Jammu & Kashmir High CourtMst. Thru D/O Fakiru vs Rasal Singh And Ors. on 17 October, 1996Equivalent citations: AIR1997J&K88ORDER
 

 G.D. Sharma, J.1. The petitioner, Mst. Thuru, through the medium of this petition made under the provisions ofArticle 226of the Constitution of India, has sought a direction in the nature of writ of certiorari for quashing order dated 16-2-1993 passed by the learned Additional Commissioner (with powers of Divisional Commissioner) Jammu, whereby he in the second appeal before him has set aside mutation under No. 661 dated 18-9-1988 regarding inheritance of the estate of petitioner's father, namely Fakiru, resident of Dhanore, Tehsil Kathua. The petitioner has sought a direction against respondent No. 6 to pay her the compensation for the use and occupation of the land comprised in Khasra No. 441, situate in village Dhanore, Tehsil Kathua.2. The factual matrix of the case lies in a narrow compass and is to the effect that said Faktru had no male issue and was survived by

his three daughters. The petitioner herein, even after her marriage, was living with her father, namely, said Fakiru, and looked after him during his old age. Out of love and affection and for the services rendered by the petitioner said Fakiru on 22-7-1983 executed a registered will in favour of the petitioner in respect of his whole movable and immovable property, to the exclusion of other legal heirs. Out of the immovable property left by the testator of the will (said Fakiru) land mea-suring 27-Kanal 3-Marla comprising of Khasra No. 441 situate in village Dhanore had been in the occupation of the Army and the said Fakiru during his life time was being paid compensation for its use and occupation. After the death of testator Fakiru, mutation No. 661 in respect of his heritable estate was attested by the Naib-Tehsildar concerned on 19-9-1988 and respondents 1 to 4 being the legal heirs of the testator challenged the said mutation by way of an appeal before the Deputy Commissioner Kathua, who vide his order dated 8-2-1991 dismissed the same. This order of the learned Deputy Commissioner Kathua was challenged in the second appeal before the Additional Commissioner (with powers of Divisional Commissioner) Jammu, who vide his order dated 16-2-1993 (annexure 6), accepted the appeal and set aside the mutation order No. 661 dated 18-9-1988. Learned Addl. Commissioner had held that the testator executed the will on 22-7-1983 and died in the year 1987, before coming into operation of Act. No. IV of 1989 (J & K Agrarian Reforms Amendment Act 1989) whereby the embargo placed on the alienation of land by way of bequest, occurring in Section 31 of the J & K Agrarian Reforms Act of 1976, was lifted and as such the alienation made before coming into operation of the said Amendment Act No. IV of 1989 by way of a will, was a nullity.3. This order has been challenged by invoking the extra-ordinary jurisdiction of this Court through the medium of this writ petition by pleading that the legislature made a curative amendment inSection 31of the Agrarian Reforms Act, 1976, through Act No. IV of 1989 whereby the legal bar, which existed for the alienation of the land by way of

a bequest, was removed by deleting the word "bequest" from the defnition of alienation. That this amendment was made to suppress the legal wrong which existed in the statute and the amendment has to be given retrospective effect.4. Respondents 1 to 4 have filed objections to the writ petition pleading that when the will was executed there was a legal prohibition existing in Section 31 of J & K Agrarian Reforms Act 1976 for making any alienation of the land, even by way of a will and that the will became operative after the death of the testator, who died in the year 1987. But such prohibition existed and the subsequent amendment effected in the section vide terms of Act No. IV of 1989 (J & K Agrarian Reforms Act 1989), had no legal effect. In other words, there was a mandatory bar under law at the time when the will came into operation and any subsequent change in the law cannot have any retrospective effect. That they are equally entitled to receive the compensation of the land which is under occupation of the Army and any will made in respect of this land cannot divest them of their legal rights.5. Mr. J. S. Kotwal, learned counsel for the petitioner, has contended that the land delineated above has been under the occupation of armed forces before the Agrarian Reforms Act 1976 came into force as well as in kharif 1971. According to him, this part of the land, which has been bequeathed by way of a will does nor fall within the definition of 'land' as described underSection 2Sub-section (9) of the Agrarian Reforms Act 1976 and is not covered under the provisions of the said Act. In other words, the land under occupation of the Army in kharif 1971 stands excluded from the purview of the Act and there was no legal inhibition to make a bequest or a will of the said land by the testator, Fakiru. An error had crept in Section 31 of the Agrarian Reforms Act 1976 when the alienation by bequest was prohibited in terms of the language implied inSection 31and this error was corrected by the legislature by passing Act No. IV of 1989 whereby the word "bequest" occurring inSection 31of the Act, was omitted, and aliena-tion by way of a bequest was allowed. This is a curative amendment and has to be given retrospective effect. In support of his contention the learned counsel has cited the case of Chanan Singh v. Mst. Jai Kour, AIR 1970 SC 349 where the amendment affected in thePunjab Pre-emption Actwas given retrospective effect. In this case it was held that if a statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions.6. After considering the submissions of Mr. Kotwal it becomes necessary to dialate on the terms 'will' and 'bequest' which have found a place in this case.7. In the un-amended Act of 1976 (Agrarian Reforms Act) there existed a restriction on alienation of land by means of a sale, gift, mortgage with possession, bequest or exchange. Vide Act No. IV of 1989 the word "bequest" was got omitted in the explanation of alienation which was occurring inSection 31of the said Act. In the present case the testator, Fakiru, has disposed of his property, both movable and immovable, by way of a registered will. Now it has to be seen whether alienation as defined in the unamended Act could cover the import of a will which mode has not been defined specifically as an alienation. Bequest was specifically included in the explanation of 'alienation' which is synonymous to the term 'transfer' as defined in the Land Alienation Act. The Land Alienation Act is also in force in the State and Jammu & Kashmir so far as its provisions are not inconsistant with the provisions of the J & K Agrarian Reforms Act. 1976. Such an intention of the legislature is found inSection 42of the Agrarian Reforms Act, 1976. There was no law prohibiting the disposal of immovable property, other than land, as defined in the Land Alienation Act, by a will either before the Agrarian Reforms Act 1976 came into force or after it came into force. In order to make the will in question inoperative, there must have been a clear and unambiguous provision of law prohibiting the disposal of immovable property by a will, and in absence

of such a provision the courts will not interpret the latent intention of the legislature, which is not embodied in express provisions of law. Disposal of immovable property by will would not amount to a transfer inasmuch as the property does not pass on to the legatee 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 legatee.8. In my opinion, therefore, there was no provision of law prohibiting the disposal of immovable property, other than by way of mode of alienation as defined inSection 31of the Agrarian Reforms Act, 1976, before the amendment came into force in 1989 and the will executed by the tectator in favour of the petitioner herein cannot be held to be invalid. In arriving at such a conclusion my view has been fortified by a Full Bench decision of this Court given in the case of Lala Devi Dass v. Panna Lal, 1983 SLJ 293, wherein the difference between a will and bequest was shown by their Lordships for the disposal of immovable property. Various 'Irshads' and Illans' issued by his Highness, which had the force of law, have been discussed in the said ruling and it was held that the will executed by testator in favour of a non-state subject was also valid, as the definition 'alienation' was defined under the Land Alienation Act, which included sale, gift, bequest, grant of occupancy rights and exchange other than an exchange made for the purpose of consolidation of holdings. It is also held that 'will' does not include any transfer as is contemplated under the provisions of theTransfer of Property Act.9. From the observations made above, it is, therefore, held that there was no legal prohibition for the testator, Fakiru for making a "will" when it was executed and registered by him, as well as when it became operative after his death. The principle laid down by the apex Court in the case of Channan Singh and others v. Jai Kour (supra) for giving retrospective effect to the amendment, made in the amendment Act No. IV of 1989, also applies to the facts of the present case, even if it is deemed that the

"bequest" instead  of "will" was made in favour of the petitioner herein by the testator.10. Considering the case from all aspects, impugned order passed by the Additional Commissioner (with powers of Divisional Commissioner) Jammu dated 16-2-1993, has been found suffering from patent illegality and cannot be upheld in the eyes of law.11. In this view of the matter, the petition is accepted and a writ of certiorari is issued commanding thereby that order dated 16-2-1993 passed by the said learned Additional Commissioner, is non est in the eyes of law and is hereby quashed. In other words, mutation No. 661 dated 18-9-1988, attested by Naib-Tehsildar in favour of the petitioner herein is hereby maintained. A direction is also issued to respondents No. 6 to pay the arrears of the compensation of the land in question under occupation of the Armed Forces, to the petitioner within a period of two months from today, otherwise she will be entitled to claim interest at the prevelent Bank rate.12. A copy of this judgment be sent to the Financial Commissioner (Commissioner under J & K Agrarian Reforms Act) for circulation amongest his subordinates.