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1997 Supreme(J&K) 12
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
R.C. Gandhi, J.
Bimla Devi - Appellant
Versus
Bimal Kumar - Respondent
Civil Revision Petition No. 161/1991
Decided On : 31 January, 1997
Advocate For Appellant: J.S. Kotwal
Advocate For Respondent: N.P. Kotwal
Section 31 of the Agrarian Reforms Act does not prohibit the disposal of immovable property by will.
Headnote:
AGRARIAN REFORMS ACT - SECTION 31 - WILL - NO PROHIBITION ON DISPOSAL OF IMMOVABLE PROPERTY BY WILL - WILL IS NOT INCLUDED IN THE EXPLANATION OF ALIENATION OF LAND - SECTION 31 OF THE ACT HAS NO APPLICABILITY ON THE DETERMINATION OF THE QUESTION OF ANY EFFECT OF THE WILL UPON THE SUIT PROPERTY.
Fact of the Case:
The petitioner filed a suit seeking a declaration and perpetual injunction claiming that she is entitled to the property after her husband's death based on a will executed by him. The trial court transferred the case to the Collector, Agrarian Reforms, to determine the effect of the will on the suit property under Sections 30 and 31 of the Agrarian Reforms Act.
Finding of the Court:
The court held that Section 31 of the Agrarian Reforms Act, which restricts the alienation of land, does not apply to the disposal of immovable property by will. The court found that the definition of 'land' under the Act excludes orchards and sites of buildings or structures within municipal areas, town areas, notified areas, or village abadi. The court also noted that the word 'will' is not included in the explanation of 'alienation' under Section 31 and that the word 'bequest' was omitted from the explanation by an amendment in 1989.
Issues: Whether Section 31 of the Agrarian Reforms Act applies to the disposal of immovable property by will.
Ratio Decidendi: The court reasoned that a will is not a transfer of property as the property is not transferred to the legatee immediately upon the execution of the will. The court also noted that the legislature did not include the word 'will' in the explanation of 'alienation' under Section 31, indicating that it did not intend to prohibit the disposal of immovable property by will.
Final Decision: The court allowed the revision petition and set aside the trial court's finding on the issue of the effect of the will on the suit property. The court directed the trial court to decide the issue in accordance with the observations made in the judgment.
whether deceased Chuni Lal executed WILL on 15.12.1973 in favour of the plaintiff and what is its effect on the suit. OPP
The parties led their evidence and the suit has been transferred to the Collector, Agrarian Reforms after holding that the validity and execution of the ˜will™ stand proved and consequently what is the effect of the will on the suit property. While dealing with this proposition, the trial court observed that Sections 30 and 31 of the Agrarian Reforms Act 1976 hereinafter referred to as the Act) it made applicable to the ˜will™ the authorities created under the Agrarian Reforms Act have to hold an inquiry as to whether what is the effect of section 31 upon the suit property. In order to hold such an inquiry and to decide the effect of will, the file has been transferred to Collector Agrarian Reforms, Bhaderwah, and decided the issue No.2 accordingly.
2. The petitioner aggrieved of this direction and disposal of Issue No. 2 has sought revision of the impugned order on the ground the Section 31 of the Agrarian Reforms Act has no applicability on the determination of the question of any effect of the will upon the suit property.
3. I have heard the learned counsel for the parties, perused the record and memo of revision petition. The contention of Mr. Kotwal, learned counsel for the petitioner, is that prohibition created for alienation of land under Section 31 of the Act is not applicable to the land, subject matter of the will. The expression ˜land™ has been defined under sub section (9) of Section 2 of the Act as follow;
land means land which was occupied, or was let, for agricultural purposes or for purposes subservient to agriculture or for pasture in Kharif, 1971 and includes-
(a) structures on such land used for purposes connected with agriculture;
(b) areas covered by, or fields floating over, water;
(c) forest land and wooded wastes;
(d) trees standing land land; and
(e) 1(omitted)
2(but does not include an orchard or) site of a building or a structure within municipal area, town area, notified area or village abadi or any land appurtenant to such building or structure;
4. The ˜land™ defined under the Act cannot be alienated as there is statutory restrictions placed on the sale of the land in terms of Section 31 of the Act which reads thus,
Restriction on alienation and felling or removal of trees- Notwithstanding anything contained in any law for the time being in force-
(a) (i) alienation of land, whether by act of parties or a decree or order of a Court or of a Revenue Officer; or
(ii) felling or removal of trees standing on land;
except under such conditions as may be prescribed & with previous permission of the Revenue Minister, or such officer as may be authorised by him in this behalf, is forbidden;
(b) any alienation of land made on or after the first day of May. 1973 in contravention of-
i) the provisions of this Act; or
ii) section 45 of the Jammu and Kashmir Agrarian Reforms Act, 19972; or
iii) section 8 of the Jammu and Kashmir Agrarian Reforms (Suspension of Operation) Act, 1975; or
iv) clause (a) of sub-section (1) of section 3 of the Jammu and Kashmir Prohibition on Conversion of Land and Alienation of Orchards Act, 1975;
shall be null and void and the land so alienated shall, after such enquiry as may be prescribed, vest in the State:
Provided that nothing herein contained shall be deemed to affect the provisions of section 4 of the Jammu and Kashmir Prohibition on C
