Second Appeal No.204 of 1991

27th June, 2008

Petitioner Counsel: Mr. P. N. KARULKAR,N. D. HUMBALKAR
Respondent Counsel: Mr. N. S. PATIL

Cases Cited:
B. B. Deshpande Vs. D. N. Deshpande, 1993 B.C.J. 626 [Para 12]
Kashinath Laxman Waghmare Vs. Ganpat Tukaram Kashmire, 2003(2) ALL MR 233 [Para 13]
Vasantkumar Ramchandradas Mehta Vs. Ratilal Kalidas Trivedi, 1997(1) Gujarat Law Reporter 577 [Para 16]
Basnantbai (since deceased through her L.R.) Rajkuwarbai d/o. Nathmalji Chitlange Vs. Narayan Kisan Khadasane (since deceased through His L.Rs.) Venubai wd/o. Narayan Khadsane, 1996(1) Mah.L.J. 598 [Para 18]
Sau. Nakabai Vs. Mahadu Sakharam Adsule, A.I.R. 1980 Bombay 208 [Para 22]
Damadilal Vs. Parashram, AIR 1976 S.C. 2229 [Para 22]

JUDGMENT

JUDGMENT :- This is a second appeal filed by the original plaintiffs in R.C.S. No.199 of 1975 filed in the Court of Civil Judge, J.D. Jaisingpur. The appeal impugns a judgment and decree passed by the Lower Appellate Court in Regular Civil Appeal No.118 of 1986.

2. The plaintiffs' suit was for partition and separate possession of four agricultural lands bearing Gat Nos.129, 159, 200 and 201.The Gat Nos.129, 200 and 201 are situated in Village Yadrav, Taluka Shirol, Dist.-Kolhapur and the Gat No.158 is situated at Village Shirdon, Dist. Kolhapur. The partition was also sought in respect of the three house properties bearing Gram Panchayat House Nos.274, 66 and 515. The house properties Nos.274 and 66 were situated at Village Yadrav whereas house No.515 was situated at Village Shridhon.

3. It was the case of the plaintiffs that the suit lands belonged to the father-in-law of the plaintiff No.1 Annappa Nargude who expired on 8.2.1976. Annappa Nargude had two children by name Ramanna and Bhimanna. Ramanna predeceased Annappa on 10.5.1975 leaving behind widow Shrimantibai who was plaintiff No.1 and a daughter Kamal who was plaintiff No.2. Bhimrao married to one Sonabai and they had two sons by names Nemu and Adinath. In the suit filed by the plaintiffs Annappa was defendant No.1, Bhimrao was defendant No.2, Nemu was defendant No.3 and Adinath was defendant No.4. It was the plaintiffs' case that the suit properties being joint family property, the share of her husband would come to the plaintiffs.

4. The record indicates that the defendant No.1 Annappa died very soon after the filing of the suit on 8.2.1976. The defendant No.2 filed his written statement and the defendant Nos.3 and 4 filed their joint written statement. The defendants resisted the partition suit and contended that the suit properties were self acquired properties of Annappa. All the suit properties were bequeathed to defendant Nos.3 and 4 by a registered will executed by defendant No.1 Annappa on 24.5.1975.

5. At the trial the plaintiff No.1 stepped into the witness box. Two other witnesses by names Krishna Chaudhari and Rajgonds Kumbhoje were examined on behalf of the plaintiffs. The defendant No.3 stepped into the witness box. On behalf of the defendants, the writer of the will dated 24.5.1985 by name Purshottam Deshpande and one of the attesting witness by name Babu Patil were examined to prove the Will.

6. On the basis of the oral and documentary evidence produced on record, the Trial Court by its judgment and order dated 25.2.1986 decreed the plaintiffs' suit and held that the plaintiffs were jointly entitled to partition and separate possession to the extent of 1/3rd share in the suit properties.

7. The defendants preferred an appeal in the court of District Court at Kolhapur and by his judgment and order dated 22.10.1990, the 5th Additional District Judge, Kolhapur partly allowed the defendants' appeal. The Appellate Court held that the properties bearing Gat Nos.129, 200 and 201 as well as house bearing Nos.274 and 66 were not joint family properties and were self acquired properties of deceased Annappa-defendant No.1. In respect of these properties the Appellate Court held that they were not liable for partition. In other words, the Appellate Court allowed the plaintiffs' suit for partition only in respect of Gat No.159 and House No.515. It is in these circumstances, the second appeal came to be filed.

8. I have heard both the parties and perused the record. At the very out set, the Advocate appearing for the appellants fairly stated that in view of the concession recorded by the Appellate Court, the appeal is not being pressed in respect of Gat No.159 and House No.515. He further stated that there was no substantial question of law involved in the findings regarding House Nos.274 and 66. He contended that thus, the appellants were only pressing this appeal in respect of lands bearing Gat Nos.129, 200 and 201 situated at Village Yadrav.

9. In respect of Gat No.129, the Appellate Court found that by a court decree dated 9.4.1910 (Exh.103), Gat No.129 had been decreed in favour of one Annappa Kalgonde who was the father of two girls by names Tipakka and Bayaka. The decree contemplated that the said lands would come to the share of Tipakka and Bayaka, after the death of their father Annappa Kalgonde and his wife. This being the position, it was clear that this land bearing Gat No.129 came to the share of Tipakka and Bayaka who were married to Annappa Nargude. It is true that the record shows the name of Annappa Nargude in respect of this land but the record in totality indicates that he obtained these lands from his two wives. The land was therefore, not his own ancestral land. It was sought to be argued by the Advocate for the appellants that this land came from the side of his wives, yet mutation entry indicated that it was ultimately mutated in the name of Annappa as Tipakka predeceased him long back. He contended that the long standing mutation entry indicated that the land gat No.129 was blended joint family property. The theory of blending was never raised by the defendants in the lower court and this argument is being made for the first time in the High Court. The ground of blending is not even incorporated in the present appeal. I am therefore unable to accept this contention.

10. As regards the Gat Nos.200 and 201, the Appellate Court found that the record indicated that Annappa Nargude was a mirashi tenant. The Appellate Court also held that there was no evidence to show that tenancy was held by him as tenancy in common on behalf of the joint family property. The Appellate Court's finding was that Annappa Nargude was a tenant in his personal capacity and therefore, these lands bearing Gat Nos.200 and 201 could not be said to be the joint family properties capable of partition.

11. It was contended by the counsel appearing on behalf of the appellants that if Gat Nos.200 and 201 were the properties of a Mirashi tenant then they could not have been willed away under registered sale deed. He contended that though registration of the will was not challenged, the validity thereof was being assailed on the ground that Annappa Nargude being a mirashi tenant could not have willed the said property.

12. In support of this contention, counsel appearing for the appellants firstly relied upon a judgment of the Single Judge of this court in the case of B. B. Deshpande Vs. D. N. Deshpande reported in 1993 B.C.J. 626. In this judgment the Single Judge of this court observed as under.

"What is brought to my notice is a substantive provision contained in Section 27 which prohibits assignments otherwise than provided for in the said section and I am relying upon the Division Bench decision reported in AIR 1990 Bom. 69 (Dr. A. T. Sabnis Vs. Vasant Pratap Pandit) for the proposition that word "assign" would include bequest and therefore tenancy rights cannot be willed away."

13. The counsel next brought to my notice that this judgment of the High Court was subsequently followed by another Single Judge of this court in the case of Kashinath Laxman Waghmare Vs. Ganpat Tukaram Kashmire reported in 2003(2) ALL MR 233. In this Judgment a Single Judge of this court observed as under :

"The Maharashtra Revenue Tribunal ignored the settled position in law that a tenant cannot assign tenancy rights in agriculture land by an instrument styled as a Will vide Bhaskar Bhagwant Deshpande (supra). And such an assignment would be in contravention of Section 27 of the Bombay Tenancy Act."

14. On reading of the aforesaid two judgments of the Bombay High Court, it appears that the tenancy rights in agriculture land cannot be willed away. However, on perusing the facts of the aforesaid cited cases, it is clear that the tenants in those cases were not permanent tenants. In the present case, it is clear from the record that Annappa Nargude was a mirashi tenant in respect of Gat Nos.200 and 201. Section 2(10-A) includes a mirashi tenant within the definition of a permanent tenant. Section 2, sub-section (10-A) reads as under :

" "Permanent tenant" means a person- (a) who immediately before the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1955 (hereinafter called "the Amending Act, 1955"),-

(i) holds land as mulgenidar or mirasdar; or

(ii) by custom, agreement, or the decree or order of a Court holds the land on lease permanently; or

(b) the commencement or duration of whose tenancy cannot satisfactorily be proved by reason of antiquity; and includes a tenant whose name or the name of whose predecessor in title has been entered in the record of rights or in any public record or in any other revenue record as a permanent tenant immediately before the commencement of the Amending Act, 1955;]."

15. The Bombay Tenancy & Agricultural Lands Act, 1948 defines the term "tenant" separately in Section 2(18) and this definition of tenant is as under :

["tenant" means a person who holds land on lease and include,

(a) a person who is deemed to be a tenant under Section-4;

(b) a person who is a protected tenant; and

(c) a person who is a permanent tenant; and the word "landlord" shall be construed accordingly;].

The aforesaid two judgments proceed on the footing that the act of bequeathing the property by Will would amount to assignment of the property within the meaning of Section 27 of the B.T.A.L. Act. Both the courts had no occasion to consider the effect of proviso to Section-27(1). The relevant portion of Section 27 is as under :

"[27. Sub-division, sub-letting and assignment prohibited -(1) [Save as otherwise provided in Section 32-F no sub-division] or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid.

Provided that nothing in this sub-section shall prejudicially affect the rights of a permanent tenant.

Provided further that if the tenant dies,-

i) if he is a member of a joint family, the surviving members of the said family, and

ii) if he is not a member of a joint family, his heirs, shall be entitled to partition and sub-divide the land leased subject to the following conditions-

(a) each sharer shall hold his share as a separate tenant,

(b) the rent payable in respect of the land leased shall be apportioned among the sharers, as the case may be, according to the share allotted to them,

(c) the area allotted to each sharer shall not be less than the unit which the State Government may, by general or special order, specify in this behalf having regard to the productive capacity and other circumstances relevant to the full and efficient use of the land for agriculture,

(d) if such area is less than the unit referred to in clause (c), the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds,

(e) if any question arises regarding the apportionment of the rent payable by the sharers, it shall be decided by the Mamlatdar, whose, decision shall be final."

On the facts before them, the cases before the two Single Judges were not contemplating a reference of a permanent tenant in respect of whom an exception has been made in respect of the prohibition of sub-letting or assignment by way of proviso to Section 27(1) of the Act. The reasoning on the basis of which the two judgments proceeded is that word assigned would include bequeathing of the property under a Will. For this proposition, the first of the aforesaid two judgments relied upon in the Division Bench judgment of this court (Dr. Anant Sabnis) supra. In this case before the Division Bench, what was under consideration was meaning of the words "assign" and "transfer" under the Bombay Rents, Hotel & Lodging House Rates (Control) Act and in this context in Para-7 it was held as under :

"The words "assign" and "transfer" are not defined in the Rent Act. The dictionary meaning of the words should therefore, prevail unless the context and setting suggest any expansion or modification. In the Murrey' Dictionary the word "assign" is indicated to mean to transfer or formally to make over to another. According to Wharton's Law, Lexicon, 14th Edition, the word "assign" denotes generally to transfer property especially personal estate or set over a right to another. In its general sense, thus, the words "assign" and "transfer" are wide enough to include every kind of transfer of property including passing of the property from the testator to the legatees.There is no reason why the said words should not include disposal of the property under a Will."

16. The effect of the proviso to Section 27 was considered by the Single Judge of the Gujarat High Court in the case of Vasantkumar Ramchandradas Mehta Vs. Ratilal Kalidas Trivedi and ors. reported in 1997(1) Gujarat Law Reporter Page 577. In the case before the Gujarat High Court, the contention was that a sub-tenancy created in favour of the respondent No.1 in that case was illegal as it was hit by Section 27. This was sought to be countered by a contention on behalf of the said respondent that the rights of the permanent tenant were saved by the proviso. The observations in Para-4 of the said Judgment were as under :

"Section 27 of the Act, 1948 no doubt provides that no sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid save as otherwise provided in Section 32-F. A proviso to this section provides that nothing in this sub-section shall prejudicially affect the rights of a permanent tenant. So the rights of a permanent tenant were protected. There is no dispute that the permanent tenant has been given the right to transfer the land and even the right to create sub-tenancy. Shri. Chandulal Bhagulal has transferred his right of permanent tenancy by document dated 25th March, 1947 to Chaturbhai Ashabhai under the registered document. That Chaturbhai Ashabhai has made the permanent lease in favour of Gordhandas Ambalal and Co. and from that company the petitioner has come in the possession of the land. The original lessee was the permanent tenant and as he has a right to sub-let the land that sub-letting cannot fall under the clutches of sub-sec.(1) of Sec.27. That sub-tenancy is protected or saved by the proviso to the aforesaid provision."

17. I am in agreement with the proposition laid down by the Single Judge of the Gujarat High Court in so far as it lays down that Section 27 protects the right of the permanent tenant such as mirashi tenant. It follows that if a mirashi tenant could assign his right of tenancy then he could also bequeath the same by a Will.

18. The counsel appearing for the appellants then brought to my notice another judgment of this court also delivered by the Single Judge in the case of Basnantbai (since deceased through her L.R.) Rajkuwarbai d/o. Nathmalji Chitlange Vs. Narayan Kisan Khadasane (since deceased through His L.Rs.) Venubai wd/o. Narayan Khadsane and ors. reported in 1996(1) Mah.L.J. 598 in which it was held that a statutory tenant was not entitled to bequeath tenancy rights by Will. In that case, the question before the Single Judge was whether a statutory tenant could will away to bequeath his tenancy right in view of Section 54 of the B.T.A.L. Act (99 of 1958). In Paras 8 to 12, the learned Single Judge observed as under.

"8. The tenancy rights under the Tenancy Act of 1958 have been made heritable in accordance with section 54 of the Tenancy Act of 1958 and, therefore after the death of the statutory tenant, the tenancy could be inherited only in accordance with section 54 of the Tenancy Act of 1958, and not otherwise.

9. Section 54 of the Tenancy Act of 1958 reads as under :

"54(1) Where a tenant dies, the landlords shall be deemed to have continued the tenancy-

(a) if such tenant was member of an undivided Hindu family to the surviving member of the said family, and

(b) if such tenant was not a member of an undivided Hindu family, to his heirs, on the same terms and conditions on which such tenant was holding at the time of his death.

(2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profit of such land.

(3) The interest of an occupancy tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his personal law."

10. A plain reading of sub-section (1) of Section 54 of the Tenancy Act, 1958 would show that on the death of the tenant, the tenancy continues-

(i) if the tenant was the member of an undivided Hindu family and he was survived by a member of such undivided Hindu family; and

(ii) if such tenant was not a member of such undivided Hindu family, then to his heirs at the time of his death.

11. It is thus clear that the rights of the tenant under the Tenancy Act of 1958 after his death continues either to the surviving member of the undivided Hindu family, if such tenant was a member of such undivided Hindu family, or to his heirs at the time of his death, if such tenant was not a member of an undivided Hindu family. Section 54 does not contemplate continuation of tenancy rights after the death of the tenant by testamentary instrument executed by the tenant prior to his death. The tenancy rights under the Tenancy Act of 1958 are statutory and on his death could only devolve upon the heirs in accordance with section 54 of the Tenancy Act of 1958 and not otherwise and to that extent, the rights of the tenant under the Tenancy Act of 1958 are different from the rights of an ordinary tenant.

12. Sub-section (2) of Section 54 of the Tenancy Act of 1958 deals with tenancy rights inherited by heirs other than the widow of the deceased tenant, and sub-section (3) deals with the interest of occupancy tenant in his holding, which, according to the said sub-section, on his death, passes by inheritance or survivorship in accordance with the personal law. Neither sub-section (1) nor sub-section (2) or sub-section (3) of section 54 of the Tenancy Act of 1958 makes the rights of tenancy heritable on the basis of Will. The right of tenancy under the Tenancy Act of 1958 being statutory and therefore personal, extinguishes on the death of the tenant unless inherited in accordance with section 54 of the Tenancy Act of 1958."

19. It was brought to my notice that under the Bombay Tenancy & Agricultural Lands Act, 1948. Section 40 imposed a rule pertaining to continuation of tenancy. It was contended that since there were provisions in Bombay Tenancy and Agricultural Lands Act relating to tenancy being heritable for the same reasons as contained in the aforesaid judgment of the Bombay High Court, a tenant covered by the B.T.A.L. Act must be held to be prohibited from bequeathing his tenancy rights by Will.

20. Before we appreciate this argument, it is necessary to reproduce Section 40 of the B.T.A.L. Act which is as under.

"40. Continuance to tenancy on death of tenant.-(1) Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy.

(2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land."

21. On a plain reading of Section 40 of the Bombay Tenancy & Agricultural Lands Act, it can be seen that while Section 54 of the B.T.A.L. Act (Vidharbha Region) Act, 1958 covers all tenants, the B.T.A.L. Act, 1948 makes an exception in the case of a permanent tenant.

22. The question now remains is as to whether a permanent tenant can assign his rights by Will. It appears that in the case of permanent tenant, the tenancy is inherited in accordance with rules of succession under the Hindu Law and not in accordance with the provisions of Section 40 of the B.T.A.L. Act, 1948. In this connection useful reference can be made to a Division Bench Judgment of this court in the case of Sau. Nakabai Vs. Mahadu Sakharam Adsule and ors. reported in A.I.R. 1980 Bombay 208. The Division Bench made a reference to the ratio of the Apex Court judgment in the case of Damadilal Vs. Parashram reported in AIR 1976 S.C. 2229 and accepted the proposition that the Supreme Court had held that heritability was an incident of tenancy. The Division Bench in Para-14 of this judgment observed as under :

"When the Supreme Court treats inheritability as the incident of the tenancy, it has obviously, the Contract Act and the T.P. Act in mind as being the fountain of such inheritability, of which the tenancy is the creature. Section 40 of the Act therefore, cannot now be held to be such source, after the law enunciated in Damadilal's case. So considered Section 40 is merely restrictive of right of inheritance to a few out of the many heirs. So, was Section 40. prior to its amendment as also the corresponding section 9 of the 1939 enactment, though the choice of the heirs was different. In application of Section 40 results merely in the opening succession to all the heirs of the deceased tenant, and not destroying the inheritability itself."

23. It thus appears that the permanent tenancy is property which is inheritable by the rules of succession under Hindu Law. There is no provision shown to me under which it cannot be willed away.

24. In the net result, it must be held that Annappa Nargude had a right to will away his rights of permanent tenancy in Gat Nos.200 and 201 and this he did by a registered deed dated 24.5.1975. This is quite apart from the fact that the trial court has held that the tenancy rights of Annappa Nargude in Gat Nos.200 and 201 were his personal rights and there was no evidence to show that he held the property as a tenant in common on behalf of the joint family property. The contention of law as raised by the counsel appearing for the appellants must therefore fail. In the result, the Second appeal is dismissed.

Second appeal dismissed.