Ammani Verghese Vs. Rama Mugera (Deceased) by L.Rs. - Court Judgment

Excerpt:
- section 24: [anand byrareddy, j] application under section 24 for maintenance - marriage performed as per the provisions of the portuguese civil code application filed under section 24 of the hindu marriage act for maintenance by wife before the family court at belgaum objections by the petitioner/husband with regard to jurisdiction of the family court at belgaum to entertain the application - rejection of objections - challenge to question whether the portuguese family law or hindu law would be applicable to the parties and if the portuguese family law is applicable, which is the court having jurisdiction to decide the matter - held, there is no dispute that the parties were married according to the portuguese family law, that is applicable within the state of goa, and had set up their matrimonial home at fatorda, margao. it is the portuguese family law which would apply, in so far as their matrimonial relationship is concerned. the fact that the petitioner and the respondent underwent a hindu marriage ceremony at a later point of time, would not have the effect of the parties becoming subject to the provisions of the hindu marriage act. the hindu marriage act not having been extended to the state of goa as on the date of their marriage i.e., 26.12.2002 the said act and the provisions thereunder would not apply. further, a suit for divorce by parties governed by the portuguese family law within the state of goa, can file the same in the court of domicile within goa or in the court having jurisdiction over the place where the plaintiff resides (also within the state of goa). it cannot be construed that a plaintiff who is residing outside the state of goa could also file a suit or petition for divorce outside the state of goa, as in the present case, in a place where he or she is residing outside goa. the courts, in the rest of india, would have no jurisdiction to entertain suit (petition) under the provisions of the portuguese family law pertaining to divorce. the laws relating to succession and marriage might not be the same all over the country and different areas in the state might have different laws in respect of those matters. though the respondent is now living at belgaum, on the premise that if there was a possibility of reconciliation, her domicile would be that of the petitioner at goa, it can safely be said that a suit by the respondent would lie in the state of goa in terms of article 5 before the court of domicile. in view of this, it can be said that the portuguese family law would be the court of domicile, within the state of goa. impugned order was quashed. - order 1. by this petition, the petitioner has challenged the order dated 9th june, 1992, passed by the deputy commissioner, dakshina kannada, mangalore, dismissing the petitioner's appeal and affirming the order dated 17-5-1985, passed by the assistant commissioner in proceedings under section 5 of act 2 of 1979, as well as order dated 20th august, 1984, that was originally passed in the earlier proceedings. ) which were operative in 1937, in the area where the land was granted to the petitioner, the grant was made subject to the condition that no transfer shall be made in favour of any person whether belonging to scheduled caste or scheduled tribe or a person not belonging to scheduled caste or scheduled tribe, for a period of 10 years and which further provided that after the expiry of 10 years as well, the transfer can only be made in favour of scheduled caste or scheduled tribe person and no other.order1. by this petition, the petitioner has challenged the order dated 9th june, 1992, passed by the deputy commissioner, dakshina kannada, mangalore, dismissing the petitioner's appeal and affirming the order dated 17-5-1985, passed by the assistant commissioner in proceedings under section 5 of act 2 of 1979, as well as order dated 20th august, 1984, that was originally passed in the earlier proceedings.2. facts of the case in the nutshell are that the petitioner is a purchaser of granted land from the grantee. the land was granted in favour of deyyu mogera on 25-12-1937, under depressed class assignment rules. the land that had been granted had been 0.45 acre in sy. no. 171/4 and the grantee had also been granted 0.10 acre in sy. no. 171/15 of the same village. the alienation of the property that is 0.10 acre was made in favour of the petitioner by sri rama mogera, son of the original grantee, to a person who did not belong to scheduled caste. the authorities allowed the application under section 5(1), read with section 4 of the act and held the transfer to be in breach of non-alienation condition of original grant and therefore to be null and void and ordered resumption of land to the government and thereafter restoration to the legal representatives of the original grantee.3. having felt aggrieved from the order of the assistant commissioner, dated 20th august, 1984, the petitioner filed an appeal before the deputy commissioner, which has been dismissed by the deputy commissioner. from these proceedings the matter had come up in writ petition to this court under article 226 of the constitution and the matter was remanded and referred to the assistant commissioner for decision afresh. the assistant commissioner on 17-5-1985 passed another order, holding the transfer to be invalid, null and void under section 4 and directed handing over of possession to the government for restoration to the original grantee or his heirs. from that order dated 17-5-1985, the petitioner filed appeal under section 5-a of the act namely sc/st(ptcl)22/1985-86 and the deputy commissioner by his order dated june 9, 1992, dismissed the appeal and opined that alienation which was made in favour of the petitioner, non-depressed class person was null and void and directed the assistant commissioner to take further action under section 5-a of the act. from that order the petitioner alienee has filed this petition under article 226 of the constitution.4. i have heard the petitioner's counsel sri a. keshava bhat and smt. shantha kumari learned government pleader, for the respondents. learned counsel for the petitioner contended before this court that originally under the standing orders issued by the board of revenue, madras, restriction was provided to the effect that grant or assignment of ordinary land or valuable land in the area shall be subject to the condition that the lands shall not be alienated to any person (whether a member of scheduled caste or not), in any manner before the expiry of 10 years, from the date of the grant thereafter to none else except to members of scheduled caste. learned counsel submitted that in view of the provisions of rule 29-a of the land grants rules, 1969, the bar of alienation provided under the instructions issued by the board to authorities under the rules ceased to be operative with effect from 27th september, 1974, when rule 29-a was introduced in the grants rules, from the date of enforcement of the karnataka amendment of 1974, namely 27-9-1974. learned. counsel contended that on the date the sale was made in favour of the petitioner namely 5th of october, 1974, there was no such restriction on the right of the grantee to transfer the lands, that he cannot transfer the land to any person other than the person belonging to scheduled caste or scheduled tribe. learned counsel contended that when the bar or condition of non-alienation clause as originally incorporated in the standing orders issued by the board of revenue, madras, ceased to operate earlier to 5-10-1974 so the sale deed has been executed by the grantee or his heir in favour of the present petitioner, could not be said to be in violation or breach of any such thing as non-alienation clause, as the same was not in operation and that being so, learned counsel contended that the transaction that had been made on 5th of october, 1974, could not be said to be void under section 4. learned counsel for the petitioner in this connection made reference to the observations made by the division bench of this court in the case of laxmamma v state of karnataka . learned counsel further made a reference to another division bench decision of this court in the case of shripad narayan hegde v state of karnataka and others and submitted that the law laid down in the case of smt. bhagi hengsu v rocky lasrado and others , could not apply and the said decision has been explained in the case of sripad narayan hegde, supra.5. on behalf of the opposite parties, particularly state, learned government pleader smt. shantha kumari, while supporting the order placed reliance on the division bench decision in the case of bhagi hengsu, supra, and contended that the division bench has held that in view of section 13 of the act, rule 29-a which validates alienations made to persons other than scheduled caste or scheduled tribe, is incorrect, and improper and it is the result of non-consideration of section 11 of the act.-,6. i have applied my mind to the contentions raised by learned counsel for the parties. in the present case, the alienees-legal representatives had made the transaction of transfer of the granted land in favour of the petitioner on 5-10-1974. rule 29-a was introduced by gsr no. 284, dated 27-9-1974. this rule came into effect from october 17, 1974, it also appears to be from the perusal of the decision in laxmamma's case, supra, relied upon by the petitioner. it means that this rule ceased to operate with effect from 17-10-1974, if at all the said rule ceased to operate. it means earlier to that date that is earlier to 17-10-1974, the rules were in operation. under rule 29-a the phrase used is 'shall with effect from the commencement of karnataka land grant amendment rules 1974 cease to operate'. it is very clear from the observations of the division bench also that the rules of 1974 came into force from 17-10-1974. when this is the position, on the date that sale was made in favour of the petitioner, the bar against alienation was operative and no alienation could be made of the land granted in favour of the grantee under the madras rules (b.s.o.) which were operative in 1937, in the area where the land was granted to the petitioner, the grant was made subject to the condition that no transfer shall be made in favour of any person whether belonging to scheduled caste or scheduled tribe or a person not belonging to scheduled caste or scheduled tribe, for a period of 10 years and which further provided that after the expiry of 10 years as well, the transfer can only be made in favour of scheduled caste or scheduled tribe person and no other. it means transfer of granted land in favour of a person not belonging to sc or st, was really prohibited under the rules.7. that being the position, the transfer made in 1974, particularly on 5th of october, 1974 can be said to have been made by the grantee in favour of the petitioner (who did not belong to either scheduled caste or scheduled tribe), in violation of the terms of the grant and therefore in view of section 4 of act 2 of 1979 as such the sale has rightly been held as to have been made in violation of the terms of law relating to grant and as such null and void. learned counsel earlier tried to submit that there was conflict of views in laxmamma's case and in the bhagi hengsu's case, supra. i need not go into that question, because that question does not arise for consideration in the present case. that the condition or rule providing for non-alienation clause or providing prohibition against transfer of granted land by the grantee in favour of a non-scheduled caste person did not cease to operate, earlier than 17th october, 1974 and it was very much operative on the date the grantee transferred the land in favour of the petitioner, namely on 5-10-1974.8. thus considered, in my opinion, there is no question of referring the matter to the larger court, instead i find that there is no force in the contentions of the learned counsel for the petitioner, on the merits of the cease. the order impugned in my opinion has not been shown to suffer from any error of law or of jurisdiction and as such the writ petition is hereby dismissed, with no order as to costs.

Judgment:
ORDER

1. By this petition, the petitioner has challenged the order dated 9th June, 1992, passed by the Deputy Commissioner, Dakshina Kannada, Mangalore, dismissing the petitioner's appeal and affirming the order dated 17-5-1985, passed by the Assistant Commissioner in proceedings under Section 5 of Act 2 of 1979, as well as order dated 20th August, 1984, that was originally passed in the earlier proceedings.

2. Facts of the case in the nutshell are that the petitioner is a purchaser of granted land from the grantee. The land was granted in favour of Deyyu Mogera on 25-12-1937, under Depressed Class Assignment Rules. The land that had been granted had been 0.45 acre in Sy. No. 171/4 and the grantee had also been granted 0.10 acre in Sy. No. 171/15 of the same village. The alienation of the property that is 0.10 acre was made in favour of the petitioner by Sri Rama Mogera, son of the original grantee, to a person who did not belong to Scheduled Caste. The authorities allowed the application under Section 5(1), read with Section 4 of the Act and held the transfer to be in breach of non-alienation condition of original grant and therefore to be null and void and ordered resumption of land to the Government and thereafter restoration to the legal representatives of the original grantee.

3. Having felt aggrieved from the order of the Assistant Commissioner, dated 20th August, 1984, the petitioner filed an appeal before the Deputy Commissioner, which has been dismissed by the Deputy Commissioner. From these proceedings the matter had come up in writ petition to this Court under Article 226 of the Constitution and the matter was remanded and referred to the Assistant Commissioner for decision afresh. The Assistant Commissioner on 17-5-1985 passed another order, holding the transfer to be invalid, null and void under Section 4 and directed handing over of possession to the Government for restoration to the original grantee or his heirs. From that order dated 17-5-1985, the petitioner filed appeal under Section 5-A of the Act namely SC/ST(PTCL)22/1985-86 and the Deputy Commissioner by his order dated June 9, 1992, dismissed the appeal and opined that alienation which was made in favour of the petitioner, non-depressed class person was null and void and directed the Assistant Commissioner to take further action under Section 5-A of the Act. From that order the petitioner alienee has filed this petition under Article 226 of the Constitution.

4. I have heard the petitioner's Counsel Sri A. Keshava Bhat and Smt. Shantha Kumari learned Government Pleader, for the respondents. Learned Counsel for the petitioner contended before this Court that originally under the standing orders issued by the Board of Revenue, Madras, restriction was provided to the effect that grant or assignment of ordinary land or valuable land in the area shall be subject to the condition that the lands shall not be alienated to any person (whether a member of Scheduled Caste or not), in any manner before the expiry of 10 years, from the date of the grant thereafter to none else except to members of Scheduled Caste. Learned Counsel submitted that in view of the provisions of Rule 29-A of the Land Grants rules, 1969, the bar of alienation provided under the instructions issued by the Board to authorities under the rules ceased to be operative with effect from 27th September, 1974, when Rule 29-A was introduced in the Grants Rules, from the date of enforcement of the Karnataka Amendment of 1974, namely 27-9-1974. Learned. Counsel contended that on the date the sale was made in favour of the petitioner namely 5th of October, 1974, there was no such restriction on the right of the grantee to transfer the lands, that he cannot transfer the land to any person other than the person belonging to Scheduled Caste or Scheduled Tribe. Learned Counsel contended that when the bar or condition of non-alienation clause as originally incorporated in the standing orders issued by the Board of Revenue, Madras, ceased to operate earlier to 5-10-1974 So the sale deed has been executed by the grantee or his heir in favour of the present petitioner, could not be said to be in violation or breach of any such thing as non-alienation clause, as the same was not in operation and that being so, learned Counsel contended that the transaction that had been made on 5th of October, 1974, could not be said to be void under Section 4. Learned Counsel for the petitioner in this connection made reference to the observations made by the Division Bench of this Court in the case of Laxmamma v State of Karnataka . Learned Counsel further made a reference to another Division Bench decision of this Court in the case of Shripad Narayan Hegde v State of Karnataka and Others and submitted that the law laid down in the case of Smt. Bhagi Hengsu v Rocky Lasrado and Others , could not apply and the said decision has been explained in the case of Sripad Narayan Hegde, supra.

5. On behalf of the opposite parties, particularly State, learned Government Pleader Smt. Shantha Kumari, while supporting the order placed reliance on the Division Bench decision in the case of Bhagi Hengsu, supra, and contended that the Division Bench has held that in view of Section 13 of the Act, Rule 29-A which validates alienations made to persons other than Scheduled Caste or Scheduled Tribe, is incorrect, and improper and it is the result of non-consideration of Section 11 of the Act.-,

6. I have applied my mind to the contentions raised by learned Counsel for the parties. In the present case, the alienees-legal representatives had made the transaction of transfer of the granted land in favour of the petitioner on 5-10-1974. Rule 29-A was introduced by GSR No. 284, dated 27-9-1974. This rule came into effect from October 17, 1974, it also appears to be from the perusal of the decision in Laxmamma's case, supra, relied upon by the petitioner. It means that this rule ceased to operate with effect from 17-10-1974, if at all the said rule ceased to operate. It means earlier to that date that is earlier to 17-10-1974, the rules were in operation. Under Rule 29-A the phrase used is 'shall with effect from the commencement of Karnataka Land Grant Amendment Rules 1974 cease to operate'. It is very clear from the observations of the Division Bench also that the Rules of 1974 came into force from 17-10-1974. When this is the position, on the date that sale was made in favour of the petitioner, the bar against alienation was operative and no alienation could be made of the land granted in favour of the grantee under the Madras Rules (B.S.O.) which were operative in 1937, in the area where the land was granted to the petitioner, the grant was made subject to the condition that no transfer shall be made in favour of any person whether belonging to Scheduled Caste or Scheduled Tribe or a person not belonging to Scheduled Caste or Scheduled Tribe, for a period of 10 years and which further provided that after the expiry of 10 years as well, the transfer can only be made in favour of Scheduled Caste or Scheduled Tribe person and no other. It means transfer of granted land in favour of a person not belonging to SC or ST, was really prohibited under the rules.

7. That being the position, the transfer made in 1974, particularly on 5th of October, 1974 can be said to have been made by the grantee in favour of the petitioner (who did not belong to either Scheduled Caste or Scheduled Tribe), in violation of the terms of the grant and therefore in view of Section 4 of Act 2 of 1979 as such the sale has rightly been held as to have been made in violation of the terms of law relating to grant and as such null and void. Learned Counsel earlier tried to submit that there was conflict of views in Laxmamma's case and in the Bhagi Hengsu's case, supra. I need not go into that question, because that question does not arise for consideration in the present case. That the condition or rule providing for non-alienation clause or providing prohibition against transfer of granted land by the grantee in favour of a non-Scheduled Caste person did not cease to operate, earlier than 17th October, 1974 and it was very much operative on the date the grantee transferred the land in favour of the petitioner, namely on 5-10-1974.

8. Thus considered, in my opinion, there is no question of referring the matter to the larger Court, instead I find that there is no force in the contentions of the learned Counsel for the petitioner, on the merits of the cease. The order impugned in my opinion has not been shown to suffer from any error of law or of jurisdiction and as such the writ petition is hereby dismissed, with no order as to costs.