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What cannot be sold directly cannot also be sold indirectly by way of contract for sale

In LIGY PAUL vs MARIYAKUTTY, before the Kerala High Court, one C.L.Mathachan, the predecessor-in-interest of the defendants got patta in respect of 2.47 acres of land as per P.F.No.192/1981. 62.682 cents of this property was lying on the southern side of Edamalayar- Illithodu road. The property lying on the southern side of the said 62.682 cents is belonging to the plaintiff and one Susan P.Aliyattukudy. C.L.Mathachan, along with the 1st defendant, who is his wife, entered into an agreement on 22.6.1984 to sell out the said property to the said persons. Since there was a bar against the sale of the property for a period of 12 years from the date of issuance of patta, 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 by Susan.P.Aliyattukudy. The said 28.672 cents is the plaint schedule property. The possession of the property was handed over to the purported purchasers then and there. Around 1994, the respondents expressed their willingness to execute the purported sale deed but they demanded more amount although the entire amount was already paid to them earlier. In the above circumstances, they became a nuisance which led to the complaint before the police and ultimately resulted in filing the above suit.

One of the objections raised by the Defendants was that the agreement is being finalised after expiry of agreed 10 years and was therefore invalid while the Plaintiffs wanted the sale to be completed as laid down by the Section 53A of the Transfer of Property Act.

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. Challenging the divergent findings, the plaintiff filed this Regular Second Appeal.

The High Court referring to the judgment of the Supreme Court in Papaiah v. State of Karnataka & others [(1996) 10 SCC 533], held that it is clear that the lands which are originally assigned continues to be assigned lands even assuming that there was a contract for sale in favour of the plaintiff and possession was passed thereunder.

Once the Government land is characterised as an assigned land, the same continues and remains to be an assigned land. The plaintiff who had entered into an agreement with the predecessor of the defendant cannot have a better right than the original assignee and even the plaintiff 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  and 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 framed thereunder.

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, is not entitled to transfer the land ignoring the provisions contemplated under the Act and the Rules. On the date of execution of the sale deed, 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 assignee is bound by the terms thereunder. The alienation by way of the sale deed or otherwise violating the Act and the Rules are void. It is settled law that what cannot be sold directly cannot also be sold indirectly by way of contract for sale. No authority is required for this proposition. Hence, it is unnecessary to peruse the commission report and other evidence to ascertain the actual possession on the date of the suit.

In Papaiah's case (supra) the Supreme Court 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 and as the contract is void, Section 53A of the Transfer of Property Act, 1882 is not applicable.


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