THURU Vs. RASAL SINGH

JUDGEMENT

(1.) The petitioner, Mst. Thuru, through the medium of this petition made under the provisions of Art. 226 of the Constitution of India, has sought a direction in the nature of writ of certiorari for quashing order dated 16-2-1993 passed by the learned Additional Commissioner (with powers of Divisional Commissioner) Jammu, whereby he in the second appeal before him has set aside mutation under No. 661 dated 18-9-1988 regarding inheritance of the estate of petitioner's father, namely Fakiru, resident of Dhanore, Tehsil Kathua. The petitioner has sought a direction against respondent No. 6 to pay her the compensation for the use and occupation of the land comprised in Khasra No. 441, situate in village Dhanore, Tehsil Kathua.

(2.) The factual matrix of the case lies in a narrow compass and is to the effect that said Fakiru had no male issue and was survived by his three daughters. The petitioner herein, even after her marriage, was living with her father, namely, said Fakiru, and looked after him during his old age. Out of love and affection and for the services rendered by the petitioner said Fakiru on 22-7-1983 executed a registered will in favour of the petitioner in respect of his whole movable and immovable property, to the exclusion of other legal heirs. Out of the immovable property left by the testator of the will (said Fakiru) land measuring 27-Kanal 3-Marla comprising of Khasra No. 441 situate in village Dhanore had been in the occupation of the Army and the said Fakiru during his life time was being paid compensation for its use and occupation. After the death of testator Fakiru, mutation No. 661 in respect of his heritable estate was attested by the Naib-Tehsildar concerned on 19-9-1988 and respondents 1 to 4 being the legal heirs of the testator challenged the said mutation by way of an appeal before the Deputy. Commissioner Kathua, who vide his order dated 8-2-1991 dismissed the same. This order of the learned Deputy Commissioner Kathua was challenged in the second appeal before the Additional Commissioner (with powers of Divisional Commissioner) Jammu, who vide his order dated 16-2-1993 (annexure 6), accepted the appeal and set aside the mutation order No. 661 dated 18-9-1988. Learned Addl. Commissioner had held that the testator executed the will on 22-7-1983 and died in the year 1987, before coming into operation of Act. No. IV of 1989 (J and K Agrarian Reforms Amendment Act 1989) whereby the embargo placed on the alienation of land by way of bequest, occurring in Sec. 31 of the J and K Agrarian Reforms Act of 1976, was lifted and as such the alienation made before coming into operation of the said Amendment Act No. IV of 1989 by way of a will, was a nullity.

(3.) This order has been challenged by invoking the extra-ordinary jurisdiction of this Court through the medium of this writ petition by pleading that the legislature made a curative amendment in Sec. 31 of the Agrarian Reforms Act, 1976, through Act No. IV of 1989 whereby the legal bar, which existed for the alienation of the land by way of a bequest, was removed by deleting the word "bequest" from the defnition of alienation. That this amendment was made to suppress the legal wrong which existed in the statute and the amendment has to be given retrospective effect.