1. This is a plaintiff's second appeal from the judgment and decree of the learned. District. Judge of Mandi dated 29-10-1951 dismissing his appeal and maintaining the judgment & decree of the trial Court whereby the piaintiff-appellant's suit for a declaration that the property in suit had not escheated to the State had. been dismissed.
2. The property in suit originally belonged to one Kahnu. He executed a document dated. 6th 'Katik Samvat 93 Kham', corresponding to 'Bikrami Samvat' 1974. He appointed the plaintiff, his son-in-law, a Khana-Damad and. declared that should he have no issue the plaintiff should be treated as the owner of his property afjter his death & the death of his widows. Kahnu left more widows than one, & the last of them died 14 or 15 years before the institution of the present suit. The present suit was instituted on 3-1-1850 for the said relief because by an order dated 32-5-2003 the State treated the property as an escheat. The plaintiff's suit has been dismissed by both the Courts below on the ground that the sanction of the Darbar to the appointment of the plaintiff as a 'Khana-Damad' and to the alienation of the property in his favour under the aforesaid deed dated 6th 'Katik' Section 93 'Kham' had not been taken as required by Section 3 of the Mandi Transfer of Immovable Property Regulation No. II of Samvat 1975. This section 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.'
3. It will be seen that the document in question had been executed in 1974 B. prior to the coming into force of the said Regulation in 1975. One view expressed by the learned District Judge was that even though the document may have been executed before the Regulation came into force, it will be governed by its provisions because the preamble of the Regulation purported to consolidate and declare the existing law. This view has been held by me to be incorrect in--'Kanshi Ram v. Lajju Ram', AIR 1953 Him Pra 70 (A). It has been, held there that no penal provision corresponding to sub-section (2) of Section 3 of the Regulation has been shown to exist prior to the coming into force of the Regulation and its existence could not be presumed. The learned District Judge was therefore not right in holding that the transaction in question came within the mischief | of the said provision of the Regulation on account lof its preamble.
4. The other ground on which the District Judge held that the sanction of the Durbar according to the said section was necessary was that the document became operative on the death of the last surviving widow of Kahnu which admittedly took place when the Regulation was in force. It is however to be remembered that the penalty imposed by the aforesaid provision was not against devolution of an interest under a will but against alienation. The document in question, so far as it conferred rights upon the plaintiff, did not alienate any property in his favour. It was only a will containing a declaration of the intention of Kahnu with respect to his property which he desired to be carried into effect after his death. A will did not however come within the mischief of Section 3 of the Regulation. The only documents which under that section required the previous sanction of the Durbar were those purporting to alienate land temporarily or permanently by sale, mortgage, gift or exchange, or to create tenancy by way of lease for a period exceeding five years. I therefore hold that the document in question did not suffer for want of a sanction under Section 3 of the Regulation.
5. The other plea of the plaintiff-appellant asto acquisition by him of title in the property in.suit by adverse possession is unfounded, as rightlyheld by the lower appellate Court. His suit succeeds however on the first ground. The appealis therefore allowed, the judgments and decreesof the Courts below are set aside and his suit isdecreed with costs in all the Courts.