Law shall have no retroactive effect – it shall not apply to the past deeds. But, how many of us know about it. I will tell you a story – a fictional story of two neighbours. In a remote place in the central Bhutan, Apa Tharpola and Chengala entered into agreement – Apa Tharpola sold a plot of land to Chengala in 1990s. The agreement was duly signed, was affixed with a legal stamp and have two witnesses signed on it too. Very interestingly, Apa Tharpola didn’t own the land, it was family land, and he had no Thram issued in his name.
The land was in Apa Pemala’s name – Apa Tharpola’s elder brother. They had their share of conflict over the ownership. Somehow, the issue between two brothers got settled. Apa Tharpola got share of property including land he sold to Apa Chengala in 2009 for minimal fees of Nu.10000. The land he sold to Apa Chengala was named Chiphu. The agreement does mention about Chiphu, but doesn’t say anything about area of land to be sold. The conflict arose between the two, with Apa Chengala claiming whole of Chiphu and Apa Tharpola agreeing only to give Chimsa – the settlement area only.
They reached to Court. Court found that agreement was valid, and ordered Apa Tharpola to transfer the land to Apa Chengala, that is, the land which was being cultivated or used by Apa Chengala but, tax was still paid by Apa Tharpola and family. The Court found agreement valid as per Section 35 of the Evidence Act, 2005. However, did Court fail to consider Section 36 of the Act? One sub-section states that any agreement in breach of law is invalid. To see whether there is breach of law or not, to which law do we refer? Almost all laws of the Kingdom. However, more relevant one could be Land Act.
In this case, the agreement was executed in 1990. The case reached to Court in 2013. Interestingly the Land Act was amended in 2007, the preceding law was Land Act 1979. Which law do we apply in this case? I would choose to apply 1979 law because the agreement was executed in 1990, much before the amendment. As I said in the beginning law should not be and it is ought not to be applied retroactively.
Now, Section Ka(5-13) says, when a person is staying together in a family, he or she is prohibited from selling land even if parents have given to him or her, unless he or she got the Thram transferred to his or her name. In the present case, forget about Apa Tharpola having Thram, the land was not even divided. If we strict to the words of this provision, the agreement executed between Apa Tharpola and Apa Chengala is indeed invalid.
Similarly, as per Section Ka (5-1), even before entering into agreement, the parties have to go to Court with a petition for land transfer, and the court is required to atleast wait for minimum of one month before it proceed with land transfer request. This time period allows others affected to object to such arrangement. Likewise, Section Ka (5-2 and 5-3) provides for detail procedure for transfer of land. None of these provisions were adhered to, so the agreement signed between Apa Tharpola and Apa Chengala is absolutely invalid as far as I am concerned.
Is there any possible remedy for them? The only remedy, and more just remedy for both of them is Section Ka (5-4) of 1979 Act. This provision provides that if the above provided procedures are not adhered to while entering into agreement, then the land sold would be considered as a mortgage for money borrowed. Therefore, land sold by Apa Tharpola to Apa Chengala shall be in law considered as mortgage for borrowing sum of Nu. 10000. The only possible remedy for Apa Chengala therefore, is to claim Nu.10000 with applicable interest. He cannot claim ownership of the land. So in this case, did a wrong man win?
Can there still be other possibility? Yes it is possible? That is the headache courts have to undergo every now and then. Judges are rarely appreciated. Therefore, getting lost in interpretation is not an easy job.