Supreme Court: Bar On Transfer/Assignment Of Agricultural Land To Non-Agriculturist is Applicable To Testamentary Disposition Also

The questions that arose for consideration and

the circumstances in which the matters were referred to it were set out by

the Division Bench as under:-.

“We are called upon to decide as to whether Section 63 of

the Bombay Tenancy and Agricultural Lands, Act, 1948

(for short ‘the Bombay Tenancy Act’) debars an

agriculturist from parting with his agricultural land to a

non-agriculturist through a “Will” so also, whether Section

43(1) of the Tenancy Act restricts transfer of any land or

interest purchased by the tenant under Sections 17B, 32,

32F. 321. 320, 32U, 33(1) or 88E or sold to any person

under Section 32P or 64 of the Tenancy Act through the

execution of a Will by way of testamentary disposition.

Learned Single Judges of this Court have taken a

consistent view that such transfer of property through

testamentary disposition would not violate Section 43 or

63 of the Tenancy Act.

31. If the provisions referred to in Section 43 of the Act and allied

provisions are considered in light of the settled principles extracted earlier,

it emerges that the primary concern of those provisions is to see that the

legislative scheme of granting protection to persons from disadvantaged

categories and conferring the right of purchase upon them, and thereby

ensure direct relationship of a tiller with the land. The provisions, though

lay down a norm which may not be fully consistent with the principles of

Indian Succession Act, are principally designed to attain and sub-serve the

purpose of protecting the holdings in the hands of disadvantaged

categories. The prohibition against transfers of holding without the

previous sanction of the concerned authorities, is to be seen in that light as

furthering the cause of legislation. Even if by the process of construction,

the expression “assignment” is construed to include testamentary

disposition, in keeping with the settled principles, the incidental

encroachment cannot render the said provisions invalid. In pith and

substance, the legislation and the concerned provisions are completely

within the competence of the State Legislature and by placing the

construction upon the expression “assignment” to include testamentary

disposition, no transgression will ensue.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2573 OF 2020

VINODCHANDRA SAKARLAL KAPADIA Vs  STATE OF GUJARAT 

Uday Umesh Lalit, J.

Dated:June 15, 2020.

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Supreme court has struck down Words "Of The Fact That He Has Attained Majority” Of Section 32-F Of Maharashtra Tenancy And Agricultural Lands Act, 1948

Respectfully following the law laid down in these judgments, and in order to read Section 32-F(1)(a) in conformity with Article 14, we eliminate the words “..of the fact that he has attained majority..” so that the intimation that is to be made by the landlord has to be made to tenants of all the three categories of landlords covered by the provision.{PARA 44}

The questions referred to us are now answered as follows:

(i) The object of the Amendment Act of 1969 is relevant and applicable in deciding the scope of the right to purchase by a tenant of a landlord who was a widow or suffering from mental or physical disability on Tillers’ day.

(ii) The successor-in-interest of a widow is obliged to send an intimation to the tenant of cessation of interest of the widow to enable the tenant to exercise his right of purchase.

(iii) The decision in Appa Narsappa (supra) stands overruled. The decision in Sudam Ganpat (supra) stands distinguished as stated in paragraph 47 of the judgment. The decision in Tukaram

Maruti (supra), to the extent that it follows the law laid down in Appa Narsappa (supra), stands overruled.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.11774 OF 2018

Vasant Ganpat Padave  Vs  Anant Mahadev Sawant 

R.F. Nariman, J.

Dated:September 18, 2019.

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Whether it is necessary to hear tenant of agricultural tenancy before granting exemption to charitable trust?

The main contention raised by the advocate for the petitioner is that the petitioner had not been given any notice when the order under Section 88B was passed. Reliance is placed on the judgements of this Court in the case of Keraba Dattu Borachata and Ors. v. Shri Sheshashai & Vishnu Trust MANU/MH/0710/1990 : 1990 Mh.L.J. 1183 and Dattu Hari Mali @ Dattu Rau Mali since deceased by his legal heirs and Ors. v. Peer Alli Darga Masjid (Powai Peer) through its Vahiwatdar MANU/MH/1101/2004 : 2005(2) Bom.C.R. 442 in support of his submission that the rules of natural justice must be observed before any order can be passed under Section 88B of the act since the tenants must be given notice as they would effectively be deprived of their valuable right to purchase the tenanted properties. It was further contended that the trust was registered only in 1960, much after the tillers day and therefore the petitioner could not be evicted as he had been denied the opportunity to exercise his right to purchase the property.

6. On the other hand, the learned advocate for the respondent pointed out that the possession of the land in question had been taken after due process on 28th may 1995 and therefore the petition has become infructuous. He submitted that the petitioner had been inducted in 1966-67 and therefore the question of the petitioner exercising his right to purchase the property did not arise since the petitioner was not in possession of the lands on the Tillers day.

7. It is true that before an order is passed under Section 88B of the act a tenant occupying the land's of the charitable trust must be given notice as his valuable right or purchase the lands occupied by him under Section 32 of the act would be seriously affected. In fact the judgement of the division bench of this Court relied by the learned advocate the petitioner takes this view. 

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5381 of 1994

Decided On: 07.07.2009

 Shri Murgappa Shivarudrappa

Vs.

 Shri Amarsihna Babasaheb Dafale

Hon'ble Judges/Coram:

N.N. Mhatre, J.
Citation: 2009(5) MHLJ 400

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Whether one legal heir of agricultural tenant can be declared as tenant if there are his other legal heirs?

 The provision of section 40 of the Act shows
that rights of Gopinath who was tenant on the relevant
date had passed to his heirs, sons, and it was possible for
the heirs of Gopinath to partition the land amongst
themselves for cultivating the respective portions
separately. This could have been done subject to
conditions mentioned in section 40(2) of the Act. On the
basis of this provision the tenancy shall be deemed to
have been continued in favour of all heirs of the tenant
and so Pandharinath alone cannot claim that he had

become tenant after the death of Gopinath. Further, the
landlord was treating all the heirs of Gopinath as tenant.
For the same reasons, when more heirs are present, one
heir of the tenant cannot become exclusive owner under
the law. At the most the heir who has paid the purchase
price can say that if other heir wants to assert his right,
he should pay the price in respect of his share.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No.1411 of 2014
 Vishwanath Gopinath Borude,
V
 Pandharinath Gopinath Borude,

CORAM: T.V. NALAWADE, J.

 DATE : 23 AUGUST 2016
Citation: 2017(2) MHLJ 75

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When court should not refer issue of agricultural tenancy to revenue officers?

Supreme Court in the case of Gurbax Singh Chanda Singh (supra) has held that if the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the civil Courts have jurisdiction to examine those cases. In my view, since the alleged certificate issued under Section 32-M of the BTAL Act is without following the mandatory procedure under the provisions of the BTAL Act, the same being nullity and thus cannot bind the plaintiffs and thus no cognizance thereof can be taken by this Court.

65. In so far as the judgments in the cases of Rajaram Totaram Patel (supra), Tulsiram Adku Marape & Anr. (supra), Saraswatibai Trimbak Gaikwad (supra) and Smt.Savitra Bapu Shinde & Ors. (supra) relied upon by the learned counsel for the defendant nos.1 to 7 are concerned, none of those judgments would assist the case of the defendant nos.1 to 7. The defendant nos.1 to 7 not having raised plea of alleged tenancy before the learned trial Judge, inspite of having rendered opportunities to file written statement twice, the defendant nos.1 to 7 cannot be allowed to raise a plea that the learned trial Judge ought to have referred the issue of  tenancy to the competent authority under the provisions of the BTAL Act. The judgments relied upon by the learned counsel for the defendant nos.1 to 7 are thus clearly distinguishable.

Bombay High Court

1. Shri Chindhu Fakira Satale And ... vs 1. Sau. Vithabai Kashinath Jadhav ... on 5 October, 2016

Bench: R.D. Dhanuka

Citation: 2017(1) ALLMR 121 Bom

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When court should not frame issues regarding agricultural tenancy?

 This contention, as raised, is without any merit. I have perused the Written Statement filed by the appellants. In para 10 of the said Written Statement (Exhibit 12), the appellants have stated that, "Sambha alone was the tenant of the land in suit previous to sale deed dated 20-4-1959 and hence sale deed in favour of Nathuji is invalid and he gets no right in the said sale deed. This issue is, therefore, required to be referred to the Tenancy Court and until the said issue is replied, the suit is required to be stayed." Except this, no other specific pleading has been made in the Written Statement. Order 6, Rule 2 of the Code of Civil Procedure requires that the material facts should be pleaded by the parties. However, a bald statement that Sambha was tenant of the suit land previous to sale deed dated 20-4-1959, has been made. However, material facts constituting the plea of tenancy, have not been pleaded, viz. as to when the tenancy commenced; who was the landlord; what were the terms and conditions of the tenancy; what was the rent fixed etc. are absent in the pleading. Apart from this, it will be evident that no documentary evidence viz. revenue record and/or rent receipts have been produced on record to show the relationship of the deceased Sambha as the tenant of the said land. On the contrary, the Lower Court has rightly examined the document at exhibit 25 i.e. Crop Statement of the relevant year and it will be seen that earlier in the year 1957-58 name of Nago Mahadeo appears as cultivator of the land belonging to Vatsalabai Dattatraya. However, from the next year, names of Nathu and Sambha appears as occupant of the said land and they themselves have been shown as cultivators of the land. The same position continues in the Records of Right till 1968 when Nathu expired and thereafter name of Sambha appears as cultivator. All these documents, therefore, point out that there is not a single document on record which can, prima facie, point out that Sambha was cultivating the land as tenant. I am making reference to all this, because the reference under section 124 read with section 125 of the Tenancy Act of the Vidarbha Region and/or sections 85 and 85-A of the Tenancy Act of Bombay region has a consequence of keeping the suit pending on the dormant file of the Court till reference of the issues referred to the Tenancy Authorities are answered finally by the superior Court upto the Apex Court and, therefore, such a plea should not be allowed to be raised on bald pleading and/or shall not be allowed to be raised on frivolous plea to prolong the life of the litigation and, therefore, it becomes the bounden duty of the Court while framing issue to ascertain on the basis of the pleadings, viz. plaint and written statement and other material placed on record which can be considered for the purposes of framing of the issue under Order 14 as to whether issue arises and/or whether the parties are at issue on particular point. As earlier pointed out, the plea in para 10 of the Written Statement (Exhibit 12) does not contain material facts and further material particulars constituting the plea of tenancy and the documents on record do not support the said bald contention of tenancy. In the result, the issue does not arise between the parties and rightly the Court has not framed it. The Trial Court framed the issue. "Does the defendant prove that suit filed was acquired by Sambha, as pleaded?". This was also attempted by the appellants to be referred to the Tenancy Court on the basis of application (Exhibit 51) dated 17-2-1981 and the same was rejected after hearing the parties and thus, in the result, it is found that neither the issue was arising nor the issue was necessary for the purposes of adjudication of the controversy between the parties. I am supported in this view by the Division Bench judgment of this Court reported in 1981 Mh.L.J. 321, in the matter of Fulmati Shyamlal Mishra v. Ramkrishna Gangaprasad Bajpai, wherein it has been observed that the Civil Court under section 85-A of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 is not under an obligation to frame and remit the issue of tenancy mechanically merely on the same being raised in the Written Statement without judicial satisfaction of its neccessity and justification. The cases can be conceived when tenancy plea may appear to be patently frivolous, fraudulent and part of dilatory strategy and not by itself attract sections 85 and 85-A of the Bombay Tenancy and Agricultural Lands Act. In this view of the matter, I find that the point raised by the learned Counsel is without any merit.

Bombay High Court

Uttam Sambha Deshmukh And Others vs Yamunabai W/O Chandrabhan Bhoyar ... on 24 September, 1997

Equivalent citations: 1998 (4) BomCR 441, (1998) 3 BOMLR 625, 1998 (2) MhLj 144

Bench: S Mhase

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Whether agricultural tenancy is heritable on death of tenant in case of lands belonging to trust or educational institution?

 There is an another angle.   During the pendency of
appeal the original appellant has expired.   The legal heirs are

brought on record.  In view of the clear pronouncement of law by
the Apex Court in the case of Shriram Mandir Sansthan (cited
supra) in case of the lands belonging to a trust or an educational
institution falling within Section 129(b) of the Bombay Tenancy
Act, the tenancy is not heritable on the death of the tenant.  We
have made reference to this fact since the said subsequent event
has taken place during the pendency of present appeal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
LETTERS PATENT APPEAL NO.39 OF 2005.
IN
WRIT PETITION NO.516 of 1992 (D).
Digamber s/o Pandhari Bhise,

             V
   Shri Gajanan Maharaj Sansthan,
  CORAM:     B.R.GAVAI AND
          P.N.DESHMUKH, JJ.
          DATE :     23rd NOVEMBER, 2015.
Citation:2016(5) MHLJ163

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When jurisdiction of civil court is not barred in case of agricultural tenancy?

Both the learned counsels agree on the proposition
that such a suit claiming simpliciter permanent injunction
cannot be said to be barred by Section 85 of the said Act.
They submit that if issue of tenancy arises out of the pleadings
of the parties, then the matter can be referred to the tenancy
Court and the decision in the suit need to be waited for that.

The learned counsel for the plaintiff submits that the
suit is simpliciter for grant of injunction on the basis that the
plaintiff is in possession of the suit property. Both the Courts
below have not recorded any finding as to whether the plaintiff
is in possession of the suit property or not. The Courts below
have committed an error of law in holding that such a suit is
barred by Section 85 of the said Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
(Civil Appellate Jurisdiction)
SECOND APPEAL NO. 263 of 2013
Shri Pandurang Damodar Bhoir

.. Versus ..
Shri Baddruddin Abbasbhai Patel,

CORAM : R.K.Deshpande, J.
DATED : 6th JULY, 2015.
Citation:2016(3) ALLMR162

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When surrender of tenancy by tenant of agricultural land can be held as legal and valid?

It will be seen from a combined reading of these provisions that a surrender of tenancy by a tenant in order to be valid and effective must fulfil these requirements: (1) It must be in writing. (2) It must be verified before the Mamlatdar. (3) While making such verification the Mamlatdar must satisfy himself in regard to two things, namely, (a) that the tenant understands the nature and consequences of the surrender, and (b) that it is voluntary. (4) The Mamlatdar must endorse his findings as to such satisfaction upon the document of surrender.

In the instant case, merely deletion of the name of the tenant by M.E. No. 1609 was not sufficient for the landlord to contend that he was cultivating the said land thereafter personally. It was necessary to prove by sufficient evidence that the tenant had surrendered the tenancy and the said surrender ought to satisfy the abovementioned tests in toto. There was no such evidence before either the Tenancy Awal Karkun or the SDO or even in the inquiry held on 13-11-1981 by the Resident Nayab Tahsildar.

Bombay High Court

Laxman Hari Tambe Since Deceased ... vs Dattu Sonu Pawar Since Deceased By ... on 12 July, 2006

Equivalent citations: 2006 (6) MhLj 289

B.H. Marlapalle, J.

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Whether it is necessary to hear tenant prior to issue of exemption certificate to trust as Bombay agricultural tenancy Act?

In order to answer this question, it will have to be seen, what is the consequence of grant of certificate. The consequence of grant of exemption certificate is that the tenant of the agricultural land, in respect of which exemption certificate is granted, loses his valuable right of becoming purchaser of the land on the tillers' day. Section 88-B prescribes that on grant of exemption certificate except sections which are set out in Sub-section (1), the other provisions of the Tenancy Act will not be attracted with respect to such lands. Section 32 of the Act provides that on April 1, 1957 which is known as tillers' day, every tenant shall be deemed to have purchased from his landlord the land held by him as tenant free of all encumbrances subsisting on the said day. Section 32 onwards of the Act, then sets out the mode of determining purchase price, and the mode of payment by the tenant. The Tenancy Act was enacted by the Legislature to confer substantial right upon the cultivator of the land in accordance with the Constitutional mandate. The right conferred upon the cultivator under Section 32 of the Act stands excluded in respect of the lands belonging to the Trust, on grant of exemption certificate. It is, therefore, obvious that the consequence of grant of exemption certificate by the Collector and which is made conclusive evidence results into serious prejudice to the interest of the tenant. Indeed, on grant of exemption certificate, the landlord is not required to approach the Tenancy authorities to seek recovery of possession but can institute proceedings in regular Civil Court on the basis that the relationship of the lessor and lessee is regulated by the provisions of the Transfer of Property Act. It hardly requires to be stated that the tenant of an agricultural land who is deprived of protection of the provisions of the Tenancy Act can have no answer when the suit is instituted by the Trust in regular Civil Court for recovery of possession. It is, therefore, obvious that grant of exemption certificate seriously prejudices the right of the cultivator of an agricultural land.

Bombay High Court

Bhimrao Chandru Patil And Ors. vs Balkrishna Dattatraya Joshi And ... on 18 September, 2001

Equivalent citations: 2002 (3) BomCR 731, (2002) 1 BOMLR 500, 2002 (1) MhLj 125

Bench: V Daga

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Whether tenants, whose tenancies are determined by notice or efflux of time are entitled to get compensation under land acquisition Act?

The ordinary rule that has been adopted in England in the case of compulsory acquisition of land occupied by tenants, whose tenancies are determined by notice or efflux of time, is that they cannot claim compensation for loss of profits, even though they had reasonable expectation of continuing in possession or having the lease renewed.

Bombay High Court

District Deputy Collector, ... vs Mansangji Mokhamsangji Naik on 19 March, 1928

Equivalent citations: (1928) 30 BOMLR 930, 113 Ind Cas 169

Bench: Fawcett, Mirza

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Whether Surrender of Agricultural tenancy should be by Registered document?

It would clearly indicate that the legislature intended to protect the leasehold rights of a protected tenant and the surrender being in derogation of the right, Section 6(1) enjoins to divest that right only when the tenant surrenders agricultural leases only by a registered document executed in favour of the landholder surrendering tenancy rights thereunder. Then only the protected tenant ceases to be a lessee of the agricultural lands. Admittedly, though the document Annexure I marked in this paper book was executed on January 3, 1956 surrendering his rights in the aforesaid land it was not through a registered instrument and that, therefore, the surrender is clearly illegal and in violation of mandatory provision. The contention of Shri Joshi is that the evidence on record shows that the appellant had voluntarily surrendered and it is not vitiated by any fraud or coercion and, therefore, the finding is well justified. We find no force in the contention. It is seen that only if the document is a registered instrument the question of enquiry into fraud or coercion would arise and the Tribunals need to go into that question. If the instrument is not a registered instrument, then the question of genuineness or fraud or coercion need not be gone into as the surrender gets crushed under the fringing facts of Section 6(1) of Berar Act.

Supreme Court of India

Junjaram vs Bhaurao & Ors on 22 February, 1996

Equivalent citations: 1996 AIR 1885, JT 1996 (3) 55

Bench: Ramaswamy, K.

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