DHANNA MUNDA Vs. MTKOSILA BANIAN

JUDGEMENT

(1.) This is an appeal by the defendants and arises out of a suit to recover 1.28 acres of land which formed a part of the raiyati holding of the plaintiff.

(2.) The plaintiff executed a sale deed in favour of the defendants in respect of this land on 21 September 1930, for a consideration of Rs. 500. She alleged that the transfer was merely a benami one and that the consideration never passed. She also claimed to recover the land on the ground that the transfer offended the provisions of Section 46, Chota Nagpur Tenancy Act, as it stood before its amendment in 1938. The Courts below have found that the sale was not a benami one and that the plaintiff in fact received the consideration for it. The trial Court held that the plaintiff was estopped from challenging the sale.

(3.) The appellate Court has held that the plaintiff is entitled to recover the property in dispute. It is necessary to refer to the provisions of the Chota Nagpur Tenancy Act as they stood prior to the amendment of 1938. Section 46(1) declared that no transfer by a raiyat of his right in his holding or any portion thereof by sale should be valid to any extent. Sub-section (3) provided that no transfer in contravention of Sub-section (1) should be registered, or should be in any way recognized as valid by any Court, whether in the exercise of civil, criminal or revenue jurisdiction. In 1920 Sub-section (6) was inserted in Section 46 of the Act. This new Sub-section provided: The Local Government may by rules declare that any specified class or classes o? transfer (not being transfer by an aboriginal raiyat to a non- aboriginal transferee) in contravention of Sub-section (1) may be validly made by a raiyat of such tribe, caste, group or community, or section thereof, of such class, in such area or areas, and subject to such restrictions in respect of the person by whom and the person to whom the transfer maybe made, sanction of any officer or other authority, quantity of land or proportion of the holding transferred, as may be specified; and thereupon nothing in Sub-sections (1), (3) and (4) shall affect the validity of any such transfer so made by such raiyat after the date of publication of the rules in the Gazette or such later date as may be prescribed.