Dara Singh and ors. Vs. Mehar Singh and ors. - Court Judgment

Mr. Balia, J.

1. Heard learned counsel for the parties.

2. These two writ petitions are raising common issue of law, and therefore, the same are being heard and decided together.

3. In D.B. Civil Writ Petition No. 1554/1991 a suit was filed by respondent No. 1 to 3 and heirs of Chand Singh respondent No. 4 to 8 against the petitioners Dara Singh and Indar Singh for partition of agricultural property held by one Sundar Singh. Petitioners as well as respondent No. 1 to 3 and Chandan Singh were the sons of Sundar Singh. Sundar Singh is alleged to have executed a will in favour of the petitioners bequeathing his entire agricultural land admeasuring about 48 Bighas in favour of the petitioners. The plaintiffs respondents have challenged the authority of Sundar Singh to 'execute will and divert the ordinary rule of intestate succession. Ultimately, the Board of Revenue while affirming the order of the Revenue Appellate Authority has held that the property in question was self acquired property of Sundar Singh. Though under the ordinary law which Sunder Singh had full disposition power but on account of special provisions contained in Section 13 or the Rajasthan Colonization Act, as it stood at the time of the death of Sunder Singh, which prohibited transfer of property by Will also in the lands governed by or under the Colonization Act, the disposition power of Sunder Singh was inhibited.

4. It has been contended by the learned counsel for the petitioners of this writ petition, challenging the orders of the Board of Revenue dated 28.1.1991 that a 'Will' speaks after the death of testator and the property devolves on the legatee by succession and not by way of transfer. Therefore, Section 13 of the Colonization Act which prohibits transfer of the tenancy rights in the colony area without previous permission of the Collector does not apply to the devolution by succession, testamentary or intestate.

5. Other Writ Petition No. 348/1992 has been preferred by one Ram Kumar who is legatee of one Khayali Ram under a registered Will. He applied for mutation of the land standing in the name of his father Khayali Ram, which was objected by one of his sisters Mst. Chawli. In the first instance the mutation was made in favour of the petitioners on 18.8.1978 by Tensildar, which order has been set aside on appeal by the Revenue Appellate Authority on 19.2.1982 because notices have not been served on other persons who would have been the heirs had the succession been intestate, which included widow of Khayali Ram and his three daughters. Once again after remand the mutation was ordered to be made in favour of petitioners on 12.7.1982 by the Tehsildar by giving effect to the 'Will' which order was again set aside by the Revenue Appellate Authority on 13.4.1983 and the matter was again remanded to the Tehsildar for passing fresh orders. In its order dated 28.4.1983 the Revenue Appellate Authority has referred to its earlier order dated 19.2.1982 making out clearly that by its earlier order the Tehsildar was directed to examine and order mutation on the basis of succession and not on any other basis. It was not right on the part of the Tehsildar again to have mutated the land in favour of the legatee on the basis of the Will.

6. In pursuance of the order dated 28.4.1983, the mutation was ordered to be effected in favour of all the heirs as if the succession has taken place intestate and not in favour of Ram Kumar alone. This order was subjected to appeal before the Revenue Appellate Authority, who by its order dated 2.11.1984 held that the transfer of rights of agricultural land in the colony area by a Will is not permissible under Section 13 of the Colonisation Act except with the previous permission of the Collector and, therefore, the Will cannot be given effect to by ordering mutation in the name of legatee. This order has been affirmed by the Board of Revenue vide its order dated 19.11.1991.

7. The contention on merit arising in both the cases is one : that Will takes effect on the death of the testator, therefore, it does not amount to a transfer of any property or interest in property. It is contended that the transaction inter-vivos is necessary ingredient of any transfer of property and it does not include devolution by succession on the death of the holder of the property. The latter event is known as devolution or transmission of property, but not transfer of property.

8. It is true that a Will is not an instrument of transfer in the ordinary sense as it is understood in the context of Transfer of Property Act, which governs all cases of transaction inter-vivos. A Will contains dictates of a person in whom his interest in property is to vest after his death. Thus, the instrument of Will takes effect not during the life-time of the executor of the Will but only after his death, provided always that it is the last Will of the testator. In a way it is devising by the holder of the property his own line of succession of his death by nominating the persons or the cause for whom the property shall devolve on his death. During his life time the testator continues to hold the property and it does not confer any right on the legatee. The holder of property has right to write a new Will at any time before his death. Such vesting of property of not governed by the Transfer of Property Act but is expressed by the term 'devolution of property by transmission' and is governed by Indian Succession Act.

9. However, it cannot be lost sight of that the expression 'transfer' in its broad sense includes all forms of transfers or disposition of property whether transfer is inter-vivos or transfer is by devolution of succession. It includes transfer by act of parties as well as or by operations of law.

10. The Shorter Oxford Dictionary defines 'transfer' generally to mean 'conveyance from one person to another of property' or 'to convey or make title right or property by deed or legal process.'

11. Black's Law Dictionary gives a very wide meaning to the word Transfer' which includes disposition by Will. It says--

An act of parties or of law by which title to property is conveyed from one person to an another ........... The word is one of general meaning and may include the act of giving property by will.'

12. It is a matter of context and surrounding in which the expression is used, which goes in considering the meaning of a word used in any statute.

13. In this connection it is pertinent to notice that the provisions of Transfer of Property Act in general are not applicable to the tenants of agricultural land. Section 38 of the Rajasthan Tenancy Act, the provisions of which has been made applicable to the land situated in the colony area also to the extent they are not inconsistant with the provisions of Colonization Act, envisages that interest of a tenant is heritable but not transferable. Section 39 envisages recognition of right to bequeath by Will only in the case of a Khatedar tenant. It does not recognise a general power to bequeath tenancy rights of whatever nature. Section 10 recognises personal law applicable to a tenant dying intestate. Thus laying its own scheme of recognition of right to Will by a Khatedar tenant and personal law of tenants in the case of intestate succession with general prohibition of transferablity except or otherwise provided in the Act, excludes reference to other laws which are inconsistent with the provisions of Tenancy Act concerning devolution and transfer of tenancy rights.

14. In this regard, Section 13 prior to it was recast by Rajasthan Act 19(12) of 1984 w.e.f. 4.5.1984 reads as under :

'(1) No tenant shall transfer or charge his right or interest vested in him by or under this Act, or Section 15-AAA of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955), without the consent in writing of the State Government or an officer authorised by the State Government in this behalf, given on such conditions as may be prescribed by way of sale, exchange, gift, will, mortgage or in any manner otherwise than by exchange as permited by Section 12, except to the State Government or except by way of mortgage for the purpose of obtaining a loan for development of his holding from the State Government or a land development bank as defined in the Rajasthan Co-operative Societies Act, 1965 (Rajasthan Act 13 of 1965), or any scheduled bank or any other institution notified by the State Government in that behalf, in the Official Gazette, or sub-let the same for more than five years in the case of a tenant who has acquired khatedari rights.

(2) Any such transfer, sub-lease or charge made in contravention of Sub-section (1) shall be void and if the transferee has obtained possession he shall be ejected under the orders of the Collector and the land transferred, sub-let or charged, as the case may be, shall, after giving the transferor an opportunity of being heard, resumed.'

15. It clearly prohibits any tenant who is having any right or interest vested in him by or under the Colonization Act or under-Section 15AAA of Rajasthan Tenancy Act, 1955, from transfering such right or interest without consent in writing of the State Government or authorised officer of the State Government.

16. In this behalf amongst various nature of transaction of transfers prohibited under the above provision the specific mention of will, which takes effect only after the death of the holder of the property takes within the ambit of prohibited transfers testamentory succession. That is to say inhibition against transfer under Section 13 encompasses within it devolution of tenancy right by testamentory disposition. That was the provision of law in existence when the Will spoke, and devolution were to take place without hitus.

17. The fact that on the substitution of the provision of Section 13 w.e.f. 4.5.1984, it does not take within its ambit the devolution of property by Will, could not affect outcome of the present case in as much as both the cases are prior to the new provisions came into force which are not retrospective in operation.

18. If the contention raised by the learned counsel for the petitioners is accepted, it would render the use of expression 'Will' under Sub-section (1) of Section 13 as it then existed otiose. It is not sound canon of interpretation to read a provision in a manner to render any part of it futile or having no meaning. It cannot be said that in no sense a 'Will' can be treated as a transfer in its wide meaning so as to make it impossible to include devolution of tenancy rights under a Will within expression transfer' in Sub-section (1) of Section 13, as was in force when Will became operative on demise of testator in each case.

19. A perusal of provision leaves no room of doubt that by specifically subjecting transfer of interest of a tenant by will subject to consent in writing of Collector, the legislature has used expression 'transfer' in its wider sense so as to include all sorts of transfer of title in the property including by will and is not confined to its meaning as used in Transfer of Property Act.

20. The aforesaid conclusions of ours was earlier accepted by a learned Single Judge of this Court in (1) Dan Singh v. Board of Revenue (S.B. Civil Writ Petition No. 1878/74 decided on 17.5.1983) reported in 1988(2) WLN (Rev) 40. The like contention as has been raised before us was rejected by this Court, The Court quoting the provisions of Section 13 as it stood prior to the amendment vide Amending Act No. 23 of 1974, which also included inhibition against transfer by Will without the previous consent in writing of the Collector rejected the justification furnished by the Board of Revenue of making a distinction between document of Will which takes place on death as part of succession vis-a-vis transfer inter-vivos for the purposes of Section 13. It said--

'The Board of Revenue was no justified in making a distinction between a Will and other documents of transfer for purpose of Section 13, because Section 13 specifically prohibits transfer by a Will, besides prohibiting transfer by other modes as well. The validity of transfer cannot be upheld on the basis that the testator has selected one amongst his natural heirs to succeed him and has not transferred the tenancy rights to a stranger. The provisions of Section 13 prohibit transfer of tenancy rights in any manner including by way of testamentary disposition. It is not permissible to uphold the transfer in the present case on the basis of the supposed intention of the legislature or the alleged policy behind the enactment when the transfer was made in contravention of clear and unambiguous provisions of Section 13 the board of Revenue fell into error in upholding the transfer by way of a Will on the ground that the legislature did not lay down the circumstances in which a Will would amount to a transfer. On the basis of the provisions of Section 13, a Will has been included among the various modes of transfer enumerated therein and it is not permissible to decide the case ignoring the express bar created by the provisions of Section 13. As the transfer by way of Will is prohibited in the case of tenancy rights in a land situated in a colony, the Board of Revenue was not justified in upholding the transfer of tenancy rights by way of Will.'

21. We are in agreement with the aforesaid conclusion of the learned Single Judge in Dan Singh's case.

22. Faced with this situation the learned counsel for the petitioners contended that in that event terms of provisions of Section 13, as it stood prior to its amendment in 1984, would be rendered ultra vires Articles 14 and 19 of the Constitution as it would amount to laying unreasonable restriction on the freedom of the holder of the property on free transfer of his rights inter-vivos or by succession.

23. Constitutional validity of Section 13 has been upheld by a Division Bench of this Court in (2) Mukhtiar Singh v. State of Rajasthan and connected appeals D.B. Civil Special Appeal No. 996/86 decided on 27.3.1995 affirming the judgment of the learned Single Judge upholding the validity of Section 13. The court held.

'In our opinion Section 13 (1) of the Act does not create any absolute bar for the transfer of rights or interests in the land but it provides that no tenancy rights vested in a person or under the Act can be transferred by him except by consent of the Collector. Sub-section (2) provides that any transfer in contravention of Sub-section (1) of Section 13 shall be void'.

24. In view thereof we are of the opinion that the petitioners cannot be allowed to re-agitate the same issue.

25. It was contended by the learned counsel for the petitioners that the decision in Mukhtiar's case, as stated above required reconsideration. However, we are not impressed with the suggestion. No weighty reasons for taking a different view from the one taken by a coordinate Bench, which is in operation for long and keeping in view that the impugned provisions itself have undergone change and the cause of grievance against the validity, no more exist, no case for reconsideration of ratio laid down in Mukhtiar Singh's is made out.

26. Moreover, we find the Rajasthan Colonization Act has been placed in the 9th Schedule of the Constitution and none of its provisions can be challenged on the anvil of violation of Article 14 or 19 of the Constitution of India. The grounds raised against the constitutional validity of the provisions of Section 13 must, therefore, fail.

27. Lastly it was contended by the learned counsel for the petitioners Shri B.L. Purohit that Section 13 applies only to those rights which are created by or under the Rajasthan Colonization Act or under Section 15AAA of the Rajasthan Tenancy Act, it does not affect the transfer or succession of the tenancy rights created other than the aforesaid provisions. No factual foundation for raising this contention has been raised anywhere before the matter came up for arguments. Therefore we decline to permit the petitioners to raise questions of fact, for which no foundation has been laid down, for the first time.

28. Accordingly, the petitions fail and are hereby dismissed. No order as to costs.