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2000 DIGILAW 112 (JK)

S. Kirpal Singh v. S. Suchet Singh

2000-05-24

A.M.MIR, O.P.SHARMA

body2000
PER SHARMA-J: 1. The facts of the case in brief are these. Land measuring 48 kanals 10 marlas situate in village Bhambo Chak Tehsil Samba was alloted to late S Bella Singh under Cabinet Order No. 578-C of 1954 as he was a displaced person from Pak occupied Kashmir. By virtue of section 3-A of the Agrarian reforms Act, Bella Singh became occupancy tenant of the allotted land. After his death Naib Tehsildar, Samba by order dated 16-07-1992 attested mutation No. 29 of village Bhambo Chak in favour of the appellant and respondent-1, the two sons of Bella Singh, in equal share. This order was challenged in appeal before the Addl. Deputy Commissioner by respondent Suchet Singh. The appeal was dismissed on 18-03-1985 holding that the mutation has been rightly attested in favour of male lineal descendants of the occupancy tenant. A further appeal to the Divisional Commissioner met the same fate on 25-02-1986. The Divisional Commissioner specifically returned a finding that succession of occupancy tenant is regulated by section 67 of the Tenancy Act and, therefore, mutation was rightly attested in favour of both the sons of the deceased-tenant in equal share. The revision petition filed before the Financial Commissioner challenging the aforesaid order was also dismissed on 19-07-1991. One of the grounds of challenge before the appellante and revisional forums was that father of the appellant has executed a will in favour of respondent Suchet Singh by virtue of which the entire land was to vest in him. This plea was rejected by them on the ground that right of occupancy tenant cannot be transferred by will. This argument was, however, rejected by the Superior authorities holding that mode of succession of occupancy rights is governed by section 67 of the Tenancy Act and a will or bequest is not recognised by it. 2. Not satisfied with the decision of the Revenue Officers respondent Suchet Singh challenged these orders by filing writ petition on the ground that if the occupancy rights can be transferred by sale, mortgage and gift, there is no reason why the will should be excluded. 3. The writ court allowed the petition holding that right to transfer by sale, gift or mortgage includes other modes of transfer also. The writ court, therefore, directed that estates of Bella Singh will devolve on respondent-1 to the exclusion of the appellant. 4. 3. The writ court allowed the petition holding that right to transfer by sale, gift or mortgage includes other modes of transfer also. The writ court, therefore, directed that estates of Bella Singh will devolve on respondent-1 to the exclusion of the appellant. 4. The judgment of the writ court is assailed on the ground that it is contrary to sections 60 and 67 of the Tenancy Act. 5. The contention of Mr. Sharma appearing for the appellant is that occupancy rights can be transferred only by sale, mortgage or gift as provided u/s 60 of the Tenancy Act. However, this right of transfer was subject to the condition laid down in section 60 of the Tenancy Act. If any occupancy tenant transfers his right in violation of section 60, such transfers are declared as irregular transfers by section 66 of the Tenancy Act. These transfers being voidable could be challenged by the landlord. However, section 3-A of the Agrarian Reforms Act has made an exception in so far as application of section 60 is concerned. But so far as mode of transfer is concerned, same is not different than what is permitted by section 60. Since will is not recognised mode of transfer of occupancy right, writ court according to Mr. Gupta errored in holding that transfer by sale or gift includes transfer by will also. Mr. Puri appearing for the private respondent, however, supported the judgment on the ground that occupancy tenant of section 3-A is not the same as the occupancy tenant of the Tenancy Act. The interest conferred u/s 3-A according to the learned counsel is larger than the interest of occupancy tenant under the Tenancy Act. He, therefore, has the power to alienate the property by executing a will also. 6. After considering the rival contention, we find that the only question involved for determination is whether the mode of transfer of occupancy rights prescribed by section 3-A includes testamentary disposition also. The writ court after referring to section 60 of the Tenancy Act held as under- After defining the rights of a occupancy tenant, it was further provided that an occupancy tenant can sell, mortgage and gift these rights. This was subject to the provision of Alienation of Land Act and also to the provision of Section 60 of Jammu and Kashmir Tenancy Act of Svt. 1980. This was subject to the provision of Alienation of Land Act and also to the provision of Section 60 of Jammu and Kashmir Tenancy Act of Svt. 1980. Ordinarily, an occupancy tenant does not possess any right to sell, mortgage or gift these rights. This proviso was added with a view to clarify the rights of an occupancy tenant. So the person in possession of evacuees land was to be treated as occupancy tenant but he was conferred certain extra rights also. This was, as noticed above, in the shape of possessing the rights of sale, mortgage or gift which rights he would not have otherwise possessed. Therefore, to say that an occupancy tenant possessed the rights of sale, mortgage or gift but did not possess a right of will, would not be a correct interpretation of statutory provision. A person possessing a right to make a gift during his life time or possessing a right to sale would be deemed to possess other rights also.� 7. Section 60 is only an enabling provision which permits transfer of occupancy rights by sale, mortgage and gift. By this provision rights of occupancy tenant were enlarged to allow the transfer, but only by sale, mortgage and gift, the reason being that the landlord had the first right to purchase the property This is evident form sub-section (1) of section 60 which is reproduced below: - 60(1) If an occupancy tenant intends to transfer his right of occupancy, in whole or part, by sale, mortgage or gift, he shall apply to a Revenue Officer for permission to proceed with such transfer; Provided that, in the case of occupancy tenants holding directly under the State, such permission not be necessary.� After the application is made, Revenue Officer was required to summon the landlord and enquire from him whether he is desirous to purchase the right of occupancy which the tenant intended to transfer. The proviso to section 3-A dispenses with this procedure because the landlord is an evacuee, who cannot be given option to purchase the tenant rights because of his absence. This is evident from the reading of section 3-A which is extracted below:- 3-A. Notwithstanding anything to the contrary contained in this or any other law for the time being in force, displaced persons cultivating evacuee™s lands personally shall in respect thereof be deemed to be occupancy tenants and recorded as such. This is evident from the reading of section 3-A which is extracted below:- 3-A. Notwithstanding anything to the contrary contained in this or any other law for the time being in force, displaced persons cultivating evacuee™s lands personally shall in respect thereof be deemed to be occupancy tenants and recorded as such. They shall be liable to pay rent equal to the amount of land revenue and ceases assessed there on: - Provided that such displaced persons shall have right to transfer their right of occupancy tenanty by sale, mortgage or gift subject to the provisions of the Alienation of Land Act, and the provisions of section 60 of the J&K Tenancy Act, Samvat., 1980 shall not apply to such transfer.� This section like section 60 permits transfer of occupancy rights only by sale, mortgage or gift. Why the mode of transfer has been restricted may now be examined. The succession of occupancy tenant is regulated under the Tenancy Act. Chapter-V (section 60 to 68) of the Tenancy Act provides for alienation of and succession to right of occupancy. Section 67 lays down the order of succession when a tenant having right of occupancy in any land dies. Sub-section (1) of section 67 reads as under- 67. The succession of occupancy tenant is regulated under the Tenancy Act. Chapter-V (section 60 to 68) of the Tenancy Act provides for alienation of and succession to right of occupancy. Section 67 lays down the order of succession when a tenant having right of occupancy in any land dies. Sub-section (1) of section 67 reads as under- 67. Succession to right of occupancy.- (1) When a tenant having a right of occupancy in any land dies, the right shall devolve:- (a) on his male lineal descendants, if any, in the male lines of descent; Explanation:- Male lineal descendent� includes a son formally adopted according to Hindu Law; and in accordance with any Acts in force in the State regarding such adoptions; (b) failing such male lineal descendants on- (i) his widow; or (ii) fathers widow; or (iii) the widow of a male lineal descendant in the male line of descent, who predeceased the late tenant; Provided that, such widow has not remarried, and further that the right of a female succeeding to a right of occupancy under this clause shall be extinguished when she dies or remarries, or abandons the land, or is under the provisions of this act ejected therefrom, and (b) failing such descendants and widows, or, if a female succeeds to the tenancy under clause (b) then when her interest terminates, or his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives; Provided, with respect to clause (c) of this sub-section, in the case of a right occupancy not held directly from the State, that the common ancestor occupied the land.� 8. So the whole line of succession to occupancy right has been determined by the Legislature. This section is in para-materia to S. 59 of the Punjab Tenancy Act and unless there is any other provision to the contrary an occupancy tenants has no power to dispose of his interest by will. This was held by the High Court of Lahore in case Sawan Singh Vs. Kartar Singh AIR 1933 Lahore 400 which reads:- S. 59. This section is in para-materia to S. 59 of the Punjab Tenancy Act and unless there is any other provision to the contrary an occupancy tenants has no power to dispose of his interest by will. This was held by the High Court of Lahore in case Sawan Singh Vs. Kartar Singh AIR 1933 Lahore 400 which reads:- S. 59. Tenancy Act, enacts the mode of devolution of property held by occupancy tenants and there is no power in the occupancy tenant to dispose of the occupancy tenancy by a will taking effect after his death.� But unlike Punjab Tenancy Act section 68 of our Tenancy Act provides for succession by an appointed heir. We may now notice section 68 which reads as under:- 68. Succession of appointed heir or chela.- (1) An appointed heir shall not succeed as such to a right of occupancy without the consent of the landlord. Explanation.- Appointed heir� includes a son informally adopted in accordance with customary law, and it also includes a khandamad, but it does not include an illegitimate son. (2) The landlord shall be deemed to have given his consent under sub-section (1) of this section, if the appointed heir continues to hold possession of the tenancy for a period of three years from the date of the death of the deceased tenant with the knowledge of the landlord, and without interference by him. (3) The chela of a celibate Sadhu or faqir shall not succeed to a right or occupancy held by such sadhu or faqir without the written consent of the landlord. (4) On the death without heirs entitled to succeed u/s 67 of this Act of a Sadhu or faqir who was the manager of a temple, khanqah or other religious institution, a right of occupancy held by such Sadhu or faqir shall devolve on such temple, khanqah or institution, unless the landlord, in a suit preferred before a competent Court proves that the right of occupancy was held by the deceased Sadhu or faqir personally, and not by him as manager on behalf of such institution. As the original tenant is survived by his two sons, the question of an appointed heir succeeding to his estate does not arise. The question arises who is an appointed heir ? Assuming that an heir can be appointed by will, but it must be with the consent of the landlord. As the original tenant is survived by his two sons, the question of an appointed heir succeeding to his estate does not arise. The question arises who is an appointed heir ? Assuming that an heir can be appointed by will, but it must be with the consent of the landlord. Not otherwise. Further as section 67 is followed by section 68. it means an heir can be appointed only when there is no one to succeed under section 67. Besides as per the mandate of Section 68 appointment of the heir or chela by the occupancy tenant has to be with the consent of the landlord who in this case is Custodian. Since section 3-A does not exempt application of section 68, the will executed by Bella Singh has to be excluded while determining occupancy rights. 9. So our conclusions are (1) that transfer of occupancy rights u/s 3-A of the Agrarian Reforms Act is permissible only by sale, mortgage or gift. (2) that the only mode of succession to occupancy rights is as provided in section 67. (3) that application of section 68 in this case is ruled out because the testator has not executed the will with the permission and consent of the Custodian i.e. the landlord in this case as required under section 68 of the Act which is mandatory. In view of the above we find that the writ court erred in holding that transfer of occupancy rights by sale, mortgage and gift includes transfer by will or testamentary disposition also. Since occupancy rights are statutory rights conferred by Tenancy Act and the Act also prescribe the mode of transfer and inheritance the same cannot be enlarged by reference to general law of inheritance or Hindu Succession Act. In the view we have taken the appeal is allowed and the judgment of the writ court is set aside. No costs.