1. This is a second appeal by the plaintiffs Kanshi Ram and others against the judgment and decree of the learned District Judge of Mandi, dated 29-4-1952, reversing the decree of the Subordinate Judge (whereby it was declared that the plaintiffs were the owners of a cultivatory holding) and dismissing their suit.
2. The land in suit, measuring 21 bighas 17 biswas and 4 biswansis of cultivatory and 3 bighas 17 biswas and 10 biswansis of pasture land, situate in village Mundak Gahri Tehsil Sarkaghat, originally belonged to one Gaddi, and he sold it in 1971 B. to Devi Ram, late father of the defendant-respondent Lajju Ram, for a sum of Rs. 425/-. The plaintiffs are heirs of three brothers Naurangu, Lohku and Damru, and one of the allegations made by them in the present suit was that the transaction of sale was a benami one, the real purchasers having been the said three brothers. This allegation was traversed by the defendant in the trial Court, but the finding of that Court on this point was in favour of the plaintiffs, and that finding has not since been challenged by the defendant. It is also common ground that the land in suit has since the sale been in possession of the plaintiffs' predecessors and after them of the plaintiffs themselves. On the defendant getting a notice of ejectment served upon the plaintiffs on 19-8-1949, the latter filed the suit giving rise to the present appeal on 2-3-1950 for a declaration that they were the owners of the land in suit.
3. The trial Court decreed the suit, but on the defendant appealing from that decision the learned District Judge of Mandi dismissed, the suit, as aforesaid. The plaintiffs founded their suit on three grounds in the alternative: that they were the real owners of the land in suit and the defendant was only the be-namidar, that they had acquired title to the property by adverse possession and that the defendant had agreed to transfer the land in suit to the plaintiffs. The lower appellate Court arrived at findings against the plaintiffs on all these points. The plaintiffs would be entitled to a decree if they succeed in establishing any of the said three grounds. In my opinion, this suit should be decreed on the first ground, and therefore I propose to take up only that ground.
4. As adverted to above, it was conceded on behalf of the defendant in the lower appellate Court that the sale was a benami transaction, the real purchasers having been the plaintiffs' predecessors. The lower appellate Court however refused to give effect to the sale in favour of the plaintiffs as heirs of the real purchasers because it was of the opinion that the transaction was void under Section 3 of the Mandi Transfer of Immoveable Property Regulation No. II of Sambat 1975. If this finding of the lower appellate Court be correct, there is no doubt that the said pre-decessors of the plaintiffs did not acquire any right, title or interest in the land in suit and therefore the plaintiffs would not be entitled to any relief on the first ground. Section 3 of the said Regulation runs as follows :
'(1) No land may be alienated temporarily or permanently by sale, mortgage, gift or exchange, nor may any tenancy by way of lease be created for a period exceeding five years, without the previous sanction of the Durbar. Provided that the sanction of the Durbar is not required for transfers of land due to direct inheritance, partition, redemption of mortgage or corrections in the Revenue Record.
(2) Every alienation of land made and every tenancy created contrary to the above sub-section without the sanction of the Durbar is null and void and shall not be given effect to by any Court or Revenue Officer.'
5. It was argued by the learned counsel for the plaintiffs-appellants that the sale in question having been made in the year 1971 B., it did not come within the mischief of Section 3(2) of the Regulation, as the Regulation came into force on the first day of Sawan, Sambat 1975. This aspect of the matter was not at all considered by the lower appellate Court. This argument was however met by the learned counsel for the defendant-respondent referring to the preamble of the Regulation which purported
'to consolidate and declare the existing law, custom and rules relating to the transfer of immoveable property within the Mandi State.'
It was therefore argued by him that the Regulation did not lay down any new rule or law but only consolidated and declared a preexisting law. He also referred to a ruling of the Ijlas-i-alia in Civil Revn. No. 1 of 29 Chet 1990, 'Piru v. Jindu', decided on 31-2-1993 and reported in '1995 Mandi LR 48 (A). It appears that the benami transaction which was the subject-matter of that decision also related to a time prior to the coming into force of the Regulation, and yet it was held that it was void under Section 3 of the Regulation and therefore conveyed no title to the real purchasers. In that case also, as in the present, no sanction of the Durbar in respect of the alienation in favour of the real purchasers had been obtained. But the learned counsel for the respondent was unable to point out any preexisting law whereunder sanction of the Durbar for alienation was necessary. He was, in any case, not able to refer to any pre-existing law corresponding to the penal provisions of Section 3(2) of the Regulation which rendered every alienation without the previous sanction of the Durbar void.
Not every transfer made without sanction of the Durbar was void. For instance, although a transfer of occupancy right without such sanction was forbidden by Sub-section (1) of Section 9 of the Mandi Tenancy Regulation No. IX of Sambat 1975, any transfer made contrary to that provision was under Sub-section (2) of that section, only voidable. It may be that there was a pre-existing law which also required the previous sanction of the Durbar to every alienation of land, and to that extent it may be conceded, as the preamble lays down, that the Regulation consolidated and declared the existing law. It cannot however be presumed that each and every provision of the Regulation found place in the preexisting law. It would be sufficient to justify the wordings of the preamble if the main provision of the Regulation existed even prior to its coming into force, namely, that no land could be alienated without the previous sanction of the Durbar.
In the circumstance, the learned counsel for the defendant-respondent having failed to point out any pre-existing corresponding provision, I am not prepared to hold on the mere wordings of the preamble that even before the coming into force of the Regulation there was any law which rendered alienations with- out the preyious sanction of the Durbar void. The aforesaid ruling of the Ijlas-i-alia, being the ruling of a Court corresponding to the Judicial Committee, is certainly entitled to be followed as such, but the present aspect of the matter does not at all appear to have been argued or considered in that case. There is no doubt that it was observed in that case that Section 3 of the Regulation incorporated the law which existed before its enactment, but that was done merely in a general way and the question of the application of the Regulation to a transaction which took place before the coming into force of the Regulation did: not arise specifically. That ruling is therefore not helpful for the decision of the present case.
6. It having been held by me above that there was no law before the coming into force of the Regulation which corresponded to the provisions of section 3(2) of the Regu- lation, and the sale in question having been made four years before the enactment of the Regulation, it is clear that the benami tran-saction in question does not come within the mischief of the penal provision of the Regu-lation. According to the ruling reported as--'Sundrabai v. Manohar', AIR 1933 Bom 262 (B), cited by the learned counsel for the defendant-respondent himself, the relevant provision of the law applicable would be the one which, was in force when the transaction was effected. It may also be stated here that there is nothing in the Regulation which made its provisions retrospective, as, for example, were the provisions of the Mandi Limitation of Interest Regulation of Sm. 1975. The ground on which the lower appellate Court refused to give effect to the benamil transaction in favour of the plaintiffs-appel-lants was therefore wholly untenable. I hold that, as real owners of the property in suit, they are entitled to the declaratory decree prayed for by them.
7. The appeal is allowed, the judgment and decree of the lower appellate Court are reversed and those of the trial Court granting to the plaintiffs-appellants the declaratory relief prayed for by them are restored. The plaintiffs are allowed their costs throughout.
8. The trial Court had however no jurisdiction to direct the revenue authorities to correct the revenue records according to its decision. It will be for the plaintiffs to move the appropriate revenue authority in that behalf on the basis of the decision in this case, if it be open to them to do so. The direction in the decree of the trial Court for correction of the revenue record is therefore set aside.