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Judgment
Bhat, J.
(1) This is a civil second appeal against the decree passed by the learned District Judge, Anantnag dated 981968 whereby he accepted an appeal
against a decree passed by the Sub Judge Anantnag. on 2361965 The respondent had brought a suit against the appellant for possession of 53
kanals 5 marlas of land in Khawat No 89, 3 marlas, 90, 15 marlas, 91, 1 kanal 13 marlas, and Kh. No 92, 59 kanals 17 marlas, 93, 14 marlas,
and 118, 15 marlas situate in village Shangas left bebehind by Rasul Ganai and a declaration that the defendant No. 1 Ahad Wani was not the
PissarParwada of Rasool Ganai. The plaintiff?, averred that Rasool Ganai, their collateral had died issueless and the plaintiffs and the proforma
respondents other than respondent No, 1 were entitled to his property described above, the defendant No. 1 was giving himself out as Rasool's
PissarParwardha which in fact he was not
(2) The present appellant Ahad Wani stated that he was the PissarParwardha of Rasool Ganai and the deceased had executed a will in his favour
on 3112002. He was entitled to the property of the deceased.
(3) On the pleadings of the parties, the following issues were framed :
(1) Whether Rasool Ganai deceased has executed any will in favour of Ahad Wani. if so, what was its effect upon the suit ?
(2) In case of proof of issue No : 1, whether Ahad Wani was entitled to get the land left behind by Rasool Ganai. If so, to what extent ?
(3) Relief.
(4) This case had a some what chequered career. The trial court of Sub Judge initially decreed the suit by his order dated 31121958 and an
appeal was preferred before the Additional District Judge, Srinagar, which was accepted on 313196L remanding the case to the trial court. The
trial court then dismissed the suit by his order dated 1361°65 and on appeal the District Judge Anantnag by his order dated 27121968 again
remanded the case to the trial court. Against this order of the D strict Judge Anantnag an appeal was preferred to this court which was accepted
and the District Judge Anantnag was directed to dispose of the appeal on the material already on the file. The District Judge by his order under
appeal accepted the appeal of the plaintiff and the defendant respondent has come up in appeal to this court.
(5) We have heard the learned counsel for the parties.
(6) It has been held by both the courts that under custom an, agriculturalist in the Kashmir Valley can affect disposition of his entire property, by
will, there being no limit to his testamentary powers. Therefore, on this point both courts have held that Rasool Ganai could will away the entire
property in favour of Ahad Wani. The will has also been held to be proved by both the courts. The only point for determination is how much of his
landed property could Rasool Ganai will away, under the laws promulgated by the State on the subject. The trial court had held that Rasool Ganai
could will away the entire property; but the District Judge has held that under the Big Landed Estates Abolition Act, 2007, Act No; XVII of 2007
(hereinafter referred to as ""the Act"" in this Judgment Rasool Ganai's will about his landed propery could have no effect. He has further held that in
view of the Land Alienation Tenancy Restriction Ordinance (hereinafter referred to as ""the Ordinance'' in this judgment) Ahad Wani could not get
any land left behind by Rasoo1 Ganai. The argument of the learned counsel for the appellant is that she District Judge has entirely misconstrued the
provisions of the Act or the Ordinance. According to him the proviso to Section 5 of the Land Alienation Act prohibited alienation of more than
onefourth of the land belonging to a member of an agriculturist class for a period of ten years from October 1934 but ""fourteen years"" were
substituted for the words ""ten years'' by Ordinance No: 7 of 2001 which would mean that the prohibition to alienate permanently agricultural land
beyond onefourth by a member of an agriculturist class would continue upto 10th Oct : 1948 This will has been executed on 3112002 which is
somewhere in the year 1915 when the prohibition was still there. According to Mr. Raina's argument on this point the prohibition was not absolute
but the Deputy Commissioner could sanction permanent alienation of more than onefourth of land belonging to an agriculturist under the 2nd
proviso to sec 5 The prohibition in the Act spent its force after 2nd October 1948. Even if this will is bit by Section 2(3) of the Land Alienation
Act as the will was executed during the prohibition period the invalidity would be cured because the testator Rasool Ganai could get the sanction of
the Deputy commissioner for executing this will upon his death which has taken place somewhere in the year 2010. Therefore after 2101948 there
was no necessity of getting the sanction and the will would be operative without the sanction of the Deputy Commissioner.
(7) According to the learned counsel for the appellant a will becomes effective en the death of the testator For this purpose he has referred to two
authorities viz: AIR 1929 P. C 121 and AIR 129 Pat 85.
In AIR 929 P C. 121 it is held that:
The will of a testator without any intimation there to be found of any contrary intention, must in relation to the property comprised in it be regard d
as speaking from his death, and its validity with reference to the devise of any particular property thereby made must depend upon the testator's
statutory or other lawful disposing power over the property at that time.
(8) In AIR Patna 585 it has been held that :
The word ""will"" is widely known and used, and it has a well understood significance as meaning of disposition which is to take effect on the death
of a person...
(9) His other argument is that the learned District Judge has misapplied the provisions of the Act to the facts of this case' Section 4 of the Act lays
down in what land the rights of ownership of a proprietor shall be extinguished and Sec. 7 of the Act further gives a further list of property which
shall be held to be land for purposes of Sec. 4 and Section 7 (v) of the Act says that :
Lands which after the dare of commencement of the Land Alienation (Temporary Powers) Restriction Ordinance, 2C05, in the Kashmir Province
and after the date of commencement of the Jammu Province Land Alination (Temporary Powers) Restriction Ordinance, 2006, in the Province of
Jammu, have without any valid authority, been transferred by the proprietor by sale, gift, bequest, family settlement or change made for the
purpose if consolidation of holdings"".
shall be deemed to be the land for purposes of Sec. 4 which in other words means that any transfer of land by sale, gift, bequest, etc. shall not
effect the nature of the land if the transfer has been made after the Ordinance so far as Kashmir is concerned. This Ordinance came into force in
2005. The will in question has been executed in 2002 i e before the Ordinance came into operation. Therefore, section 7 (v) of the Act would not
at all affect this will. The Sec 7 (v) has also undergone some amendments. In the original Act the word ""will1' was there after ""bequest"" or in other
words the section read ..... without any .. . by the proprietor by sale, gift, bequest, will, family settlement....."" But it was deleted vide Act. XV of
2008 Mr. Raina argued that the will is not included after this deletion in the word transfer and he has tried to make a distinction between a bequest
and a will. According to him if any land has been transferred (if at all we. may use that expression with respect to wills) even after the above
mentioned ordinance it would not be hit by the provisions of Section 7 (v) of the Act. In the original Act there were two words be quash"" and
will''. But we donot find that there is any difference between 'bequest' and 'will' in law. The word 'will' was perhaps omitted became it was thought
superfluous and unnecessary. He has further argued that even this ordinance was repealed by means of Section 41 of the Act which reads as under
:
The Land Alienation (Temporary Powers) Restriction ordinance, 2005 and the Jammu Province Land Alienation
(Temporary Powers) Restriction Ordinance, 2006 shall be repealed.''
(10) So when the will came into operation on the death of Rasool Ganai in 2010, the Ordinance had been repealed because the Act came into
force on the 1st : of Katie 2007.
(11) On the basis of these two arguments advanced by Mr. Raina one that the will could be got validated with the sanction of the Deputy
Commissioner during the life time of Rasool Ganai but as the restriction of onefourth was over before his death and thereafter no sanction of the
Deputy Commissioner to validate the will was necessary the will remained effective and secondly as it was not at all hit by the Ordinance, which
was repealed in 2007, we are clearly of the opinion that the will in question considered from any point of view is a valid document.
(12) Other findings being there already, we hold the will to be operative and effective. The judgment of the lower appellate court has to be set
aside. We therefore accept this appeal, set aside the order and decree of the lower appellate court and restore the decree passed by the trial
court. There will be no order as to costs.