TMI Blog1968 (7) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... een them as a result of which the said Manoda got 10 annas share and the said Nilmoni Dasi got 6 annas share in the said properties. On Manoda's death, Nilmoni Dasi succeeded. to her share. Consequently, Nilmoni Dasi was possessed of the entire property of Tonu Mandal as a limited owner. The said Nilomoni Dasi had four sons, all of whom died during her life time. She left, however, grandsons surviving her. These grandsons were defendants first party in the suit and Schedule D properties were in their possession at the time when the suit was filed. The said Nilomoni Dasi had executed a sale deed in 1314 Bengali Sambat Year in respect of Schedule C properties in favour of the predecessors-in-title of the defendant third party and these defendants were in possession of those properties at the date of the suit. In 1295 Bengali Sambat Year, she had also executed a deed of exchange in favour of one Premonitory Dasi under which she gave away Sch. B properties in exchange for Sch. E properties situate in village Gokrul. In accordance with the said exchange, the names of the two ladies were recorded as raiyats of the respective properties. The descendants of the said Premmoyee Dasi were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Premmoyee Dasi, the mother of defendant 6, were neither for legal necessity nor for the benefit of the estate of Tonu Mandal. The trial Court, on these findings, passed a decree, which was confirmed by the District court, in favour of the appellants-declaring their title to an 8 annas share in Schs. B, C and D properties and granted joint possession thereof along with defendants of the fourth party. The District court while confirming the decree passed by the trial court clarified that in view of the finding that the said deed of exchange was not valid and binding on the appellants, the respondent (defendant 6) was entitled to fall back upon Sch. E properties. Aggrieved by the said judgment and decree passed by the District Court, the respondent filed second appeal No. 1467 of 1958 and the two grandsons of the said Nilmoni Dasi, Tribhanga Gorain and Pawan Gorain, preferred second appeal No. 1468 of 1958 in the High Court. The High Court dismissed second appeal No. 1468 of 1958 on the ground that it was not entitled to interfere with the concurrent findings of fact arrived at by the trial court and the District court. So far as second appeal No. 1467 of 1958 was concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the latter. The High Court, therefore, was not right in disallowing the said contention on the ground that it was not raised earlier. Section 27 of the Regulation laid down an absolute bar to sales of the rights of a raiyat. As aforesaid, it is not in dispute that the said Nilnoni Dasi was a raiyat in relation to the lands in Sch. B properties. The section provided that No transfer by a raiyat of his right in his holding or any portion thereof by sale, gift, mortgage, lease or any other contract or agreement, shall be valid unless the right to transfer has been recorded in the Record of Rights and then only to the extent to which such right is recorded . Sub-section (2) of that section provided that No transfer in contravention of subsection (1) shall be registered or shall be in any way recognised as valid by any court whether in the exercise of civil, criminal or revenue jurisdiction. The language of s. 27 is clear and unambiguous. It prohibits any transfer of a holding by a raiyat either by sale, gift, mortgage or lease or by any other contract or agreement. The section is comprehensive enough to include a transfer of the holding by way of an exchange. The Sch. B proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned against such disguised transfers. His note was accepted by Government and the result was the amendment of the Regulation by which S. 27 was inducted therein: (see Jyotish Thakur v. Tarakan Jha) ([1963] Sup. 1 S.C.R. 13,20,21.). Section 27 having thus laid down a prohibition against transfer of raiyati land, the burden of showing that it applied and, therefore, the said exchange was invalid was, no doubt, upon the appellants. But once it was shown that the subject matter of the exchange, namely, Sch. B properties, was raiyati land situate in Sonthal Parganas, if the respondent wanted to show that the prohibition did not apply by relying upon the exception to the rule laid down by sub-s. (1) the burden to prove that exception would shift on to the respondent. It was, therefore, for the respondent to establish that the record of rights contained an entry to the effect that the transferor in respect of those lands had the right to transfer them. The High Court, therefore, was not justified in disallowing the contention raised by the appellants either on the ground that the said contention was raised for the first time before it or on the ground that if raised earlier, the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of s. 27(1) is comprehensive enough to include any agreement or contract of exchange and, consequently it must be held, given the other conditions of that section, that section would apply to a transaction of exchange. It is true, that ss. 27 and 28 of the Regulation were repealed by the Santal Tenancy (Supplementary Provisions) Act, 14 of 1949. But s. 27 was in force when the said transaction of exchange was made and governed the transaction made by Nilmoni Dasi and Premmoyee, Dasi. That transaction being invalid and void, the fact that s. 27 was subsequently repealed made no difference as the repeal could not have, the effect of rendering an invalid and void transaction a valid and binding transaction. The next contention was that by reason of s. 11 of the Regulation, the appellants' suit was not maintainable as the validity of the said exchange could not be agitated in a court once the settlement court had made an entry in regard thereto. Section 11 laws down that except as provided in s. 25A no suit shall be filed in any civil court regarding any matter decided by any settlement officer and his decisions and orders regarding the interests and rights above- mentioned shall ..... X X X X Extracts X X X X X X X X Extracts X X X X
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