Janki Nath Wazir, C.J.
1. The suit out of which this second appeal has arisen was instituted by the Plaintiff for possession of the house described in the plaint against the Defendant. The allegations made in the plaint were that Maya Shah, the grand - father of the Plaintiff and Gopi Shah, the grand - father of one Amar Nath, were own brothers. The house in dispute belonged to Amar Nath who died about ten months before the institution of the suit. On his death the house devolved on his wife, Mst. Durga Devi, who by will dated the 10th Phagan 2007 gave away the house to the Defendant. Mst. Durga Devi died on the 20th Phagan 2007 and the Defendant took possession, of the house on the basis of the will made in his favour by Durga Devi. The Plaintiff brought the suit against the Defendant alleging that Mst. Durga Devi, being a limited owner, was not competent to make a will in regard to the house inherited from her husband. It was further pleaded that the Defendant being a non-State subject, a will disposing of immovable property could not be made in his favour.
2. The suit was resisted by the Defendant on the ground that the house in dispute was the self - acquired property of Amar Nath and after his death Mst. Durga Devi was the absolute owner of that house and she was competent to will away that house to the Defendant. The Defendant further averred that he was a state Subject and, therefore the will was valid. The Defendant produced a State Subject certificate and the trial court dismissed the Plaintiff's suit holding that Mst. Durga Devi was the absolute owner of the property which she was competent to dispose of by will and that the Defendant being a State Subject, the will was valid in law.
3. It appears that the State Subject certificate of the Defendant was cancelled after the suit was dismissed by the trial court and the Additional District Judge holding that the Defendant being a non-State subject, a will in his favour disposing of immovable property was bad in law, allowed the Plaintiffs appeal and his suit was decreed.
4. The Defendant came up in appeal against the decree of the Additional District Judge and it was heard by a Division Bench of this Court on 28-4-1958. In the course of arguments a point arose, whether a State Subject could will away immovable property in favour of non-State subject and whether such a will is valid in law? It was considered proper to refer this point for decision to the Full Bench.
5. The case came up for hearing before the Full Bench on 8-12-1958 and Mr. Sehgal appearing on behalf of the Defendant Appellant argued that there was no provision in any law precluding a person disposing of immovable property by will in favour of non-State subject. Our attention has been drawn to the provisions of Section 5 of the Jammu and Kashmir Transfer of Property Act which defines the term "transfer of property" as under:
Transfer of property means an act by which a living person conveys property in present or in future to one or more persons whether living or unborn or to himself...
and it is contended that the Transfer of Property Act has no application to disposal of property by will. In support of this contention reliance is placed on Zamindar of Bhadrachalam v. Venkatadri Appa Rao AIR 1922 Mad 457 (FB), at page 468 in which it is held that the Transfer of Property Act applies only to alienations inter vivos and has no application to disposal of property by will. The same view was taken in Surendra Vikram Singh v. Munia Kunwar AIR 1944 Oudh 65 where it is laid down as under:
The Transfer of Property Act does not relate to wills, and 'transfer' is defined in the Oudh Estates Act as an alienation inter vivos. A will on the other hand is not in form a transfer, but means "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death
7. The learned Counsel for the Respondent conceded that the Transfer of Property Act did not apply but his contention is that there are Irshads of His Highness which have the force of law by which "Intiqal" of the immovable property by will in favour of non-State subjects is strictly prohibited. Reliance is placed upon a Robkar which is contained in Majmua Circulate Judicial at page 128. It is a direction issued by His Highness in which a reference is made to an earlier order issued by His Highness on the 9th Maghar 1957 by which transfer of immovable property in favour of non-State subjects without the permission of His Highness is prohibited and the registering authorities are directed not to register the documents transferring immovable properties in favour of non-State Subjects without the previous permission of His Highness.
8. The dictionary meaning of the word "Intiqal" is conveyance or transfer but the disposal of the property by will does not fall within the meaning of the word "transfer" as defined in the Transfer of Property Act.
9. The words used in this Robkar are "Jaidad gher manqula muntiqil na ho". It is argued that by virtue of the order dated the 9th Maghar 1957 transfer of immovable property in favour of non-State subjects being strictly prohibited by His Highness, no will can be made disposing of immovable property in favour of non-State subjects.
10. The question for consideration is whether the order contained in Robkar dated the 9th Maghar 1957 forbids disposal of immovable property by will in favour of non-State subjects.
11. The original order dated the 9th Maghar 1957 has not been produced but from the Circulars issued by His Highness contained in Majmua Circulrat Judicial it appears that there is an order to the effect that transfers in favour of non-State subjects should not be registered. As pointed out above, the word "transfer" is defined in the Transfer of Property Act and the disposal of immovable property by will does not fall within the definition of "transfer" as contained in the Transfer of Property Act.
12. The orders of His Highness which have the force of law are specifically enumerated in Sri Pratap Laws Consolidation Regulation, 1977, in Schedule I and the Irshad of Maghar 1957 is not mentioned in the Schedule.
13. Our attention has been drawn to another Irshad of 29th Maghar 1943 and Irshad dated 23rd Magh 1962 by which sales and mortgages of land in favour of residents of British India have been prohibited and it is argued that as it had been the consistent policy of the State not to transfer immovable property in favour of non-State Subjects either by sale or mortgage, therefore, the alienation of the property by will also by implication should be deemed to have been prohibited.
14. The learned Counsel has not been able to show any authority or law for the proposition that disposal by will of Immovable property consisting of a house in favour of a non-State Subject is prohibited. He has, however, referred to Section 4 of the Land Alienation Act which prohibits the transfer of land in favour of any person who is not a State Subject. The word "transfer" is not specifically defined in the land alienation act but a definition of "permanent alienation" is given in Sub-section (3) of Section 2 of the Act which is as follows:
The expression "permanent alienation" includes sale, gift, bequest, grant of occupancy rights and" exchange other than an exchange made for the purpose of consolidation of holdings
The expression "land" is defined by Sub-clause (2) of Section 2 as land which is not occupied as the site of any building in a town or village and is occupied or let for agricultural purposes or for purposes subservient to agriculture or for pasture.
15. As bequest is specifically included in "permanent alienation" which is synonymous to the term "transfer", so the permanent alienation of land as defined in the land alienation act by bequest is prohibited under the provisions of the Land Alienation Act. But there is no law prohibiting disposal of immovable property other than land as defined in the land alienation act by will in favour of a non-State Subject. The mere fact that transfer by sale or mortgage of immovable property in favour of non-State Subjects is prohibited cannot be considered to be a bar to the disposal of immovable property other than land as defined in the land alienation act by will. There must be a clear and unambigous provision of law prohibiting the disposal of all kinds of immovable property by will and in the absence of such a provision the Courts will not interpret the latent intention of the legislature which is not embodied in express provisions of law.
16. Disposal of immovable property by will would not amount to a transfer inasmuch as the property does not pass on to the donee at the time the will is executed. It is merely an intention expressed by the testator with respect to his property that after his death it should devolve on the donee. In my opinion, therefore, there is no specific provision in law prohibiting the disposal of immovable property other than the land as defined in the land alienation act, by will in favour of a non-State Subject and such a will cannot be held to be invalid. The reference is answered accordingly.
S. Murtaza Fazal Ali, J.
17. I agree with my Lord the Chief Justice and have nothing to add.
K.V. Gopala Krishnan Nair, J.
18. I agrees.