Writ Petition No.3094 of 1989

25th September, 2002

Petitioner Counsel: Mr. V.Z. KANKARIA
Respondent Counsel: Mr. P.R. ARJUNWADKAR

Cases Cited:
Ramesh Kumar Jhamb Vs. Official Assignee, High Court, Bombay A.I.R. 1993 Bombay 374 [Para 12]
Shaikh Usman Shaikh Burahan Vs. Shaikh BadruddinShaikh Bhagan, Bhagan1994 Mah.L.J. 828 [Para 13]
Tatya Savla Sudrik Vs. Yeshwanta Kondiba Muley ILR, (1951) Bom.293 [Para 15]
Badri Narain Jha Vs. Rameshwar Dayal Singh A.I.R., 1951 S.C. 186 [Para 16]
Rye v. Rye 1962 Appeal Cases, 496 [Para 19]

JUDGMENT

JUDGMENT :- This petition is directed against the order of the Maharashtra Revenue Tribunal by which the said Tribunal reversed the finding of fact rendered by the Sub-Divisional Officer. The Sub-Divisional Officer has held that the respondents' predecessor-in-interest i.e. their father Sopan was not cultivating the agricultural land in question in his individual capacity but was doing so as Manager of the joint family comprising of the petitioner and his brothers Atmaram, Maruti and Udhav. The Maharashtra Revenue Tribunal has interfered with this finding of fact and come to the conclusion that from the evidence, Sopan alone was the tenant in possession and was in exclusive possession of the suit lands.

2. The lands in question are survey nos.6/1, 6/4, 104/1, 105/1 and 34/2, situate at Village Marapur, taluka Mangalwedha. The said lands are hereinafter referred to as the "lands in question". The aforesaid lands were owned by Awadabai. She was the wife of one Genu Mane. Genu Mane had a brother called Bapu. Bapu had four sons Sopan, Atmaram, Maruti and Udhav. The deceased Sopan was the eldest.

3. Awadabai applied for possession of the Lands in proceedings under section 24 of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as the "Act". In those proceedings, she had joined only Sopan as a party. The A.K. rejected the prayer of Awadabai.

4. Awadabai Genu Mane died on 11.11.1949. There is no dispute about the fact that she has been succeeded by Sopan, Atmaram, Udhav and Maruti; the four brothers. The mutation entry to that effect nos.1 to 11 has been made on 8.1.1950 and confirmed on 4.4.1950.

5. Atmaram and Udhav filed Regular Civil Suit no.113 of 1974 for partition and possession of their share in the lands in question along with ancestral properties. The Civil Judge, Junior Division, Mangalwedha, before whom the suit is pending referred the following two questions to the Tahsildar & A.L.T. under the Act in exercise of his powers under section 85A of the Act for determination:-

"1. Whether the Deft. No.1 has proved that he was a tenant on the suit lands S. No.6/1, 6/4, 104/1, 105/1 & 34/2 of village Marapur Tal. Mangalwedha in his individual capacity and not in his capacity of the Karta of Joint Hindu Family of Plaintiffs and Defendants?

2. If yes, whether the Defendant No.1 has become a deemed purchases of 3/4 the share of plaintiffs No.1 and 2 and defendant No.2 u/s. 32 of the B.T. & A.L. Act 1948?"

Thus, the present proceedings have arisen upon that reference.

6. The Court of the first instance i.e. the Addl. Tahsildar relied on a photocopy of the decision by with the Awadabai had sought to take possession of the lands from Sopan. Relying solely on the fact that Sopan alone was joined as a party, the Tahsildar took the view that Sopan alone was the tenant in possession of the suit land. By ignoring the entry in the record of rights which shows that Sopan's possession is shown in the kabjedar's column as Manager of the joint family, he held that Sopan was the sole tenant and none of the brothers had any right for the said land. Therefore, according to the Tahasildar, Sopan who was in possession on 1.4.1957 became a deemed purchaser of 3/4th share that his three brothers acquired by heirship as on 1.4.1957 i.e. the tiller's day. The Tahsildar also fixed the price for the 3/4th share. In other words, the Tahsildar held that Sopan had become 1/4th owner and by virtue of the provisions of section 32 of the Act was entitled to become a deemed purchaser of the shares of the other three brothers.

7. Atmaram and Udhav challenged the order of the Tahsildar before the Sub-Divisional Officer. The S.D.O. observed that there was no rent or lease deed on record in favour of Sopan. The S.D.O. observed upon evidence that, Awadabai's application was against Sopan as a tenant. However, the S.D.O. considered it important to investigate into whether Sopan was cultivating the suit land in his individual capacity or as Manager of the joint family on 1.4.1957. The S.D.O. found from the record that after Awadabai's death, Sopan was entered in the record of rights in regard to the land in question as Manager of the joint family vide matation entry no.1211. There being no evidence on record that there was a partition between the deceased Sopan and his brothers prior to 1.4.1957, the S.D.O. found as a fact that Sopan was cultivating the land as Manager of the joint family. He, therefore, allowed the appeal and set aside the Tahasildar's order.

8. The Maharashtra Revenue Tribunal interfered with the aforesaid finding of fact by the S.D.O. on the ground that from the photocopy of the tenancy A.K.'s decision, it is clear that Sopan was in exclusive possession of the suit land. It is clear from the reasoning of the Maharashtra Revenue Tribunal in para 5 of the order that it completely ignored the fact relied upon by the S.D.O. that the entry shows Sopan as Manager of the joint family cultivating the suit lands. No reasons whatsoever have been given by the Maharashtra Revenue Tribunal for ignoring that entry while reversing the finding of fact. It would be reasonable to assume, in the absence of evidence to the contrary, that if Sopan was cultivating the land on behalf of the H.U.F. on 1.4.1957, the same situation existed prior thereto. The Maharashtra Revenue Tribunal has particularly found fault with the S.D.O. for reversing the finding of fact by observing that it should not have been lightly disturbed. It has, however, in a revision disturbed the finding of fact rendered by the last Court of facts rather lightly.

9. It is well-settled that the jurisdiction of the Maharashtra Revenue Tribunal is limited to the classes of cases mentioned in that section itself. Section 76 reads as follows:-

"76.(1) Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1939, an application for revision may be made to the Maharashtra Revenue Tribunal constituted under the said Act against any order of the Collector on the following grounds only:-

(a) that the order of the Collector was contrary to law;

(b) that the Collector failed to determine some material issue of law; or

(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.

(2) In deciding application under this section the Maharashtra Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the Maharashtra Revenue Tribunal."

Having regard to the well-settled view of section 76, I am of view that the Maharashtra Revenue Tribunal has exceeded its jurisdiction and its order is not sustainable.

10. It is obvious that the result of the aforesaid finding is that the order of the last Court of facts i.e. S.D.O. is liable to be upheld. The S.D.O. has found that the deceased Sopan i.e. the predecessor-in-interest of respondent nos.1 to 4 and 6, was cultivating the land on behalf of all the four heirs i.e. Atmaram, Udhav, Maruti and himself. Therefore, on 1.4.1957 Sopan is entitled to be declared as a deemed purchaser of 3/4th share of the aforesaid three brothers, viz., Atmaram, Udhav and Maruti.

11. Mr. Kankaria, learned counsel for the petitioners, submitted that in view of the fact that the four brothers have inherited the estate of Awadabai upon her death in 1949, the tenancy is extinguished on the application of the doctrine of merger. Though this point has not been raised before any of the Courts below, having regard to the fact that it goes to the root of the matter, I have considered the same. I find that the conclusions reached by the M.R.T. is not sustainable in view of a basic principle which governs the relationship of a lessor and a lessee, viz., the doctrine of merger which is provided for in section 111(d) of the Transfer of Property Act. If the doctrine of merger is applicable, it is clear that upon the death of Awadabai on 1.11.1949, and upon the four brothers inheriting her estate itself, the tenancy stood extinguished.

12. Section 111(d) reads as under:-

"111. A lease of immovable property determines-

(a) ..............................

(b) ..............................

(c) ..............................

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right."

It is well-settled that the doctrine of merger is attracted when a leasehold and reversion coincide and when a lessor's interest such as a lease is merged in the larger estate such as ownership. As observed by a Division Bench of this Court in Ramesh Kumar Jhamb v. Official Assignee, High Court, Bombay (A.I.R. 1993 Bombay 374), "the doctrine of merger is based on the principle of fusion of two conflicting interests which cannot be held by one person at the same time."

13. Mr. Arjunwadkar, learned counsel for respondent no.1, however, relied on the judgment of a single Judge of this Court in Shaikh Usman Shaikh Burahan v. Shaikh Badruddin Shaikh Bhagan, reported in 1994 Mah.L.J. 828, for the proposition that section 111(d) is not attracted to agricultural lands at all. That was a case where the plaintiff had sued for recovery of possession of agricultural lands. The defendants had raised the defence that they had been inducted as tenants. The plaintiff contended that the defendants had purchased the lands, the tenancy had merged into a sale and thus they could not fall back upon the contract of tenancy. While dealing with this question, the learned single Judge observed that section 111(d) would not be available for the landlord to say that once the sale deed is executed in favour of the tenant and he becomes a landlord, he could not fall back upon his rights as tenant if the sale failed. The applicability of section 111(d) was rejected for the reason that the merger presupposes that the sale in favour of the tenant is valid and, at any rate, if the sale is not valid, there can be no question of merger. In the result, the learned single Judge held that there would be a bar in pleading tenancy as an alternative case if the party apprehends that sale may fail because of certain legal defects or otherwise. It is clear that this case is no authority for the proposition that section 111(d) is inconsistent with the provisions of the Act and, therefore, the doctrine of merger is inapplicable to an agricultural tenancy.

14. The next point that needs to be considered is this. Section 111 which is part of Chapter V of the Transfer of Property Act is not applicable to agricultural tenancies by reason of section 117 of the Transfer of Property Act. Section 117 of the Transfer of Property Act reads as under:-

"117. None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the official Gazette, declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.

Such notification shall not take effect until the expiry of six months from the date of its publication."

15. With regard to section 117 of the Transfer of Property Act which lays down that none of the provisions of Chapter V applies to leases for agricultural purposes, except insofar as the State Government notifies, this Court has held that nonetheless certain provisions of that chapter would apply to agricultural leases. In Tatya Savla Sudril v. Yeshwanta Kondiba Muley, reported in ILR (1951) Bom. 293, a Division Bench of this Court was considering the applicability of section 111(g) which provides for forfeiture to an agricultural lease. The Division Bench observed as follows:-

"So far as the provisions of the Transfer of Property Act are concerned, it has also been held by the various High Courts in India that in the absence of any local Act or custom or special reason to the contrary the principles of English law as introduced by the Transfer of Property Act were applicable to agricultural leases by way of justice, equity and good conscience, and in fact the provisions as to the forfeiture contained in s.111(g) of the Transfer of Property Act had been so applied. (Vide Mulla's Transfer of Property Act, 3rd edn., p. 739). The only question, therefore, which remains to be considered by us is whether in applying the principles which have been enacted in the Transfer of Property Act by way of justice, equity and good conscience, we should also apply the principle which has been enacted in S.111(g) of the Transfer of Property Act as amended in 1929. This question arose for determination before the Madras High Court in a decision reported in Umar Pulavar v. Dawood Rowther and Chandrasekhara Aiyar J. who decided that case stated (p.69):

"It is for the purpose of attenuating the rigour of the law as thus interpreted and applied in such decisions that s. 111(g) was amended in 1929 and it was made clear that even in the case of forfeiture by denial of the landlord's title a notice in writing determining the lease must be given. The principle so embodied in the section as a result of this amendment becomes, so to say, a principle of justice, equity and good conscience which must be held to govern even agricultural leases, though under s. 117 of the Act they are exempt from the operation of the chapter. To hold that with reference to agricultural leases previous notice determining the tenancy is not necessary is to ignore the policy of the Act as disclosed by the amendment which was intended to afford all tenants greater protection than what was afforded by the decisions which interpreted s. 111(g) as it originally stood. It is reasonably clear that if notice is necessary with reference to non-agricultural leases it is still more necessary in the case of agricultural leases where larger interests are at stake, generally speaking, and where in the absence of a proper notice to quit the right to the standing crops raised by the tenants might itself become a subject of dispute as between them and the landlord."

Our own appellate Court here in an unreported judgment in Mahiboobkhan Muradkhan v. Ghanashyam Jamnaji applied the very same principle enacted in s. 111(g) of the Transfer of Property Act as amended and negatived the contention which was urged before them that a notice under s. 84 of the Bombay Land Revenue Code was necessary before the lessor could maintain a suit in ejectment against the lessee."

16. Mr. Arjunwadkar, learned counsel for respondent no.1, however, submitted that section 111(d) has no application in the present case in view of the observations of the Supreme Court in Badri Narain Jha and others v. Rameshwar Dayal Singh and others (A.I.R. 1951 S.C. 186) wherein their Lordships have observed as follows:-

"If the lessor purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord & a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessor's interest. In such a case the leasehold & the reversion cannot be said to coincide. Hence, in the case of an estate which is subject to Lakhraj & mokarrari interests, mere purchase by one of the several joint holders of the mokarrari interest, of portions of the lakhraj interest cannot bring about an extinction of the lease or break its integrity. There is no coalescence of the interest of the lessor & the lessee in the whole of the estate & that being so, the mokarrari interests of the purchaser does not merge in his lakhraj interest."

It appears that the aforesaid observations would have no application to the present case since the present case is one where the entire interest of the lessor Awdabai has been inherited by the four brothers. It can hardly be disputed that the four brothers have inherited the property jointly. It would make no difference if they inherit as tenants in common or joint tenants since the four brothers have jointly stepped into the shoes of the lessor Awadabai. In fact, even if this estate to which they succeeded has been partitioned, it would not affect the fact of merger. In Badri Narain Jha's case (supra), Their Lordships have observed as follows:-

"An inter se partition of the mokarrari interest amongst the mokarraridars as alleged by the pltfs. could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, & qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole & is liable to discharge common obligations in its entirety. In the words of Lord Halsbury in White v. Tyndall, (1888) 13 A.C. 263, the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents & not each to pay half a rent but one rent. There is a privity of the estate between the tenant & the landlord in the whole of the leasehold & he is liable for all the covenants running with the land. In law, therefore, an inter se partition of the mokarrari interest could not affect the integrity of the lease & it could not be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar under another contract of lease. Such partitions amongst several lessees inter se are usually made for convenience of enjoyment of the leasehold but they do not in any way affect the integrity of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy. In the present case, there was not even an allegation that the tenancy was severed & the several tenancies came into existence as a result of the partition qua the landlord. Similarly, the allegation of partition inter se among the several owners of the lakhraj holding subject to makarrari interest could not in any way affect the integrity of the lease in the absence of an allegation of a fresh contract between the split up owners of the holding & the different owners in the mokarrari interest."

17. The other provision that comes into play is that section 3 of the Tenancy Act makes the provisions of Chapter V of the Transfer of Property Act inapplicable to tenancies and leases of land to which the Act applies. However, section 3 makes the said chapter V which contains section 111(b) inapplicable only insofar as the provisions of that chapter are not inconsistent with the provisions of the Act. Section 3 reads as follows:-

"3. The provisions of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of land to which this Act applies."

18. At the outset, it must be noticed that under the Act a tenancy is not liable to be terminated except on the conditions stipulated in the relevant provisions therein. Though section 15 provides for surrender of the tenancy as is also provided under section 111, the Act is silent as to a situation as obvious in the present case, viz., when the tenant succeeds to the reversion. Having regard to the fact that the doctrine of merger is basic to the relationship of a lessor and lessee and provides that a lease of immovable property stands determined in case the interest of the lessee and lessor in the whole of the property becomes vested at the same time by one person in the same right, I am of view that the said doctrine applies to agricultural tenancy, particularly since there is nothing inconsistent therewith in any provision of the Act. There is no doubt that the Act provides for protection against termination of tenancy and provides the circumstances in which the tenancy may be terminated. Since the Act is silent on the question of merger, I am of view that the application of section 111(d) would not bring about any inconsistency with the provisions of the Act. In fact, reading the provisions, particularly the Tenancy Act, it is clear that where the Legislature intended that a section of the Transfer of Property Act should not apply to agricultural tenancies, it has expressly done so. Section 4B of the Act for instance specifically states that tenancy will not be terminated by efflux of time. This shows an express intention of the Legislature to depart from section 111(a) of the Transfer of Property Act which provides that a lease of immovable property determines by efflux of time. It would, therefore, be reasonable to infer that the Act allows for application of section 111(b) of the Transfer of Property Act.

19. In the result, I hold that in view of the fact that the tenants, viz., Sopan, Atmaram, Udhav and Maruti have succeeded to the reversion, the tenancy stood extinguished upon the interest of the lessee and interest of the lessor i.e. Awadabai in the joint family property having become vested at the same time in one person in the said right. Having regard to the circumstances of the case, it is clear that lease must be taken to have determined. There is no doubt the proposition that a person cannot grant a lease to himself since the person cannot agree with himself and cannot covenant with himself vide Rye v. Rye (1962 Appeal Cases 496). The same position obtains in India under section 2 of the Indian Contract Act. The doctrine of merger is based on the same principle and, therefore, in such a situation, a lease must be taken to be determined. In a case such as this where the tenants are more than one and each of them succeeds to the reversion, I am of view that it can be said that the interests of the lessee and lessor have vested "in one person in the same right."

20. In the result, I am of view that the reference question referred to the revenue authorities is liable to be answered in accordance with the observations above. It is made clear that the civil Court shall determine the exact shares of the four brothers and their heirs independently. The petition is allowed in the above terms. The rule is made absolute in the aforesaid terms. No order as to costs.

21. At this stage, Mr. Arjunwadkar, learned counsel for respondent no.1, seeks stay of eight weeks. Having regard to the fact that the status quo as on today has been in existence since long, there shall be a stay of the effect and operation of this judgment for a period of eight weeks from today.

22. Certified copy expedited.

23. P.S. to give ordinary copy of this judgment to the parties concerned.

Reference answered.