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2011 DIGILAW 2295 (HP)

Med Ram v. Mahajanu Devi

2011-07-04

DEEPAK GUPTA

body2011
JUDGMENT : Deepak Gupta, J. Though this regular second appeal was admitted on a number of questions of law but, in my opinion, only the following substantial question of law arises in this case: Whether the bar of transfer of land envisaged u/s 113 of the H.P. Tenancy and Land Reforms Act applies only to the person granted proprietary rights or to his legal representatives also? 2. The facts necessary for disposal of this case are that one Smt. Kansu was non-occupancy tenant on the suit land. She was granted proprietary rights and mutation in her name was sanctioned on 22.5.1976. Smt. Kansu died issueless and intestate. The Plaintiff, who is the niece of the husband of Smt. Kansu succeeded to her estate and became owner in possession of the suit land. On 3.8.1980 original Plaintiff Smt. Mahajanu entered into an agreement with Smt. Vidyawati agreeing to sell the suit land to Smt. Vidyawati for a consideration of Rs. 6000/-. The entire amount was paid and possession handed over to Smt. Vidyawati. 3. Smt. Vidyawati filed a suit, Ext.D-1, in which she prayed that she be declared to be owner in possession of the suit land and the Defendant Smt. Mahajanu be restrained from interfering in her possession. Smt. Mahajanu filed written statement, Ext.D-2, and denied that she had entered into an agreement with Smt. Vidyawati. The suit was partly decreed by the learned Sub Judge Ist Class, Kandaghat vide judgment and decree dated 7.5.1986. The learned trial Court found that the Defendant Smt. Mahajanu had executed the agreement to sell with the Plaintiff Smt. Vidyawati and that Smt. Vidyawati had been put in possession of the suit property after receiving the entire sale consideration. It was however found that during the pendency of the proceedings the Plaintiff Smt. Vidyawati had been dispossessed of the house and obras and therefore the suit for injunction was decreed only in respect of the remaining suit land excluding the house and obras. The question as to whether the agreement is violative of Section 113 of the Transfer of Property Act (hereinafter referred to as the Act) was not decided and left open. Both sides filed appeals but the learned District Judge dismissed both the appeals vide his judgment and decree dated 18.4.1990. Smt. Mahajanu filed an appeal in this Court which was dismissed in default on 5.12.1991. 4. Both sides filed appeals but the learned District Judge dismissed both the appeals vide his judgment and decree dated 18.4.1990. Smt. Mahajanu filed an appeal in this Court which was dismissed in default on 5.12.1991. 4. Thereafter, Smt. Mahajanu, heir of Smt. Kansu, filed the present suit for possession of the suit land mainly on the ground that the agreement was void and violative of Section 113 of the H.P. Tenancy and Land Reforms Act. Both the Courts have decided this issue in favour of the Plaintiff. Hence, the present appeal. 5. The main question raised by Mrs. Devyani Sharma, learned Counsel for the Appellants is that the agreement is not hit by Section 113 of the H.P. Tenancy and Land Reforms Act. 6. It would be pertinent to mention that in the earlier round of litigation the Courts found that the agreement had been executed but no finding was given as to whether the agreement was valid or not. Relevant portion of Section 113 of the Act reads as follows: 113. Bar of transfer of ownership rights.---No land in respect of which proprietary rights have been acquired under this Chapter shall be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights. 7. A bare perusal of the aforesaid provision shows that the bar applies to the person who had acquired the proprietary rights. The section makes no reference to the legal heirs or descendants of the person who acquires such rights. A plain reading of the Section indicates that this bar is applicable only to the persons who had themselves acquired proprietary rights under the provisions of the Act. When a provision which takes away a legal right of a citizen to deal with his property in any manner has to be interpreted it must be interpreted in such a manner that there is - 5 -minimum infringement of his right to deal with his property in any manner he likes. No doubt, a person who acquires proprietary rights over the land which he was tilling cannot transfer or alienate the said land within 10 years of his acquiring such rights but the moot question is whether such bar is applicable to the legal heirs of such a person. 8. Both the Courts below and Sh. No doubt, a person who acquires proprietary rights over the land which he was tilling cannot transfer or alienate the said land within 10 years of his acquiring such rights but the moot question is whether such bar is applicable to the legal heirs of such a person. 8. Both the Courts below and Sh. Dalip Sharma, learned Counsel, have relied upon a judgment of a Division Bench of this Court delivered in Chet Ram and Others Vs. Sawanu Ram and Others, wherein it was held that as per the Nautor rules the allottee and/or his legal heirs could not transfer the said land within the time laid down by law. 9. In my view, this judgment has no application to the present case. Nautor Rules are differently worded and Rule 12 of the Nautor Rules clearly provides that if the grantee or his legal representatives or successors alienates the land granted as Nautor within 15 years from the date of patta then the alienation is invalid and the patta can be cancelled and the land resumed. Under - 6 -the conditions of the Patta the allottee binds himself and his legal heirs not to alienate the land allotted as a Nautor for a particular number of years. In the present case, there is no such condition and Section 113 only bars the alienation of land by a person who has been granted proprietary rights and not by any other person. 10. In the present case, proprietary rights were granted to Smt. Kansu Devi. Smt. Mahajanu only succeeded to the proprietary rights being the legal heir of late Smt. Kansu. The bar of Section 113 was not applicable to her and she could have disposed of the property. Therefore, the substantial question of law is answered by holding that the bar u/s 113 is applicable only to the person granted proprietary rights. 11. Consequently, the appeal is allowed. The judgments and decrees of both the courts below are set-aside and the suit of the Plaintiff is dismissed. No order as to costs. Decree sheet be drawn up accordingly.