- (1.)THE facts which have given rise to this second appeal by the defendants may be stated as below: -
(2.)SMT. Barja Bai, the plaintiff-respondent filed a suit under sec. 183 of the Rajasthan Tenancy Act in the court of the Asstt. Collector Bundi against the appellant with the averment that Khasra No. 75, 76 and 77 in village Lakheri remained in the cultivatory possession of her husband Shri Gajanand upto Samwat 2009 when he died and that thereafter she succeeded his Khatedari rights, and that a mutation to this effect was also attested on 3.3.1956 by an order of the Tehsildar and the Collector concerned. It was alleged that the appellant, sometime in the month of July 1952, unlawfully took possession of this land and deprived the respondent from its peaceful enjoyment. It was prayed that the appellant be dispossessed as a trespasser. In reply, the appellant admitted that this land originally belonged to Gajanand who die4 in Samvat 2009. It was pleaded that the said Gajanand had adopted the appellant as his son on 12.6.1952 and executed a document Ex. A/1 of the same date bequeathing his property including this land to the appellant as his heir and that in pursuance of the said document the appellant came in possession of the entire property of the deceased including this land. It was also stated that he had been also paying maintenance allowance etc. to the respondent, liquidated the debts of the deceased and married his daughter. It was urged that the appellants* possession was, therefore, lawful and the respondent could not evict him as a trespasser. The trial court framed certain issues, recorded the evidence of the parties and eventually decreed the suit against the appellant and ordered his ejectment and also awarded damages to the extent of Rs. 632/13/- for the last six years. An appeal was filed before the learned Commissioner against the said judgment and decree of the trial court. The lower appellate court essentially discussed the effect of document Ex. A/1 on the rights of the parties in the light of the provisions of Secs. 19 and 20 of the Bundi Tenancy Act and confirmed the decision of the trial court. The defendant-appellant has now come in second appeal before us. The learned counsel for both the parties argued the case at some length.
The main contention of the learned counsel for the appellant is that he was the adopted son of the deceased who also executed the will in his favour transferring all rights over the immovable property of the deceased including the suit-land in favour of the appellant and that he was therefore an absolute owner thereof to the exclusion of the widow whom he had been paying some maintenance allowance in the form of cash and grain as stipulated in the original deed Ex.A/1. It was also argued that a transfer by means of will could be made under the Bundi Tenancy Act and the condition that sanction of the Revenue Commissioner should be obtained in order to validate it, as provided in Secs. 19 and 20 of the said Act, was something repugnant to the Constitution of India, as being a piece of discriminatory legislation. In this context we have examined the provisions of the Bundi State Tenancy Act 1942 as amended. The relevant provisions of the Act with which we will be concerned in this case, may be reproduced below: - Sec. 19 ; Subject to the previous sanction of the Revenue Commissioner, a Khatedar shall have the right to transfer his holding, or a part thereof, by exchange, will, sale, or mortgage. Sec. 20 : Any transfer of a holding of a Khatedar or a part thereof made without the previous sanction of the Revenue Commissioner as required by the foregoing Sec. 19. shall be deemed to be null and void;......... Sec. 21 : Every person, obtaining possession of a holding of a Khatedar, or any part thereof, in contravention of the provisions of the foregoing sec. 19 shall be deemed to be a trespasser within the meaning of sec. 53 of the Bundi Land Revenue Act, 1942, and shall be subject to the operation thereof.

It will be seen that sec. 19 permits a Khatedar to alienate his holding by means of a will. If the deceased, therefore, made a will there were nothing illegal about it, but a transfer by a will shall be operative and valid only if it received the sanction of the Revenue Commissioner and in case no such sanction was obtained, the transferee shall be deemed to be a trespasser.

In the present case it is admitted by the parties that no such sanction was ever obtained from the Revenue Commissioner. It, therefore, naturally follows that whatever may be the nature of the transaction, it could not be considered and held to be a valid transfer. This then poses another question before us namely whether sec. 20 of the Act imposing certain restrictions on transfers by Khatedars in the former Bundi State, was ultra vires of the Constitution of India as a piece of discriminatory legislation. Ordinarily, a decision on matters relating to the vires of an enactment after the coming into force of the Constitution is beyond the scope and competency of the Board of Revenue and the High Court of Judicature or the Supreme Court of India are alone competent to give their final verdict on such vital issues. Nevertheless in its bare outline and in the light of the arguments addressed to us we have, in our own way, applied our mind to this aspect of the question. It may or may not be true that similar restrictions on a transfer of Khatedari rights by means of will etc. were or were not imposed by similar enactments obtaining in other States of Rajasthan when the Constitution came into force. It was however pointed out to us that at least in the former Kota State, no such restrictions existed. It may be correct and we need not challenge it in these proceedings. The Bundi State before its merger with the present State of Rajasthan was a full fledged State governed by the Ruler with the help of galaxy of Ministers. The Bundi State Tenancy Act was an Act to consolidate and declares the law relating to the tenancy of land in Bundi State and it was promulgated in 1942 and made applicable to the whole of the State by a competent authority. The rights of tenants over their lands were defined and in order to ensure a sense of security and ameliorate the condition of the peasantry this Act was passed as a step towards progressive legislation. There were different classes of tenancies with different rights and liabilities in the various States and such of them like the Bundi State as had on enlightened form of administration passed the necessary enactment. In 1954 RLW 268 while discussing the Marwar Land Revenue Act and the Marwar Tenancy Act, the ` observed that "In the particular circumstances that came to exist in Rajasthan because of creation of the United State in 1949, some differences in laws have also come into existence. The mere persistence of these differences Would not be enough to hit all such laws as have given rise to differences, and make them invalid under Article 14. The Court has to see in each particular case the nature of the law, and to judge if that law is of a progressive character meant for the amelioration of the people of the particular State by which it was passed. If it is a law of that character, and if similar progressive laws do not exist in some States which integrated to form the State of Rajasthan, it would be wrong to declare such progressive and ameliorative measure invalid, and thus bring the progressive States back to the level of the un-progressive State".

In the light of the above observation we are of the view that the Bundi State Tenancy Act, 1942, which was in force in 1952, when aforesaid document purporting to be a will was executed by the deceased Gajanand in favour of the appellant, was a good law and we are unable to hold that it was, in any manner, hit by Article 14 of the Constitution. This being so, there is hardly any room to doubt that if any transaction was made contrary to the provisions of the Bundi State Tenancy Act, the same shall and must be regarded as null and void. In the present case admittedly the transaction was made by the deceased in 1952 and no sanction of the Revenue Commissioner, as contemplated in sec. 20 of the Bundi State Tenancy Act, was obtained and therefore it is not only invalid but in-operative. If any interest was thereby transferred to the appellant, he could not be held to be a person lawfully in possession of the land and must be regarded as a trespasser. In a similar case reported in RLW 1959 page 487, the provision of sec. 20 of the Bundi State Tenancy Act came up for an examination by the ` of Judicature. It was held that "any transfer of a holding of a Khatedar made without the previous sanction of the Revenue Commissioner shall be null and void. It is not open to the Civil Court to consider whether there was any fact or circumstance warranting refusal of sanction on the part of the Revenue Commissioner in the light of the provision of sec. 20, and to hold in the absence of such fact or circumstance that the grant of sanction was a mere matter of formality. In the absence of such sanction, the transfers would be null and void and would not pass any title". It was further observed that "where contracts or transactions are prohibited by positive statutes for the sake of protecting one set of men from another set of men, the one from their situation and condition being liable to be oppressed or imposed upon by the other, there the parties are not in pari delicto and in furtherance of these statutes, the person injured after the transaction is finished and completed may bring his action and defeat the contract". This authority has clearly re-cognised the statutory force of the provision of sec. 20 of the Bundi State Tenancy Act and the result of its non-compliance. It also safe-guarded the rights and interest of a person who may have been injured as a result of such invalid transactions. It will be seen from the facts of the present case as stated above that the widow of the deceased Gajanand who was an original heir to succeed the Khatedari rights of her husband and who was likely to suffer in perpetuity as a result of an invalid transaction had full authority under the law to bring an action against the transfree who, in terms of sec. 21 of the Bundi State Tenancy Act, was nothing more than trespasser. It was also suggested to us that as the widow continued to accept cash and grain from the transferee by way of maintenance as envisaged in the said document Ex. A/1, it was not open to her to challenge the legality or otherwise of the will in the name of the appellant. We are unable to see any force in this argument. In the first place, there is nothing on record to suggest that the said amount was ever accepted by the lady by way of maintenance in exchange for completely surrendering her claim to the property of her deceased husband; and secondly even for the sake of argument we might take it to be a case of voluntary acceptance of some sort of annuity, the widow cannot be said to have waived her rights to succeed her husband. It is significant to observe that the appellant who claims himself to be an adopted son of the deceased has failed to prove the factum of adoption. The trial court has given a finding on this and it has not been seriously challenged before us.

The trial court has examined the evidence of the parties and discussed the same in support of issues framed by it. He has come to the conclusion that the possession of the appellant over the land is illegal and that he is a trespasser of the land. The learned Commissioner also carefully examined this aspect of the case in particular and he also, after discussing the provisions of law referred to above, came to the conclusion that under Sec. 21 of he Bundi State Tenancy Act, the appellant will be deemed to be in possession as a trespasser, as the document Ex.A/1 does not transfer any legal right to the appellant. On the basis of the record before us and in the light of the foregoing discussion we are unable to take a different view in the matter. We, therefore hold that this appeal has no force and accordingly we direct that it shall stand dismissed.

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