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High Court Of Himachal Pradesh
V.K.GUPTA
MEHAR CHAND - Appellant
Versus
RAKESH - Respondent
R.S.A. No. 126 of 1995
Decided On : 09/29/2006
Will - Property Dispute - Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Sections 43, 57, 104) - The court discussed the interpretation of Section 104(3) of the 1972 Act and its primacy over procedural laws, such as Rule 24(1) of the 1975 Rules, in conferring proprietary rights to non-occupancy tenants. The court held that the rights of the non-occupancy tenants vested automatically from the date of notification by the State Government, and the procedural law could not override this substantive provision.
Fact of the Case:
Respondents filed a Civil Suit seeking possession of land based on the invalid Will executed by a non-occupancy tenant in favor of the appellants. The trial court dismissed the suit, and the appeal court modified the judgment, holding that the tenant was not competent to execute the Will. The present appeal focused on this finding.
Finding of the Court:
The court found that the lower court erred in its interpretation of the law, emphasizing the automatic vesting of proprietary rights to non-occupancy tenants under Section 104(3) of the 1972 Act. It set aside the judgment and allowed the appeal.
Issues: The main issue was the competence of the non-occupancy tenant to execute the Will, as well as the maintainability of the suit in a Civil Court.
Ratio Decidendi: The court's decision was based on the primacy of Section 104(3) of the 1972 Act in conferring proprietary rights to non-occupancy tenants, overriding procedural laws like Rule 24(1) of the 1975 Rules.
Final Decision: The finding on the tenant's competence to execute the Will was set aside, and the appeal was allowed without any order as to costs.
V.K. Gupta, C.J.—A very short and simple but interesting question of law is involved for consideration in this case but the facts first.
2. Respondents filed a Civil Suit against the appellants in the Court of the then Sub Judge 1st Class (II), Palampur for obtaining a decree of possession on the ground that two pieces of land, details whereof are as under: "(a) Measuring 0-35-30 hectares being half share in the land measuring 0-70-59 hectares comprising of Khata No. 46 min Khatauni No. 158 and Khasra Nos. 261, 325, 327, 328, 329, 330, 332, 337 and 1082 of Mohal Badehar, Mauza Patti, Tehsil Palampur; and (b) Measuring 0-37-71 hectares being half share in the land measuring 0-75-43 hectares comprising of Khatauni No. 163 and Khasra No. 353 of Mohal Badehar, Mauza Patti, and Tehsil Palampur". Even though recorded in the respective Jamabandis under the ownership of their respective owners being in the possession of late Gulaba Ram as a non-occupancy tenant, the said Gulaba Ram wrongly executed a Will in favour of appellants No. 1 to 4 and based on this invalid and wrong Will, mutations were illegally attested in favour of the said four appellants thus depriving the respondents of their rightful due and share in the said property. It was contended in the said suit by the respondents-plaintiffs that the Will allegedly executed by Gulaba Ram was the outcome of fraud, misrepresentation and undue influence. Alternatively it was contended that he could not have bequeathed the tenancy rights in favour of appellants No, 1 to 4 through the aforesaid Will and that in any case the Will could not have been executed in law thus, legitimately transferring any right of any nature in favour of the appellants.
3. The suit was dismissed by the learned trial Court. The appeal preferred against this judgment before the learned District Judge even though was dismissed on the ground relating to Sections 43 and 57 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (1972 Act for short) nonetheless the learned Appeal Court modified the judgment of the learned trial Court to the extent that indeed Gulaba Ram was not competent to execute any Will in favour of appellants No. 1 to 4 in his capacity as a non-occupancy tenant because at the time the Will was executed (on 11.7.1983) Gulaba Ram had continued to have the status of only a non-occupancy tenant and since prior to his death (October, 1985) he had not been conferred the proprietary ship rights with respect to the aforesaid two pieces of land, he had no right in law to execute any Will with respect to the said property.
4. The following pedigree table would reveal the relationship between the parties. GULABA _____________________|_____________________ | | Rameshwar (deceased) __________|_____________________ | | | | Rakesh Rajesh Satish (Plaintiff 1 to 4) Sudesh Bihari Lal (defendant No.5) | | | ____________________|______________ | | | | Mehar Chand Shubhash Onkar Chand Chand (defendants Nos.1 to4) Sanjay Kumar
5. Based on the pleadings of the parties, following Issues were framed in the trial by the learned trial Court:— "1. Whether the suit land is ancestral qua the parties and deceased as alleged? OPP.
2. Whether the parties are governed by agriculture custom in the matters of alienation and succession of ancestral property, as alleged, if so, what is that custom? OPP.
3. Whether Shri Gulaba Ram was not competent to execute the Will dated 11.7.1983, if so, its effect? OPP.
4. Whether the Will dated 11.7.1983, is the result of fraud, misrepresentation and undue influence, as alleged? OPP.
5. Whether Shri Gulaba Ram executed a valid Will dated 11.7.1983 in favour of defendants No. 1 to 4, as alleged? OPP.
6. Whether the suit of plaintiff is not maintainable in the present form? OPD.
7. Whether the suit is not within limitation? OPD.
8. Whether the suit is barred by the provision of H.P. Tenancy and Land Reforms Act? OPD.
9. Whether the plaintiffs are stopped b
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