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2010 DIGILAW 400 (JK)

Baldev Raj v. Special Tribunal, J&K

2010-07-17

Hakim Imtiyaz Hussain

body2010
1. This petition, filed by one Baldev Raj s/o Devi Dass R/o Bohri Top Sherkhania, Jammu, is directed against the order dated: 30.12.2009 of respondent no. 1-J&K Special Tribunal, Jammu. 2. Brief facts relevant for the disposal of this petition are as under: 3. Petitioner Baldev Raj and respondent nos. 5 & 6 namely Dev Raj and Hem Raj, are brothers to each other being sons of one Devi Dass s/o Ghasitoo. Dispute between them is on a piece of land measuring 40 kanals and 19 marlas under Khasra No: 16 & 17 village Top Sherkhania, Tehsil Jammu which originally belonged to one Jodh Singh who expired in 30’s. Jodh Singh’s widow sold the land to Raja Ram Chand, Raja of Chenani who gave it to said Ghasitoo on cultivation. In the year 2007 svt. when Big Landed Estates Abolition Act, 1950 came into force, the land in dispute also came within the Act as Raja Ram Chand had more than 182 Kanals of land in his ownership. Raja Ram Chand made a selection, as required by the BLEA Act, but did not include the said land in his retainable unit. This land was, therefore, mutated in the name of Ghasitoo, grand father of the petitioner under section 5 of the said Act. The mutation was, however, challenged by the original landlords, but the objections of the landlords did not sustain. The landlords filed a suit for possession against said Ghasitoo, in the year 1965. On 9th February 1965 said Ghasitoo, executed a will in favour of the petitioner. On 8th of August, 1972 he died during the pendency of appeal in the Court against the decree of possession passed by the District Judge, Jammu. The petitioner claiming to be the legatee under the said will on 15.11.1972 made an application that he be made party in the appeal, pending in the High Court. On 19th of April, 1973 the appeal was, however, dismissed by the High Court. The landlords applied for execution of the said decree against the petitioner on 26th April 1976 and the executing court of City Judge Jammu directed execution of the decree against the petitioner overruling the contention of the petitioner that in view of the provisions of the Agrarian Reforms Act, the execution cannot be ordered against the petitioner. 4. The landlords applied for execution of the said decree against the petitioner on 26th April 1976 and the executing court of City Judge Jammu directed execution of the decree against the petitioner overruling the contention of the petitioner that in view of the provisions of the Agrarian Reforms Act, the execution cannot be ordered against the petitioner. 4. Aggrieved by the said order dated 26.04.1976, the petitioner filed an appeal before the Additional District Judge, Jammu who vide his order dated 17.05.1980 upheld the objections taken by the petitioner to the execution of the decree of possession dated 19.04.1973 passed by the Hon’ble High Court and transferred the appeal of the petitioner-judgment debtor to Collector, Agrarian Reforms Jammu. The Collector held a detailed enquiry and found that the petitioner was in personal cultivation of the land and that the petitioner is entitled to get ownership rights on payment of levy, under the provisions of the Agrarian Reforms Act, 1976. 5. Aggrieved by the order of the Collector dated 05.05.1981 the landlords preferred an appeal before the Agrarian Reforms Commissioner against the said order which was dismissed by the Commissioner and it was observed that the Collector Agrarian Reforms correctly held that the execution application filled by the appellant landlord is not maintainable nor is the decree sought to be executed operative or capable of execution in light of the specific provisions of the Agrarian Reforms Act, 1976. The Commissioner further found that the Collector has rightly held that respondent i.e petitioner herein is entitled to ownership rights under the provisions of the Agrarian Reforms Act, 1976. 6. Against the order of the Commissioner the landlord filed a revision before the J&K Special Tribunal which got dismissed on 22.12.1983 and it was held that Ghasitoo is entitled to get ownership rights under the Agrarian Reforms Act, 1976, and that after his demise his successor-in-interest will get the same. 7. In view of these orders, the Tehsildar on 06.05.1987 attested mutation no. 4192 in favour of the petitioner. Pursuant upon the attestation of mutation under section 4 of the Act in favour of the petitioner respondent no. 4 on 4th June 1987 attested mutation no. 4210 under section 8 of the Act in favour of the petitioner after accepting a levy payable under the Act. 8. 4192 in favour of the petitioner. Pursuant upon the attestation of mutation under section 4 of the Act in favour of the petitioner respondent no. 4 on 4th June 1987 attested mutation no. 4210 under section 8 of the Act in favour of the petitioner after accepting a levy payable under the Act. 8. After about two years of the attestation of said two mutations in favour of the petitioner, respondent nos: 5 and 10 filed two appeals before the respondent no. 2. Respondent no. 2, however, vide his order dated 16.02.2005 dismissed both the appeals on the ground that the same were hit by limitation. 9. Two revisions were filed by respondent nos. 5 & 10, namely Dev Raj and Sham Lal before the J&K Special Tribunal against the mutation nos. 4192 and 4210. 10. The matter was examined by the Tribunal, and vide order dated 30th December, 2009 impugned in the present petition, the revisions have been allowed. 11. Feeling aggrieved of the same, the petitioner has challenged the said order of the Tribunal on various grounds, inter alia that the Tribunal has not properly appreciated the facts of the case, it has not taken notice of the fact that different courts had upheld the contention of the petitioner that he was the only successor to his father, on the basis of will executed in his favour by said Ghasitoo. Various other pleas have also been taken. 12. Heard. I have considered the matter. 13. The learned counsels for the petitioner have vehemently relied on the will executed by late Ghasitoo in favour of the present petitioner. The learned counsels would submit that the Revenue and Civil Courts have earlier found that Ghasitoo is tenant of the land, since he was in possession of the land in dispute on the relevant date of Kharif 1971, as prescribed under the provisions of J&K Agrarian Reforms Act, he was entitled to get the ownership of the land being the prospective owner, under the provisions of the Act. The petitioner being the sole heir of Ghasitoo by virtue of the will made in the year 1965, he alone was entitled to get the disputed land as such the land has rightly been mutated in his favour. 14. The leaned counsels for the private respondents would on the other hand rely on sections 60, 67 and 68 of the Tenancy Act. 14. The leaned counsels for the private respondents would on the other hand rely on sections 60, 67 and 68 of the Tenancy Act. The learned counsels would submit that the predecessor in-interest of the petitioner and the respondents namely Ghasitoo was occupancy tenant of the land, transfer of occupancy rights under section 3-A of the Agrarian Reforms Act is permissible only by sale, mortgage and gift and not by will. According to the learned counsels, the heir appointed by will cannot succeed to right of occupancy. In support of their contentions, the learned counsels have relied on a Division Bench authority of this Court in S. Kirpal Singh v. S. Suchet Singh 2000 SLJ 225. 15. The Tribunal has also considered this aspect and has in this behalf observed as under:- "To record a finding on this issue, it is necessary to go into the provision of the Tenancy Act which provides for transfer of right of occupancy in the modes listed in section 60 of the Tenancy Act i.e, by way of sale, mortgage & gift. Here also a procedure for such transfer is clearly stated and the first right of purchase has been given to the ex-landlord. In the present case a Will made in 1965 is for the transfer of moveable/ immovable property held by the Willer Ghasitu in favour of Baldev Raj, grand son. Admittedly, Ghasitoo was occupancy tenant on the date the Will was prepared and signed. It was to take effect from the date after the death of Ghasitu. Ghasitu died in Aug. 1972 and therefore, the rights which he had on the date of his death i.e, 1972 could at the best be transferred to the Donee, if such a provision was allowed under the provisions of the relevant laws in force at that point of time. Section 60 of the Tenancy Act clearly bars the transfer of tenancy rights in pursuance of Will and recognize the sale, mortgage or gift as modes by which .such transfer can take place. Here again the first right of seeking such transfer is that of ex-owner and the proceedings are to be conducted by a Revenue Officer. Therefore, at the time of death of Ghasity a mutation of inheritance had to be attested by the Revenue Officer in terms of the provisions of the Land Revenue act which were applicable to the present case. Therefore, at the time of death of Ghasity a mutation of inheritance had to be attested by the Revenue Officer in terms of the provisions of the Land Revenue act which were applicable to the present case. This was not done. In fact, no mutation was attested till as late as in the year 1987 when after litigation between Sagra Singh co-sharer of the land and Ghasitu had been concluded in 1986. The Agrarian Reforms Act in the revised form had taken effect from 13.7.1978. Therefore, the mutating Officer was required to record the happening of 1972, when Ghasitu died, attest mutation of inheritance after conducting detailed inquiry and then take action as required under sections 4&8 of the Agrarian Reforms Act. The respondent herein has mentioned about the presence of Devi Dass and his son Hem Raj at the time of attestation of mutation and have argued that since they were present, the knowledge of mutation to other legal heirs in the normal course was there and therefore, there is no justification for delay in filing the appeal and the Appellate Authority has rightly rejected the appeal on the point of limitation. Although, Hem Raj has denied his presence and that of his father (Devi Das died in 1990) at the time of attestation of mutation and has alleged use of their signatures taken for some other purpose in establishing their presence at the time of attesting mutation. It is a point which cannot be decided in a revision. The facts perhaps could have been inquired at the field level. But the fact remains that remaining two brothers were not present and just because some of family members were present at the time of attestation of mutation. The claim of others cannot be summarily rejected. A detailed procedure has been laid down for attesting such mutation in the Land Revenue Act which has been discussed elsewhere. It is an established law that the right cannot be taken away without affording an opportunity of being heard to the interested parties. Baldev Rah came to be associated with the proceedings in the year 1976, when he filed an appeal against Sagra Singh and others. Earlier the appeal against the order of the District Judge, Jammu, dated 31.1.1971 was filed by Ghasitu himself who was alive. Baldev Rah came to be associated with the proceedings in the year 1976, when he filed an appeal against Sagra Singh and others. Earlier the appeal against the order of the District Judge, Jammu, dated 31.1.1971 was filed by Ghasitu himself who was alive. With the enforcement of Agrarian Reforms Act, the case was transferred by the District Judge, Jammu, to the Collector, Agrarian Reforms. The matter came to be covered under the Agrarian Reforms Act and had to be decided by the Designated Authority only. The matter before the Tribunal again was with regard to the rights of Ghasitu and while upholding the rights of Ghasitu as occupancy tenant, it was mentioned by the Tribunal that the rights would get vested in Ghasitu and after his death his successor-in-interest i.e, respondent no. 1. It is this part of the judgment which is being used for justifying the mutation favour of Baldev Raj. It may be mentioned that the issue of succession had to be determined independently in the light of provisions of the Land Revenue Act and subsequently under Agrarian Reforms Act. All successor-in-interest were required to be made party to these proceedings and any inference drawn from mere mention of devolvement of rights of Ghasitu to his successor-in-interest i.e, respondent No. 1 that too in a case where other successors had neither been made parties, nor were associated in whatsoever manner, cannot be used as a tool to extinguish their rights". Section 60 of the Tenancy Act provides: 60. Transfer of right of occupancy.Right of occupancy may be transferred by sale, mortgage or gift, subject to the provisions of Alienation of Land Act and to the following provisions namely:- (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 Revenue Officer for permission to proceed with such transfer. Provided that, in the case of occupancy tenants holding directly under the State, such permission shall not be necessary.... (relevant extract only) 16. Section 67 of the said Act deals with succession to right of occupancy and it 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 line of descent; Explanation. (relevant extract only) 16. Section 67 of the said Act deals with succession to right of occupancy and it 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 line 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) father’s widow or (iii) the widow of a male lineal descendant in the male line of descent, who predeceased the late tenant; ... (relevant extract only)’. 17. Similarly section 68 of the Act deals with succession of appointed heir or chela and provides: `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 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 of occupancy held by such sadhu or faqir without the written consent of the landlord. (4) On the death without heirs entitled to succeed under section 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’. 18. 18. These provisions would show that a tenant having a right of occupancy in respect of a piece of land may transfer that right by sale, gift or mortgage, subject to the conditions mentioned in section 60 of the Tenancy Act. Under section 67 of the Act when such a tenant dies his right devolves on his male lineal descendant in the male line of descent. An appointed heir, however, cannot succeed as such to a right of occupancy without the consent of the landlord. 19. Section 60 recognises only three types of alienations, namely sale, gift and mortgage. Transfer by means of a will is not included in the list of such transfers as such a tenant having occupancy right has no power to make a will in respect of such right. 20. The question whether an occupancy tenant has got power to dispose of occupancy tenancy by a will was considered at length in Sawan Singh v. Kartar Singh AIR 1933 Lah. 400. It was held that there is no power in the occupancy tenant to dispose of the occupancy tenancy by a will taking effect after his death. 21. The land in dispute was transferred to father of the petitioner from his landlord under the provisions of the Jammu and Kashmir Big Landed Estates Abolition Act, 2007 svt. Under section 20 of the said Act land transferred to a tiller under the Act cannot be transferred by such tiller. The section provides as under: "20. Interest of a proprietor or tiller not transferable and relinquishment by a proprietor or tiller -- (1) Except as otherwise provided in this Act and except where transfer is made in favour of Government, a Local body, State Land Development Bank or Land Development Bank established under the provisions of the Jammu and Kashmir Cooperative Societies Act, 1960, or a co-operative society registered under the said Act, or a Panchayat constituted under the Jammu and Kashmir Village Panchayat Act, 1958, no tiller to whom land shall be transferred under the provisions of section 5 shall transfer such land or any interest therein: 22. Thus under these provisions also the petitioners father could not have transferred the land in favour of the petitioner under the will. 23. Thus under these provisions also the petitioners father could not have transferred the land in favour of the petitioner under the will. 23. The issue regarding right of the occupancy tenant to make a will has been in detail examined by the Division Bench of this Court in S. Kirpal singh’s case (supra). The Court after citing various provisions of the Tenancy Act and the Agrarian Reforms Act, 1976, held that the transfer of occupancy rights under section 3-A of Agrarian Reforms Act is permissible only by sail, mortgage or gift, when the only mode of succession to occupancy right is as provided under section 67. In this behalf the Division Bench has observed as under: "So the who 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’. 24. 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. Also includes a khandamad, but it does not include an illegitimate son. (2). The landlord shall be deemed to have give 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). (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. 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. 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 which is mandatory. 25. In view of the provisions of the Tenancy Act and the Big Landed Estates Abolition Act, 2007 svt. 25. In view of the provisions of the Tenancy Act and the Big Landed Estates Abolition Act, 2007 svt. and the law laid down by the Division Bench, I find that the Tribunal has adopted a correct approach in arriving at the conclusion that mutations attested under section 4 and 8 of the Agrarian Reforms Act in favour of the petitioner and the order of Appellate Authority in upholding the said mutations is not in accordance with the law. 26. I could not find any force in the contentions of learned counsels for the petitioner that the respondents cannot object to mutations ordered in the present case as the respondents’ i.e, brothers of petitioner were present before the revenue authority during the mutation proceedings. The respondents were not arrayed as parties in the proceedings and since the mutations ordered runs contrary to the law on the subject as these have been directed in contravention of the provisions of section 67 of the Tenancy Act read with section 60 of the Tenancy Act, I find mere presence of respondents before the revenue authorities at the time of mutation proceedings would not bind the respondents and it would not validate the proceedings. It is settled law that mutations do not confer title as the same are of fiscal nature only Questions of title are not decided in mutation proceedings. Whatever, therefore, might have happened in those proceedings would not establish the title in favour of the petitioner. 27. It has also been urged that the petitioner was in proceedings before the Civil Court earlier substituted as legal representative of the deceased as such he alone can get the land in dispute. Mere substitution of petitioner has legal representative of deceased (his father) would not prevent other heirs of the said tenant to claim land in terms of section 67 of the Tenancy Act. 28. A `legal representative’ means a person who represents the estate of a deceased person. Though ordinarily all legal heirs are also legal representatives, appointment of a legal representative in a proceeding is necessarily limited to that proceeding; it does not confer upon him any right of heirship to the exclusion of other heirs. It also does not operate as res judicata on the point of heirship in other proceedings. 29. Though ordinarily all legal heirs are also legal representatives, appointment of a legal representative in a proceeding is necessarily limited to that proceeding; it does not confer upon him any right of heirship to the exclusion of other heirs. It also does not operate as res judicata on the point of heirship in other proceedings. 29. Section 2 (11) of the Code of Civil Procedure defines `legal representative’ as under: (11) "legal representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or issued in a representative character the person on whom the estate devolves on the death of the party so suing or sued". 30. Under this definition the persons other than legal heirs can also be legal representative. Even an intermiddler with the estate of deceased can also be allowed to represent the estate for the purpose of the proceedings before the court. It means that if a person is arrayed as legal representative in a case, it does not mean that such legal representative only is the heir of the deceased. In Kalu Ram v. Charan Singh AIR 1994 Raj. 31 it was held: "It is true that all legal heirs are, ordinarily, also legal representative, but the converse is not true. All legal representatives are not necessarily legal heirs as will. The decision as to who is the legal representative for the purpose of proceedings is necessarily limited for the purpose of carrying on the proceedings and cannot have the effect of conferring of any right of heirship to the estate of the deceased. The decision on this issue also does not operate res judicate on the question of heirship in the subsequent proceedings. In view of this settled position law, it must be held that the enquiry into right to heirship is not the determining factor in deciding whether a person is or is not a legal representative for the purpose of proceedings before the court. What is required to be considered is whether the person claiming to represent the estate of the deceased for the purpose of lis has sufficient interest in carrying on litigation and is not any imposter. What is required to be considered is whether the person claiming to represent the estate of the deceased for the purpose of lis has sufficient interest in carrying on litigation and is not any imposter. In case of rival claimants, it may also be necessary to decide that out of the rival claimants, who really the person is entitled to represent the estate for the purpose of particular proceedings. Even that determination does not result in determination of inter se right to succeed to property to the deceased and that right has to be established in independent proceedings in accordance with law". 31. In Andhra Bank Ltd. v. R. Srinivasan AIR 1962 SC 232 , the Supreme Court held that the clause 'a person who in law represents the estate of a deceased person’ must include different legatees under the will and that there is no justification for holding that the `Estate’ in the context must mean the whole of the estate. 32. In these circumstances, I find no merit in the present petition which is hereby dismissed.