M.L. Joshi, J.
1. Heard learned Counsel for the petitioner.
2. The sole point which calls for our consideration is whether a sale of agricultural holding made by a member of the scheduled caste in contravention of provisions of Section 42 of the Rajasthan Tenancy Act. 1955, is void or voidable? Section 42, as it existed in the year 1960, is reproduced below:
42. Sale or gift. - Except with the general or special permission of the State Government no Khatedar tenant shall have right to transfer by sale or gift his interest in the whole or a part of his holding to any person who at the date of such transfer is already in possession of land which together with the land so transferred will exceed 90 acres of unirrigated or thirty acres of irrigated land.
Explanation : If such land is partly irrigated and partly unirrigaied, one acre of iriigated land shall, for calculating the area of land for the purposes of this section be deemed to be equivalent to three acres of unirrigated land.
Provided that no Khatedar tenant being a member of a scheduled caste or scheduled tribe shall so transfer his interest in the whole or a part of his holding to any person who is not a member of a scheduled caste or a scheduled tribe.
3. From the perusal of the proviso to S 45 it is evident that the proviso puts a prohibition to the effect that no Khatedar tenant being a member of Scheduled caste or scheduled tribe shall transfer his interest in the whole or part of his holding to any person who is not a member of the scheduled caste or scheduled tribe. In the present case indisputably the sale was made by a scheduled caste member in favour of a person who is neither a member of scheduled caste nor scheduled tribe.
4. Mr. Mathur, learned Counsel for the petitioner, urges that there is no penal consequences provided in the proviso, so the proviso is not of a mandatory character, but is merely directive therefore, the sale is not void but voidable. It may be pointed out that the proviso is couched in negative form. As stated by Crawford : 'Prohibitive or negative words can rarely, if ever be director). And this is so, even though the statute provides no penalty for disobedience.' (See Crawford : Statutory Construction, p. 523). We are fortified in our view by a decision of the Supreme Court in H. Pentiah v. Buddala Veeramanllappa : 2SCR295 , p. 1013. In that case Subbarao, J. observed : 'Negative words are clearly prohibitory and are ordinarily used as a legislative devise to make a statute imperative.' The proviso to Section 42 is also couched in negative form & in the light of the law discussed above in our definite opinion it is of a mandatory character. We may also point out here that the law makers intended to put safeguard against the alienation by the scheduled caste or scheduled tribe members in favour of the persons who did not belong to that class, so the agricultural holding may not go from the hand of that class. The proviso is intended to safeguard the interest of the members of the scheduled caste and scheduled tribe in regard to the holding of the agricultural land So the legislative intendment also persuades us to think that the proviso is of a mandatory character.
5. The sale in question is therefore, in contravention of the proviso to Section 42, which categorically forbids the sale by a member of the scheduled caste or scheduled tribe in favour of persons who are not members of that class. The sale in question is, therefore, forbidden by law within the meaning of Section 23 of the Indian Contract Act. It is well settled that where a contract, which a party seeks to enforce, is expressly or by implication forbidden by any law, no court will lend its assistance to give it effect. In this connection we may refer to Whiteman v. Sadler 1910 A.C 514, 625; Dip Mirain v. Nagesher 28 A.L.J. 45 F.B.; Anderson v. Daniel (1924) 1 K.B. 138 : 93 L.J.K.B. 97; Hosthy v. Westby 2 Dr & W 520; Hormasji v. Pestanji 13 B 422; and Munshi v. C. Board 1942 O 99; which lend support to our view.
6. In view of the above discussions we are definitely of the opinion that the contract of sale or a sale made by a scheduled caste or scheduled tribe persons in favour of persons not belonging to that class, is void and not enforceable in law. The sale in question has, therefore, rightly held to be void by the Board of Revenue.
7. We, therefore, see no force in the petition. It is dismissed summarily.