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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Whether court can decree suit for specific performance of contract in respect of agricultural land to non agriculturist?

 The first appellate Court also did not frame the point on
determination on the said issue but considered this aspect in
paragraph 13 of its judgment. The first appellate Court observed that
the defendant had pleaded that the plaintiff was not an agriculturist
and therefore, he had no right to purchase the suit land under Section
89 of the Act of 1958. The first appellate Court observed that when a
non-agriculturist desires to purchase agricultural land he has to seek
permission from the revenue authority. The first appellate Court held
that this could have been done at any point of time before execution of
the sale deed. The first appellate Court held that, according to the
counsel for the plaintiff, there were other lands standing in the name
of the plaintiff and the counsel had also produced the certificate of the
Talathi to that effect. The first appellate Court then held that the
agreement of sale also discloses that the plaintiff was an agriculturist
and in this background, the first appellate Court was not ready to
accept the submission of the defendant that the plaintiff was not an
agriculturist. It clearly appears from the observations in paragraph 14 of the trial Court's judgment and paragraph 13 of the first appellate
Court's judgment that both the Courts indeed held that the defendant
had failed to prove that the plaintiff was not an agriculturist, though
the Courts had not framed an issue in that regard. It appears from
the evidence of the parties that in the absence of framing of the issue,
the parties were not aware that they were required to prove that the
plaintiff was an agriculturist or not. In fact, the first appellate Court
considered some documents which were not permitted to be produced
on record under the provisions of order 41 Rule 27 of the Code of Civil
Procedure, while holding that the defendant had failed to prove that
the plaintiff was not an agriculturist. In view of the provisions of
Section 89 of the Act of 1958, the transfer of agricultural lands to non
agriculturist is barred, provided that the Collector or Officer
authorized by the State Government grants permission for such a
transfer. Since, the suit was filed by the plaintiff for specific
performance of contract and since the transfer of agricultural lands to
a non agriculturist was barred under Section 89 of the Act of 1958, it
was necessary for the trial court to have framed the issue as to
whether the plaintiff was an agriculturist and to have further remitted
the issue to the authority under the Act of 1958 for a decision on the
same. It is held by the Hon'ble Supreme Court in the case of Gundaji
Satwaji Shinde ..vs. Ramchandra Bhikaji Joshi reported in 1979 Mh
L J. 283 that if an issue arises in a civil court as to whether a person is
an agriculturist within the meaning of Tenancy Act, the Mamlatdar
alone would have exclusive jurisdiction under the Tenancy Act to
decide the same and the jurisdiction of the Civil Court is ousted. The
Court further added that if the Mamlatdar were to hold that the
plaintiff was not an agriculturist, obviously his suit for specific
performance in the civil court would fail because he is ineligible to
purchase the agricultural land. The Hon'ble Supreme Court had
considered the provisions of the Bombay Tenancy and Agricultural Act
(67 of 1948), while deciding the issue. The Hon'ble Supreme Court
then added that it could be incumbent on the civil Court in such a case
to refer the issue to the competent authority under the Tenancy Act.
However, in the instant case, the civil Court took upon itself
the task of deciding the issue as to whether the plaintiff was an
agriculturist, without specifically framing the issue. Both the Courts
were, therefore, not justified in observing that the defendant had
failed to prove that the plaintiff was an agriculturist, without framing
the issue and without referring the same to the tenancy authority, for
a decision on the same. The second substantial question of law framed
in this second appeal is answered in the affirmative and in favour of
the appellant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO. 289 OF 1996.

 Ashok s/o Kisan Muneshwar V Janardhan s/o Parashram Bhagat,

CORAM : Smt. Vasanti A. Naik, J.
DATED : 09th September, 2008.

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