JASHBHAI BHAILALBHAI PATELV/SSTATE OF GUJARAT C/SCA/7530/2004 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 7530 of 2004 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE [ENTITY] Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
JASHBHAI BHAILALBHAI PATEL & 1 Petitioner(s) Versus STATE OF GUJARAT &
2 Respondent(s) Appearance:
MR JAYESH M PATEL, ADVOCATE for the Petitioner(s) No. 1 - 2 MS TRUSHA MEHTA, ASST.GOVT. PLEADER for the Respondent(s) No.1-2 MR HM PARIKH, ADVOCATE for the Respondent(s) No. 3 RULE CORAM:
HONOURABLE MR.JUSTICE [ENTITY] Date : 25/07/2013 CAV JUDGEMNT Heard learned counsel Mr.[ENTITY], assisted by Mr.[ENTITY], learned advocate for the petitioners, Ms.[ENTITY], learned AGP for respondents No.1 and 2 being State authorities and Mr.[ENTITY] learned advocate for respondent No.3.
The petition was admitted on 2.7.2004 with an order to maintain status-quo as on that day by all the parties. An unhealthy litigation has been dragged till date right from 17.12.1992 between real brothers mainly for selecting particular survey number of agricultural land, which has practically reached their hands only as successors of their deceased father.
The factual details are such that father of the petitioners and respondent No.3, namely, [ENTITY] was holding the agricultural land bearing [SECTION], 4[SECTION], 453 and 454 which are having Block Nos.419, [SECTION]5 and 450 in Village Darapura of [ENTITY] in Vadodara district as a tenant. Before he got tenancy rights, the land was probably with [ENTITY] Trust and said [ENTITY] became a deemed purchaser of the land under the provisions of the [ACT] ( the Act , for short). Said [ENTITY] expired on 13.5.1977 leaving behind his widow, three sons and three daughters.
Before his death, on 25.4.1977, [ENTITY] had executed a Will and bequeathed his agricultural land amongst his three sons, namely [ENTITY] - present respondent No.3, [ENTITY] and [ENTITY] - present petitioners. In such Will it is stated that [ENTITY], respondent No.3 is residing separately for last 14 years and at that time the agricultural land of Darapura being S.No.421, admeasuring 1 acre 36 gunthas and S.No.4[SECTION], admeasuring 1 acre 13 gunthas with Rs.1000/- cash, two buffaloes, one calf and one bullock was given to him; therefore, remaining lands of S.Nos.121/2, 1[SECTION], 125/1 and 2 of [ENTITY] and S.Nos.453 and 455 of Darapura of different size, in all approximately 10 acres land, was to be equally distributed amongst present petitioners after his (i.e. father of present petitioners - [ENTITY]'s) death with liability and responsibility of his wife, so as to maintain her for her lifetime and to carry out all responsibilities so far as his three daughters are concerned. It seems that even the household and other immovable properties was also bequeathed in favour of present petitioners by the same Will. It is clear and certain that such Will was never challenged either by respondent No.3 or by three daughters of deceased [ENTITY] since there was provision in Will for social responsibilities qua mother and daughter, i.e. present petitioners have to maintain the mother for her lifetime and to carry out all responsibilities so far as his three daughters are concerned.
On 5.2.1992 by an Entry No.1337, which was approved by the Competent Authority on 20.5.1992, [ENTITY] of Darapara, endorsed in Record of Right in Form No.6 about the death and Will of [ENTITY] and respective S.Nos. were endorsed against the name of present petitioners as well as respondent No.3. Thereby Survey Nos. 421 and 4[SECTION] were shown in the name of respondent no. 3 , whereas Survey Nos.453 and 454 were wshown in the name of present petitioners. While certifying such entry, the Competent Authority has recorded that, entry is confirmed after verification of true copy of Will, Pedigree and after issuing notice to all concerned and after confirming that there is no dispute by any one of them. While confirming such entry, the Revenue Authorities have called upon the original respondent No.3 [ENTITY], and [ENTITY] of Darapura of [ENTITY] had recorded the statement of original respondent No.3 [ENTITY]. Certified copy of such statement is on record. Since such copy was only self certified typed copy, photocopy of original statement was called upon from the litigants and in turn the certified copy of such statement is produced on record which confirms that [ENTITY] has issued handwritten certified copy on 28.1.1993 and photocopy of original statement as certified copy on 20.11.2012. On perusal of such statement, which is signed by respondent No.3, namely, [ENTITY] and endorsed by [ENTITY] of Darapura, it becomes certain and clear that said [ENTITY] had in categorical terms admitted, confirmed and disclosed that land of [ENTITY] being Revenue Block Nos.419 and [SECTION]5 are in his possession; whereas land of Block No.450 are in possession of his brothers [ENTITY] and [ENTITY] i.e. present petitioners. Therefore, such entry was approved by the Competent Authority on 20.5.1992.
Whereas on 20.2.1992 by an Entry No.8042, which was approved by the Competent Authority on 5.9.1992 and such fact was endorsed on 8.2.1993, by [ENTITY] of [ENTITY], whereby he endorsed in Record of Right in Form No.6 about the death and Will of [ENTITY] and Survey Nos. 121/2, 1[SECTION], 125/1 and 125/2 were mutated in the name of present petitioners.
While certifying such entry, the Competent Authority being [ENTITY] of [ENTITY] has considered the application dated 17-2-1992 by the respondent no. 3 but after giving ample opportunity to the other side and after recording evidence of both sides entry was confirmed, relying upon the proceedings of previous entry no. 1337 dated 5-2-1992 for the lands of parties in Darapura village where in also the Revenue Authorities have called upon the original respondent No.3 [ENTITY], and [ENTITY] of Darapura of [ENTITY] had recorded the statement of original respondent No.3 [ENTITY]. Certified copy of such statement is on record. Since such copy was only self certified typed copy, photocopy of original statement was called upon from the litigants and in turn the certified copy of such statement is produced on record which confirms that [ENTITY] has issued handwritten certified copy on 28.1.1993 and photocopy of original statement as certified copy on 20.11.2012. On perusal of such statement, which is signed by respondent No.3, namely, [ENTITY] and endorsed by [ENTITY] of Darapura, it becomes certain and clear that said [ENTITY] had in categorical terms admitted, confirmed and disclosed that land of [ENTITY] being Revenue Block Nos.419 and [SECTION]5 are in his possession; whereas land of Block No.450 are in possession of his brothers [ENTITY] and [ENTITY] i.e. present petitioners. Therefore, such entry was approved by the Competent Authority on 5.9.1992.
Such order dated 5.9.1992 by the [ENTITY] [ENTITY] in [CASE NUMBER] was challenged by original respondent No.3 being [CASE NUMBER], wherein on 4.2.1994, the [ENTITY], [ENTITY] has surprisingly confirmed the Entry No.8042 so far as [CASE NUMBER] are concerned and rejected the same Entry No.8042 so far as S.Nos.121/2 and 1[SECTION] are concerned, though the land of all such survey numbers were of same nature and followed the same rule.
Respondent No.3 was aggrieved even by such partial order in his favour and, therefore, he has preferred R.T.S. Appeal Nos.42 and [SECTION] of 1994 before the Dy.Collector of Vadodara, who in turn by his order dated 30.11.1995 rejected such appeals and thereby confirmed the Entry No.8042 so far as [CASE NUMBER] are concerned and rejected the same Entry No.8042 so far as S.No.121/2 and 1[SECTION] are concerned.
Original respondent No.3 has thereupon preferred [CASE NUMBER] before the Collector, Vadodara, who by his order dated 9.12.1997 allowed such revision, quashing the order dated 30.11.1995 by the Dy.Collector and passed directive order that as the land of [CASE NUMBER] are restricted land, it is to be mutated in the name of all the successors of deceased land holder.
Therefore, the present petitioners have preferred [CASE NUMBER] before the Special Secretary, Revenue Department (Appeals). Such revision was dismissed by judgment and order dated 27/29.05.2004, reconfirming the stand taken by the Collector that land bearing [CASE NUMBER] were originally owned by ancestors and, therefore, it is of restricted nature and hence it cannot be transferred.
It is further stated that in any case once the land holder expires, then initially all his legal heirs are to be brought on record and, therefore, when all the legal heirs are not brought on record before passing Entry No.8042, the same cannot be confirmed. Unfortunately, Special Secretary, Revenue Department (Appeals) has also held that even if Entry No.1337 was not challenged at the relevant time, there cannot be Entry No.8042 on same ground.
This judgment and order dated 27-29.05.2004 by the Special Secretary, Revenue Department (Appeals) and concerned orders rejecting the Entry No.8042 are under challenge in the present petition with prayer to quash and set-aside such orders and to restore the order dated 4.2.1994 and 30.11.1995 in [CASE NUMBER] and R.T.S. Appeal No.42-[SECTION] of 1994 respectively,which are produced at Annexures-G and H. After hearing both the learned counsel for the parties at length and on perusal of record, it emerges that practically, this is a dispute between real brothers who all are legal heirs of deceased [ENTITY], though all of them are getting the equal land, may be because of their desire to select particular piece of land amongst the different survey numbers left behind by their deceased father, unfortunately, it has been forgotten by them that practically all the lands were received by their predecessors under the [ACT] and that the Will was never challenged by anyone. On the contrary, it was accepted by respondent No.3 by his statement in categorical terms before the [ENTITY] on 30.3.1992. Therefore, so far as allocation or bequeathing of particular survey number is concerned, practically, they have no say, more particularly when deceased predecessor has not bequeathed any agricultural land either to his widow or to his daughters.
Therefore, the only issue which requires to be determined and decided in this matter is with reference to the legal point raised by the Collector and confirmed by the Secretary, Revenue Department (Appeals) to the effect that whether restricted tenure land can be bequeathed and that whether it is must to enter the name of all the heirs on death of a tenant. Except this legal issue, practically there cannot be and there is no dispute amongst the litigants so far as other bequeaths are concerned and, therefore, though the deceased has executed a Will, practically, it is nothing but partition amongst his heirs by himself, making several provisions for widow and explaining about the necessity to partition the properties amongst three sons only.
Therefore, except to answer the legal issue that whether the land situated at [CASE NUMBER] could be mutated as per Entry No.8042 or not, there is no other issue which required consideration. If we peruse the record, it becomes clear that the original respondent No.3 had got ample opportunity before the [ENTITY] where every aspect was considered by the [ENTITY] before confirming disputed entry; whereas surprisingly, when the Collector and Special Secretary, Revenue Department (Appeals) are taking different stand for [CASE NUMBER] in mutation Entry No.8042, while confirming same entry for S.Nos.121/2 and 1[SECTION], ignored the fact that, practically, all such lands are of the same nature i.e. it was received by the deceased [ENTITY] as a tenant and all such land was originally owned by [ENTITY]. Therefore, there is no reason to differentiate amongst such survey numbers i.e. to confirm the entry for S.Nos.121/2 and 1[SECTION] and to reject the same entry for [CASE NUMBER]. Probably, because of the fact that S.Nos.121/2 and 1[SECTION] are admeasuring approximately less than 2 acres; whereas total area of [CASE NUMBER] is approximately five acres. Both these survey numbers goes to present petitioners, thereby, they will get equal share, which would be little more than three acres and practically original respondent No.3 is also getting little more than three acres of land of [SECTION] and [SECTION]. Therefore, there is no reason for respondent No.3 to dispute the bequeath, which is nothing but the partition of agricultural land only between three brothers.
Learned advocate for respondent No.3 has supported orders and decision by the Collector and Secretary, Revenue Department (Appeals) and relied upon provisions of [SECTION] of the Act as well as judgment of Division Bench in the case of In the. case of [ENTITY].
[PRECEDENT].
While considering such provision of law, it would be appropriate to recollect the bare text of [SECTION] of the Act, which reads as under:-
[SECTION] - Restriction on transfer of land purchased or sold under this Act -
No land or any interest there in purchased by a tenant under [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] or [SECTION] or sold to any person under [SECTION] or [SECTION] shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall partitioned without the previous sanction of the Collector.
[SECTION] was in existence as above till [SECTION].7.2009 when following proviso was added by [ACT]. To sub-sec.(1), the following provisos shall be added:-
Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant.
Provided further that he partition of the land as aforesaid shall not be valid if it is made in contravention of the provisions of any other law for the time being in force;
Provided also that such members of the family or the legal heirs shall hold the land, after the partition, on the same terms, conditions and restrictions as were applicable to such land or interest therein purchased by the tenant or the person.
[(1A) XXXXXX ] [(IAA) XXXXXXX ] Bare reading of provision of [SECTION] of the Act (after amendment in 2009), makes it clear that practically there is no restriction i.e. no previous sanction of the Collector shall be required if the land is partitioned amongst the members of the family who have direct blood relation or among the legal heirs of the tenant. If we peruse and consider the judgment of Division Bench in [ENTITY] s case (supra) with reference to the provision of [SECTION] of the Act. The Court has to consider the issue as to whether [SECTION] of the Act debars an agriculturist from parting with his agricultural land to a non-agriculturist through a Will so also whether [SECTION] of the Act restricts transfer or sale of any land by the tenant u/[SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] or [SECTION] to any non-agriculturist u/[SECTION] or [SECTION] of the Act through the execution of a Will by way of testamentary disposition. Therefore, only because mutation or transfer by Will was under consideration before such Division Bench, without reference to the particular facts of the case, it cannot be said that in view of such reported case, disputed Entry No.8042 in this case can be dealt with by revenue authorities wherein though two survey numbers of land of similar nature was permitted to be mutated, remaining two survey numbers are stated to be not justified by the same mutation entry. It is clear that in the present case, petitioners have not received the properties as non-agriculturist through a Will and, therefore, bar of [SECTION] will not come in picture.
So far as restriction, if at all it is confirmed by such judgment of Division Bench in [ENTITY] s case (supra) with reference to [SECTION] is concerned, practically even for such section, the consideration was for limited purpose i.e. for interest purchased by the tenant under Sections listed herein above and not otherwise. It is certain that the present petitioners have never purchased the interest in land in question in accordance to provision of any Sections viz [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION], [SECTION] or [SECTION] or nobody has transfer interest to any person u/[SECTION] or [SECTION] of the Act through execution of a Will or by way of testamentary disposition. Suffice it to say that in the present case, by Entry No.8042, all four survey numbers are dealt with and surprisingly though all four survey numbers are of similar nature and having received in similar manner by the original land holder i.e. predecessor or present litigant, the revenue authorities have confirmed the entries for two survey numbers while rejecting the same for remaining two survey numbers.
Therefore, practically, this reported case is of no help to the respondent No.3.
The learned advocate Mr.[ENTITY] has tried to emphasize that transfer in any manner is restricted by this judgment and relied upon the observations of the Division Bench in paragraph 8 of such judgment. When the Division Bench has interpreted the word assignment in [SECTION] so as to include Will also, however, respondent No.3 fails to realize that in fact first proviso to such section makes it clear that if the land is partitioned amongst the members of the family, who have direct blood relation, then, previous sanction of the Collector is not required. If the word Will which is not found in [SECTION] can be read and considered as part of the word assignment , practically considering the nature of the Will in this case, it can also be included in the word partitions in the proviso to such section. With due respect, for such reasons, observations in paragraph 8 of such judgment would not be applicable in the present case, more precisely for the reason that the entire reported judgment is practically considering the bequeath by Will to a non-agriculturist person by an agriculturist, and probably, as there is no reference or discussion to that effect in such judgment, the Division Bench has not entered into the discussion regarding bequeath to legal heirs. Irrespective of observation and finding by the Division Bench in aforementioned reported judgment, the fact remains that said judgment has been challenged before the Hon ble Apex Court by filing Special Leave to Appeal (Civil) No.2[SECTION]60 of 2009 by the applicant before the Division Bench, as stated by learned advocate appearing for the petitioners before us. It is further disclosed that in such Special Leave to Appeal, the Hon ble Apex Court has ordered to maintain status-quo. Therefore, practically, the judgment of the Division Bench referred by the respondent No.3 is sub-judice.
As against that, learned advocate for the petitioners is relying upon the judgment between [PRECEDENT]. However, said judgment is based upon the controversy relating to [ACT] holding that probate is not required for establishing title of immovable property if properties are situated outside the cities of Calcutta, Madras and Bombay.
So far as such transfer by Will is concerned, though the Division Bench in the case of [ENTITY] (supra) has considered that the word Will would be included in the word assignment , since such judgment is under challenge and sub-judice before the Apex Court, with due respect, I am of the opinion that, therefore, we cannot add the word Will in the list of documents or mode of transfer described in [SECTION], which are specifically stated as sale, gift, exchange, mortgage, lease or assignment as observed in different judgments by Division Bench of this Court as well as Apex Court.
So far as the present petition is concerned, neither of the respondents are objecting about the validity of Will. The defence of the Revenue Authority is based upon the law point that they are right in holding that tenant could not transfer the land acquired under the [ACT] through Will, whereas private respondent No.3, who is none but the brother of the petitioners, though could not challenge the validity, execution and effect of the Will, objected the mutation of Will in the name of his real brothers and submitted in tune of the Revenue Authorities that the land received under the [ACT] cannot be transferred directly by Will, but initially it must be transferred in the name of all the successors and only thereafter it can be transferred amongst successors as per their internal partition.
However, if we peruse the provisions of the Act, it becomes clear that tenancy is to be continuous on death of the tenant as provided u/[SECTION] wherein Sub-Section 2 also provides that 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. Therefore, basically, tenancy rights can directly be inherited in favour of the legal heirs of the deceased tenant.
Practically the [ACT] is for the benefit of and more particularly for protection of such tenancy rights of such tenants and activity of the State should not be against such tenancy rights of the tenants as it is being done in the present case, claiming that without prior sanction of the Collector, such land could not be transferred even in the name of successor. Such stand and activity is required to be deprecated. Probably for such reasons, legislation has thought it fit to add the proviso as referred herein above in the year 2009, wherein it has been made clear that no previous sanction of the Collector shall be required in following two instances (1) if the partition of the land is amongst the members of the family who have direct blood relation and (2) amongst the legal heirs of the tenant. Though such Section has two other conditions as per the second and third proviso to the main section in the present case, since there is no such facts, pleadings or dispute, we are not concerned with such provisos and, therefore, they are not discussed and dealt with herein.
From the above observations, it is clear that the impugned orders and stand of the Revenue Authorities are not in accordance with law and thereby petition is required to be allowed as prayed for. However before concluding, it would be appropriate to recollect several observations from following cases viz. [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] (three Judges Bench). Relevant portions from the above judgments are reproduced hereunder in accordance to relevance, which reads as under;
The object of the [ACT], is to protect the "rights of the tiller of the soil", namely, the tenant or who later became owner so as to remain in possession and enjoyment of the land as part of economic justice assured in the preamble and the directive principles of the [ACT]. Under the [ACT] the tenant has been given right to purchase the lands from the erstwhile owner as provided in different sections of the said Act.
The Act as originally enacted in 1948 was intended to regulate the relationship of landlord and tenant with a view to giving protection to the tenant against exploitation by the landlord but in 1956 a major amendment was made in the Act introducing a radical measure of agrarian reform. The Legislature decided that the tiller of the soil should be brought into direct contact with the State and the intermediary landlord should be eliminated and with that end in view, the Legislature introduced a fasciculus of sections from [SECTION] and [SECTION]. These sections came into force on 13th December 1956 and they provided for the tenant becoming deemed purchaser of the land held by him as tenant.
Since the tenant is made the deemed purchaser of the land in order to effectuate the policy of agrarian reform to eliminate the intermediary landlord and to establish direct relationship between the State and the tiller of the soil so that the soils of this cultivation are not shared by an intermediary or middleman who does not put in any labour, the Legislature insisted that the tenant must personally cultivate the land of which he is made the deemed purchaser. The tenant, said the Legislature, would continue to remain owner of the land only so long as he personally cultivated it. He must make use of the land for the purpose for which it was given to him as owner. If the tenant failed to cultivate the land personally either by keeping it fallow or by putting it to non-agricultural use, he would lose the land under [SECTION] and the land would be given away to others for personal cultivation in accordance with the provisions of [SECTION] So also and for the same reasons, the Legislature by enacting [SECTION] placed an embargo on the tenant transferring the land deemed to be purchased by him. If the tenant were free to transfer the land to anyone he liked, the object and purpose of making him the deemed purchaser of the land would be frustrated. [SECTION], therefore, provided that no land purchased by a tenant under [SECTION] shall be transferred by sale, gift, exchange, mortgage, lease or assignment or partitioned without the previous sanction of the Collector and except on payment of such amount as the State Government may by general or special order determine. The general rule enacted in [SECTION] was that the tenant shall not transfer the land by sale, gift, exchange, mortgage, lease or assignment or partition it, for it is given to him as owner for personal cultivation.
A reading thereof clearly indicates that [SECTION] was enacted to protect the right, title and interest of the tenant who purchased the property and became owner thereof with a view to see that he is not deprived of his ownership, right to possession and enjoyment thereof as a tiller of the soil to perpetuate the object of the [ACT].
The sanction required under [SECTION] is only when there is a bilateral valid agreement between the owner and a third party purchaser or a lessee or a mortgagee etc. as envisaged under [SECTION].
When the Collector exercises the power to grant sanction under [SECTION], he does it as a statutory authority to protect right, title and interest of the erstwhile tenant who subsequently became the owner to see that he remains to be the owner and continues to be in possession and enjoyment of the same.
It may also be realized that so far as [SECTION] of the [ACT] is concerned, a tenant holding the land under a tenancy from his landlord on April 1, 1957 (Subject to the other provisions of the section and of the [ACT]) is deemed to have purchased from his landlord the land free from all encumbrances on certain conditions. 1st April 1957 is know as the "tillers' day" and on that day by operation of [SECTION] the tenant is deemed to have purchased the land on specified conditions.
Popularly lands held by erstwhile tenants under the "deemed purchase"
provision of the [ACT] are known to be held on the new tenure. The expression "old tenure" is popularly employed in regard to lands held by persons in their own right without their having acquired the benefit under [SECTION] by reason of their being tenants.
The 1948 Act underwent some substantial amendments in 1956. 'Tenant' under the Amended Act was defined to include a protected tenant and the provisions relating to the special rights and privileges of the protected tenants contained in [SECTION] of the Act were extended to all tenants. Instead of providing as [SECTION] of the unamended Act did, that no tenancy shall be for a period of less than ten years, and for renewal of the tenancy for ten year periods there after, [SECTION] of the amended Act provided that no tenancy of any land shall be terminated merely on the ground that the period fixed by the agreement or usage had expired. [SECTION] of the 1948 Act as it stood originally was repealed and replaced by a new [SECTION] which substantially enacted the provisions of [SECTION] of the Act as it stood before the amendment. What was [SECTION] of the Act before amendment continued to be [SECTION] after the amendment. [SECTION] was amended and it was declared that on the death of a tenant, 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.
Thus in order to understand the real controversy between the parties it is necessary to extract here [SECTION] both as it stood before and after the 1956 amendment. Before the 1956 amendment [SECTION] reads as follows:
"If a protected tenant dies, the landlord shall offer to continue the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death to the heir or heirs of the deceased tenant: Provided that the offer required to be made by the land-lord under this section shall be made in writing:
Provided further that if any heirs of the deceased tenant do not agree to continue the tenancy on the same terms and conditions on which the deceased protected tenant was holding the land, the Collector may select an heir or heirs who is or are willing to continue the tenancy on the same terms and conditions. The decision of the Collector shall be final.
Explanation:-For the purposes of this section, an heir means the lineal male descendants of a tenant or his adopted son and failing both his widow who has not remarried".
[SECTION] as it stood after the 1956 amendment is as follows:
"(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.
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.
The word assignment as defined in the black's law dictionary1 does not include testamentary transfers. In the same dictionary the question What is assignment? is answered as: the sale or transfer of a financial contract, such as an over the counter derivative or loan, from the original counter party to a third party; an assignment is often arranged in order to reduce credit risk exposure and typically requires permission from the original party to the contract. Whereas the question What is testamentary? is answered as: pertaining to a will or testament: as testamentary causes. Derived from, founded on, or appointed by a testament or will: as a testamentary guardian, letters testamentary, etc. A paper, instrument, document, gift, appointment. etc., is said to be testamentary when it is written or made so as not to take effect until after the death of the person making it, and to be revocable and retain the property under his control during his life, although he may have believed that it would operate as an instrument of a different character.
The effect of a valid assignment is to extinguish with privity (in other words, contractual relationship, including right to sue) between the assignor and the third-party obligor and create privity between the obligor and the assignee. When an assignment is made, the assignment always takes place after the original contract was formed. An assignment only transfers the rights/benefits to a new owner. The obligations remain with the previous owner. For assignment to be effective, it must occur in the present.
A promise to assign in the future has no legal effect.
Therefore, I do not think that it would be either logical or legal to include all the testamentary documents under the assignments, more particularly when there is no involvement of any money or other transaction for consideration against transfer of land in question, when such land is held with certain legal restrictions. However I do not question or doubt the decision by the Division Bench in the case of [ENTITY] (supra) for the simple reason that in such reported case the facts are materially and substantially different from the facts of the present case. In the reported case of [ENTITY] (supra) the will was in favour of some third party, who was non agriculturalist and may not be the legal heir or successor of the land holder and therefore considering the aim, object and restriction by the [ACT] it was held that the restricted land holder cannot bequeath the land to such third party and non-agriculturalist, which may be against some consideration either in cash or in kind.
Therefore if there is no case or evidence regarding transaction against consideration, simple bequeaths or partition cannot be term as an assignment and therefore sanction under the Act is not mandatory. For such determination I am getting support from the decisions by the Apex Court in the case of [ENTITY] vs Maria Bai Dead By Proposed Lrs. And on 28 July, 2004 reported in [PRECEDENT], [ENTITY] (Dead) through L.Rs. v. Land Tribunal, Jamkhandi and Ors., reported in AIR 1998 SC [SECTION]29.
In [ENTITY] (supra), the interpretation of [SECTION] of the [ACT], 19[SECTION] falls for consideration before the Apex Court. Provision of [SECTION] and [SECTION] are reproduce in said judgment, however for our purpose only following lines of [SECTION] of such act are material, though some other provision restrict such position also:
"[SECTION].
Restriction on transfer of land of which tenant has become occupant.-
Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this Chapter shall within fifteen years from the date of the final order passed by the Tribunal under [SECTION] or [SECTION] or [SECTION] be transferred by sale, gift exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder's joint family.
Any transfer or partition of land in contravention of Sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of [SECTION]."
On comparison of provisions of [ACT] and [ACT], it become clear that they are pari materia.
In the said case the Apex Court has, determined that; on a fair construction of [SECTION] of the Act, in our opinion a transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to the definition of 'family' as contained in [SECTION] and 'joint family' as contained in [SECTION] of the said Act. That there was no prohibition against a tenant disposing of his interest by testamentary disposition. However it was stated that such testamentary disposition must be confined to the heirs of the deceased only. According of the provision of [SECTION] and [SECTION] of the [ACT], the tenancy rights are inherited only by legal representatives and not by anybody else; and that tenancy could be deemed to have been continued in favour of heirs of the tenant.
In [ENTITY] (supra) the Apex Court has after considering all aspect of the subject, observed and held that &The object and purpose of [SECTION] being to confine the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred ".
For coming to such conclusion, the Apex Court has discussed as under:
This case gives rise to a difficult and doubtful question whether a devise under a Will would amount to an assignment of interest in the lands and, therefore, invalid under the provisions of [SECTION] of the [ACT]. What is prohibited Under [SECTION] of the Act is that there cannot be any sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Exceptions thereto are when the tenant dies, the surviving members of the joint family and if he is not a member of the joint family, his heirs shall be entitled to partition and subdivide the land leased subject to certain conditions. [SECTION] of the Act declares that when a tenant dies, the landlord is deemed to continue the tenancy to the heirs of such tenant on the same terms and conditions on which the tenant was holding at the time of his death. We have to read [SECTION] to understand the full purport of the provisions. [SECTION] is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those who are referable to in [SECTION]. If he is member of the joint family then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition. Again as to who his heirs are will have to be determined not with references to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provision inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will though operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature interpretation will have to be otherwise.
6. If we bear in mind the purpose behind [SECTION], it becomes clear that the object of the law is not to allow strangers to the family of the tenant to come upon the land. The tenanted land is not allowed to be sub-let, i.e. to pass to the hands of a stranger nor any kind of assignment taking place in respect of the lease held. If the tenant could assign his interest, strangers can come upon the land, and therefore, the expression 'assignment' will have to be given such meaning as to promote the object of the enactment. Therefore, the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or who is related to the deceased tenant by legitimate kinship. We must take into consideration that when it is possible for the tenant to pass the property to those who may not necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event, it must be taken that a devise under a Will also amount to an assignment and, therefore, not valid for the purpose of [SECTION] of the Act. If [SECTION] is read along with [SECTION], it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in [SECTION] of the Act .
When provisions of [SECTION], [SECTION] and [SECTION] of the [ACT] is pari materia with provisions of [SECTION] and [SECTION] of the [ACT] read with amended proviso; which the legislature has think fit to amend; it becomes clear that transfer of tenanted land by bequeath to legal heirs and partition amongst them is not restricted, because vide [SECTION] such land can be pass on to legal heirs and according to [SECTION], partition amongst them is permitted. Practically bequeath will always results in to partition amongst all heirs.
In [PRECEDENT]
Reported in [PRECEDENT]; the Full Bench of the Bombay High Court has while answering the reference in negative that "Whether partition is a transfer within the meaning of [SECTION] of the [ACT]?", dealt with the subject, discussed and held that;
&.as observed by the Privy Council inGirja Bai v. Sadashiv Dhundiraj,[SECTION] Ind App 151 at p. 1[SECTION] : (AIR 1916 PC 104 at p. 108), partition does not give him a title or create a title in him, it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. At page 159 (of Ind App) : (at p. 107 of AIR), their Lordships have quoted [ENTITY]'s translation of a passage in Viromitrodaya by [ENTITY], which is as follows :
"For partition is made of that in which proprietary right hag already arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares."
Partition does not, therefore, give the person, to whom a land is allotted, any new title or create a title in him to that land. He was already the owner of the land along with other co-parceners and partition only enables him to acquire exclusive title to that land. As, therefore, in the words of the Privy Council, partition only enables him to obtain in a definite and specific form the land, which was his own, it cannot be said that he has acquired that land. By the process of partition, he no doubt acquires the interest of other co-sharers in that land, but the words in the sub-section are "acquired any land". It does not contain the words "or any interest therein", such as are used in [SECTION] The language used in [SECTION] of the [ACT], therefore, itself indicates that this sub-section does not apply in cases, in which a person becomes the sole owner of the land as a result of partition.
x x x x x x x x x x x x
8. Our attention has also been invited to two other sections. [SECTION] and [SECTION], in which a distinction has been drawn between "transfer" and "partition". [SECTION] states that no land purchased by a tenant under [SECTION] or [SECTION] or [SECTION] or [SECTION] or sold to any person under [SECTION] or [SECTION] shall be transferred by sale, gift, exchange, mortgage, lease or assignment or partitioned without the previous sanction of the Collector. Sub-section (2) states that any transfer or partition of land in contravention of sub-section (1) shall be invalid. [SECTION] states that where any transfer of land or of any interest therein, whether by sale, gift, exchange, mortgage, lease or otherwise, or partition of land is invalid under any of the provisions of this Act, the acquisition of such land under such transfer or partition shall also be invalid. In these two sections, therefore, partition is not regarded as a transfer. This circumstance also shows that the Legislature did not intend that partition should be regarded as a transfer for the purposes of the [ACT].
x x x x x x x x x x x x In our opinion, therefore, partition is not a transfer within the meaning of [SECTION] of the [ACT]. The reply to the question as formulated by us above will, therefore, be in the negative.
It cannot be ignored that [SECTION] of the [ACT] gives the overriding effect to the provision of the [ACT] in the matter of succession. In [SECTION] it is declared that any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act. In Sub-section (2) it saves the operation of laws relating to prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings. As the present case does not relate to prevention of fragmentation of agricultural holdings or fixation of ceiling and there is no special provision under the tenancy laws providing to devolution of tenancy rights of deceased tenant, the provisions of the [ACT] would govern. [SECTION] of the [ACT] acknowledges testamentary succession as a mode of succession on death of a Hindu male or female including that of undivided interest in coparcenary property of a male Hindu. Thus, testamentary succession is a permissible mode of succession in case of a death of a tenant who is Hindu.
A will is not an instrument of transfer of property by sale, gift, exchange or mortgage or lease or assignment nor it is an agreement. It needs two living persons to make an agreement. It is the unilateral declaration of a person fixing his own line of succession to his estate on his demise. The will speaks as on the death of the testator and the succession takes place in accordance with the directions in the will. It is devolution of interest of deceased by succession in the nominated persons and not transfer of interest of a person in any of the modes of transfer prescribed, which all relate to transfer inter vivos. The will is not a document of transfer by way of sale, gift, exchange, mortgage, lease or assignment. It is instrument changing the course of devolution of interest by way of inheritance which even otherwise would have taken where the holder had died without a will, by way of intestate succession. The inheritance in the case of intestate succession would have been as declared in the Act. Neither [SECTION] of the [ACT] envisages prior permission of any authority for executing a will that would take effect after the death of a person which he has right to vary, cancel or modify anytime before his death, as many times as the testator desires.
This is not a case where persons who had no right or interest in the property were given such a right by the will or partition. The authorities had not cancelled the mutation entry made in the revenue record on the ground that it was not a genuine, will. In view of the facts and circumstances of this case, it must be held that the authorities below committed an error in taking the view that the relinquishment of shares by the remaining co-owners, being the result of the valid will, amounted to a transfer prohibited by [SECTION] of the [ACT]. This basic error of law on the part of the authorities below has vitiated the orders passed by them; and has resulted into miscarriage of justice.
There is no dispute that on death of a tenant or holder of land, his interest is heritable and liable to vest by succession. Vesting in any person, of an agricultural land by succession does not result in breach of [SECTION] of the [ACT]. It is clear that there is no restriction under the Act for transmission of interest of holder on his death to his successor by any mode of succession of lands held by tenants. Revenue Laws dealing with agricultural lands have not made such lands uninheritable. They also do not disqualify a non-agriculturist from inheritance nor a number of persons are disentitled from succeeding to estate of an agriculturist as body of successors, which may result in well-defined definite share of the estate of deceased vesting in them individually.
The law do not provide any special mode of succession in respect of restricted land. In absence of special provision, the succession will be governed by personal law applicable to deceased. The deceased was a Hindu and succession to his interest on his death is governed by [ACT] which acknowledges both the modes of the succession, namely, testamentary and intestate. The result of death is that interest of deceased immediately vests in his successors whether recognised as heirs on intestate succession; or as per the direction in the Will as legatees. Vesting is not postponed and is not as a result of any agreement or transaction inter vivos. It takes place by operation of law. It is not the case of the State Government that on the death of the tenant if he is a joint tenant of a block, the succession would be in a different mode. It is also not the case of the State that if the Will had not been executed the land would not have vested in the heirs of the deceased as per the law of inheritance applicable to deceased. It also cannot be doubted and disputed that only such interest shall vest in successor as was of the deceased.
The authorities under the statutes are not vested with power to deny recognition of vesting of such interest on succession. If vesting of the property to the extent interest of a co-sharer in the joint holding is to be recognised and given effect to in the case of intestate succession the position cannot be altered merely because the successor happens to be a legatee acquiring right under a Will. It may further be noticed that a person has power to dispose of only that much of property by testamentary disposition which is capable of being disposed of by him. That is to say a Will can only relate to the extent a deceased has disposable interest in the property and not beyond it. A joint holder of a tenancy has only interest in part of the tenancy. May be that until it is divided into metes and bound he holds jointly with other sharers. On his death succession is to his share in the joint tenancy. Only the interest of deceased shareholder vests in his heirs or legatees under testamentary disposition as the case may be and such successor or successors becomes a joint tenant with the surviving sharers. But this substitution does not result in sub-division of the property unless partitioned by all the joint holders. Nor it is a transfer of property inter vivos so as to invite the operation the Act.
Viewed in that light, the orders of the Deputy Collector and Collector and of the State under revision cannot be sustained. The incident and incidence of death of a holder of tenancy rights, whether solely or jointly is not controlled by these provisions.
It is thus clear that the restriction contemplated by [SECTION] is not absolute and a land purchased by tenant under the provisions of the [ACT] can be transferred with the previous sanction of the collector. The restriction is on sale, gift, exchange, mortgage, lease or assignment and that it does not apply to testamentary disposition. There is no indication Under [SECTION] that the restriction also applies to testamentary disposition. The bequest made under the Will cannot be regarded as a transfer of property. Disposal of immovable property by WILL would not amount to a transfer inasmuch as the property does not pass on to the donee at the time the will is executed. It is merely an intention expressed by the testator with respect to his property that after his death it should devolve on the donee.
In view of above facts and circumstances, the petition is allowed. The impugned orders being order dated 9.12.1997 in [CASE NUMBER] as well as judgment and order dated 27/29.05.2004 in [CASE NUMBER] are hereby quashed and set-aside which results into restoration of order dated 4.2.1994 by [ENTITY] in [CASE NUMBER] as well as restoration of judgment and order dated 30.11.1995 by Deputy Collector in R.T.S. Appeals No.42 and [SECTION] of 1994 . No orders as to costs.
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