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2019 DIGILAW 1091 (HP)

Kuldeep Singal v. Rakesh Kumar

2019-08-02

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. The plaintiff is the appellant, who after having lost before both the learned Courts below, has filed the instant second appeal. The parties shall be referred to as the ‘plaintiff’ and the ‘defendants’. 2. The plaintiff filed a suit for declaration that by virtue of Will dated 25.10.1994 executed by Chetu in his favour, he had become owner of the land comprised in Khasra Nos. 69, 69 and 72 measuring 5 bighas situated in Tikkeri to the extent of 18 biswas and the Will was presented before the Revenue Officer, who on 6.1.2005 illegally rejected the mutation. It was further averred that the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 (for short ‘Act’) were not applicable in his case and as such, the order passed by the Revenue Officer is ineffective and not binding on the plaintiff. 3. The respondents contested the claim by filing written statement. However, after filing of the same, they did not turn up and were thus proceeded ex parte before the trial Court. 4. The plaintiff led ex parte evidence wherein apart from oral submissions, he has also produced on record certain documents. 5. The learned trial Court after taking into consideration the pleadings and evidence so led by the plaintiff dismissed the suit by concluding that the claim set-up by the plaintiff was barred under Section 118 of the Act, constraining the plaintiff to file an appeal before the learned lower Appellate Court, but the same was also dismissed vide judgment and decree dated 1.9.2008. 6. Undeterred, the plaintiff has filed the instant appeal before this Court and the same was admitted on 6.7.2009 on the following substantial questions of law: “1. Whether the Courts below were justified in dismissing the suit of the plaintiff/appellant when the defendants had themselves admitted the claim of the appellant? 2. Whether the provisions of Section 118 as amended in May, 1997 of the H.P. Tenancy and Land Reforms Act, 1987 were applicable or attracted at all to the facts and circumstances of the case? 3. Whether the State Legislature can enact a law which is repugnant to the Central Acts and if so, its effect on the facts of the present case? 4. 3. Whether the State Legislature can enact a law which is repugnant to the Central Acts and if so, its effect on the facts of the present case? 4. Whether in view of the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 vis a vis the provisions of Succession Act, 1925 and the Hindu Succession Act, 1956 and Articles 14 and 21 of the Constitution of India can a person be prevented from making a Will with respect to his property? 5. In case the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 are found to be repugnant and contrary to the provisions of Hindu Succession Act, 1956 and the Indian Succession Act, 1925 and Articles 14 and 21 of the Constitution of India then what is the effect of same to the facts of this case.” 7. I have heard learned counsel for the parties and have gone through the records of the case carefully. 8. Since all the substantial questions of law are intrinsically interlinked and interconnected, therefore, they were taken up together for consideration and are being disposed of by a common reasoning. 9. It is not in dispute that the sole basis on which the plaintiff has based his suit is the Will executed in his favour on 25.10.1994. Without going into the question as to whether the Will has been proved or not and accepting the same as it is for the time being, the question will arise as to whether the plaintiff can claim right to the property contrary to the provisions of Section 118 of the Act as admittedly the plaintiff is not an ‘agriculturist’. The reason being that no doubt the Will is stated to have been executed on 25.10.1994, but the fact of the matter is that Chetu admittedly died on 14.9.2004 and therefore, the Will came into operation only after the death of Chetu i.e. on 14.9.2004. 10. The difference between a transfer and a Will are well-recognised. A transfer is a conveyance of an existing property by one living person to another (that is transfer inter vivos). 10. The difference between a transfer and a Will are well-recognised. A transfer is a conveyance of an existing property by one living person to another (that is transfer inter vivos). On the other hand, a Will does not involve any transfer, nor effect any transfer inter vivos, but is a legal expression of the wishes and intention of a person in regard to his properties which he desires to be carried into effect after his death. In other words, a Will regulates succession and provides for succession as declared by it (testamentary succession) instead of succession as per personal law (non-testamentary succession). The concept of transfer by a living person is wholly alien to a Will. When a person makes a Will, he provides for testamentary succession and does not transfer any property. While a transfer is irrevocable and comes into effect either immediately or on the happening of a specified contingency, a Will is revocable and comes into operation only after the death of the testator. Thus to treat a devise under a Will as a transfer of an existing property in future, is contrary to all known principles relating to transfer of property and testamentary succession. 11. By the time Chetu died, the law had undergone a change and the relevant provisions at that time were as under: “118. Transfer of land to non-agriculturists barred.- (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a civil court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist. Explanation: For the purpose of this sub section the expression “Transfer of Land” shall not include - (i) transfer by way of inheritance; (ii) transfer by way of gift or will executed, in favour of any or all legal heirs of the donor or the testator, as the case may be; (iii) transfer by way of lease of land or building in a municipal area; but shall include- (a) a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided by a non-agriculturist; and (b) an authorisation made by the owner by way of special or general power of attorney or by an agreement with the intention to put a nonagriculturist in possession of the land and allow him to deal with the land in the like manner as it he is a real owner of that land]” The amendment in the principal Act was carried through H.P. Tenancy and Land Reforms (Amendment) Act, 1994 and explanation was added by H.P. Tenancy and Land Reforms (Amendment) Act, 1997. When Will came into operation, both these amendments were operative and valid. Therefore, it cannot be said that the Revenue Officer had acted illegally or without jurisdiction. The learned trial Court was right in observing that the plaintiff was not an agriculturist and as such not entitled to the declaration. It was also not the case of the plaintiff that he is a legal heir of the testator.” 12. At this stage, it needs to be noticed that vires of the H.P. Tenancy and Land Reforms Act was assailed before this Court in Som Kirti alias Som K. Nath vs. State of H.P. Latest HLJ 2013 (HP) 1223 and one of the questions raised in that petition was regarding the prohibition of Transfer of Property by way of a Will and the said contention was negated by this Court by observing as under: “69. It has also been argued on behalf of the petitioners that Section 118 is repugnant to Section 59 of the Indian Succession Act, 1925. The Section 59 provides every person of sound mind not being a minor may dispose of his property by Will. The Section 59 provides competency of a person to dispose of his property by Will, but the said Section nowhere provides in whose favour the Will can be executed. The Section 59 provides every person of sound mind not being a minor may dispose of his property by Will. The Section 59 provides competency of a person to dispose of his property by Will, but the said Section nowhere provides in whose favour the Will can be executed. The Will is included in entry 5 List-III which is not referable to transfer of land. The Section 118 prohibits transfer by way of Will in favour of a person who is not an agriculturist. The Section 59 of the Indian Succession Act,1925 refers to ‘dispose of property’ as against ‘transfer’ ordinarily understood under the Transfer of Property Act, 1882. In Mahaboob Sirfraz Vanth Sri Rajah Parthasarathy Appa Rao Zamindar of Bhadrachalam vs. Sri Raja Venkatadri Appa Rao and others AIR 1922 Madras, 457 (FB), it has been held that the Transfer of Property Act applies only to alienations inter vivos and has no application to disposal of property by Will. In Raja Surendra Vikram Singh vs. Rani Munia Kunwar and another AIR 1944 Oudh 65, it has been held that Transfer of Property Act does not relate to wills, and ‘transfer’ is defined in the Oudh Estates Act as an alienation inter vivos. A will on the other hand is not in form a transfer, but means “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”. Thus, the disposal of immoveable property by Will would not amount to transfer as the property does not pass on to the beneficiary at the time the will is executed. It is merely an intention expressed by the testator with regard to his property that after his death it should devolve on the beneficiary. 70. The learned counsel for the petitioners has submitted that the Act was repugnant to the Urban Land (Ceiling and Regulation) Act, 1976 (for short Ceiling Act) till the Ceiling Act remained on the statute book. He has fairly stated that Ceiling Act has been repealed by the Urban Land (Ceiling and Regulation) Repealing Act, 1999 w.e.f. 22.3.1999 but submitted that during the continuation of the Ceiling Act, the amendments carried out in the Act could not be carried out by the State Legislature in view of over-riding effect of the Ceiling Act on the subject matter covered by various amendments. He has relied preamble, definitions of ‘land pertinent’, ‘to hold’, ‘urban land’ and ‘vacant land’ defined in Section 2 of the Ceiling Act. He has also relied Section 4 (11) and Section 6 (1) of the Ceiling Act. The ceiling limit was provided in Section 4 whereas Section 6 had provided persons holding vacant land in excess of ceiling limit to file statement. On behalf of the State, Schedule-I of the Ceiling Act has been referred and it has been submitted that it is clear from the preamble of the Ceiling Act that Act provided for imposition of ceiling on vacant land in urban agglomerations which was defined in Section 2 (n). The ceiling limit of vacant land in urban agglomerations falling in categories (A), (B), (C), (D) specified in Schedule-I of the Act was provided in Section 4. The perusal of Schedule-I to Ceiling Act would show that the State of Himachal Pradesh was not included in Schedule-I. In other words practically Ceiling Act was not applicable in State of Himachal Pradesh. In any case now the Ceiling Act has been repealed w.e.f. 22.3.1999. In these circumstances, there is no question of repugnancy of the Act with Ceiling Act during the period the Ceiling Act was in force. The Act is not repugnant to aforesaid Acts. The petitioners have not dialated how the Act is repugnant to Indian Stamp Act, 1899 and Indian Registration Act, 1908. 71. The connected question is whether authorization made by owner of land by way of will, agreement to sell, special power of attorney, general power of attorney and benami transaction with intention to put a non-agriculturist in possession of the land and allow him to deal with the land in the like manner as if he is a real owner of the land amounts to transfer of land. The expression ‘transfer of land’ has not been defined in the Act but it has been dealt with and explained in Section 118 as follows: “118. The expression ‘transfer of land’ has not been defined in the Act but it has been dealt with and explained in Section 118 as follows: “118. Transfer of land to non-agriculturists barred.- (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a civil court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist. Explanation: For the purpose of this sub section the expression “Transfer of Land” shall not include – (i) transfer by way of inheritance; (ii) transfer by way of gift or will executed, in favour of any or all legal heirs of the donor or the testator, as the case may be; (iii) transfer by way of lease of land or building in a municipal area; but shall include- (a) a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided by a non-agriculturist; and (b) an authorisation made by the owner by way of special or general power of attorney or by an agreement with the intention to put a nonagriculturist in possession of the land and allow him to deal with the land in the like manner as it he is a real owner of that land]” 72. In Suraj Lamp and Industries Private Limited (2) through Director vs. State of Haryana and another (2012) 1 SCC 656 , it has been held as SA/GPA/will transaction do not convey any title nor create any interest in an immovable property. SA/GPA/will transactions are not “transfers” or “sales” and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. However, in the same judgment, the Supreme Court has also observed: “2. SA/GPA/will transactions are not “transfers” or “sales” and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. However, in the same judgment, the Supreme Court has also observed: “2. The modus operandi in such SA/GPA/ will transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof: (a) An agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future or An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute the sale deed whenever required. (b) An irrevocable general power of attorney by the vendor in favour of the purchaser or his nominee authorizing him to mange, deal with and dispose of the property without reference to the vendor. Or A general power of attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney holder to sell or transfer the property and a special power of attorney to manage the property. (c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected). 3. These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets an SA/GPA/will as a mode of transfer, either at the instance of the vendor or at his own instance.” 73. The Supreme Court as a general proposition of law has held that SA/GPA/will are not ‘transfers’ or ‘sales’ and cannot be treated as completed transfers or conveyances. In Suraj Lamp (supra), the Supreme Court was not dealing with a provision like Section 118 of the Act. The Supreme Court as a general proposition of law has held that SA/GPA/will are not ‘transfers’ or ‘sales’ and cannot be treated as completed transfers or conveyances. In Suraj Lamp (supra), the Supreme Court was not dealing with a provision like Section 118 of the Act. It is common knowledge that sometimes transactions are entered to meet the loopholes in law with a purpose to defeat the law and to avoid registration charges. The Legislative intention in enacting Section 118 is explicit to check all possible transactions to circumvent the law on the subject. The nomenclature of the document is immaterial, what is material is facts and circumstances which led to execution of sale and benami transaction in favour of a person with the intention to put a non-agriculturist in possession as if he is the real owner. The veil is to be pierced to find out real transaction behind sale agreement/general power of attorney, will and benami transaction. The ‘transfer’ or ‘transfer of land’ in Section 118 of the Act is to be understood in that context and not as provided in the Transfer of Property Act or any other similar enactment. In b (supra) also the Supreme Court has noticed modus operandi for executing sale agreement/general power of attorney and will is to receive the agreed consideration, deliver possession of the property to the purchaser and then to execute the documents like agreement to sell, irrevocable general power of attorney, general power of attorney, will, affidavit etc. 74. The Supreme Court in Pandey Oraon vs. Ram Chander Sahu and others 1992 Supp. (2) SCC 77, has noticed Section 71-A of Chotanagpur Tenancy Act which provides as under: “If at any time it comes to notice of the Deputy Commissioner that transfer of land belonging to a raiyat who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or any other provision of this Act or by any fraudulent method (including decrees obtained in suit by fraud or collusion) he may, after giving reasonable opportunity to the transferee who is proposed to be evicted, to show cause and after making necessary enquiry in the matter, evict the transferee from such land without payment of compensation...” The Supreme Court held as follows: “5. ‘Transfer’ has not been defined in the Act. ‘Transfer’ has not been defined in the Act. The term has a definition in Section 5 of the Transfer of Property Act which states: “5. ‘Transfer of Property’ means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons and ’to transfer property’ is to perform such act.” 6. In Section 71-A in the absence of a definition of transfer and considering the situation in which exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of transfer to transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated in the provision is where possession has passed from one to another and as a physical fact the member of the Scheduled Tribe who is entitled to hold possession has lost it and a non-member has come into possession would be covered by transfer and a situation of that type would be amenable to exercise of jurisdiction within the ambit of Section 71-A of the Act. 7. The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore, when the legislature is extending special protection to the named category, the court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by (sic) the scope. In fact, that exactly is what has been said by a three Judge bench of this Court in almost a similar situation in Manchegowda v. State of Karnataka (1984) 3 SCR 502 and what was said by a three Judge bench followed by a later decision of this Court in Lingappa Pochanna Appelwar v. State of Maharashtra (1985) 2 SCR 224 . To the same effect is the observation of this Court in Gamini Krishnayya v. Guraza Seshachalam AIR 1965 SC 639 . The House of Lords in D (a minor) v. Bershire County Council (1987) 1 All ER 20 (HL) said that broad and liberal construction should be given to give full effect to the legislative purpose. To the same effect is the observation of this Court in Gamini Krishnayya v. Guraza Seshachalam AIR 1965 SC 639 . The House of Lords in D (a minor) v. Bershire County Council (1987) 1 All ER 20 (HL) said that broad and liberal construction should be given to give full effect to the legislative purpose. We would, therefore, in the facts and circumstances appearing in this case, hold that the authorities under the Act were justified in extending the provision of Section 71-A of the Chotanagpur Tenancy Act to the situation which emerged and the High Court took a wrong view in limiting the concept of transfer to the statutory definition in the T.P.Act and holding that Section 71-A was not applicable in a case of this type. On this basis, it must follow that the action of the statutory authority was justified and the conclusion of the Full Bench must not be sustained. We accordingly allow the appeal and reverse the decision of the High Court.” 75. In Lala Devi Dass vs. Panna Lal AIR 1959 Jammu and Kashmir 62 (FB), it was noticed that ‘land’ is not specifically defined in the Land Alienation Act, but a definition of ‘permanent alienation’ is given in sub section (3) of Section 2 of the Act which includes sale, gift, bequest grant of occupancy rights and exchange other than an exchange made for the purpose of consolidation of holdings. It was held that a bequest is specifically included in ‘permanent alienation’ which is synonymous to the term ‘transfer’ so the permanent alienation of land as defined in the Land Alienation Act by bequest is prohibited under the provisions of the Land Alienation Act. As noticed above, the expression ‘transfer of land’ has not been defined in the Act, but it has been used and explained in Section 118 of the Act. In this situation, the ratio of Pandey Oraon (supra) is fully applicable where in absence of definition of ‘transfer’ keeping in view the legislative intention the Supreme Court has not confined the meaning of transfer to ‘transfer’ under the Transfer of Property Act. The ‘transfer of transfer to ‘transfer’ under the Transfer of Property Act. In this situation, the ratio of Pandey Oraon (supra) is fully applicable where in absence of definition of ‘transfer’ keeping in view the legislative intention the Supreme Court has not confined the meaning of transfer to ‘transfer’ under the Transfer of Property Act. The ‘transfer of transfer to ‘transfer’ under the Transfer of Property Act. The ‘transfer of land’ in Section 118 is to be interpreted in consonance with legislative intent while considering an agreement to sell, general power of attorney, will, benami transaction executed with the intention to put a non-agriculturist in possession as real owner of the land transferred. Therefore, the contention that agreement to sell, general power of attorney, will, benami transaction do not amount to transfer of land and restriction imposed for such transactions under Section 118 of the Act is beyond the legislative competence of the State Legislature, has no force and is rejected.” 13. For completion of record, it needs to be observed that the aforesaid judgment was assailed by the petitioners therein before the Hon’ble Supreme Court by way of Special Leave to Appeal (C) Nos. 9559-9561/2014, titled Som Kirti @ Som K. Nath etc. and others vs. State of Himachal Pradesh and others and the same was dismissed on merits vide order dated 30.6.2014. 14. As regards the admission of the claim, no decree contrary to law could have been passed by the learned Court below. Moreover, the Court below had the discretion not to accept the admission made by the defendants in the written statement. The plaintiff was under obligation to have led cogent, convincing and reliable evidence in support of his case. As such, the proof is not dispensed with it even in ex parte proceedings. In addition thereto, the plaintiff had only submitted in examination-in-chief an affidavit, but had not appeared in the witness box to testify about its correctness and mere tendering of affidavit is of no effect. 15. Even otherwise Sections 1 and 3 of the Evidence Act when read with together, make it clear that affidavit is not regarded as evidence under the Act, but can be used as evidence only if for sufficient reason the court passed an order under Order XIX Rule 1 and 2 of the CPC. 15. Even otherwise Sections 1 and 3 of the Evidence Act when read with together, make it clear that affidavit is not regarded as evidence under the Act, but can be used as evidence only if for sufficient reason the court passed an order under Order XIX Rule 1 and 2 of the CPC. Affidavits, though, are not included in Section 3 of the Act, same can be used as evidence, if law specifically permits certain matters to be proved by affidavit. Mere swearing of affidavit does not make statement contained therein a piece of evidence. Swearing is only a guarantee of the authenticity of the affidavits but not of its contents. (See: Smt. Sudha Devi vs. M.P. Narayanan and others AIR 1988 SC 1381 ). Accordingly, all the substantial questions of law are answered against the appellant/plaintiff. 16. In view of the aforesaid discussion and for the reasons stated above, I find no merit in this appeal and consequently, the same is dismissed, so also the pending application(s), if any, leaving the parties to bear their own costs.