Madhya Pradesh High Court
Ankush Tiwari vs The State Of Madhya Pradesh on 17 February, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 17th OF FEBRUARY, 2025
SECOND APPEAL NO. 2837 OF 2022
ANKUSH TIWARI
VS.
THE STATE OF MADHYA PRADESH & OTHERS
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Appearance:
Shri Ashok Kumar Jain - Advocate for the appellant
Shri Girish Kekre with Shri Alok Agnihotri - Government Advocates
for the respondent/State.
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Reserved on: 28.11.2024
Pronounced on : 17.02.2025
JUDGMENT
This appeal is under Section 100 of the Code of Civil Procedure
assailing the judgment and decree dated 16.11.2022 passed by V
Additional District Judge, Katni in Civil Appeal RCA No. 66/2022
dismissing the same affirming the finding given by the trial court
dismissing the suit i.e. Civil Suit No. RCSA 318/2021 decided by order
dated 20.06.2022.
2. This appeal is of 2022 and was admitted on 24.09.2023 on the
following substantial question of law:-
"Whether the courts below were justified in
holding that the appellant did not derive any
right, title or interest in the land through the
Will executed by late Lagni Bai because of
the prohibition contained in Section 165 of
the Land Revenue Code.?"
3. Before answering the submission made by the learned counsel for
the parties and also the substantial question of law framed by the Court
while admitting the appeal, necessary facts of the case are required to be
mentioned:
4. A civil suit was filed by the plaintiff/appellant seeking declaration
of title and permanent injunction saying that the land situate at Village
Bichhiya Survey No. 03 area measuring 1.570 hectare and Survey No. 4
area measuring 2.050 hectare, the land of village Gulwara Survey No. 408
area measuring 4.440 hectare, land of village Gaitra Survey No. 403 area
measuring 0.430 hectare and Survey No. 404 area 0.430 hectare and the
land of Village Badagaon Survey No. 1504 area 0.410 hectare and Survey
No. 1505 area measuring 0.390 hectare owned and possessed by him and
a decree in this regard be passed and consequent upon the said decree, the
respondents be restrained permanently from interfering in the peaceful
possession of the plaintiff over the suit lands. All the suit lands originally
belonged to one Lagnibai having no legal heirs and she was being taken
care of by the plaintiff who was looking-after her in her lifetime. Lagnibai
considering all these aspects, in full sensibility, executed a Will on
21.12.2020 and at the time of executing the same, some Chandrabhan
Dubey and Anand Kumar Barman came with her at Tahsili Court. The
said Will got notarized before the Notary, who verified the thumb
impression of Lagnibai. She died on 08.03.2021 and after her death,
plaintiff became the owner all her land and was also in possession of the
same. In the revenue record, the land is still recorded in the name of
Lagnibai. Since the Revenue Court could not mutate the name of the
plaintiff on the basis of Will, therefore, plaintiff had no other option but to
file a suit. According to the plaintiff, the Will was not a document of
transfer and as such he was not required to take any permission from the
Collector. Hence, it was claimed in the suit that on the basis of Will dated
21.12.2020, the plaintiff was entitled to get a decree of declaration and
permanent injunction.
4.1 Since the defendants/respondents remained ex-parte, therefore, the
trial court proceeded in the matter so as to decide the issue as to whether
plaintiff was entitled to get a declaration, as has been claimed by him in
the suit, and also entitled to get the decree of permanent injunction or not.
4.2 The plaintiff in support of his claim produced several documents
and also the witnesses, who supported the stand of the plaintiff, as was
taken in the plaint.
4.3 The trial court finally dismissed the suit and refused to grant any
decree in favour of the plaintiff mainly on the ground that Lagnibai
belonged to scheduled tribe category and if any transaction was to be
made in favour of a non-tribe person then as per Section 165(6) of the
M.P. Land Revenue Code, 1959 (For brevity 'Code, 1959'), permission
from the Collector for transferring the land had to be obtained, but there
was no such permission and therefore, decree, as claimed by the plaintiff,
cannot be granted.
4.4 An appeal was preferred under Section 96 of the Code of Civil
Procedure to challenge the judgment and decree passed by the trial court
dismissing the suit of the plaintiff/appellant. The appeal was registered as
RCA No. 66/2022 and decided by the impugned judgment and decree
dated 16.11.2022 wherein the appellate court had also considered the
respective provision of Section 165(6) of the Code, 1959 and found that
without permission of the Collector, transfer as made by Lagnibai in
favour of plaintiff was illegal and void and as such the same deserved to
be set aside and finally the appellate court found that the plaintiff failed to
prove his case and the trial court had rightly dismissed the suit. As such,
appeal was also dismissed.
5. Learned counsel for the appellant has submitted that the
transaction, which is involved in the present case, was through a Will. He
has submitted that if a Will is executed by a tribe then no permission of
the Collector is required because the Will does not come within the ambit
of requirement as provided under sub-section (6) of Section 165 of the
Code, 1959 and therefore, both the judgments and decree passed by the
courts below are contrary to law and deserve to be set aside.
6. Learned counsel for the appellant in support of his contention has
placed reliance upon the following judgments:
1. State of West Bengal and another vs. Kailash Chandra
Kapur and others - AIR 1997 SC 1348
2. WP No. 4542/2012 - Rajalal vs. Komal Singh decided
by the High Court of M.P. by order dated 04.03.2014.
3. Laxmi Bai (Smt.) vs. State of Chhattisgarh decided by
the Chhattisgarh High Court by order dated 05.05.2009 in
a Writ Petition filed under Article 226/227 of the
Constitution; and
4. Ghanshyam vs. Yogendra Rathi - 2023 LiveLaw (SC)
479.
7. Learned counsel for the respondent has opposed the submission
made by the learned counsel for the appellant and submitted that as per
the settled legal position, both the courts below have rightly dismissed the
suit and the appeal preferred by the appellant. He has also placed reliance
upon a judgment reported in 1993 MPLJ 80 -Chambaram vs. Chanda
& others .
8. Thus in view of the submission made by the learned counsel for the
parties and the substantial question of law framed by this Court, the only
question remains to be adjudicated as to whether transaction made by the
original owner Lagnibai transferring her rights and title of the lands in
question in favour of plaintiff could have been done by her without
seeking permission of the Collector, as required under Section 165 of the
Code, 1959 or not. At this stage, it would be proper to reproduce the sub-
section (6) of Section 165 of the Code, 1959 and also to take note of the
judicial pronouncements on the issue relied upon by the learned counsel
for the parties, which are as under:-
"165 (6) [Notwithstanding anything contained in
sub-section (1) the right of bhumiswami
belonging to a tribe which has been declared to
be an aboriginal tribe by the State Government
by a notification in that behalf, for the whole or
part of the area to which this Code applies shall-
(i)in such areas as are predominately inhabited by
aboriginal tribes and from such date as the State
Government may, by notification, specify, not be
transferred nor it shall be transferable either by
way of sale or otherwise or as a consequence of
transaction of loan to a person not belonging to
such tribe in the area specified in the notification;
(ii)in areas other than those specified in the
notification under clause (i), not to be transferred
or be transferable either by way of sale or
otherwise or as a consequence of transaction of
loan to a person not belonging to such tribe
without the permission of a Revenue Officer not
below the rank of Collector, given for reasons to
be recorded in writing."
The Calcutta High Court in case of Kailash Chand (supra) has
observed as under in respect of the transaction made through a Will:
"12. In view of the above-settled legal position, the
question is whether the bequest made by Mullick in
favour of the respondent is valid in law and
whether the Governor is bound to recognise him. It
is seen that clauses (7), (8) and (12) are
independent and each deals with separate situation.
Clause (7) prohibits sub-lease of the demised land
or the building erected thereon without prior
consent in writing of the Government. Similarly,
clause (8) deals with transfer of the demised
premises or the building erected thereon without
prior permission in writing of the Government.
Thereunder, the restricted covenants have been
incorporated by granting or refusing to grant
permission with right of pre-emption. Similarly,
clause (12) deals with the case of lessee dying after
executing a Will. Thereunder, there is no such
restrictive covenant contained for bequeath in
favour of a stranger. The word "person" has not
been expressly specified whether it relates to the
heirs of the lessee. On the other hand, it postulates
that if the bequest is in favour of more than one
person, then such persons to whom the leasehold
right has been bequeathed or the heirs of the
deceased lessee, as the case may be, shall hold the
said property jointly without having any right to
have a partition of the same and one among them
should alone be answerable to and the Government
would recognise only one such person. In the light
of the language used therein, it is difficult to accept
the contention of Shri V.R. Reddy, that the word
"person" should be construed with reference to the
heirs or bequest should be considered to be a
transfer. Transfer connotes, normally, between two
living persons during life; Will takes effect after
demise of the testator and transfer in that
perspective becomes incongruous. Though, as
indicated earlier, the assignment may be prohibited
and the Government intended to be so, a bequest in
favour of a stranger by way of testamentary
disposition does not appear to be intended, in view
of the permissive language used in clause (12) of
the covenants. We find no express prohibition as at
present under the terms of the lease. Unless the
Government amends the rules or imposes
appropriate restrictive covenants prohibiting the
bequest in favour of the strangers or by enacting
appropriate law, there would be no statutory power
to impose such restrictions prohibiting such
bequest in favour of the strangers. It is seen that the
object of assignment of the government land in
favour of the lessee is to provide him right to
residence. If any such transfer is made contrary to
the policy, obviously, it would be defeating the
public purpose. But it would be open to the
Government to regulate by appropriate covenants
in the lease deed or appropriate statutory orders as
per law or to make a law in this behalf. But so long
as that is not done and in the light of the permissive
language used in clause (12) of the lease deed, it
cannot be said that the bequest in favour of
strangers inducting a stranger into the demised
premises or the building erected thereon is not
governed by the provisions of the regulation or that
prior permission should be required in that behalf.
However, the stranger legatee should be bound by
all the covenants or any new covenants or statutory
base so as to bind all the existing lessees."
Emphasis supplied
In case of Laxmibai (Supra), the Chhattisgarh while dealing with
the provisions of Section 165 of the Code, 1959 has also observed as
under:-
"12. The differences between a transfer and a Will
are well recognized. A transfer is a conveyance of
an existing property by one living person to
another (that is a transfer intervivos). On the other
hand, a Will does not involve any transfer, nor
effect any transfer intervivos, but is a legal
expression of the wishes and intention of a person
in regard to his properties which he desires to be
carried into effect after his death. In other words, a
Will regulates succession and provides for
succession as declared by it (testamentary
succession) instead of succession as personal law
(non-testamentary succession). The concept of
transfer by a living person is wholly alien to a Will.
When a person makes a Will, he provides for
testamentary succession and does not transfer any
property. While a transfer is irrevocable and comes
into effect either immediately or on the happening
of a specified contingency, a Will is revocable and
comes into operation only after the death of the
testator. Thus, to treat a devise under a Will as a
transfer of an existing property in future, is
contrary to all known principles relating to transfer
of property and testamentary succession. Thus, the
definition of 'Will' under the provisions of Indian
Succession Act, 1925 and the judicial
pronouncements as stated hereinabove, make it
clear that the 'Will' is not a transfer of the property
as transfer takes place between two living persons
and the 'Will' comes into effect after death of the
executor. This does not involve any transfer
intervivos. Section 164 of the Land Revenue Code
provides for devolution of the interest of
Bhumiswami on his death either passed by the
inheritance, survivorship or bequest, as the case
may be. The same is subject to personal law of the
Bhoomiswami. Thus, the application under Section
165 of the Land Revenue Code, seeking permission
of the Collector was ill advised and misconceived.
The entire exercise done by the Collector, seeking a
report from the Tehsildad and Sub Divisional
Officer is void ab initio, as the same has no
sanction of law. Similarly, calling of the report
inviting objections from the other persons also was
a nullity. The observation of the authorities below
that the petitioner approach to the civil forum for
redressal of her grievance has also been passed
without authority of law. Thus, the application of
the petitioner for permission to the Collector, at this
stage, is not maintainable under Section 165 of the
Land Revenue Code. Accordingly, this petition is
allowed to the above extent. No order as to costs."
In case of Rajalal (supra), the High Court of M.P. has placed
reliance upon the decision of Chhattisgarh passed in the case of Laxmibai
has also observed as under:-
"7. SECTION 164 of MPLRC deals with
devolution, whereas, sections 165 of the Code talks
about "rights of transfer". Section 164 of the Code
makes it clear that interest of Bhoomiswami shall,
on his death, pass by inheritance, survivorship or
bequest. Thus, the right accrued to the legal
representatives on the death of Bhoomiswami are
to be dealt with as per section 164 of the Code.
Section 165 deals with transfer. The Indian
Succession Act, 1925 defines ''will'' u/s 2(h) which
reads as under:-
2(h). "Will" means the legal declaration of
the intention of a testator with respect to his
property which he desires to be carried into
effect after his death."
The Supreme Court in case of Ghanshyam (supra) while dealing
with the provision of Section 54 of the Transfer of Property Act, 1882 has
observed as under:-
"9.No doubt, agreement to sell is not a document
of title or a deed of transfer of property by sale and
as such, may not confer absolute title upon the
plaintiff-respondent over the suit property in view
of Section 54 of the Transfer of Property Act, 1882,
nonetheless, the agreement to sell, the payment of
entire sale consideration as mentioned in the
agreement itself and corroborated by the receipt of
its payment and the fact that the plaintiff-
respondent was put in possession of the suit
property in accordance with law as is also
established by the possession memo on record,
goes to prove that the plaintiff-respondent is de-
facto having possessory rights over the property in
part performance of the agreement to sell. The
possessory right of the plaintiff-respondent is not
liable to be disturbed by the transferer, i.e., the
defendant-appellant. The entry of the defendant-
appellant over part of the suit property
subsequently is simply as a licencee of the
plaintiff-respondent. He does not continue to
occupy it in capacity of the owner.
13.Similarly, the Will dated 10.04.2002 executed
by the defendant-appellant in favour of the
plaintiff-respondent is meaningless as the Will, if
any, comes into effect only after the death of the
executant and not before it. It has no force till the
testator or the person making it dies. The said stage
has not arrived in the present case and, therefore,
even the aforesaid will in no way confers any right
upon the plaintiff-respondent."
As per the respondents, the High Court of M.P. in the case of
Chambaram (supra) has very specifically dealt with the respective
provision of Section 165(6) and observed as under:-
"16. Any other interpretation of the term 'transfer'
occurring in section 165(6) of the M.P. Land
Revenue Code, 1959, would defeat the purpose
behind its enactment and would open gates for
tricks and designs being adopted by unscrupulous
land greedies to deprive aboriginals of the land
held by them. It is a judicially noticeable fact that
aboriginals are liberally granted land by the State,
mostly on priority basis, with the object of settling
them and for their upheaval. If only the theory of
extinction of title of the aboriginals and acquisition
of title in non-aboriginals by resort to the plea of
'adverse possession' was to be recognised it would
not be difficult to find out cases where non-
aboriginals would purchase the land though
prohibited by law and then file suits of the nature
as is at hand, compelling or persuading the
aboriginal holders in conceding to the claim and
thereby securing transfer of title in disguise.
17. This Court is definitely of the opinion that the
term 'transfer' as occurring in section 165(6) of the
Code is not to be given restricted meaning, also not
to be read in the light of the definition given in
section 5 of the Transfer of Property Act. It has to
be liberally construed, assigning an extended
meaning so as to cover every contingency which
results in depriving the aboriginal holder of the title
and vesting the same in any non-aboriginal. That
interpretation only would satisfy the Legislative
intent and the laudable public purpose behind."
9. Considering the aforesaid enunciation of law it is clear that in all
the aforesaid cases relied upon by the learned counsel for the parties, the
Courts have considered different aspects of sale and transfer and also
considered the requirement of seeking permission in respect of the land
which is held by a person from the State Government and a person
acquiring Bhumi Swami rights or occupancy land is granted by the State
Government or he is a licensee of the Government and later on becomes
Bhumi Swami then the said land without permission of the revenue
officer below the rank of Collector cannot be transferred. In case of
Chambaram (supra), the High Court of M.P. has very specifically dealt
with the respective provision i.e. Section 165(6) of the Code, 1959 and
also considered the very object of the Statute for formulating such a
provision putting rider upon transfer of land belonging to tribes and also
considered that if mode of Will is used for transferring a land then as to
how and in what manner the very purpose of putting rider to save the
interest of the tribes would be frustrated. Not only this, but the Court has
also held that the suit cannot be decreed only because the defendants have
not contested the same and observed that it is the duty of the Court to see
that even in absence of any opposition the claim, if any, is raised by the
plaintiff is lawful then only the decree can be granted.
However, learned counsel for the appellant by relying upon the
judgments has tried to emphasize that the transfer by way of a Will has
not been considered to be a document of transfer of title as per Section 54
of the Transfer of Property Act and therefore, as per the language used by
the Statute under Section 165(6) of the Code, 1959, the document of Will
is not a document of transfer of title and therefore, the Will does not fall
within the ambit of requirement of Section 165(6) of the Code, 1959. The
Supreme Court recently in case of Sanjay Sharma vs. Kotak Mahindra
Bank Ltd. & Ors - SLP (C) No. 330/2017 decided by order dated
10.12.2024 has observed as under:
"27. Section 54 of the Transfer of Property Act, 1882,
defines a "sale" as the transfer of ownership in
exchange for a price that is either paid, promised, or
part-paid and part-promised. This provision further
describes the manner in which a sale is effected. It
stipulates that, in the case of tangible immovable
property valued at one hundred rupees or more, the
transfer can be made only through a registered
instrument. The use of the term "only" signifies that,
for tangible immovable property valued at one
hundred rupees or more, a sale document lawful only
when it is executed through a registered instrument.
Where the sale deed requires registration, ownership
does not pass until the deed is registered, even if
possession is transferred, and consideration is paid
without such registration. The registration of the sale
deed for an immovable property is essential to
complete and validate the transfer. Until registration is
effected, ownership is not transferred.
29. This Court in Babasheb Dhondiba Kute vs. Radhu
Vithoba Barde in SLP(C) No.29462 OF 2019 held that
the conveyance by way of sale would take place only
at the time of registration of a sale deed in accordance
with Section 17 of the Registration Act, 2008. Till
then, there is no conveyance in the eyes of law."
But, still this Court is of the opinion that the High Court in the case
of Chambaram (supra) has not only considered the scope of Section
165(6) of the Code, 1959, but has also considered the very object of the
word 'transfer' in the respective provision and also observed that the
word 'transfer' should be interpreted in a particular manner so as to
consider the object of word 'transfer' and its significance to that of the
object putting embargo for seeking permission of the Collector before
transferring the land holding by aboriginal tribe to a non-aboriginal.
10. In view of the aforesaid, this Court has no reason to take a different
stand than the stand taken by the Court in case of Chambaram (supra).
I do not find any weakness in the opinion of the Court so as to defer with
the same, and, in fact, I am also of the opinion that if such type of
transaction is approved only because the said transaction does not come
within the purview of Section 54 of the Transfer of Property Act, the very
purpose of formulating the respective provision by the makers of law
would become redundant and the sole purpose of putting rider on such
transactions would be frustrated and as such I don't find that both the
courts below have committed any illegality holding that the decree of
declaration cannot be granted in favour of plaintiff/appellant.
11. Appeal dismissed.
(SANJAY DWIVEDI)
JUDGE
Raghvendra
RAGHVENDRA
SHARAN SHUKLA
2025.02.18
14:53:56 +05'30'
