Case: Vinodchandra Sakarlal Kapadia and Ors Vs. State of Gujarat and Ors


Decision reasoning: 0[ds]20. The common thread running through these decisions except that in Mahadeo (2017) 13 SCC 756     is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent. As laid down in Amarendra Pratap Singh (2004) 10 SCC 65  , where the object of the legislation is to prevent a mischief and to confer protection on the weaker Sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved.21. The provisions considered in the preceding paragraph deal with matters pertaining to and arising out of proceedings related to statutory purchase. Sections 14 and 29 do not belong to that category. In terms of Section 14, if the land is assigned in contravention of Section 27, the tenancy of the tenant is liable to be terminated. Section 27 states in clear terms that assignment of any interest in the land by a tenant shall not be valid. The decision of this Court in Bhavarlal16 has stood the test of time which clearly states that a tenancy governed by a statute which prohibits assignment, cannot be willed away to a total stranger. The expression assignment in Sections 14 and 27, if understood in light of the decision of this Court in Bhavarlal16 which has consistently been followed, must include testamentary disposition.One thought may be expressed here though that by itself may not be determinative and that is, the meaning ascribed to the expression assignment in Section 43 cannot in any way be different. There is nothing in the provisions of the Act to suggest that the expression assignment must carry a different meaning in Sections 14 and 27 on the one hand, and Section 43 on the other.22. The provisions analysed hereinabove intend to confer the advantage of statutory purchase upon a cultivating tenant, and see that the tiller of the land is conferred ownership with respect to the lands cultivated by him as well as the dwelling house occupied by him. Thus, a cultivating tenant, if his holding is otherwise not beyond the ceiling limit, would be given the right to own the land cultivated by him. In cases where no purchase could be effected either on account of inability of the tenant to pay the purchase price, or on account of other situations, more than one attempt and opportunities are afforded to him. The statute goes to the extent of obliging the State Government to deposit the purchase price on his behalf. Even in cases where the tenant is unable to exercise the right of purchase because his holding would go beyond ceiling limit, the land would not revert to the landlord, but in terms of Section 32P, it must come to the persons or entities listed in the priority list. The priority list includes persons such as agricultural labourers and landless persons. The scheme is, therefore, to effectuate distribution of agricultural lands in such a way that the persons who are disadvantaged, would be conferred the ownership. After such purchase, the law obliges the purchaser to cultivate the land personally and not to transfer it23. If a tenant or any other person from the priority list is conferred ownership in respect of the agricultural land or when a landlord is allowed to retain the land which was surrendered by his tenant, each one of them is obliged to cultivate the land personally. In case any of them is unwilling, the land must be given to those who principally depend upon agricultural operations for their sustenance. If a person is a beneficiary of such statutory purchase and wishes to transfer his holding the law obliges that he must take prior sanction from the Collector. While granting such sanction, the authorities may essentially check whether the transferee is an agriculturist or an agricultural labour who otherwise fulfils the requirements and would carry out the obligation of cultivating the land personally; and that his holding would not go beyond the ceiling limit. Since the ownership itself was conferred as a result of the legislative scheme as discussed hereinabove, these conditions are inherent in the very conferral of ownership and, therefore, specifically incorporated in Section 43 with direct reference to the provisions named therein.24. A transfer inter vivos would normally be for consideration where the transferor may get value for the land but the legislation requires previous sanction of the concerned authority so that the transferee can step into the shoes of the transferor, and carry out all the obligations as a part of legislative scheme must be discharged. Thus, the screening whether a transferee is eligible or not, can be undertaken even before the actual transfer is effected. As against this, if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. The legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose. The construction put on the expression assignment appearing in Section 43, therefore, has to be consistent with the legislative scheme. In the context of the entire scheme, the term assignment used in Section 43 of the Act must include testamentary disposition as well. By adopting such construction, in keeping with the law laid down by this Court, the statute would succeed in attaining the object sought to be achieved. On the other hand, if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance, but may also have serious impact on agricultural operations.25. In the circumstances the view taken by the Division Bench of the High Court in the present matter is absolutely correct and does not call for any interference. The decision is completely consistent with the law laid down by this Court in Sangappa AIR 1998 SC 3229   : (1998) 7 SCC 294     and Jayamma (2004) 7 SCC 459     and the other cases referred to hereinabove and must be accepted to be the correct exposition of law.A. In Sangappa (1998) 7 SCC 294  , the facts were noted as under:2. The facts leading to this appeal are as follows:Sangappa Bangi made an application Under Section 45 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the Act) in Form 7 claiming occupancy rights in respect of the land in question. During the pendency of the proceedings, he made a Will on 8-4-1975 bequeathing his tenancy rights in respect of the land in favour of one Ameerjan who claims to be the legal representative of the Appellant Sangappa who died during the pendency of proceedings before the Tribunal. She in turn executed another Will under which Husensab is making a claim to the land through the said Sangappa. Respondent 2 is the wife of the said Sangappa while Respondents 3 to 5 are the children of Sangappa. The Land Tribunal as well as the Appellate Authority examined the question whether right to tenancy could have been the subject-matter of a bequest under a Will. In answering that question, the Appellate Authority referred to a decision of the High Court of Karnataka in Shivanna v. Rachiah (1977) 1 Kant LJ 146 (Short notes Item 160) (CRP No. 319 of 1976 dated 29-3-1977 wherein it was stated 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 or an interpretation of the provision of Sections 21 and 24 of the Karnataka Land Reforms Act that the tenancy rights are inherited only by legal representatives and not by anybody else; that tenancy could be deemed to have been continued in favour of the heirs of the tenant. It is also made clear that transfer of tenancy rights made in violation of the provisions of Section 21 would be void. The High Court did not give any detailed reasons, but taking the view that the Appellate Authority and the Land Tribunal having concurrently held that Respondents 2 to 5 are entitled to grant of occupancy rights, found no reasons to interfere with the order made by them.The question that arose for consideration was dealt with by this Court as under:5. 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, would be invalid under the provisions of Section 21 of the Land Reforms Act. What is prohibited Under Section 21 of the Act is that there cannot be any sub-division or subletting 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 sub-divide the land leased subject to certain conditions. Section 24 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 21 with Section 24 to understand the full purport of the provisions. Section 24 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 21. If he is a 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 reference 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 provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it 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 21, 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 one 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 will also amount to an assignment and, therefore, be not valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21, 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 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in Shivanna4 and Dhareppa v. State of Karnataka (1979) 1 Kant LJ 18 would not promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmakka Kom Venkanna Naik v. Land Tribunal (1987) 2 Kant LJ 337.B. Similar issues regarding disposition by will were dealt with by this Court in Jayamma (2004) 7 SCC 459  , as follows:16. We would discuss the construction of the provision of Section 61 of the said Act, a little later, but we have no hesitation in holding that in the event if it be held that the testator could not have executed the Will in favour of a person who could not be declared to be a tenant having occupancy right, such a Will would be void ab initio and, therefore, non est in the eye of the law. The court in such an event would not be determining a disputed question of title but would be considering the effect of the statute vis-a-vis the Will in question.... ... ...18. As we have noticed hereinbefore, that the statutory embargo on transfer of land is stricter in a case where the tenant has become occupant than a land held by a tenant simpliciter. We have also noticed that the embargo on transfer is not only by way of sale, gift, exchange, mortgage, lease but also by assignment. What is permitted under the law is partition of the land amongst the members of the family. Section 61 of the Act is to be read in its entirety.19. Sub-section (3) of Section 61 lays down that any transfer of land in contravention of Sub-section (1) shall be invalid whereupon the same shall vest in the State Government free from all encumbrances. The legislative intent that the land should not be allowed to go into the hands of a stranger to the family is, therefore, manifest. Whereas in terms of Section 21, strangers to the family of the tenant to come upon the land is not allowed, the tenor of Section 61 is that except partition amongst the co-sharers, no transfer of the property, in any manner, is permissible.20. When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that the same is invalid, and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act.21. It is not disputed that in view of the purport and object the legislature sought to achieve by enacting the said provision the expression assignment would include a Will.22. In this case, there is also no dispute that grant of agricultural land with occupancy right in terms of the provisions of the said Act was made on 14-10-1981. The Will in question having been executed on 20-2-1984; the transfer has been made within a period of fifteen years from the date of grant which is prohibited in law.C. Both these decisions were in the context of prohibition against transfer or assignment under the provisions of the Karnataka Land Reforms Act, 1961.31. 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.32. We, therefore, reject the submissions advanced by Mr. Srivatsa, learned Counsel.33. In the premises, we accept the construction put by the Division Bench on the provisions that fell for consideration. The challenge to the view taken by the Division Bench must therefore be rejected. We must also observe that the decision of this Court in Mahadeo (2017) 13 SCC 756     which had failed to notice the earlier decisions in Sangappa (1998) 7 SCC 294     and Jayamma (2004) 7 SCC 459     and which is inconsistent with the decisions referred to hereinabove and what we have concluded, must be held to be incorrectly decided.In Mahadeo (2017) 13 SCC 756  , this Court dealt with Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1958 as applicable to Vidarbha Region of State Maharashtra, and observed:4. The High Court took the view that the provisions of Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1958 pertaining to Vidarbha Region do not permit the transfer of land by way of a will. Section 57 of the Act which is relevant reads as follows:57. Restriction on transfers of land purchased or sold under this Act(1) No land purchased by a tenant Under Section 41 or 46 or 49-A or 57-D or 130 or sold to any person Under Section 91 or 122 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government.(2) Any transfer of land in contravention of Sub-section (1) shall be invalid:Provided that nothing in this Section shall apply to the lands purchased by an occupancy tenant.5. On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissible by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition insofar as the transfer of land by way of a will is concerned. In fact, in view of the decision of this Court in State of W.B. v. Kailash Chandra Kapur (1997) 2 SCC 387  , devolution of property by way of a will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a will takes effect after demise of the testator and transfer in that perspective becomes incongruous.6. That the beneficiary of a will receives the property by way of devolution and not by way of transfer is also made clear by the decision of this Court in S. Rathinam alias Kappamuthu and Ors. v. L.S. Mariappan and Ors. (2007) 6 SCC 724 wherein this Court has held in para 21 that: (SCC p. 732)21. A testator by his will, may make any disposition of his property subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. A will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution.In coming to this conclusion, this Court referred to Beru Ram v. Shankar Dass (1977) 8 JKLR 73.D. It must be stated here that the decisions in Sangappa AIR 1998 SC 3229   : (1998) 7 SCC 294     and Jayamma (2004) 7 SCC 459     were rendered by benches of two judges and so was the decision in Mahadeo (2017) 13 SCC 756.   However, the decision in Mahadeo does not show that the attention of the bench was invited to the earlier decisions in Sangappa (1998) 7 SCC 294     and Jayamma (2004) 7 SCC 459.  E. The decision of this Court in Sangappa (1998) 7 SCC 294     had approved the decision of the Division Bench of the High Court of Karnataka in Timmakka (1987) 2 Kant LJ 337F. On the other hand, the decision in Mahadeo (2017) 13 SCC 756     had placed reliance on the decisions of this Court in State of West Bengal v. Kailash Chandra Kapur (1997) 2 SCC 387     and in S. Rathinam (2007) 6 SCC 724.   In neither of these cases any statutory prohibition or restriction on transfer or assignment was involved.13. The decisions in Sangappa (1998) 7 SCC 294  , Jayamma (2004) 7 SCC 459     and Mahadeo (2017) 13 SCC 756     had dealt with the question whether prohibition against transfer of agricultural holdings applied to testamentary disposition.15. Various States have enacted legislations seeking to invalidate transfers of agricultural lands made by tribals or socially disadvantaged persons to non-tribals or transferees from non-backward communities which legislations have gone to the extent of nullifying transactions entered into even before the legislations had come into effect. Validity of these legislations have been sustained by this Court.17. In Amrendra Pratap Singh v. Tej Bahadur Prajapati and Ors. (2004) 10 SCC 65  , a question arose whether a plea of adverse possession by a non-tribal with regard to land of a tribal situated in the scheduled area could be entertained. While dealing with the question, following observations were made by this Court:14. ...... Dictionaries can be taken as safe guides for finding out meanings of such words as are not defined in the statute. However, dictionaries are not the final words on interpretation. The words take colour from the context and the setting in which they have been used. It is permissible to assign a meaning or a sense, restricted or wider than the one given in dictionaries, depending on the scheme of the legislation wherein the word has been used. The court would place such construction on the meaning of the words as would enable the legislative intent being effectuated. Where the object of the legislation is to prevent a mischief and to confer protection on the weaker Sections of the society the court would not hesitate in placing an extended meaning, even a stretched one. on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. We may refer to Principles of Statutory Interpretation by Justice G.P. Singh (8th Edn., 2001) wherein at pp. 279-280 the learned author states-..... in selecting one out of the various meaning of a word, regard must always be had to the context as it is a fundamental Rule that the meanings of words and expressions used in an Act must take their colour from the context in which they appear. Therefore, when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers...... Judge Learned Hand cautioned not to make a fortress out of the dictionary but to pay more attention to the sympathetic and imaginative discovery of the purpose or object of the statute as a guide to its meaning.... ... ...19. State of M.P. v. Babu Lal (1977) 2 SCC 435     is an interesting case showing how this Court dealt with an artistic device employed by a non-tribal to deprive a tribal of his land. The M.P. Land Revenue Code, 1959 imposed restrictions on the transfer of land by members of a Scheduled Tribe. Babu Lal, a non-tribal, filed a suit for declaration against Baddiya, a Bheel, notified Scheduled Tribe, for declaration that his name be recorded in the revenue record as bhumiswami over the land of Baddiya. Baddiya did not contest the suit and the parties filed a compromise conceding to the claim of Babu Lal. The State Government intervened and filed a petition in the High Court seeking a writ of certiorari, submitting that the entire proceedings in the suit were in contravention of Sub-section (6) of Section 165 of the M.P. Land Revenue Code, 1959. The judgment of the civil court based on compromise was sought to be quashed. The High Court dismissed the petition holding that the State could pursue the alternative remedy of filing a suit for declaration that the decree was null and void. In appeal by special leave, this Court set aside the judgment of the High Court and issued a writ of certiorari to quash the judgment and decree passed in the civil suit. It was held: (SCC p. 436, para 5)5. One of the principles on which certiorari is issued is where the Court acts illegally and there is error on the face of record. If the Court usurps the jurisdiction, the record is corrected by certiorari. This case is a glaring instance of such violation of law. The High Court was in error in not issuing writ of certiorari.20. The law laid down by this Court is an authority for the proposition that the court shall step in and annul any such transaction as would have the effect of violating a provision of law, more so when it is a beneficial piece of social legislation. A simple declaratory decree passed by a civil court which had the effect of extinguishing the title of a member of a Scheduled Tribe and vesting the same in a non-member, was construed as transfer within the meaning of Section 165(6) of the M.P. Land Revenue Code, 1959. Thus, we are very clear in our minds that the expression transfer of immovable property as defined in Clause (f) of para 2 of the 1956 Regulations has to be assigned a very wide meaning. Any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a non-tribal, would be included within the meaning of transfer of immovable property.... ... ...24. In Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande AIR 1923 PC 205   Their Lordships of the Privy Council dealt with a case of watan lands and observed that it is somewhat difficult to see how a stranger to a watan can acquire a title by adverse possession for twelve years of lands, the alienation of which is, in the interests of the State, prohibited. The Privy Councils decision was noticed in Karimullakhan v. Bhanupratapsingh AIR 1949 Nag 265 : ILR 1948 Nag 978 and the High Court noted non-availability of any direct decision on the point and resorted to borrowing from analogy. It was held that title by adverse possession on inam lands, watan lands and debutter, was incapable of acquisition.25. Reverting back to the facts of the case at hand, we find that in the land, the ultimate ownership vests in the State on the principle of eminent domain. Tribals are conferred with a right to hold land, which right is inalienable in favour of non-tribals. It is clear that the law does not permit a right in immovable property vesting in a tribal to be transferred in favour of or acquired by a non-tribal, unless permitted by the previous sanction of a competent authority. The definition of transfer of immovable property has been coined in the widest-possible terms. The definition makes a reference to all known modes of transferring right, title and interest in immovable property and to make the definition exhaustive, conspicuously employs the expression any other dealing with such property, which would embrace within its sweep any other mode having an impact on right, title or interest of the holder, causing it to cease in one and vest or accrue in another. The use of the word dealing is suggestive of the legislative intent that not only a transfer as such but any dealing with such property (though such dealing may not, in law, amount to transfer), is sought to be included within the meaning of the expression. Such dealing may be a voluntary act on the part of the tribal or may amount to a dealing because of the default or inaction of the tribal as a result of his ignorance, poverty or backwardness, which shall be presumed to have existed when the property of the tribal is taken possession of or otherwise appropriated or sought to be appropriated by a non-tribal. In other words, a default or inaction on the part of a tribal which results in deprivation or deterioration of his rights over immovable property would amount to dealing by him with such property, and hence a transfer of immovable property. It is so because a tribal is considered by the legislature not to be capable of protecting his own immovable property. A provision has been made by para 3-A of the 1956 Regulations for evicting any unauthorised occupant, by way of trespass or otherwise, of any immovable property of a member of a Scheduled Tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the competent authority. The concept of locus standi loses its significance. The State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by para 3-A. The prescription of the period of twelve years in Article 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is concerned. The tribal need not file a civil suit which will be governed by the law of limitation; it is enough if he or anyone on his behalf moves the State or the State itself moves into action to protect him and restores his property to him. To such an action neither Article 65 of the Limitation Act nor Section 27 thereof would be attracted.26. In our opinion, the abovesaid shall be the position of law under the 1956 Regulations where transfer of immovable property has been defined and also under the 1950 Act where transfer of holding has not been defined. Acquisition of title in favour of a non-tribal by invoking the doctrine of adverse possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the court.The law laid down in Amarendra Pratap Singh (2004) 10 SCC 65     was followed by this Court in Lincai Gamango and Ors. v. Dayanidhi Jena and Ors. (2004) 7 SCC 437.  20. The common thread running through these decisions except that in Mahadeo (2017) 13 SCC 756     is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent. As laid down in Amarendra Pratap Singh (2004) 10 SCC 65  , where the object of the legislation is to prevent a mischief and to confer protection on the weaker Sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved.