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2006 DIGILAW 157 (HP)

Col. R. S. Kashyap v. Sunena Sood

2006-05-26

SURJIT SINGH

body2006
JUDGMENT Surjit Singh, J. 1. Heard and gone through the record. 2. Appellant-plaintiff, filed a suit for declaration that he was owner in possession of the land, as described in the plaint and hereinafter referred to as the suit land and that the order of conferment of proprietary rights, in respect of the suit land, upon late Smt. Shanti and the making of a Will in respect of the suit land by Smt. Shanti in favour of respondents No. 2 to 4 and the sale of a portion of the suit land by respondents No. 2 to 4 in favour of respondent No. 1, were illegal, void and of no consequence upon his rights and by way of further relief, he prayed for passing of a decree of possession of the suit land in his favour. 3. Facts, as disclosed in the plaint, were that the plaintiff had been serving in the Army. His father was an old and infirm man. Smt. Shanti was recorded as tenant under the father of the plaintiff qua the suit land. On 17.5.1976, mutation was attested conferring the proprietary rights in favour of Smt. Shanti. Plaintiff alleged that the mutation had been entered and attested behind his back and also behind the back of his father and so the same was illegal and void. 4. Respondents-defendants contested the suit. They alleged that mutation had been attested in the presence of the father of the plaintiff on 17.5.1976. It was also alleged that the suit was barred by time, having been filed in the year 1993, whereas the mutation conferring the proprietary rights had been attested in the year 1976. Several other points were also raised, both by the defendants and the appellants which it is not necessary to take notice of for the purpose of the disposal of the appeal. 5. The trial Court after holding the trial, concluded that Smt. Shanti was a tenant and the proprietary rights had been conferred upon her through mutation dated 17.5.1976 and that mutation had been attested in the presence of the father of the appellant-plaintiff, who was recorded as owner of the land at that time. It was further held that the suit was barred by time as it had been filed about 17 years after the attestation of mutation conferring the proprietary rights upon Smt. Shanti. It was further held that the suit was barred by time as it had been filed about 17 years after the attestation of mutation conferring the proprietary rights upon Smt. Shanti. Other issues, based on preliminary objections of the defendants, were either found against them or were held to have become redundant. 6. Appellant-plaintiff, went in appeal to the Court of District Judge. There it was urged that the plaintiff-appellant having an inheritable interest in the suit property and his inheritable interest being saved under the provisions of Sub-section (8) of Section 104 of the H.P. Tenancy and Land Reforms Act, notice of mutation was required to be issued to him with a view to enabling him to defend himself and to show that he had an inheritable interest in the suit land, which was saved from vestment in the tenant. Also, an application was moved for amendment of the plaint, so as to take the plea that Smt. Shanti could not have made the Will, in view of the provisions of Section 45 of the H.P. Tenancy and Land Reforms Act, which provides for the succession of tenancy rights. Learned first appellate Court rejected both the contentions. It also rejected the plea of the appellant that the evidence had not been correctly appreciated by the learned trial Court and consequently dismissed the appeal. 7. Before me, the learned Counsel has urged the following points: 1. Notice of mutation was required to be served upon the appellant, who was serving in the Army at the time of the attestation of the mutation, because he had an inheritable interest in the suit property, which was saved from vesting in the tenant, under Sub-section (8) of Section 104 of the H.P. Tenancy and Land Reforms Act. 2. Smt. Shanti could not have made the Will, in view of the bar contained in Section 113 of the H.P. Tenancy and Land Reforms Act; and 3. Succession of Smt. Shanti's right in the suit property was governed by Section 45 of the H.P. Tenancy and Land Reforms Act and the first appellate Court ought to have permitted the amendment of the plaint with a view to enabling the plaintiff to raise this plea. 8. Succession of Smt. Shanti's right in the suit property was governed by Section 45 of the H.P. Tenancy and Land Reforms Act and the first appellate Court ought to have permitted the amendment of the plaint with a view to enabling the plaintiff to raise this plea. 8. As regards the first point, admittedly the father of the appellant, named Asha Ram, was entered as owner of the suit land at the time when the mutation was attested in favour of Smt. Shanti. Mutation order shows that he was present at the time when the mutation was attested. Sub-section (8) of Section 104, per Clause (d), no doubt saves the inheritable share of a member of Armed Forces from the provisions of Sub-section (1) to (6) of Section 104 pertaining to conferment of proprietary rights upon the tenant, but it is provided in Clause (d), Sub-section (8) itself that for saving such an inheritable share of a member of Armed Forces, a declaration is to be made by his father in the prescribed manner. The provision nowhere says that any declaration is required to be made by the member of the Armed Forces or that member of the Armed Forces himself is required to be heard. The provision clearly shows that it is the father of the member of the Armed Forces, who has to declare the inheritable share of the member of Armed Forces. Further Rule 33 of the H.P. Tenancy and Land Reforms Rules, provides that declaration is to be submitted by the father within three months of the enforcement of the Rules. The rules came into force on 3.10.1975. Thus when the mutation was attested i.e. on 17.5.1976, the right to file declaration had already lapsed. Submission made by the learned Counsel that only the appellant-plaintiff, who was the member of the Armed Forces, at the relevant time, could have defended himself properly and effectively and therefore, notice was required to be issued to him, is without merit. The father of the appellant could have very well protected the interest of the appellant-plaintiff. The law also expects the father of a member of the Armed Forces, as noticed hereinabove, to protect his interest. 9. Coming to the next point. A bare reading of Section 113 of the H.P. Tenancy and Land Reforms Act, shows that what is prohibited by the provision is a transfer inter-vivos. The law also expects the father of a member of the Armed Forces, as noticed hereinabove, to protect his interest. 9. Coming to the next point. A bare reading of Section 113 of the H.P. Tenancy and Land Reforms Act, shows that what is prohibited by the provision is a transfer inter-vivos. The Will takes effect after the death of the testator. Learned Counsel has relied upon the provisions of Section 118 of the Act, which bars the transfer of land by sale, gift, Will, exchange, lease, mortgage with possession etc. in favour of a person, who is a non-agriculturist. Section 118 specifically bars the transfer even by a Will. As a matter of fact, Will as such does not create any right, title or interest nor does it operate transfer the property immediately to the beneficiary. The testator may at any time during his life time revoke the Will. It becomes effective only on the death of the testator and that too if it remains un-revoked. Therefore, a Will cannot be said to be a mode of transfer in the sense the term 'transfer' has been used in Section 113 of the H.P. Tenancy and Land Reforms Act, which puts moratorium on the transfer of the property vested in the tenant, under Section 104 of the H.P. Tenancy and Land Reforms Act. 10. The third contention is also without merit. Once Smt. Shanti had acquired the ownership rights, provision of Section 45 of the H.P. Tenancy and Land Reforms Act, governing the succession of tenancy rights, ceased to be operative. 11. As a result of the above discussion, I do not think any question of law, muchless a substantial question of law, arises. So the appeal is dismissed. C.M.P. No. 79/06 Infructuous.