referred to in sub-section (2) shall be given.-
(i) in the case of a soldier in service in the Armed Forces of the Union, at any time not later than one year, from the date on which he is released from the Armed Forces or is sent to the reserve;
(ii) in the case of the father, mother, spouse, child or grand child of a soldier, within one year from the date of death of such soldier; and
(iii) in the case of a seaman, within one year from the date on which ceases to be a seaman.
(4) If the tenant fails to deliver possession of the land within the period specified in the notice, the soldier or the seaman may make an application to the Tahsildar within whose jurisdiction the greater part of the land is situated, furnishing the prescribed particulars for eviction of the tenant and delivery of possession of the land.
(5) On receipt of such application, the Tahsildar shall issue a notice to the tenant calling upon him to deliver possession of the land to the soldier or the seaman within such time as may be specified in the notice, which shall not be less than the prescribed period, and if the tenant fails to comply, the Tahsildar may summarily evict the tenant and deliver possession of the land to the soldier or the seaman.
(6) Where the Tahsildar, on application by the tenant or otherwise and after such enquiry as may be prescribed, is satisfied that a notice as required by sub-section (2) is not issued, he shall, by notification, declare that with effect from such date as may be specified in the notification the land leased shall stand transferred to and vest in the State Government free from all encumbrances. The Tahsildar may take possession of the land in the prescribed manner and the tenant shall be entitled to be registered as an occupant thereof. The provisions of Section-45 shall mutatis mutandis apply in this behalf.
"Section 44. Vesting of land in the State Government.- (1) All lands held by or in the possession of tenants including tenants against whom a decree or order for eviction or a certificate for resumption is made or issued, immediately prior to the date of commencement of the Amendment Act, other than lands held by them under leases permitted u/s 5, shall, with effect on and from the said date, stand transferred to and vest in the State Government.
(2) Notwithstanding anything in any decree or order of or certificate issued by any Court or authority directing or specifying the lands which may be resumed or in any contract, grant or other instrument or in any other law for the time being in force, with effect, on and from the date of vesting and save as otherwise expressly provided in this Act, the following consequences shall ensue, namely :-
(a) alt rights, title and interest vesting in the owners of such lands and other persons interested in such lands shall cease and be vested absolutely in the State Government free from all encumbrances;
(b) all amounts in respect of such lands which become due on or after the date of vesting shall be payable to the State Government and not to the land owner, landlord or any other person and any payment made in contravention of this clause shall not be valid;
(c) all arrears of land revenue, cesses water rate or other dues remaining lawfully due on the date of vesting in respect of such lands shall after such date continue to be recoverable from the landowner, landlord or other person by whom they were payable and may, without prejudice to any other mode of recovery, be realised by the deduction of the amount of such arrears from the amount payable to any person under this Chapter;
(d) no such lands shall be liable to attachment in execution of any decree or other process of any Court and any attachment existing on the date of vesting and any other for attachment passed before such date in respect of such lands shall cease to be in force;
(e) the State Government may, after removing any obstruction which may be offered, forthwith take possession of such lands;
Provided that the State Government shall not dispossess any person of any land in respect of which it considers, after such enquiry as may be prescribed, that he is prima facie entitled to be registered as an occupant under this Chapter.
(f) The land-owner, landlord or every person interested in the land whose rights have vested in the State Government under Clause (a), shall be entitled only to receive the amount from the State Government as provided in this Chapter;
(g) permanent tenants, protected tenants and other tenants holding such lands shall, as against the State Government, be entitled only to such rights or privileges and shall be subject to such conditions as are provided by or under this Act; and any other rights and privileges which may have accrued to them in such lands before the date of vesting against the landlord or other person shall cease and determine shall not be enforceable against the State Government."
13. The present Section 44 has been introduced by way of substitution in place of old Section 44 by Act No,1 of 1974. Act 1 of 1974, did come into operation on 1st March, 1974. As per reading of present Section 44, as introduced by Act 1 of 1974, all lands that were held by or had been in possession of the tenants including those against whom any decree or order of eviction had been passed or a certificate of resumption had been issued immediately before the date of commencement of the Amending Act 1 of 1974 with the exception of the lands which were held under the lease permitted u/s 5 of the Karnataka Land Reforms Act, for short ''Reforms Act'', stood vested with effect from the date of enforcement of Act 1 of 1974. This is what has been provided in sub-section 1 of Section 44. In other words, the lands in respect of which no leases had been granted or permitted did not stand transferred nor did vest in the State Government. Sub-section 2 of Section 44, indicates the effect of vesting of the land under sub-section (1) of Section 44. A reading of sub-section-2, along with Clause (a), in particular, clearly reveals that irrespective of any decree, order or certificate issued by the Court or any authority or any contract, grant or other instrument or any other law for the time being in force, with effect from the date of vesting of the land in the State Government from the date of enforcement of the Amending Act, the consequences referred in various clauses did ensue and the first consequence of which has been that all the rights, title and interest which had been vesting till then with the owners or other persons interested in such lands completely ceased and vested absolutely with the State Government free from encumbrances. Whereas, the nonobstante clause very clearly declares that any decree or certificate or order or any grant made thereof, nor if there is any law to the contrary for the time being in force, nor anything therein shall affect in any manner the vesting of the land and proprietary right therein with the State Government as provided u/s 44 of the Act. When I so interpret, I find support from the observations made by their Lordships of the Supreme Court in the case of Rana Sheo Ambar Singh v. Allahabad Bank Ltd, dealing with the provisions of Uttar Pradesh Zamindari Abolition and Land Reforms Act, that is, Act No. 1 of 1951, which came into effect in the State of Uttar Pradesh on July 1st, 1952. Certain Sections of the U.P., Act provided for the vesting of the estate in the State of Uttar Pradesh on the notification under Section-4 thereunder, and Section 6 of the U.P., Zamindari Abolition and Land Reforms Act prescribes the consequences of vesting. After having quoted Section 6(a) at page 792 of the Judgment as well as (h) of Section 6 of the U.P.Act, their Lordships observed:-
"All lands therefore whether cultivable or barren or grove lands vested in the State on the notification u/s 4 having been made save as otherwise provided in this Act, Therefore, proprietary rights in sir and khudkashat land and grove land would vest in the State on the coming into force of the notification u/s 4 unless there was some provision otherwise in the Act. The contention of the respondent therefore that sir and khudrashat land and grove land continued to be the property of the appellant and would therefore remain liable to be sold in execution on proceedings would fail in view of the notification u/s 4, unless of course there is a provision otherwise in the Act."
Their Lordships further observed at Page 1794, after having made reference to certain contentions of the Counsel:
"That would not however make any difference in our view as to the legal effect of the notification u/s 4 and under the notification sir and khudkashat land and grove land would vest in the State and would not be an exception to the consequences of vesting in Section 6 and therefore the proprietary right in sir and khudkashat land and grove land which were mortgaged would be extinguished and the bhumidari right which is created by Section 18 would be a new right altogether and would not therefore be considered to be included under the mortgage in this case."
Their Lordships laid it down that mortgagee can proceed against the compensation money and not the land and that whatever right the intermediary acquired u/s 18, those rights would be a new right altogether and would not therefore, be considered to be included, be deemed to be subject matter in this case. Their Lordships considered the consequences of vesting of land with the State with reference to Section 6(h) of the U.P., ZLR Act along with Section 73 of the Transfer of Property Act and further observed as under :-
"There is no doubt that the property mortgaged has been compulsorily acquired in this case by the State under the Act. Therefore, Section 6(h) read with Section 73 directs that the mortgagee shall proceed in the manner provided in Section 73, namely, follow the compensation money, and there is no other way possible for him in view of Section 6(h) with respect to the property which has been acquired under the Act."
14. The use of expression "free from encumbrances" in Section 44(a) of the Land Reforms Act very clearly indicates that in lands in possession of tenants, with exceptions which may be said to be covered by leases covered u/s 5, all rights title and interest of ownership etc., u/s 44 stood absolutely vested in the State Government. That being the position in the present case what has to be looked and considered is whether the subject matter of dispute in the present case can be said to be case where land was leased if it is covered by and u/s 5 of the Act as those lands u/s 44 did not stand vested with the State Government nor did the rights of owners of the lands leased on the date of vesting.? As such, it is necessary to consider as to what are those cases in which though lease of land is permitted u/s 5, land did not vest in State. Sub-section 1 of Section 5 of the Land Reforms Act, provides that with effect from the commencement of Amending Act, no tenancy shall be created or continued in respect of any land leased out for any period. In other words, sub-section 1 of Section 5, bars and prohibits the leasing out of land by the land owners with effect from the enforcement of the amending Act, but, sub-section-2 of Section 5 provides an exception to this general rule. According to sub-section 2, the bar created by sub-section 1 of Section 5 is not to be applied to the tenancy which has been created or is being continued with the tenants, if the owner of land is a soldier or a seaman serving during that period it also provides an exception in respect of the cases where such tenancy has been created or continued 3 months earlier to their becoming a soldier or seaman. It is further provided that lease has got to be created in writing and the lease has been created by a soldier or seaman himself during the course of his employment. As per scheme of the Act, u/s 15 of the Act, such a soldier has been conferred a right to resume the land to the extent of ceiling whether he is a protected tenant or not and a detailed procedure given therein has got to be adopted. The protection of the Section 5(2) of the Land Reforms Act has been given to the soldier only in respect of and to the extent of the land belonging to him and as such, it has also to be looked into whether the lease which has been granted by the tenant has been granted by him as a owner of the land. The Land Reforms Acts are a social welfare legislation, the purpose of which as per preamble of the Act is to indicate a uniform law relating to Agrarian relations, conferment of ownership on tenants and ceiling on the land holdings and certain other matters. In a way, the object of the Act appears to be to promote justice, social and economic which is intended to secure the basic principles of state policy and to make them effective.
15. Article 39 of the Constitution of India, no doubt, provides that the State shall, in particular direct its policy towards securing -
(a). xxx xxx xxx
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
16. The land is also a means of production. The intention of the Act appears to be that ordinarily the land should belong to the tiller of the land. Keeping this view, the Legislatures enacted the laws, such as U.P., Zamindari Abolition and Land Reforms Act or Karnataka Land Reforms Act and subsequently made necessary amendments in the Acts, such as introduction of present Section 44 substituting it in the place of earlier Section 44 in the Reforms Act.
17. It is well settled principle of law that if two interpretations are possible, then the interpretation which furthers the object of the Land Reforms Act and the policy enshrined in the Constitution are to be adopted. The purpose of Section 44 is to acquire more land from the land holders, who at that time were utilising the benefit of labour of others and to transfer the means of production, that is, land to the tiller of the soil. Therefore, provisions of Section 44 of the Act had been enacted, so as to provide for acquisition and vesting of lands in the State to make equitable distributions thereof among the tillers of the soil. Even the provisions relating to ceiling of land holdings have also been enacted with that view. When such land as is covered by Section 5 does not vest in the State, then, Section 5 of the Act has got to be strictly construed in a manner that may neither frustrate the object of Section 44 nor Section 5(2) itself. The intention of the legislators appears to be to confer benefit to the soldiers or seamen by protecting their lands or their interest in land from being vested in the State to the extent it belonged to them either as a sole owner or as a sharer in that land. This interpretation I am taking appears to be in consonance with the scheme of the Land Reforms Act.
18. In the present case, it has been contended by the petitioner''s Counsel that Respondent No. 3, who has moved an application u/s 15 of the Reforms Act, was neither a sole or exclusive owner of the property in dispute involved in this Writ Petition, nor he had any share or interest in that land. It has further been contended that the property had not been leased out by Respondent No. 3, in favour of the petitioner nor he could lease it out to some body else. That even he did not and could not continue the lease granted by Respondent No. 4, or earlier and as such, neither Section 5 did not apply to the land in dispute nor the respondent No. 3 could be said to be entitled to claim the relief u/s 15 of the Act.
19. As mentioned earlier, on behalf of Respondent No. 3 - Sri. Bhagwan as well as on behalf of Respondent No. 4 - Smt. D''Silva contended that by virtue of Annexure -D, which had been executed on 27.2.1974, respondents acquired title and the Deed has been described as a Partition Deed. It has further been contended that if it is for a moment taken that there was no antecedent title which is an essential ingredient in the matter of partition or in the matter of family arrangement, it may be assumed as inter se parties to the agreement and as such, the Deed became partition from the date it was executed. In the alternative, it was also submitted that though there is no doubt that under the settlement dated 1961, the property in dispute along with the property settled with Respondent No. 4 by Sri. R.J. Peirera is mentioned. In view of Section 47 of the Indian Registration Act, even if the Deed dated 27.2.1974, is taken to be the Deed of Transfer or Deed of Settlement, the rights did accrue in favour of respondent No. 3, with effect from the date of execution and not from the date of its registration. It has also been urged by Smt. D''Silva, Counsel for Respondent No. 4 that it may be taken as a family settlement and in that case, it may not require registration. But, she submitted that this principle of registration will not apply to the cases where the family arrangement is made orally and a document is only created as memo of the arrangement. She very fairly submitted that where under a document either of partition or of family arrangement, the title is claimed, in that case, it will require registration. I have applied my mind to the contentions of the learned Counsel for the respondents. If there is no pre-existing interest or right in property amongst those persons, who alleged to have entered into partition, there cannot be partition or settlement of interest in respect thereof. When I so observe, I find support for my view from the Decision of their Lordships of the Supreme Court in Sri. Hiraji Tolaji Bhagwan v. Shakuntala, in paragraph (7) of the Judgment, their Lordships observed as under:-
"Unfortunately High Court lost sight of the fact that the family settlement which is accepted by the Court in lieu of partition as a settlement which gives share to the parties as per legal entitlement and not settlement which is made or purported to have been made to circumvent the law. A partition of property can only be amongst the parties, who have pre-existing right in the property. Under the Hindu Law, a female member, or a minor or major has no share in the ancestral property. A female member is given share either in the self-acquired property of her husband of any share in the property of her father or husband or of the coparcenary property. There cannot therefore be a partition. Hence, the family settlement with regard to ancestral property so long it is joint. So long it is joint in favour of either wife or daughter."
A reading of the just above Decision per se shows that parties to partition must have a pre-existing right, interest or title in the property sought to be partitioned. In the present case, as the facts reveal that originally, the land belonged to Sri. R.J. Peirera, who made a Settlement in the year 1961 vide Annexure-C to this Writ Petition and thereunder, he granted various properties to his various heirs including respondent Nos.3 and 4, as such, the property in dispute has been given absolutely, as the reading of the Deed indicates to me, in favour of Respondent No. 4. No doubt, the Counsel for both the respondents submitted that absolutely the property was given, but the Deed when it was read to me by the learned Counsel for both the parties, per se indicated that each one was given interest in the property relinquishing his absolute right. I may refer to the underlined portion of the Partition Deed for this purpose:-
"I have divided the properties into 6 portions and out of such portions, the below mentioned A Schedule is to be given to you No. 2 and No. 3 Syrile Pereira, Valerian Pereira, B Schedule property is given to Rosie Periera.......Therefore, on the basis of this settlement, I have put in possession of properties by relinquishing my right in them and you are entitled to obtain patta in your individual name in regard to the said properties."
It is further mentioned in the Deed as under :-
"The first of you Rosie Sujana Peirera shall be absolute owner of Item No. 1 of B - Schedule property from this moment and some of the properties from it which are under chalgeni enjoyment of Mundappa Pujari, first of you shall collect chalgeni from said Pujari, and the remaining properties in this schedule which are in my possession shall be succeeded by 1st of you and legal heir."
It is further provided that:
"On the basis of the settlement deed I have been put in possession of the properties by relinquishing my rights in them, and they alone are entitled to obtain patta in the individual names...........".
It is further mentioned at page 5 of the English translation of Annexure-D as under: -
"Rosie Pereira shall be the absolute owner of item schedule ''B'', properties from it, which are under chalgeni enjoyment. She shall collect only chalgeni from the said Mundappa and remaining property in the schedule which is in my possession shall be succeeded by her and her legal heirs, as she feels after meeting the expenses."
These portions from the Deed per se disclose that the properties of the Schedule-B and other properties which had been allotted to Rosie Periera had been given to her as an absolute owner of Sri R.J. Pereira after relinquishing all rights. So, Respondent No. 4 as such has been the absolute owner of the property at the time, the deed dated 27.2.1974, is alleged to have been executed.
20. In view of this conclusion, I have been able to read the Deed Annexure-D, as Deed of Partition, of the properties which had been given by her husband to respondent No. 4. That Deed Annexure-D cannot be deemed to be a Deed of Partition as in the properties which are subject matter of the Deed dated 27.2.1974, Respondent No. 3 had no pre-existing right. The Deed can no doubt be read as Deed of Settlement or Deed of Donation or Deed of Gift by Smt Pereira in favour of those mentioned in the Deed and thereunder the title appears to have been transferred by Respondent No. 4 in favour of Respondent No. 3.
21. Now the question is:
"Whether the title transferred by Smt. Pereira - Respondent No. 4 in favour of Respondent No. 3, did pass on and the properties which had been mentioned in Annexure-D, passed on Respondent No. 3 on 27.2.1974 and whether this transaction was by itself complete on that date?.
22. As the question before this Court is what will be the effect of introduction of new Section 44 of the Reforms Act, 1961, (that is, Karnataka Land Reforms Act, 1961), introduced on the date above. Whereas, Section 47 of the Registration Act provides as under :-
"47. A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration,"
23. A reading of Section 47 per se reveals that it makes a registered document to be operative retrospectively, namely, from the date of its execution and not from the date of its registration. If the Deeds registered on a date later than the date of execution, it is to be deemed to have become operative from the back date i.e., date of execution. The Section by itself does not provide that though on the date of execution of the Deed, the Deed has not been registered, even then, the transaction of transfer under the Deed would be deemed to have been completed on the date of execution of the Deed. Therefore, this provision will come into effect only on the date when the document is registered and incorporated in the records of the Registrar''s office, but it is being made operative from the back date i.e., date of execution of the document. When I so hold, I find support from the Decision of their Lordships in the case of Ram Saran Lall and Ors. v. Mst. Domini Kuer and Ors., where the Supreme Court held that Section 47, of the Registration Act does not say or provide that the sale would be deemed to have been completed on the date of execution of Deed. It only provides that document, only when it has been registered is to operate from certain date which can be earlier than the date on which it was registered. If the object of the Section is to decide which of the two or more registered settlements in respect of the same property is to take effect the Section applies to documents only after it has been registered. It has nothing to do with the completion of transaction and therefore, it has nothing to do with the completion of sale when the instrument is one of sale. A sale admittedly until registration cannot be said to be transaction completed earlier than the date of registration, because, by virtue of Section 47, the instrument after it has been registered it commences to operate retrospectively from an earlier date. This being the position where transfer is required to be made by a registered document, the transfer is not complete and cannot be said to be complete unless the document has been registered in the office of Registration. In the present case, it is no doubt true that on the date that is, on 1.3.1974, when Section 44 of the Karnataka Land Reforms Act was introduced or on 27.2.1974, the petitioner was in occupation of the land as a tenant under the lease granted by the mother or by the father. So, the material question is: Whether by virtue of the Deed dated 27.2.1974, Respondent No. 3 became the owner of the land?
24. The contention of the learned Counsel for the Respondents had been to the effect that Section 44 will not operate. So far as the operation of the deed is concerned, it will not have effect on Section 44 and its operation on the land holders rights. Instead, the transfer and vesting of landholders rights will take effect u/s 44. Here, the question for consideration is whether there is a conflict in the two provisions of law namely Section 47 of the Indian Registration Act and Section 44 of Karnataka Land Reforms Act and if there is a conflict which will prevail? No doubt, Section 47 provides that the deed which has been registered, it shall have effect from the date of its execution, but, deed until the date of actual registration and its registration it will remain inoperative. That being the the position, Section 47 of the Indian Registration Act did not come into operation on the date of the introduction of Section 44 by Amending Act 1 of 1974, because, Section 44 provides for transfer and vesting of the rights of land holders in estate from the date in question, namely, 1st March 1974 and the owners of the land will cease to have any right in the land, as all those rights stood vested in the State Government free from all encumbrances. Therefore, the Deed had to get retrospective effect on and from the date or day the registration of Deed did take place and as there did not exist any property or any proprietary rights with Respondent No. 4, with reference to the land in dispute on the date the Deed was registered i.e., 27.6.74, the Deed could not have retrospective effect on the land in dispute.
25. In my opinion the Rule of Law as laid down with reference to Section 47 of Registration Act and Section 6 of Madhya Pradesh Abolition of Proprietary Rights Act, 1950, in the case of Thakur Kishan Singh v. Arvind Kumar, is not applicable to the present case, for the following reasons :-
(a) That in this case the question was whether lease deed in question dated 5.12.49 i.e, which lease executed on 5.12.49 before and was registered on 3.4.1950 i.e., after the enforcement of M.P., Abolition of Proprietary Rights Act (namely after 31.3.1950), was void u/s 6 of that Act, their Lordships took the view and observed .-
"In view of a specific provision in the Transfer of Property Act excluding agricultural leases from the purview of the Act, and the Tenancy Act of the State having provided for execution of the lease which does not contain any provision like Section 107 of the Transfer of Property Act, the principles of Section 107 cannot be extended to it....."
And thereby held the lease did not require writing and Registration. If so, transaction, could be held to be of a date before 31.3.50 i.e., of 5.12.49 i.e., the date of its execution and so not void u/s 6 of the Act.
(b) This case does not show that their Lordships were required in that case to consider the question of transfer of rights by proprietor to some one by any deed executed before the date of vesting of Proprietary Rights in the State u/s 4 of the Madhya Pradesh Abolition of Proprietary Rights Act, vis-a-vis Section 47 of the Indian Registration Act.
Section 4(1)(a) of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950, reads as under :-
"4. Consequences of the vesting.-
(1) When the notification u/s 3 in respect of any area has been published in the Gazette, then, notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in this Act, the consequences as hereinafter set forth shall, from the beginning of the date specified in such notification (hereinafter referred to as the date of vesting) ensue, namely:-
(a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including land (cultivable or barren), grass land, scrub jungle, forest, trees, fisheries, wells, tanks, ponds, water channels, ferries, pathways, village sites, hats, bazars and melas; and in all subsoil, including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State for purposes of the State free of all encumbrances; and the mortgage debt or charge on any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions of this Act;"
26. This Section 4(1) is analogous to Section 44(1) and (2) of the Karnataka Land Reforms Act. But as their Lordships were not called upon to interpret Section 47 of Registration Act in the context of Section 5(1)(a) of the Madhya Pradesh Abolition of Proprietary Rights Act, this Decision in Thakur Kishan Singh v. Arvind Kumar, cannot be deemed to be declaring the law on the question involved particularly when provision regarding vesting of that Act was not placed before their Lordships and so it may come within the purview of the Doctrine of per incuriam and sub silentio and is not applicable in the matter of decision of question involved in the present case.
27. Let this question be approached from another angle. For a moment if it be assumed that there is a conflict in the two Sections, in my opinion, the present Act had the assent of the President on 23rd February, 1974, as admitted by the parties and as appears from the perusal of the Act also. If it be taken that there is a conflict between the two provisions, Article 254 of the Constitution throws light in such situation. Article 254 of the Constitution of India reads as under: -
"254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.-(1) If any provision of a law made by the Legislature of a State if repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing taw with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this Clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State."
28. The law enacted by State Legislature and the Central Parliament, it has been provided that after it had got the assent of the President, then, the State law shall prevail. So, if for a moment, it is taken as contended by the respondent''s Counsel as a case of inconsistency, then Central Law will not prevail, in my opinion, instead in view of Article 254(2), State law, i.e., Section 44 of the Karnataka Land Reforms Act has to prevail over Section 47 of the Registration Act.
In my view, once the property is found to be covered not by Section 5(2), but Section 44 of the Land Reforms Act, and stood vested in the State Government on 1.3.74, then on 27.6.1974, i.e., the date of actual registration of the Deed dated 27.2.74, no property i.e., land in dispute did remain with the owner.
29. In such circumstance, how the deeming Clause u/s 47 of the Indian Registration Act could operate either prospectively or retrospectively from the date of execution. Hence, the deeming clause u/s 47 of the Registration Act could not and did come into operation on 27.6.74, that is, the date of Registration of the document retrospectively and as such respondent No. 3 could neither become owner nor could assent to continuation of lease granted by his mother or father prior to date of vesting i.e., 1.3.74.
30. Hence, there is no dispute between the parties that land had been leased by the mother in favour of the petitioner''s father Mundappa. When the property had come to the mother, mother was continuing to be the owner of the property on 1.3.74. and before as she was neither a soldier nor a seaman and respondent had neither become the owner of the land in question nor did he lease out the land nor did assent to possession of Mundappa Pujary or his heir nor could he do so. Smt.D''Silva raised the contention that it was a family arrangement and that antecedent title could be presumed. She has invited my attention to Their Lordships'' observations in
31. In view of what has been found above, it can be said that the land in dispute vested in the State u/s 44, so also all rights, title and interest of the Respondent No. 4 vested in the State free from all encumbrances. Therefore, I find that Section 5(2) did not apply to the present case and as the condition precedent for moving application u/s 15 of the Act is that a person must show and prove that he is the soldier or a seaman, who has created or has continued the lease in accordance with the provisions of Section 5, has not been established and Respondent No. 3 was not entitled to move u/s 15 of the Act, as such, Respondents 1 and 2, while allowing the application committed error of law apparent on the face of record by holding to the contrary as well as by taking an erroneous decision on the question of law as well as the facts to the effect that the applicant Respondent No. 3 - Soldier, had continued the lease, and has illegally assumed the jurisdiction by allowing the claim of Respondent No. 3. The orders impugned suffers from error of jurisdiction as well as error of law apparent on the face of record and as such petitioner''s Writ Petition deserves to be allowed.
32. Writ Petition is hereby allowed. Let the Writ of Certiorari be issued and that the orders impugned, namely, the order dated 21.3.1994, passed by Tahsildar, Bangalore, in LRI/CR No. 392/91-92, whereby, Tahsildar had allowed the application of Respondent No. 3, as well as the Appellate order dated 25.4.1994, passed in C.D.I.S/LRJ/CR No. 263/93-94, under Section-118(2)(B) of the Land Reforms Act, dismissing the petitioner''s appeal and confirming the order of the Tahsildar are hereby quashed.
No order as to costs.
33. Parties to maintain the status quo as regards possession as exists today for a period of one month from today with a clarification that respondents shall not interfere with the petitioner''s possession but if respondents are in possession, the petitioner shall not interfere with their possession for the above period. The amount that has been deposited under this Court''s order on 10.11.1994, be paid to the petitioner as this Petition is being allowed.
