Shivaraj Patil, J. - (1.) HEARD the leaned senior counsel for the parties.
(2.) THE defendants in the suit O. S. No. 130 of 1981 have filed this appeal aggrieved by the judgment and decree dated 15. 3. 1991 made in the said suit. In this order, we shall refer to the parties by the ranks as assigned in the suit itself for convenience. The plaintiff filed the said suit O. S. No. 130 of 1981 for specific performance of the agreement of sale dated 12. 6. 1980. It is not necessary for us to refer to the averments made in the plaint in detail. The defendants in the written statement have raised various defences including the one that the plaintiff is not entitled to purchase more than 500 sq. metres under the Tamil Nadu Urban Land (Ceiling and Regulation) Act , and hence the agreement was void as violating the provisions of the Statute. On the basis of the pleadings, the learned single judge raised the following issues : - (1) Whether the suit agreement of sale dated 12. 6. 1980 is true" (2) Whether the sale price agreed between the parties is Rs. 5 ,40,000 and whether an advance of Rs. 1,00,000 was paid to the defendants and whether out of it rs. 65,000 was received by the defendants" (3) Whether the agreement for sale is not valid and enforceable for the reason of material alteration in the agreement and that it is not a concluded contract" (4) Whether the suit agreement of sale is not binding on the 4th defendant" (5) Whether the plaintiff is not entitled to purchase more than 500 sq. metre under the Tamil nadu Urban Land Ceiling Act and whether the suit agreement is void on that account " (6) Who among the parties have committed breach of the agreement" (7) Whether the plaintiff is entitled to the specific performance of the suit agreement of sale or to get only compensation" (8) To what relief are the parties entitled" Issue No. 5 relates as to whether the plaintiff was not entitled to purchase more than 500 sq. metres under the Tamil Nadu Urban Land ceiling Act and whether the suit agreement was void on that account. The learned single Judge after conducting the trial of the suit and on hearing the learned counsel for the parties , decreed the said suit and recorded a finding on issue 5 in favour of the plaintiff. As already stated above, the defendants have filed this appeal aggrieved by the judgment and decree of the learned single Judge dated 15. 3. 1991. In paragraph 17 of the Appeal Memorandum, the ground raised is-" The learned Judge has failed to appreciate the contention that the sale of vacant land of 8 Grounds 2354 sq. ft. being the excess of the ceiling limit prescribed under Urban Ceiling Act, is invalid and unenforceable. " Shri R. Thiyagarajan, learned senior counsel for the defendants in the first place urged that the suit agreement itself was not enforceable being void, in view of the bar contained in Section 6 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act. In support of his submission, he relied on the following Division Bench Judgments of this court. 1. Mariamma Varghese v. K. V. Balasubramaniam and 11 others, 1994 (1) LW 391 (2) Prabhavathi Jain & 4 others v. The Government of Tamil Nadu rep. by the Commissioner and secretary to Government, 1995 (2) LW 200; (3) 1996 (221) ITR 338 Learned senior counsel submitted that if the agreement itself was not valid, the learned single was not right in granting a decree for specific performance.
(3.) ON the other hand, Shri G. Subramanian, learned senior counsel representing the plaintiff, submitted that on facts and circumstances of the case, the learned single Judge was justified in granting a decree for specific performance; the provisions of the Tamil Nadu Urban Land (Ceiling and regulation) Act, may not apply to the facts of this case; the plaintiff has established the agreement and and also their readiness and willingness to perform their part of the contract. Having heard the learned counsel for the parties we are of the opinion that the question as to whether the specific performance decree could be granted on the basis of the suit agreement in view of the bar contained in Section 6 of the Act, has to be decided first. Section 6 of the act reads thus: "transfer of vacant land : - No person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land, or part thereof, by way of sale mortgage, gift, lease or otherwise until he has furnished a statement under section 7 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of Section 11; and any such transfer made in contravention of this provision shall be deemed to be null and void. " (a) The Division Bench of this Court in the case of mariamma Varghese v. K. V. Balasubramaniam and 11 others, 1994 (1) LW 391 has held that a decree for specific performance cannot be obtained at the hands of the Court, which will be practically nullifying the statutory provision, found in Section 6 of the Act. In the said judgment it is stated' ; The impediment is that the transaction, assuming it could fructify through the hands of the Court, will come within the mischief of Section 6 of Tamil nadu Urban Land (Ceiling and Regulation) Act 24 of 1978, hereinafter referred to as Act. That provision inhibits the coming into existence of any such transaction as the present one and further says that such transaction will be null and void. The court is not supposed to lend its hand for the purpose of arriving at this result, assuming that the plaintiff has got a case on merits otherwise. " The learned single Judge of this Court in the case of hamasaraj Bokaria and others v. The Government of Tamil Nadu, 1994 (1) LW 391 referring to Section 6 of the Act, in paragraph 17, stated thus: "thus, it is seen that the admitted extent of land held by the third respondent was in excess of the ceiling limit and consequently, the prohibition under Section 6 of the Act applies to his land. The result that follows is that the Court could not have passed decree directing execution of a sale deed by the third respondent in favour of the petitioner. " This decision of the learned single Judge was affirmed by a Division Bench of this Court in the case of Prabhavathi Jain and four others v. The Government of Tamil Nadu rep. by the Commissioner and secretary to Government, 1995 (2) LW 200. Paragraph 14 and 15 of the said judgment read thus: " (14) Section 6 of the Act prohibits a person, holding vacant land in excess of the ceiling limit immediately before the commencement of the Act, from transferring any portion of such land and further declares that any transfer made in contravention of this provision shall be deemed to be null and void. Section 6 reads thus: "6. Transfer of vacant land -No person holding vacant land in excess of the ceiling limit immediately before the commencement of this Act shall transfer any such land, or part thereof, by way of sale, mortgage, gift, lease or otherwise until he has furnished a statement under Section 7 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of Section 11; any such transfer made in contravention of this provision shall be deemed to be null and void. " In the present case, as already pointed out, the subject matter of the sale agreement dated 10. 1. 1974 between the 3rd respondent and hasraj Bokaria was RS No. 143/1 measuring 3 grounds and 20 sq. f t. RS No. 145 was introduced in the suit for the first time only on 24. 9. 1979, when the application for amendment of the plaint and the memorandum of compromise were filed in CS No. 202 of 1974. In these circumstances, it has to be held that the sale agreement, so far as it relates to RS No. 145 is concerned, came into existence only on 24. 9. 1979 when the memorandum of compromise was filed in CS No. 202 of 1974 after the Act came into force on 3. 8. 1979 and therefore the sale agreement, so far as it relates to RS No. 145 is hit by Section 6 of the Act and it is void. It is a settled position of law that a decree for specific performance cannot be granted in contravention of the provisions of Section 6 of the Act. Section 6 inhibits the coming into existence of any transaction, as the present one, and further says that such transaction will be null and void. Further, in view of section 43 of the Act, the provisions of the Act shall have effect notwithstanding anything inconsistent therewith in any agreement or decree or order of the Court. 15) In B. P. Samiappan (died) and four others v. Arunthavaselvan and three others, 1994 (1) LW 339 a question arose before a division Bench of this Court, whether Section 23 of the Tamil Nadu Land Reforms (Fixation of Ceiling on Lands) Act, 58 of 1961, which is in pari materia with section 6 of the Act, will invalidate only a transfer and not an agreement for sale. Repelling the contention of the appellants in that case that an agreement is not a transfer and therefore section 23 of Act 58 of 1961 does not come into play and invalidate the agreement for sale, the Division Bench held as follows: "the plaintiff seeks to have the agreement enforced by a court of law and get a sale deed in pursuance thereof. If the Court grants a decree in favour of the plaintiff and it leads to a sale deed in favour of the plaintiff, either by the party or by the Court, that sale is automatically void and it is deemed to be void always as per the provisions of the Act. The Court cannot be a party to a transaction which would be void in law. Hence, there is no substance in the contention that the agreements are not affected by the provisions of the Act. " ;