Order

15/01/2025

1. The instant appeal has been preferred claiming the following relief:-

“It is, therefore, respectfully prayed that this appeal may kindly be allowed and;-

i. the order dated 05.11.2007 passed by Hon’ble Mr.

N.P. Gupta, J in S.B. Civil writ petition 2403/96 may kindly be set aside.

ii. any other appropriate order or direction, which this Hon’ble Court considers just and proper in the facts and circumstances of this case, may kindly be passed in favour of the appellant.”

2. The appellant has challenged the impugned order passed by the learned Single Bench of this Court in S.B. Civil Writ Petition No.2403/1996 (Rajkumar Vs. State of Rajasthan & Ors.), on 05.11.2007, in which the rights of the appellant’s late husband to relinquish his share in favour of the private respondent i.e. his brother, has been the bone of contention.

3. It is an accepted factual matrix that the husband of the appellant executed a registered relinquishment deed in favour of the private respondent i.e. his brother in the year 1983 relinquishing all his rights in the suit land, and thus, admittedly, devolving his portion to his brother by inheritance.

4. Learned counsel for the appellant submits that the Khatedari Bhoomi in question could not have been alienated by the relinquishment. He further submitted that the appellant is suffering the extreme poverty because her husband has expired and there is no one to maintain her, and thus, relinquishment deed transferred in favour of the respondent No.2 has to be declared illegal.

5. Learned counsel for the respondents has taken this Court to Sections 41, 42 & 43 of the Rajasthan Tenancy Act, 1955 (‘the Act of 1955’), which reads as follows:-

“41. Transferability of Khatedar's interest— The interest of a Khatedar tenant shall be transferable otherwise than by way of sub-lease, subject to the conditions specified in sections 42 and 43.

42. General restrictions on sale, gift and bequest The sale, gift or bequest by a Khatedar tenants of his interest in the whole or part of his holding shall be void, if —

(a) Omitted.

(b) such sale, gift or bequest is by a number of Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who in not a member of the Scheduled Tribe.

[(bb) such sale, gift or bequest, notwithstanding anything contained in clause (b), is by a member of Saharia Scheduled Tribe in favour of a person who is not a member of the said Saharia tribe.]

(c) Omitted.

43. Mortgage— (1) A Khatedar tenant, or with the general or special permission of the State GoVernment or any officer authorised by it in this behalf a Gair Khatedar tenant may hypothecate or mortgage his interest in the whole or part of his holding for the purpose of obtaining- loan from the State Government or Land Development Bank as defined in the Rajasthan Co-operative Societies Act. 1965 (Act 13 of 1965) or a Co-operative Society registered or deemed to be registered as such under the said Act or any Scheduled Bank or any other institution notified by the State Government in that behalf.

(2) A Khatedar tenant may transfer his interest in the whole or part of his holding in the form of usufructuary mortgage to any person but such mortgage must provide that the mortgage amount shall be deemed to be paid off by the usufruct of the property within a specified time not exceeding five years. and in the absence of such period being specified such mortgage shall be deemed to be for five years :

Provided that on or after the publication of the Rajasthan Tenancy (Pnenchrent) Act. 1970 in the official Gazette no Kharedar tenant being a member of a scheduled caste or schedule tribe shall so transfer his rights in the whole or a part of his holding to any person who is not a member of a scheduled caste or a scheduled tribe.

(3) A usufructuary mortgage under sub-section (2) shall. upon the expiry of the period mentioned herein before be deemed to have been satisfied in full wit