TABLE OF CONTENTS

1. Acknowledgment
2. Introduction
3. Applicability of this Provision
4. Sale prior to the Commencement
5. Sale by Agreement to the Members of Schedule Caste.
6. Conclusion
7. Bibliography.
ACKNOWLEDGMENT

I take this opportunity to express our humble gratitude and personal regards to Ms. Mukta for
inspiring me and guiding us during the course of this assignment work and also for his cooperation
and guidance from time to time during the course of this assignment work on the topic.
I have prepared this assignment not only for marks but also to increase my knowledge.

Place: Neemrana - Vikrant Ahlawat

INTRODUCTION

A khatedar tenant may transfer his holding or part thereof to any person by way of sale or
gift. But where a person is already in possession of land in access of ceiling area applicable to him
he cannot acquire more land by sale or gift, except with the general or special permission with the
state government. Section 42 is restricted to Khatedar tenants only, where the sale or gift is hit by
the provisions of chapter III/B and if the permission under that section is not obtained the sale is
void and no effect can be given to. Relinquishment is no transfer. The term ‘land’ and ‘interest in
land’ means the same thing.

Transfer of agriculture land for housing purposes is illegal unless it has been first
unmanaged.1 Provisions of this section are not retrospective and are not applicable where land was
transferred in 1953.2 A member of schedule caste is entitled to the protection of this section in any
case.3 The sale is effective from the date of registration and not from the agreement to sale.4 When
the sale is not of a complete survey number, the provisions of section 42, would be attached. 5 Sale
of Land for a setting of factory does not violate the provisions of this section.6

Where the transfer is in violation of this section, it is void and the transferee is not a
trespasser.7 An agreement to sale is unenforceable and not illegal.8 Sale of a particular plot partition
is void.9 A gift of undivided Share where the property can be partitioned is not void.10

Even if possession is not delivered, the sale is if otherwise complete is valid, the vendor
can be ejected under section 18.11 The Rajasthan pre-emption Act, 1966 does not apply to
agriculture holdings.12 Undivided share in a coparcenary holding can be gifted and principles of
section 122 of Transfer of Property Act do not apply to agriculture holding.13 If a suit for specific

1
Govind Murari v. State, 1972 RLW 266
2
Gaya Prasad v. State, 1971 RRD 62.
3
Shakuntala V. Sadulia, 1977 RRD 200.
4
State v. Himatlal, 1976 RRd 218.
5
Bhawarlal v. State 1976 RRD 419.
6
State v. Pramod Kuamr, 1974 RRD 555.
7
Khoja v. State 1973, RRD 476.
8
Fateh sigh v. Gopi, 1964, RLW 423.
9
Suraj Bhan v. Neta, 1976 RRD 345.
10
Abdul Hamid v. K Hussain, 1973 RRD 288.
11
Mishri Lal v. Hazari, 1981 RRD 14.
12
Sukhdev Singh v. Sukhdev Singh, 1981 RRD 68 (HC).
13
Om Prakash V. Dayal Singh, 1978 RRD 98.
performances decreed by a court, the revenue authorities cannot pass orders that the land has vested
in government.

APPLICABILITY OF THIS PROVISION

Khatedari Rights has been declared to be heritable but not transferable by section 38. Section 41
lays down that the interest of a Khatedar Tenant is transferrable subject to the provision of 42 and
43 of the Act. Thus the restrictions imposed upon these two section are mandatory and violation
thereof renders the transfer void ab initio.

The provisions of transfer of property Act are applicable to the transfer under the Rajasthan
Tenancy Act, but subject to restrictions of these sections. If a sale is hit by a provision of section
52 of the Transfer of Property Act, is not Valid under this Section.14 Section 42, as it was originally
placed on the statute book imposed restriction on sale and gift only. There was more restriction on
a bequest. The restriction imposed was not on the seller but on the purchaser. The expression issued
on ‘…to any person who at the date of transfer is already in possession on the land which together
with land so transferred will exceeded 90 acres of unirrigated or 30 acre of irrigated land.’

Thus a sale of a fragment was permissible subject to the restrictions on acquisition.

Similarly, there was no restriction on sale or purchase on a land belonging to a schedule caste or
tribe by persons who were not the members of schedule caste or tribes.

‘Bequest’ was included in the restrictive covenants by the amendment acts no. 12 of 1964
which came into force on 30th April 1964. This Act declared the sale, gift or bequest of a fragment
void. This also declare the sale, gift or bequest of the land belonging to the members of the schedule
caste or tribes to non-members of the schedule caste or tribe as void. Prior to it such sales were
voidable subject to the provisions of section 175 as it then existed.

The restrictions imposed by this section applies to the sale, gift or bequest of agricultural
land for agricultural purpose. For purposes other than agricultural viz., for residential, commercial
or industrial, there appear to be no restrictions. The reason is that in the case the land has to be
surrounded by the state government. Thereafter converting it for the purpose of required re-
transfers to the vendee.

14
Shrinavasan v. Peter, 2008 (2) RRD 772 SC.
 Land which is converted for commercial, residential or industrial purposes is transferable
is irrespective of the fact that it belongs to the schedule caste or schedule tribes, prior to its
conversions. So far as land converted for commercial or residential purposes is concerned it is
transferable even without any permission letter of the state government or the collector. Land
converted for industrial purpose is transferable subject to the permission of the state government.
Such transfers do not attract the provisions of section 175 & 183 of the Act or section 91 of
Rajasthan Land and Revenue Act, 1956.

These restrictions are applicable to transfers inter vivous. But there is no restriction for the
sale of the khatedari rights in realization of Bank or sales tax demands or such other demands
which are recoverable as arrears of the Land revenue. Where the interest of a Schedule Caste or
Schedule Tribe tenant is attached and auctioned by the state government, there is no restriction on
a non-member of a schedule caste or schedule tribe person to purchase it. Therefore, the section
requires a reconsideration so far as the restrictions are concerned.

SALE OF TRANSFER PRIOR TO THE COMMENCEMENT

Prior to the commencement of Rajasthan Tenancy Act, certain covenanting state laws place
restrictions on the sale of land by Khatedari tenants; for example, section 16 of the Marwar
Tenancy Act laid down that Khatedar may transfer his holding permanently by sale or otherwise
to any co-tenant or a person who if he survived the tenant without nearer heir, would inherited its
rights. Every transfer other than a sub-lease made by a tenant in contravention of the provisions of
that Act was declared void by Section 20 of the Act. Such void agreements are not enforceable at
law.15 Similarly, in Bundi State Previous sanction of the revenue commissioner was necessary
before transferring his holding by the Khatedar. In the absence of such sanction transfers would
be null and void and would not pass any title even through the grant of sanction was a mere matter
of formality.16

This was the state of affairs in most of the State for all kinds of transfers and such
transferees would not get any rights under section 15 & 19, as the case may be. Similarly, sub-
tenants of such transferees’ as also denied the privileges of section 19. The prohibitions contained

15
Mishrilal v. Dhanna, 1957 RRD 197.
16
Musha v. Ramzani, 1959 RLW 487.
within the section are not applicable to the transfers effected prior to the coming into force of this
Act.

TRANSFER BY AGREEMENT TO THE MEMBERS OF SCHEDULE CASTES

A Khatedari tenant belonging to the schedule caste or schedule tribe shall only transfer his
interest in the whole or in part of his holding to the members of schedule caste or tribe. But the
proviso affects the transfers made after the commencement of the amendment act 1956 and any
transfer made prior to the coming into the force of the amendment act is not hit by the proviso.17
The clause (B) intended to protect the rights of the members of the scheduled caste or tribe but a
member of scheduled caste or tribe cannot acquire land in contravention to the provision.18 Such
a transferor does not pass any title or the transferor does not lose any right.19 It is void ab initio.

This provision is intended to put safeguard against the alienation by the schedule tribe
members in favor of the persons who do not belong to that class, so that the agricultural holding
may not go from the hand of the class. The sale is , therefore, forbidden by law within the meaning
of section 23 of the Indian Contract Act. It is well settled that where a contract that, which a party
seeks to enforce, is expressly or by implication forbidden by law, no courts will leads to assistant
to give it effect.20

The possession of the transferee is that of a transferor from date he occupies the land under
void transfer. If his rights are protected by lapse of time, he acquires Khatedari Rights and it can
be decreed under Section 88.21

Changed to Christianity does not remove the bar against the alienation of scheduled caste
or tribes lend by such persons who are not schedules caste or tribe men.22 The protection is in
recognition to their backwardness.

A sale by a member of schedule tribe in favor of schedule caste or vice versa is violative
of this section and is void even if it is recorded in the settlement record.23 The intention of the

17
Kishan Lal v. Chhogla, 1959 RRD 155.
18
Jaganath V. ghishalal, 1959 RRD 101.
19
Jankilal v. Sheonarayan, 1964 RRD 209.
20
Ramchandra v. Omprakash ILR 1976 Raj. 935.
21
State v. Devilal 1985 RRD 567.
22
Jeet Singh v. State 1985 RRD 644.
23
State v. Khema 1982 RRD 283.
vendor is not relevant.24 Although the tehsildar has to prove his own case. But the provisions of
this section cannot be allowed to be frustrated.25

A sale made prior to 20-8-1956 in favor of a non-scheduled caste or tribe men by a schedule
caste or tribe men is perfectly valid.26 The proviso is mandatory and the sale is void and not
voidable. But prior to the 1964 Amendment Act, such sales were voidable and not void and
purchases could not be divested without due course of Law.

The position of the transferee is that of trespasser and the transferor is entitled to recover
possession, otherwise both are liable to the penalties of section 175 of Rajasthan Tenancy Act. The
land in possession of transferee should be treated as having been abandoned by the Khatedar within
the meaning of section 60.

CONCLUSION

The amendment of section 42 in 1964 is not retrospective and as such a transfer of

agricultural land by a schedule caste tenant to a non-schedule caste tenant is valid. But a sale is in
violation of this section is totally void and no title or interest will pass to vendee. It is obligatory
duty of the state government to resume the land so transferred in violation of this section. Such
land should be reallotted to the down trodden person belonging to the scheduled caste or scheduled
tribes and the person who have sold the land for one reason or the other should also be considered
for re-allotment. But after resumption the land cease to be a land of schedule caste or schedule
tribe land and the land is available for allotment to any person who comes within the category of
allottees.

24
Poorna v. State, 1982 RRD 435.
25
State v. Rama 1978 RRD 234.
26
Guru CHaran Singh v. Nathu Ram 1980 RRD 601.
BIBLIOGRAPHY

Cases

Abdul Hamid v. K Hussain, 1973 RRD 288................................................................................... 1

Bhawarlal v. State 1976 RRD 419 .................................................................................................. 1
Gaya Prasad v. State, 1971 RRD 62 ............................................................................................... 1
Govind Murari v. State, 1972 RLW 266......................................................................................... 1
Guru CHaran Singh v. Nathu Ram 1980 RRD 601 ........................................................................ 5
Jeet Singh v. State 1985 RRD 644 .................................................................................................. 4
Khoja v. State 1973, RRD 476........................................................................................................ 1
Mishri Lal v. Hazari, 1981 RRD 14 ................................................................................................ 1
Mishrilal v. Dhanna, 1957 RRD 197 .............................................................................................. 3
Om Prakash V. Dayal Singh, 1978 RRD 98 ................................................................................... 1
Shakuntala V. Sadulia, 1977 RRD 200........................................................................................... 1
Shrinavasan v. Peter, 2008 (2) RRD 772 SC .................................................................................. 2
State v. Devilal 1985 RRD 567....................................................................................................... 4
State v. Khema 1982 RRD 283 ....................................................................................................... 4
State v. Pramod Kuamr, 1974 RRD 555 ......................................................................................... 1
State v. Rama 1978 RRD 234 ......................................................................................................... 5
Sukhdev Singh v. Sukhdev Singh, 1981 RRD 68 (HC) ................................................................. 1
Suraj Bhan v. Neta, 1976 RRD 345 ................................................................................................ 1