Wanchoo, C. J. - (1.) THESE are two connected cases as the validity of the Marwar Patta Ordinance, 1921, which later came to be know as the Marwar Patta Act (hereinafter called the Patta Act), arises in both. We shall deal with them together as the point involved is common.
(2.) THE second appeal is by Tarachand and briefly the facts are these - Tarachand held a decree against the judgment-debtors respondents Maghelal and Askaran. A house of Maghelal and Askaran was sold in execution of the decree, and was purchased by Ramlal who is also a respondent in the appeal. Notice under O. XXI, r. 66 was issued to the judgment-debtors. THEy, however, did not appear during the course of the execution proceedings with the result that the house was sold in the manner provided in O. XXI of the Code of Civil Procedure. After the sale of the house, however, the judgment-debtors appeared in the execution court, and filed an objection under O. XXI, r. 90. THEir case was that there was material irregularity in the conducting of the sale inasmuch as the sale had been held against the provisions of sec. 22 (2) of the Patta Act. THEy, therefore, prayed that the sale be set aside. THE executing court dismissed the application remarking that such an objection could not be raised under O. XXI, r. 90. THEreupon, there was an appeal to the District Judge who apparently held that such an objection could be raised under O. XXI, r. 90, and sent the case back to the executing court for determining the question whether there was a Patta of the land or not, and then to decide the matter according to the provisions of sec. 21 (2) of the Patta Act. This order has been brought in second appeal to this Court. The matter came before a learned Single Judge, and as the point involved the validity of a piece of legislation, the following question has been referred to this Bench, namely "whether sec. 21 (2) of the Marwar Patta. Ordinance of 1921 is hit by Art. 14 of the Constitution. We may also briefly narrate the facts which have led to the writ application. These facts are that the applicant Bhikamchand purchased a house situate in village Sumerpur in the District of Pali. It seems that he has been asked to pay Rs. 407/2/- as Patta fees under sec. 16 (2) of the Patta Act. His contention is that he has got a registered sale-deed in accordance with the provisions of the Stamp Law and the Registration Act and that by virtue of that sale-deed he has acquired perfect title in the house in dispute including the site in view of the provisions of the Transfer of Property Act, and the demand of Patta fee under sec. 17 (2) of the Patta Act has become invalid after the coming into force of the Constitution as it is a discriminatory piece of legislation, and is hit by Art. 14 of the Constitution. It is pointed out that there is no similar law in force in any other part of Rajasthan, and that in those parts all that is necessary, in order to create title in a person who makes a sale-deed, is that he should be in possession of a registered sale-deed in accordance with the law relating to stamp and registration. The question, therefore, that falls for consideration, is whether these two sections of the Patta Act, namely secs. 17 (2) and 21 (2) are invalid now and hit by Art. 14 of the Constitution. No reply has been filed on behalf of the State. No one has appeared on behalf of the judgment-debtors in the second appeal, but the State was given notice of this appeal as the validity of a section of the law was raised therein. An analysis of the Patta Act would, in our opinion, be helpful in deciding the point raised about the validity of these two sections. The Act was passed in 1921, and deals with two matters. It may be mentioned that it applied only to Khalsa villages and not to Jagir villages. So it only applied to a small part of the territory of the former State of Marwar. The object of the Act was twofold. In the first place, it appears that the object was that all persons in possession of land belonging to the State should either produce a Patta for inspection, or should be compelled to take a Patta, and regularise their title to State lands in their possession. At the same time, provision was made that those, who took possession of State lands after the corning into force of the Patta Act, should do so only after applying for a regular Patta and paying what was called the site value of the land, which really meant its price. The Patta did not provide for any reservation of rent, and thus was more or less an out and out sale subject to the right of the sovereign to escheat the property according to the conditions prevalent in the former State of Marwar. The second object of the Act was to tax transfers of land of which Patta had been granted by the State. The present two cases are concerned with transfers of land by sale or gift, and we shall confine ourselves to those provisions of the Patta Act, which deal with such transfers. We begin with sec. 6; sub-sec. (1) of that section deals with obtaining of Patta by those in possession of land on the date of the coming into force of the Patta Act, and also of obtaining Patta in future by those who wanted to occupy land. Sub-sec. (2) deals with the cases of those who come into possession of land covered by a Patta and requires that these persons shall renew the Patta in their own name. This provision is, however, subject to two provisos, namely that it would not apply to those who come into possession of the Pattashud land by inheritance or succession, and that such persons were not bound to renew the Patta, and even if they wanted to do so they could get it done on a nominal payment of a fee of Rs. 5/4/- only. In order to enforce sec. 6 (2) of the Patta Act, sec. 8 prohibited registration of documents transferring title unless the transferee produced a Patta therefor, whether in the name of the transferor or his predecessor-in-interest, or satisfied the Registration Department that the transferee had applied for a Patta. Secs. 9 to 16 deal with procedural matter about the issue of Pattas, and need not be referred to. Then comes sec. 17; sub sec. (1) of that section deals with the first class of cases, namely those who are entitled to apply for Patta by virtue of their possession. Sec. 17 (2) deals with the cases of transfers and provides that any person, who, after the coming into force of the Patta Act, obtains possession of any land by transfer from a person who has a Patta in his own name, may be granted a renewal of such Patta on payment of 10% of the present site value. Reading this sub-section with sub-sec. (2) of sec. 6, it is at once clear that a person is bound to apply for Patta in his own name, and is bound to pay 19% of the present site value, though, because of the use of the word 'may' in sec. 17 (2) the State had the right to refuse the renewal of the Patta. It is this provision, namely sec. 17 (2), which is being attacked in the writ applications as illegal on the ground of being discriminatory. Sec. 18 deals with granting of Pattas on the basis of possession, and we are not concerned with it. Sec. 19 deals with certain penalties which apply in the case of transfers also. But it is a mere procedural, and if the main provisions relating to transfer are held invalid, sec. 19 will be of no effect so far as case of transfer are concerned. Sec. 20 provides for issue of Patta in case of loss, though we must say that the fee provided upto 10% of the site value for replacement of such Patta appears extraordinarily high. Then comes sec. 21. Sub-sec. (1)of sec. 21 provides for charging 10% of the site value in case of auction sales just like sale by private treaty provided by sec. 17 (2 ). Sec, 21 (2), which is also one of the sections attacked, prohibits transfer in any shape or from of non-Pattashud land the courts are enjoined not to sell such land at auction in execution of a decree. Sub-sec. (3) provides that in case any land has been sold in disregard of sub-sec. (2) the matter has to be reported to the Mehkma Khas, and Mehkma Khas may ,on such report either cancel the sale or make such order as it thinks fit. We need not refer to the order sections of the Act for they deal with consequential matters arising out of the previous sections and provide for appeals, and power of the Government to frame rules, and so on. This analysis, therefore, shows that in the present case we are concerned mainly with secs. 6 (2), 8, 17 (2), 21 (1) and 21 (2 ). These five provisions are the substantive provisions which provide that where land is transferred in Khalsa villages in the territory of former Marwar State, whether there is a Patta in existence from before of that land or not, the transferee has to pay 10%of the site value, and has to obtain a renewal Patta. He is bound to do so in view of the provisions of secs. 6 (2) and 17 (2 ). And if it is a case where there is no Patta in existence from before, the sale-deed would not be registered under sec 8, and the courts are prohibited from selling lands of which no Patta is available. It is obvious that the provision relating to the charging of 10% of the site value such transfers amounts to taxation on sales or gifts of land in Khalsa villages, unless the case is covered by sec. 23 when only a fixed fee is charged. We have already pointed out that the manner, in which the Patta is issued under the Patta Act, shows that it really evidences the sale of the site. Thereafter, if the State makes any charge in the nature of 10% of the site value, it is really taxing the sale or gift, for there are separate provisions for imposition of fees as will be clear from sec. 36 of the Patta Act, and the power given there to make rules for the imposition of fees of various kinds in this connection.
(3.) THE first question, therefore, that arises is whether such a tax, which is imposed by secs. 17 (2), 21 (1), or 24 in the case of gifts can now be upheld when we know there is on similar provision in other parts of Rajasthan. We are clearly of opinion that Art. 14 hits these provisions relating to taxation in case of Pattas of this kind on transfer by sale or gift for such tax only exists in that part of the State of Rajasthan, which was covered by the former State of Marwar and that too only in Khalsa village. In other parts of Rajasthan, the person who obtains a sale-deed after paying the requisite stamp duty and registration fees, becomes the owner of the property, and there are no restrictions on his right of ownership of any kind. Only in Khalsa villages, however, of the farmer State of Marwar, there is this further law which requires an extra payment 10% of and compels the person, who purchases the property, to apply for a Patta, and pay this extra tax. We are therefore, of opinion that secs. 6 (2), 8, 17 (2), 21 (2) and 24, so far as they relate to taking of Pattas on the occasion of transfer by sale or gift, are now invalidated under Art. 13 of the Constitution read with Art. 14. As for sec. 21 (2), that provision forbids the courts from selling non-Pattashud land execution of a decree. This was provided in order to sale-guard the rights of the State in the matter of getting its 10% on all sales in Khalsa villages. As the main provision relating to this based on transfers has failed, the sub-section also, in our opinion, becomes invalid. Further, it may be pointed out, that there is no similar law in other parts of the State of Rajasthan which prohibits the courts from selling, what is called, non-Pattashud land. It is enough to point out that sale by a court passes such title as the person,, whose land is sold, possesses, and the court does not guarantee the title of the person whose property is being sold. The person, who purchases the property, does so at his own risk, and in these circumstances we fail to see why there should be this discrimination in that part of Rajasthan which was covered by the former State of Marwar and why the courts should not sell non-Pattashud land in Khalsa villages in this part of Rajasthan, when they can do so, and are doing so in other parts of Rajasthan. We are, there, of opinion that sec. 21 (2) of the Act is so also now invalid in view of Art. 13 of the Constitution read with Art. 14. We may point out that there are other consequential and procedural provision dealing with this matter of transfer of lands. It is enough to say that when these six main provisions have fallen, any consequential or procedural provisions relating to such sale or gift also fall. We, therefore, answer the question put to us in the second appeal as follows: - "sec. 21 (2) of the Marwar Patta Ordinance of 1921 has become invalid after 26. 1. 50 as it is hit by Art. 14 of the Constitution. " As there are no further questions involved in this appeal, and as learned counsel have no objection to our disposing of the whole appeal, we propose to do so. We, therefore, allow the appeal, set aside the order of the District Judge, and restore the order of the Civil Judge dismissing the application under O. XXI, r. 90, though on a different ground. In view of the circumstances, we order parties to this appeal to bear their own costs in this Court and the District Judge's Court. The decree-holder will get his costs of the executing court from the judgment-debtors. ;