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abolition act

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Orissa Estate Abolition Act, 1951 – ss. 8, 2(h), 2(n) and 3 – Claim for protection as `raiyat’ – Property classified as uncultivable, vested in State by virtue of notification issued under the Act – Claim of Respondent that ex-intermediaries in respect of the property had leased the same to her predecessor-in-interest, who, immediately before vesting of the same in the State Government, was thus in possession of the property as a tenant under an intermediary i.e. was a `raiyat’ under the Act, and from date of the vesting, was a deemed tenant under the State Government and consequently Respondent too was a deemed tenant under the State Government and entitled to protection of his possession – Writ petition filed by respondent allowed by High Court – Order challenged – Plea raised that High Court lost sight of the relevant provisions of the Act and did not consider the effect of alleged gross acts of fraud committed by the respondent – Held: On facts, matter needs to be re-considered by the High Court. Words and Phrases – Fraud – Meaning and effect of – Discussed – Indian Contract Act, 1872 – s.17. By virtue of a Notification issued in 1954 under Section 3 of the Orissa Estate Abolition Act, 1951, the disputed property vested in the State. Respondent claimed that in 1933, the ex-intermediaries in respect of the said property had leased the same to her predecessor-in-interest , who, immediately before vesting of the same in the State Government, was thus in possession of the property as a tenant under an intermediary i.e. was a `raiyat’ under the Act, and from date of the vesting, was a deemed tenant under the State Government and consequently Respondent (who bought the disputed property from her predecessor-in-interest) too was a deemed tenant under the State Government and thus entitled to protection of his possession. In regard to the said claim, Respondent filed writ petition seeking direction to the State to accept rent from her in respect of the disputed property, for a declaration of tenancy in her favour and for an injunction against the State restraining them from interfering with her possession. The High Court allowed the writ petition. In appeals to this Court, the judgment of the High Court was inter alia challenged on grounds that the High Court lost sight of the relevant provisions of the Act and did not consider the effect of the alleged gross acts of fraud committed by the respondent . =Allowing the appeals, the Court HELD: 1.1. A `lease’ and `lessee’ on the one hand are defined separately from the `Raiyat’ under the Orissa Estate Abolition Act, 1951 Act. Thus, the mere execution of a lease by the intermediary in favour of a person would not confer the status of a `raiyat’ on the lessee nor would protect the possession of such lessee under Section 8 of the Act. In fact, a `lease’ would amount to a transfer of an interest of the intermediary in the land to the lessee. In such a situation, far from being a tenant protected under Section 8, the lessee would in fact step into the shoes of the intermediary with his interest being liable for confiscation and his entitlement limited to compensation from the State. On the other hand, for protection under Section 8, one has to be a Raiyat cultivating the land directly and having the rights of occupancy under the tenancy laws of the State. Thus, a `lessee’ who is not actually cultivating the land i.e. who is not a `raiyat’, would not be within the protection of Section 8 of the Act. Section 2(h) of the Act in its residuary part states that `intermediary’ would cover all owners or holders of interest in land between the raiyat and the State. [Para 21] [48-H; 49-A-D] 1.2. On the facts of the present case, it is clear that the land was not under cultivation by the predecessor-in-interest of the respondent. As per the record of rights published in 1930-31, the disputed land is classified as Anabadi Land i.e. uncultivable. The land is further described in the records as Jhudi jungle, i.e. bush forest. In addition, the OEA Collector had found that the lands were lying fallow and were not in physical possession of any person. The land thus not being cultivated, predecessor- in-interest of the respondent cannot prima facie be considered as a `Raiyat’ under the Act. [Para 22] [49-F-H; 50-A] Kumar Bimal Chandra Sinha V. State of Orissa (1963) 2 SCR 552 – referred to. 2.1. It is also necessary to consider the effect of fraud. By “fraud” is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from the ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corres-ponding loss to the deceived, the second condition is satisfied. [Para 33] [53-E-H] 2.2. “Fraud” vitiates every solemn act. Fraud and justice never dwell together. Misrepresentation itself amounts to fraud. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. [Para 35] [54-B-F] 2.3. Section 17 of the Indian Contract Act, 1872 defines “fraud” as act committed by a party to a contract with intent to deceive another. From dictionary meaning or even otherwise fraud arises out of deliberate active role of representator about a fact, which he knows to be untrue yet he succeeds in misleading the representee by making him believe it to be true. The representation to become fraudulent must be of fact with knowledge that it was false. [Para 36] [55-D-E] Dr. Vimla v. Delhi Administration 1963 Supp. 2 SCR 585; Indian Bank v. Satyam Febres (India) Pvt. Ltd. 1996 (5) SCC 550; S.P. Changalvaraya Naidu v. Jagannath 1994 (1) SCC 1; Ram Chandra Singh v. Savitri Devi and Ors. 2003 (8) SCC 319; Shrisht Dhawan (Smt.) v. M/s. Shaw Brothers (1992 (1) SCC 534; Roshan Deen v. Preeti Lal (2002 (1) SCC 100); Ram Preeti Yadav v. U.P. Board of High School and Interme-diate Education 2003 (8) SCC 311; Ashok Leyland Ltd. v. State of T.N. and Another 2004 (3) SCC 1; Gowrishankar v. Joshi Amba Shankar Family Trust 1996 (3) SCC 310 and Maganti Subrahmanyam (dead) by his Legal Representative v. The State of Andhra Pradesh (AIR 1970 SC 403) – referred to. Khawaja v. Secretary of State for Home Deptt. (1983) 1 All ER 765; Derry and Ors. v. Peek (1886-90) All ER 1 and Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702 – referred to. Webster’s Third New International Dictionary; Black’s Legal Dictionary; Concise Oxford Dictionary and Halsbury’s Laws of England – referred to. 3. In view of the peculiar facts and circumstances of the case, the matter needs to be re-considered by the High Court. In the background of the massiveness of apparent fraud involved, effective and participative role of officials of the State cannot be lost sight of. Without their active and effective participation manipulation of records, tampering with documents could not have been possible. The State would do well to pursue the matter with seriousness to unravel the truth and punish the erring officials and take all permissible actions (including criminal action) against every one involved. [Paras 44, 46] [62-A-C] Case Law Reference 1963 2 SCR 552 referred to Para 21 1963 Supp. 2 SCR 585 referred to Para 33 1996 (5) SCC 550 referred to Para 33 1994 (1) SCC 1 referred to Para 34 2003 (8) SCC 319 referred to Para 35 1886-90 All ER 1 referred to Para 36 1983 1 All ER 765 referred to Para 36 1992 (1) SCC 534 referred to Para 36 2002 (1) SCC 100 referred to Para 38 2003 (8) SCC 311 referred to Para 38 2004 (3) SCC 1 referred to Para 38 1996 (3) SCC 310 referred to Para 39 1956 1 QB 702 referred to Page 41 AIR 1970 SC 403 referred to Page 43 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2656 of 2009 From the Judgement and Order dated 10.01.2007 of the Hon’ble High Court of Orissa at Cuttack in Review Petition No. 13 of 2006. With Civil Appeal No. 2657 of 2009 Gopal Subramanium, ASG, Arunav Patnaik, Subir Palit, Mukul Kumar, Miuno Kumar, Milind Kumar, with him for the Appellant(s). Altaf Ahmad, U.U. Lalit, Jana Kalyan Das, Banshidhar Baug, Avijett Bhujabal, Sabyasachi Burma, with them for the Respondent(s).

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 2656 OF 2009 (Arising out of S.L.P. (C) No. 10223 of 2007) State of Orissa and Ors. …..Appellants Versus Harapriya Bisoi ….Respondent (With Civil Appeal 2657/2009 @ SLP (C) No.11960/2007)   JUDGMENT   Dr. ARIJIT PASAYAT.   1. Leave granted.   2. … Continue reading

KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977: ss. 4 (2) (b) and 10 – Abolition of Inams – Inamdar regranted the land – Erstwhile mortgagee claiming the mortgage to have been revived consequently – Held: High Court was not justified in concluding that s. 43 of Transfer of Property Act is relevant – Neither s. 43 of TP Act nor s. 10 of Karnataka Act has application to the facts of the case -Matter remitted to High Court for consideration afresh – Transfer of Property Act, 1882 – s. 43 – Doctrine of feeding the estoppel. A religious institution, namely, Kannada Mutt, was granted certain Jagir lands. Upon abolition of Inams by virtue of Karnataka Certain Inams Abolition Act, 1977, the lands stood vested with the State Government. However, the appellant being the Matadhisathi of the Mutt was allowed re- grant of the land. The respondents, who were the erstwhile mortgagees, claimed possession of the land in question contending that by virtue of order of re-grant in favour of the appellant, the earlier mortgage was revived and possession of the land could not be granted to the appellant. When the matter reached the Division Bench of the High Court in writ appeals, it held that s. 43 of the Transfer of Property Act, 1882 was applicable. Aggrieved, the Mathadhipati filed the appeals. = Allowing the appeals, the Court HELD: 1.1 A bare reading of s.4 of the Karnataka Certain Inams Abolition Act, 1977 makes it clear that notwithstanding any contract, all Inam tenures stood abolished and the consequences were the passing of the rights, title and interests as provided in s.4(2)(b). Section 10 of the Act has no application to the facts of the case. [para 6-7] [ 442-E, F; 443-B] Syed Bhasheer Ahamed and Ors. V. State of Karnataka ILR 1994 Kar 159 – distinguished. 1.2 The sine quo non for application of s.43 is that at the initial stage the person should have fraudulently or erroneously represented that he is authorized to transfer certain immovable property or professes to transfer such property for consideration. Only then the question of option of the transferee arises in case the transferor acquires any interest in the property at any time during which the contract of transfer subsists. Therefore, the High Court was not justified in concluding that s.43 is relevant. [para 6] [ 442-G, H; 443-A] 2. Without expressing any opinion about the acceptability of any stand taken by the respondents, the judgment of the High Court is set aside and the matter is remitted to it for consideration afresh. It is made clear that the issue relating to applicability of s.43 stands closed. [para 8] [444-B, C] Case Law Reference ILR 1994 Kar 159 distinguished para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1040-1053 of 2009 From the Judgement and Order dated 12.09.2007 of the Hon’ble High Court of Karnataka at Bangalore in W.A. No. 1936-40 & 1941-45 of 2005 Rama Jois, G.V. Chandrshekar, N.K. Verma, Anjana, Chandrashekar, for the Appellant. A.K. Subbaiah, S.J. Amith, Aparna Bhat, Kiran Suri, Sanjay R. Hegde, for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1040-1053 OF 2009 (Arising out of SLP (C) Nos. 3733-3746 of 2008) Ni. Pra Channabasava D.S. Matadhipathigalu ..Appellant Kannada Mutt Versus C.P. Kaveeramma and Ors. ..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in these appeals is to the … Continue reading

KARNATAKA CERTAIN INAMS ABOLITION ACT, 1977: ss. 4 (2) (b) and 10 – Abolition of Inams – Inamdar regranted the land – Erstwhile mortgagee claiming the mortgage to have been revived consequently – Held: High Court was not justified in concluding that s. 43 of Transfer of Property Act is relevant – Neither s. 43 of TP Act nor s. 10 of Karnataka Act has application to the facts of the case -Matter remitted to High Court for consideration afresh – Transfer of Property Act, 1882 – s. 43 – Doctrine of feeding the estoppel. A religious institution, namely, Kannada Mutt, was granted certain Jagir lands. Upon abolition of Inams by virtue of Karnataka Certain Inams Abolition Act, 1977, the lands stood vested with the State Government. However, the appellant being the Matadhisathi of the Mutt was allowed re- grant of the land. The respondents, who were the erstwhile mortgagees, claimed possession of the land in question contending that by virtue of order of re-grant in favour of the appellant, the earlier mortgage was revived and possession of the land could not be granted to the appellant. When the matter reached the Division Bench of the High Court in writ appeals, it held that s. 43 of the Transfer of Property Act, 1882 was applicable. Aggrieved, the Mathadhipati filed the appeals. =Allowing the appeals, the Court HELD: 1.1 A bare reading of s.4 of the Karnataka Certain Inams Abolition Act, 1977 makes it clear that notwithstanding any contract, all Inam tenures stood abolished and the consequences were the passing of the rights, title and interests as provided in s.4(2)(b). Section 10 of the Act has no application to the facts of the case. [para 6-7] [ 442-E, F; 443-B] Syed Bhasheer Ahamed and Ors. V. State of Karnataka ILR 1994 Kar 159 – distinguished. 1.2 The sine quo non for application of s.43 is that at the initial stage the person should have fraudulently or erroneously represented that he is authorized to transfer certain immovable property or professes to transfer such property for consideration. Only then the question of option of the transferee arises in case the transferor acquires any interest in the property at any time during which the contract of transfer subsists. Therefore, the High Court was not justified in concluding that s.43 is relevant. [para 6] [ 442-G, H; 443-A] 2. Without expressing any opinion about the acceptability of any stand taken by the respondents, the judgment of the High Court is set aside and the matter is remitted to it for consideration afresh. It is made clear that the issue relating to applicability of s.43 stands closed. [para 8] [444-B, C] Case Law Reference ILR 1994 Kar 159 distinguished para 6 CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1040-1053 of 2009 From the Judgement and Order dated 12.09.2007 of the Hon’ble High Court of Karnataka at Bangalore in W.A. No. 1936-40 & 1941-45 of 2005 Rama Jois, G.V. Chandrshekar, N.K. Verma, Anjana, Chandrashekar, for the Appellant. A.K. Subbaiah, S.J. Amith, Aparna Bhat, Kiran Suri, Sanjay R. Hegde, for the Respondent.

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NOS. 1040-1053 OF 2009 (Arising out of SLP (C) Nos. 3733-3746 of 2008) Ni. Pra Channabasava D.S. Matadhipathigalu ..Appellant Kannada Mutt Versus C.P. Kaveeramma and Ors. ..Respondents JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge in these appeals is to the … Continue reading

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