STATE OF J&K Vs. SPECIAL TRIBUNAL, J&K
LAWS(J&K)-1999-5-24
HIGH COURT OF JAMMU AND KASHMIR
Decided on May 26,1999

STATE OF JANDK Appellant
VERSUS
Special Tribunal, JAndK Respondents

JUDGEMENT

- (1.) THE only question involved in this petition challenging the order dated 28 -08 -1998 passed by the Special Tribunal is whether Å ''Settlement  or Å ''Tamliknama  (Urdu connotation) is a recognized mode of transfer of immoveable property and if so whether the Deed of Settlement executed by Thakur Dass transferring land in favour of his sons before the 1st day of September, 1971, offends any of the provisions of Agrarian Reforms Act, 1976 for short the Act so as to hold that he (Thakur Dass) continued to be owner of the transferred land within the meaning of Section 2(11) of the Act. This question has arisen because father of the private respondents Thakur Dass owned land measuring 495 Kanals 11 Marlas in Village Tarapur, Tehsil Samba. He transferred land measuring 93 Kanals 11 Marlas in favour of the private respondents vide Settlement Deed dated 27 -01 -1971. On the basis of this Settlement Deed by order dated 16 -02 -1971, Mutation No. 7 was also attested in favour of the private respondents. But the Tehsildar Samba while implementing the Agrarian Reforms Act, held that Thakur Dass and the private respondents constituted one family and therefore the former continued to be the owner of the entire holding as head of the family. The transfer of land by Thakur Dass in favour of his sons according to the Tehsildar Samba had no consequence because the private respondents continued to be members of the family of Thakur Dass as they were either unmarried or minors. This order of the Tehsildar dated 05 -07 -1981 passed in Mutation No. 12 was challenged by the private respondents in an appeal before the Commissioner Agrarian Reforms and then in revision before the Special Tribunal. The order of the Financial Commissioner dated 03 -06 -1997 indicates that the Special Tribunal vide order dated 27 -12 -1991 remanded it to the former for passing fresh order. The Financial Commissioner by order impugned has confirmed the order passed by Tehsildar holding that settlement is not a valid instrument of transfer under the Transfer of Property Act. He also held that since Thakur Dass and the private respondents constituted a family as defined under the Agrarian Reforms Act and therefore the entire land owned by the former would be deemed to his property irrespective of the deed of settlement executed by him.
(2.) THIS order has been set aside by the Special Tribunal holding the private respondents as owner of the property by virtue of Settlement deed executed and registered prior to 1st of September, 1971. The only ground of challenge is that private respondents being unmarried at the time the Agrarian Reforms Act came into force, they constituted one family with their father and, therefore, could not own separate property if it had been transferred to them prior to the coming into force of the Act.
(3.) THE findings of the Financial Commissioner impugned before the Special Tribunal are two -folds: - i) That Settlement or Tamliqnama is not an instrument of transfer under the Transfer of Property Act and as such was rightly rejected by the Tehsildar while attesting Mutation No. 12 in terms of which land owned by Thakur Dass in excess of the ceiling area vested in the State under the Act; and ii) That private respondents being unmarried at the time Settlement Deed was executed in their favour were members of the family of Thakur Dass their father and, therefore, could not own separate property. With regard to the document of Settlement the findings of the Financial Commissioner are as follows: - Å ''The only point for consideration on which the claim of the petitioners is based, is whether they constituted separate families as defined under Agrarian Reforms Act to warrant retention of separate ceilings. In this regard the claim of the petitioner relies on Tamliqnama and the factum of their cultivating possession as per entries in the revenue records. Tamliqnama is not reckoned as a valid instrument of transfer of property. The Transfer of Property Act indicates the mode by which the transfer can take place. Even if it is presumed to be a family settlement, it still has to comport with the provisions of law. If Tamliqnama is accepted, still the father namely Shri Thakur Dass could not have alienated or settled the whole of the landed property which is proved to be ancestral. The right of alienation by Shri Thakur Dass could be limited to his share viz l/5th of the share of the landed property. It is, therefore, clear that neither the Tamliqnama can be relied upon as a valid instrument for transfer of property nor it creates a conclusive evidence for settling the land as it is not in conformity with the provisions of law. ;


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