Hakim Imtiyaz Hussain, J.
1. This civil second appeal is directed against the judgment and decree dated 30th of April 1999 passed by District Judge, Rajouri in Appeal No. 31/97 titled Syed Begum v. Zulafkar Ahmed and Anr. by means of which he has up-held the judgment and decree passed by Sub Judge, Chief Judicial Magistrate, Rajouri in COS No. 86/Civil titled Syed Begum v. Zulafkar Ahmed and Anr.
2. The brief facts relevant for the disposal of the present appeal are as under:
Hussan Mohd, father of appellant-Syed Begum and Sallah Mohd, father of respondent No. 2, Wazir Hussain were real brothers being the sons of one Ghulam Mohd of village Danoor Gursainh District Rajouri. They had 164 and 4 marlas of landed property situated under survey Nos. 74, 75, 76, 77 and 67 at village Danoor Gursainh, and khasra Nos. 127, 90, 91, 85 and 87 situated at village Danoor Jaralanh and survey Nos. 243, 244,246 and 250 situated at village Rampur Rajouri.
3. Hussan Mohd had two wives. From the first wife, he got three daughter, namely, Gul Begum, Gundu Begum and Shahida Begum while as from the second wife namely, Mst. Hidayat Bibi, he had two daughters, Syed Begum (appellant) and Iqbal Begum. Hussan Mohd died in the year 1979. The present appellant filed a suit for declaration and joint possession before the Court of District Judge, Rajouri against Zulafkar Ahmed S/o Wazir Hussain and Wazir Hussain S/o Sallah Mohd. The case was transferred to the Court of Sub Judge Rajouri for disposal. The appellants case before the trial court was that she all along resided with her father and was in actual physical possession of his lands and used to cultivate the same on his behalf. She and her husband were thus in possession of the suit land. The appellant further stated that a part of the suit land was grabbed by respondent No. 2, namely, Wazir Hussain after the death of her mother in the year 1983. The appellant further stated that the respondents with the help of Revenue officials managed illegal mutations of inheritance regarding the land left by her father and that all these mutations were challenged by her in the appropriate forums. She further stated that the respondents had forged a deed of Will dated 1st of March 1975 by means of which the whole land left by her father and held by him as owner or an occupancy tenant has been shown to have been bequeathed in favour of defendant No. 1 and his brother Mohd Iqbal. The document, according to the appellant, was forged by Wazir Hussain in the name of father of the appellant and in favour of his sons and thus himself became the actual beneficiary. The appellants further case was that the Will so executed was expressly barred under the provisions of Jammu and Kashmir Agrarian Reforms Act, as then in force. She prayed for a decree for declaration to the effect that the said deed of the Will allegedly made by Hussan Mohd in favour of the respondents was null and void and ineffective on the rights of the plaintiff. She further prayed for joint possession of the suit land by her with respondent No. 2.
4. The respondents resisted the suit of the appellant on the ground that the respondents have got the land left by Hussan Mohd under a deed of Will executed by Hussan Mohd in their favour. They further stated that the appellants suit was barred by limitation as she challenged the Will after a lapse of more than 11 years after the death of her father. The respondents further pleaded that there was a custom prevailing in the village as well as in Tehsil of Rajouri from the time immemorial that in case a Mohammedan agriculturist dies, his married daughters do not inherit the property of their father. The respondents denied that the Will executed by Hussan Mohd was in any way hit by the provisions of Jammu and Kashmir Agrarian Reforms Act, 1976, as according to them, there was no legal bar for a Mohammedan to execute a Will of his property.
5. The trial court framed various issues in the case. One of the issues framed was on the limitation. The trial court concentrated on this issue and on consideration of the matter found that since the case of the appellant was that of cancellation of Will deed, the limitation provided under the Jammu and Kashmir Limitation Act was six years and that since the suit has not been filed within the said period of limitation, the same was barred by limitation. The Court further found that as one of the relief sought by the appellant was time barred, the other was not available. In view of this finding other issues framed in the case were not decided by the Court. The Court, therefore, dismissed the suit as time barred. The Court accordingly passed a decree on 30th of November 1996.
6. Aggrieved by the judgment and decree of the trial court, the appellant filed an appeal being Civil Appeal No. 31 of 1997 before the District Judge Rajouri. The matter was considered by the District Judge but he agreed with the findings arrived at by the trial court and held that the trial court had rightly dismissed the suit as time barred. The appeal was accordingly dismissed.
7. The appellant is aggrieved of the findings returned by the District Judge, Rajouri confirming the judgment and decree of the trial court and has through the medium of present appeal assailed the findings of the courts below on the ground that the Will deed which was the subject matter of the suit was void abinitio being hit by the provisions of Agrarian Reforms Act, as such, the ground of dismissal of the suit on the basis of limitation was erroneous. According to the appellant, a document which is void abinitio can be challenged at any time, as such, courts below fell in error by applying the provisions of the Jammu and Kashmir Limitation Act and holding that the period of limitation in the present case was six years from the date when the right to sue accrues.
8. Heard. I have considered the matter. I have gone through the record of the trial court as well as the judgments of the courts below impugned in the present appeal.
9. This Court has on 27th of September 1999 admitted the appeal to hearing after framing the following substantial questions of law for determination:
(i) Whether the suit filed by the plaintiff was barred by limitations particularly when the will the genuineness of which was question, had been declared a nullity by the authorities appointed under the Agrarian Reforms Act?
(ii) Whether the suit for joint possession by co-sharer could be dismissed solely on the ground that the suit for declaration was barred by limitations without considering the question of limitation applicable to such a relief independent of the relief of declaration?
(iii) When did the cause of action has accrued to the plaintiff/ appellant for filing the suit?
10. Learned Counsel for the appellant would argue that the courts below have taken an erroneous view of the law while dealing with the issue of limitation. The Will, according to the learned Counsel, was hit by the provisions of Jammu and Kashmir Agrarian Reforms Act, 1976 being in contravention of Section 31 of the Act, as such, the deed was void abinitio and that the courts below have altogether ignored this important ground raised by the appellant before the trial court as well as before the 1st Appellate Court. Making his submissions on the question No. 1 framed by the Court, the learned Counsel would submit that where the document is void abinitio and has been declared a nullity by the authorities appointed under the Agrarian Reforms Act, the question of limitation does not arise and need not to be applied in the case.
11. The deed of Will on which the respondents rely has been placed on the trial courts file as Ex-DA. The document shows that it has been executed by one Hussan Mohd S/o Ghulam Mohd of Danoor Gursianh Tehsil Rajouri. Under the deed, the executant has bequeathed 63 kanals and 19 marlas of land held by him under survey Nos. 74, 75, 76, 77 and 67 situated at village Danoor Gursainh and under survey Nos. 243, 1926, 246 and 25 at village Rampur Rajouri in favour of Zulafkar Ali and Mohd Iqbal sons of Wazir Hussain of Danoor Gursainh Tehsil Rajouri who according to the executant were his nephews. The deed has been executed on 3rd of January 1975 at Rajouri and the same has been attested by the Notary, Rajouri Town on the same day.
12. The appellant has challenged the said Will deed on various grounds inter alia, that the same is hit by the provisions of Jammu and Kashmir Agrarian Reforms Act, 1976. The learned Counsel has, in this behalf, referred to Section 31 of the Act as it stood at the time of the enactment of the Act. The Agrarian Reforms Act 1976 (Act of XVII of 1976) was enacted in the year 1976. It came into force w.e.f. 13 July, 1978. Section 31 of the Act, as it stood at the time of its enactment was as under:
31. Restriction on alienation and felling or removal of trees--Notwithstanding anything contained in any law for the time being in force
(a) (i) alienation of land, whether by act of parties or a decree or order of a Cpurt of a Revenue Officer;
(ii) felling or removal of trees standing on land:
except under such conditions as may be prescribed and with previous permission of the Revenue Minister, or such officer as may be authorised by him in this behalf, is forbidden:
Provided that clearing of bushes or looping or pruning of trees in accordance with agricultural practices shall not be deeded to be felling of trees;
Provided further that a mortgage without possession of land, in favour of an institution mentioned in Section 4-A of the Jammu and Kashmir Alienation of Land Act Samvat 1995 and transfer of land in favour of the Government and Kashmir shall not need any permission; Provided also that felling of trees by the owner thereof standing within his ceiling or area in personal cultivation shall not need any permission if it is needed for domestic or agricultural use, or where felling of trees becomes necessary to save life and property:
(b) any alienation of land made on or after the first day of May 1973 in contravention of
(i) the provisions of this Act; or
(ii) Section 45 of the Jammu and Kashmir Agrarian Reforms Act. 1975; or
(iii) Section 8 of the Jammu and Kashmir Agrarian Reforms Suspension of Operation) Act, 1975; or
(iv) Clause (a of Sub-sections 11 of section of Section 3 of the Jammu and Kashmir Prohibition on Conversion of land and Alienation of Orchards Act, 1975;
shall be null and void and the land so alienated shall, after such enquiry as may be prescribed vest in the State;
Provided that nothing herein contained shall be deemed to, affect the provision of Section 4 of the Jammu and Kashmir Prohibition on Conversion of land and alienation of Orchards Act, 1975;(c) no transfer of possession of land effected in anticipation of alienation of such land shall be valid and the land in respect of which possession has been so transferred shall after such (enquiry) as may be prescribed, vest in the State;
(d) no document purporting to alienate land in contravention of the provisions of this section shall be admitted to registration.
Explanation.--For the purpose of this section, alienation means sale, gift, mortgage with possession, bequest or exchange.
Thus under the Section restriction was put on all types of alienations of law like sale, gift, mortgage with possession, bequest and exchange. The section was amended by Act No. IV of 1989. Section 7 of the said Act substituted the following 3rd proviso after the 2nd proviso to the section:Provided also that permission for conversion of land which grows shali crop, vegetables of saffron bulbs for any purpose, shall be governed under and in accordance with the provisions of the Jammu and Kashmir Land Revenue Act, Samvat 1996.
13. By means of the same Act IV of 1989 the words bequest occurring in the explanation to Section 31 were omitted from the Section. It means that after the Amendment Act IV of 1989 the restriction put on the alienation of the land under the Act by way of bequest was removed. Act IV of 1989 came into force w.e.f. 10.4.1989. The restriction on bequest, therefore, remained operative from 13.7.1978 to 10.4.1989. By means of Amendment Act No. XXVIII of 1997, Section 31 has now been deleted from the Act which was now there is no restriction on any kind of alienation of land under the Act. But neither the Act IV of 1989 nor the Act XXVIII of 1997 is relevant for us as the will in the present case though was executed on 3.1.1975, became operative in the year 1979 on the death of its executant namely Hussan Mohd.
14. Bequest means transfer of property through a will. Dictionary meaning of the term means gift by will. It is because of this meaning that bequest is sometimes also used to mean gift of the property but as was observed by this court in Ahad Wnni v. Ramzan Ganai and Ors. 1971 JKLR 349 there is no difference between bequest and will in law. The will in the present case was executed in the year 1975, there was no requirement to get any prior permission for the same as the Act had not come into force on that date but though executed on 3.1.1975 it did not become operative as the executant was still alive. The will, as is well settled takes effect from the date the executant dies. Unlike in sale deed or gift the property under a will does not pass on to the donee at the time of execution of the will deed. Will is only an intention expressed by the executant for disposal of his property after his death. In Lala Devi Dass v. Panna Lal AIR 1959 J&K; 62 it was observed by a full bench of this court that disposal of immoveable property by will would not amount to a transfer inasmuch as the property does not pass on to the donee at the time the will is executed It is merely an intention expressed by the testator with respect to his property that after his death it should devolve on the donee. So till a executant is alive, a will has got no significance at all. It can be modified or revoked by the testator any time. But on the death of the executant it takes effect like any other deed of alienation to the extent as permissible by law.
15. The Will in question was executed in the year 1975. The executant had sufficient time, from the date of enforcement of the Act till his death to seek permission of the competent authority, as required under Section 31 of the Act. But no such permission was obtained. Ignorance of law being no excuse, the Will did not take effect at the time of its executants death as it was in contravention of the provisions of Section 31 of the Act. Under the section any alienation made in contravention of the Act is null and void. Under these provisions therefore a document effecting such alienation is null and void. It is because of this fact that Clause (d) to the section specifically prohibits admitting such a document to registration by the Registering Authorities.
16. When a document is void ab-initio, the question of seeking its cancellation would not arise. It is only when a document is a voidable one, that is valid until it is declared as void, that the question of seeking its cancellation would arise.
17. The appellant raised both the pleas before the Courts below to assail the will deed in question. She pleaded that the deed was voidable as it was forged one and in effective so far her rights were concerned but at the same time she alleged that the document being in contravention of the provisions of the Agrarian Reforms Act was void one. Had she sought relief of cancellation of the document on the ground that it was a voidable instrument, the issue of limitation was relevant one but once the plea of its being void was taken the court should not have dismissed the suit on the ground of limitation. Mere failure of a party to challenge a void document within a particular time cannot validate such a document.
18. Thus the first question of law framed is therefore decided and it is held that the suit filed by the appellant was not barred by limitation. In these circumstances, I find the courts below were not justified in dismissing the suit of the appellant on the ground of limitation.
19. In view of the finding on the issue, there is no need to go to the other questions of law.
20. The result is that the judgment and decree passed by the courts below is set aside. Let the case be re-heard by the trial court on other issues.
21. Parties to appear before the court below on 1.12.2006. Record of the courts below be sent back accordingly.
22. Appeal allowed as indicated above.