1 HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION. SECOND APPEAL NO.94/2009 WITH CIVIL APPLICATION NO.358/2009 Maruti Gopal Patil. ..Appellant -VERSUS- Dagadu Gopal Patil and others. ..Respondents ......... Mr.A.A.Kumbhakoni, Senior Advocate h/f Mr.A.M.Kulkarni, Advocate for the Appellant. Mr.S.R.Ganbavle, Advocate i/b Mr.A.G.Adagule, Advocate for the Respondents. .......... CORAM : A.P.DESHPANDE, J. DATED : 30th MARCH, 2009. P.C. : 1. The present Appellant is the original Defendant No.1. The Plaintiff instituted a suit for partition and separate possession against the present Appellant and Defendants Nos.2, 3 and 4, the Defendants Nos.2 and 3 being other two brothers and Defendant No.4 being sister. The Trial Court had partly decreed the suit. Aggrieved thereby, the Appellant/Defendant No.1 carried an appeal to the District Judge. The District Judge having dismissed the appeal, hence, the present 2 Second Appeal has been filed. 2. The learned counsel appearing for the Appellant has, in the first place, submitted that the judgment impugned in the present appeal proceeds on a wrong footing inasmuch as the question involved has been adjudicated at the touchstone of the unamended Section 40 of the Bombay Tenancy & Agricultural Lands Act (hereinafter referred to as Tenancy Act) whereas in fact amended Section 40 needs to regulate the inheritance. True it is that the First Appellate Court has relied on the unamended Section 40 of the Tenancy Act. Having regard to the fact that the father of Appellant has expired on 12.11.1973 it is obvious that the tenancy rights would be regulated by the amended Section 40 of the Tenancy Act. 3. The question that arises for consideration is, whether, after death of the father, the tenancy rights would be inherited by all the heirs or would it be restricted to the heir or heirs who express their willingness to continue the tenancy? 4. The above question arises for consideration in the following factual matrix:- Admittedly, the father of Appellant by name Gopal was a tenant in regard to the two agricultural lands and the tenancy was regulated by the Tenancy Act. He expired on 12.11.1973. It is the case of the Appellant that he alone paid the arrears of rent and initiated the proceedings for purchase of the land which culminated in issuance of certificate under Section 32(M) of the Tenancy Act, hence, he alone 3 would inherit the tenancy rights. Whereas, according to the Plaintiff, as the father was the tenant, all the heirs would inherit the tenancy rights to the agricultural lands in question. Both the Courts have concluded in favour of the Plaintiff on that count. 5. Amended Section 40 of the Tenancy Act reads thus:- “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.” 6. Prior to amendment of Section 40 by the Amending Act No.13/1956, a different procedure was inbuilt in Section 40 which obliged the landlord to make an offer in writing to the heirs of deceased tenant. In the event if the heirs of deceased tenant do not agree to continue the tenancy on the same terms and conditions, the Collector was empowered to select a heir or heirs who is/are willing to continue the tenancy on the same terms and conditions. The unamended Section 40 attached finality to the decision of the 4 Collector. Deviating from the said scheme, after amendment Section 40 postulates deeming continuance of tenancy in favour of the heir or heirs and an exception is carved out that if a heir or some of the heirs are not willing to continue the tenancy on the same terms and conditions, then in that event the tenancy would devolve on such heir or heirs who is or are willing to continue the tenancy on the same terms and conditions. It is, thus, obvious that in the first place by deeming fiction the landlord is deemed to have continued the tenancy on the same terms and conditions in favour of all the heirs. Only in the event if some of the heirs are not willing to continue the tenancy on the same terms and conditions then in that event the tenancy would be continued in favour of only those who are ready and willing to continue the tenancy on the terms and conditions prevailing during the life time of the tenant. From the scheme of Section 40, it is evident that if one of the heirs or some of the heirs are claiming to be only heirs who were willing to continue the tenancy on the same terms and conditions, the burden would lie on them to establish that other heirs were not willing to have the tenancy continued on the same terms and conditions. There is no evidence on record led by the present Appellant to the effect that the Plaintiff was not willing to continue the tenancy on the terms and conditions on which it was leased out to the deceased tenant. In the absence of any positive evidence from the present Appellant/Defendant No.1 clearly showing unwillingness of the Plaintiff or other heirs to continue the tenancy on 5 the same terms and conditions, the Appellant cannot succeed. 7. Though the first Appellate Court has relied on the unamended Section 40 of the Tenancy Act and has recorded wrong reasons in support of the conclusions drawn by it, applying Section 40 as amended, does not result in any change in the decision. Applying Section 40 post amendment also does not deprive the Plaintiff and other heirs of the tenancy rights which they inherited from their deceased father who was the tenant. In view of the fact that applying amended Section 40 of the Tenancy Act also does not result in change in the ultimate decision, the present appeal deserves no consideration. 8. The learned counsel for the Appellant has then placed reliance on the agreement entered into between the Plaintiff and Defendant No.1 which is in the nature of deed of relinquishment of the Plaintiff' s rights in the landed property to contend that the said document though unregistered could be looked into to establish that the Plaintiff was unwilling to continue the tenancy on the same terms and conditions. The Courts below have rejected the said document on the ground that there cannot be any relinquishment of rights in immovable property by an unregistered document. However, the said document is relied upon by the learned counsel for the Appellant for a collateral purpose. In his submission, perusal of the agreement reveals that the Plaintiff had expressed his unwillingness which is referable to Section 40 of the Tenancy Act and hence, after the death of father, the Appellant alone would be the tenant. 6 9. Perused the agreement, the same does not record any such unwillingness on the part of the Plaintiff which would go to dis-entitle the Plaintiff from inheriting the agricultural lands left behind by the deceased father. 10. In the result, though a question of law is raised which is answered herein above, no substantial question of law emerges for consideration in the appeal. In the result, the Second Appeal is summarily dismissed. In view of dismissal of the Second Appeal, the Civil Application does not survive and the same is also disposed of. JUDGE