Appeal No 354 of 1965 Appeal by special leave from the judgment and order dated December 18 1962 of the Madhya Pradesh High Court Indore Bench in Second Appeal No77 of 1960
B R L lyengar G L Sanghi and A  G Ratnaparkhi for the appellants
MIC Sup
CI66 14 424 section N Andley Rameshwar Nath and P L Vohra for the respondent
B R L Iyengar G L Sanghi and A G Ratnaparkhi for intervener No 1
J B Dadachanji 0
C Mathur and Ravinder Narain for intervener No 2
The Judgment of the Court was delivered by Shah J
In 1936 certain home farm land in Mouza Belam Bujurg Paragana Burwaha of the estate of the respondent were leased for cultivation to one Mangtya by the Court of Wards which was in management of the estate
The Court of Wards released the estate on June 14 1951
The respondent thereafter terminated the tenancy and instituted a suit in the Court of Civil Judge Class 11 Burwaha against Mangtya for a decree in ejectment and for mesne profits
The Trial Court decreed the suit for possession and awarded mesne profits at the rate of Rs 300per annum from the date of the decree till delivery of possession
The decree passed by the Trial Court was confirmed in appeal by the District Court Nimar and the High Court of Madhya Pradesh
Sons of Mangtya who died after the judgment of this High Court have preferred this appeal with special leave
The land in dispute is ryotwari land and Mangtya was a ryot wari sub lessee of the land
It was contended before the High Court in Rao Nihalkaran vs Ramchandra  Others  that even though a ryotwari sub lessee of land in the Madhya Bharat region may ordinarily acquire under section 185 1iib on the commencement of the Code the status of an occupancy tenant the tenant Mangtya was disentitled to that status since at the commencement of the tenancy the respondent was subject to a disability of the character set out in section 1682
The High Court upheld the plea of the respondent they held that the expression holds the land from a Bumiswami who belongs to any one or mor of the classes pre dicates two conditions that the land is held by a tenant under a Bhumiswami and that at the co ormmencement of the tenancy the landlord who subsequently acqured the status of a Bhumiswami belonged to any one or more of the classes mentioned in sub section
2 of section 168 of the Code
The only question which falls to be determined in this appeal is whether under section 185 3 of the Madhya Pradesh Land Revenue Code the tenant Mangtya was disqualified from claiming the status of an occupancy tenant
By section 151 of the Code there was to be in the State of Madhya Pradesh a single class of tenure holders of land held from the State to be known as Bhumiswami
The 1 L P A No 14 of 1961 decided on Sgt
24 1962
425 respondent may be by virtue of section 158b deemed to be a Bhumiswami
The rights of a Bhumiswami under the Code are heritable but in the matter of transfer inter vivos they are subject to restrictions prescribed by sections 165  168
Land comprised in the holding of a Bhumiswami may not by virtue of section 1681 be transferred by way of a lease except in the conditions mentioned in sub sections
2  3 of section 168
A Bhumiswanii subject to one or more of the disabilities mentioned in sub section
2 may grant a lease of his holding
It has to be noticed that the provisions which create the tenure of a Bhumiswami and the restrictions thereon are prospective
We have held in Appeal No 365 of 1965 Rao Nihalkaran vs Ramgopal1 that a person whose tenancy rights were determined before the commencement of the Code will be invested with the status of an occupancy tenant provided he
holds land of the nature described in sub section
1 of section 185
But upon this rule is engrafted an exception by sub section
3 of section 185 that nothing in sub section
1 shall apply to a person who at the commencement of the Code holds the land from a disabled Bhumiswami
At the commencement of the Code the respondent acquired the tenure of a Bhumiswami under section 158b of the Code but it cannot be said that the respondent belongs to any one or more of the classes mentioned in sub section 2 of section 168
For the exemption from the operation of section 185i it had to be established that the respondent at the commencement of the Code belongs to the disabled class
He undoubtedly did belong to the disabled class when the lease was granted but not at the commencement of the Code and what is decisive for the operation of the exemption under sub section
3 is the status of Bhumiswami at the commencement of the Code
By section 1682 the prohibition against a Bhumiswami against transfer by way of a lease of the land comprised in his holding is inoperative where the Bhumiswami is subject to any one of the disabilities mentioned in cls
i to ix of sub section
That provision is undoubtedly prospective
The Legislature has by sub section
3 of section 185 prohibited the acquisition of occupancy tenancy rights by a tenant of a Bhumiswami who was when the Code came into force subject to any of the disabilities mentioned in section 168 2
It is clear from the terms of sub section 2 of section 168 proviso 2 that a lease made by a Bhumiswami who is subject to a disability remains valid only during the disability and one year after the determination of that disability by death or otherwise
Therefore a lease created by a Bhumiswanii even if he was at the date when he created the lease subject to a disability would become invalid on the termination of the disability and a period of one year thereafter
By sub section
4 of section 168 it is provided that a lease granted in pursuance of sub sections
2 or 3 shall be held on such terms and conditions as may be agreed upon between the lessee and the Bhumiswami and it is further 1  426 provided by sub section
5 that on the coming into force of the Code where any land is held on lease from a Bhumiswami who belongs to any one or more of the classes mentioned in sub section 2 such lease shall on the coming inito force of the Code be deemed to be a lease granted in
pursuance of sub section 2
The lease granted by a person who on the commencement of the Code acquires the status of a Bhumiswami is therefore deemed to be a lease granted in pursuance of sub section
2 of section 168 if the Bhumiswami belongs to the class mentioned in sub 2
Reading section 1853 with section 168 2 and section 168 5 it is clear that to attract exclusion from the operation of section 185 1 the Bhumiswami must at the commencement of the Code be subject to the disability mentioned in sub section
2 of section 168
What is determinative is not the existence of disability at the date of the grant of the lease before the commencement of the Code but the disability of the Bhumiswami at the commencement of the Code
On the date on which the Code was brought into force the respondent was not a Bhumiswami belonging to any one or more of the classes mentioned in sub section
2 of section 168 and the exception provided by section 185 3 will not apply
It is true that the respondent was a minor at the time when the lease was granted by the Court of Wards
But he ceased to be a minor in 1951
By virtue of section 185 1 the tenant notwithstanding the institution of the suit became an occupancy tenant of the land when the Code was brought into operation and the mere fact that the respondent was a minor at the date of the lease did not prevent the statutory acquisition of the status of an occupancy tenant by Mangtya under section 1851
The appeal must therefore be allowed and the decree passed by the High Court set aside
The suit filed by the respondent will stand dismissed
There will be no order as to costs throughout


Summary:
In 1936 certain ryotwari lands belonging to the estate of the respondent in Madhya Bharat were leased for cultivation to the appellants  father M by the Court of Wards which was in management of the estate
After the Court of Wards released the estate in 1951 the respondent terminated the tenancy and instituted a suit for a decree in ejectment and for mesne profits
The trial Court passed a decree in the respondent s favour and this was confirmed in appeal by the District Court as well as by the High Court
It was contended on behalf of the appellants that on the coming into force of the Madhya Pradesh Land Revenue Code 1954 M acquired the status of an occupancy tenant as he held land of the nature described by section 1851
On the other hand it was the respondent s contention that even though a ryotwari sub lessee might acquire the status of an occupancy tenant the tenant M was disentitled to that status since at the commencement of the tenancy the respondent was subject to a disability of the character set out in section 1682
Accordingly the case fell within the exception to section 1851 provided in sub section
3 of that section
By virtue of section 1851 M became an occupancy tenant of the land when the Code was brought into operation the appeal must therefore be allowed and the respondent s suit dismissed
426 E For the exemption from the operation of section 1851 to apply it had to be established that the respondent at the commencement of the code belonged to the disabled class
Although being a minor he belonged to the disabled class at the time when the lease w  granted he did not belong to the disabled class at the commencement of the Code
What is decisive for the operation of the exemption under section 1853 read with section 1682 is the status at the commencement of the code
425 E Rao Nihalkaran vs Ramgopal   referred to