SAJU Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS is a plaintiff's second appeal from the judgment and decree of the learned. District. Judge of Mandi dated 29 10 1951 dismissing his appeal and maintaining the judgment & decree of the trial Court whereby the piaintiff appellant's suit for a declaration that the property in suit had not escheated to the State had. been dismissed.

(2.) THE property in suit originally belonged to one Kahnu. He executed a document dated. 6th 'Katik Samvat 93 Kham', corresponding to 'Bikrami Samvat' 1974. He appointed the plaintiff, his son in law, a Khana Damad and. declared that should he have no issue the plaintiff should be treated as the owner of his property afjter his death & the death of his widows. Kahnu left more widows than one, & the last of them died 14 or 15 years before the institution of the present suit. The present suit was instituted on 3 1 1850 for the said relief because by an order dated 32 5 2003 the State treated the property as an escheat. The plaintiff's suit has been dismissed by both the Courts below on the ground that the sanction of the Darbar to the appointment of the plaintiff as a 'Khana Damad' and to the alienation of the property in his favour under the aforesaid deed dated 6th 'Katik' Section 93 'Kham' had not been taken as required by Section 3 of the Mandi Transfer of Immovable Property Regulation No. II of Samvat 1975. This section runs as follows:

(3.) THE other ground on which the District Judge held that the sanction of the Durbar according to the said section was necessary was that the document became operative on the death of the last surviving widow of Kahnu which admittedly took place when the Regulation was in force. It is however to be remembered that the penalty imposed by the aforesaid provision was not against devolution of an interest under a will but against alienation. The document in question, so far as it conferred rights upon the plaintiff, did not alienate any property in his favour. It was only a will containing a declaration of the intention of Kahnu with respect to his property which he desired to be carried into effect after his death. A will did not however come within the mischief of Section 3 of the Regulation. The only documents which under that section required the previous sanction of the Durbar were those purporting to alienate land temporarily or permanently by sale, mortgage, gift or exchange, or to create tenancy by way of lease for a period exceeding five years. I therefore hold that the document in question did not suffer for want of a sanction under Section 3 of the Regulation.