Case: Vithal Dattatraya Kulkarni and Others Vs. Shamrao Tukaram Power and Others

which the death of the tenant took p lace in those cases Section 40 as amended in 1956 had not come into force, whereas, in the case before the Full Bench the tenant had died after Section 40 was amended in 1956. In the case now before us, however, the death of the tenant took place before the Bombay Tenancy and Agricultural Lands Act was amended in 1956. We have already extracted Section 40 before and after it was amended in 1956. The contrast is apparent. While under the amended Section 40 the heirs of the tenant were automatically deemed to succeed to the tenancy there was no such "deeming" before the 1956 amendment. The landlord was merely required to make an offer and it was not stipulated what would happen if he did not make the offer. Where the landlord had obtained possession of the land under Section 34 for cultivating the land personally, there could be no question of making an offer to continue the tenancy since such an offer would be an exercise in futility. There was also the significant circumstance that the 1948 Act (before it was amended in 1956) contained no provision corresponding to Explanation II to Section 7 of the 1939 Act. The only reasonable conclusion, therefore, is that under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, as it stood before it was amended in 1956, the right of a tenant to recover possession of land from a landlord who had obtained possession of such land on the ground that he required it to cultivate it person ally was not a heritable right.Shri Karkhanis, learned Counsel for the respondents relied on the decision of this Court in Damadilal &Ors. v. Parashram &Ors. (1) and argued that a statutory tenancy was heritable like a contractual tenancy. This Court did not lay down the wide proposition that every statutory tenancy was heritable but the Court did quite definitely lay down that it would be wrong to import the notions of English law relating to "statutory tenancy" and on that basis to hold that it was not transferable or heritable. It was observed by A. C. Gupta, J., as follows:"We find it difficult to appreciate how in this country we can proceed on the basis that a tenant whose contractual tenancy has determined but who is protected against eviction by the statute, has no right of property but only a personal right to remain in occupation, without ascertaining what his rights are under the statute. The concept of a statutory tenant having no estate or property in the premises which he occupies is derived from the provisions of the English Rent Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to the provisions of the relevant statute. Tenancy has its origin in contract. There is no dispute that a contractual tenant has an estate or property in the subject-matter of the tenancy, and heritability is an incident of the tenancy. It cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the e state he had in the premises in his occupation. It is not possible to claim that the "sanctity" of contract cannot be touched by legislation. It is therefore necessary to examine the provisions of the Madhya Pradesh Accommodation Control Act, 1961 to find out whether the respondents predecessors in interest retained a heritable interest in the disputed premises even after the termination of their tenancy."7. The learned Judge thereafter referred to the definition of tenant in the Madhya Pradesh Act and held that the definition made a person continuing in possession after the determination of his tenancy a tenant, unless a decree or order for eviction had been made against him, thus putting him at par with a person whose contractual tenancy still subsisted. It was observed that the incidents of such tenancy and the contractual tenancy had to be the same in the absence of a contrary intention conveyed by any pro vision of the Act. It was further observed that the so called statutory tenant had, under Section 14 of the Madhya Pradesh Act, the right to sublet in common with the contractual tenant and, therefore, he must be said to have an interest in the premises occupied by him.8. Thus the question whether a tenancy other than a contractual tenancy has any or all the incidents of a contractual tenancy has to be decided with reference to the provisions of the particular statute. Though Section 5 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, did indicate by providing that notwithstanding any agreement to the contrary the minimum period of a tenancy shall be ten years renewable thereafter for successive periods of ten years, that the tenancy was heritable, the indication was definitely to the contrary when it came to the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate the land personally. Our conclusion regarding the non-heritability of this right rests solely on our understanding of Section 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, in relation to the right under Section 37. Nothing that we have said should be understood as indicating that any other right of a tenant or this very right after the 1956 amendment is not heritable.Shri Karkhanis argued that having regard to the position that obtained both under the Bombay Tenancy Act and under the Bombay Tenancy and Agricultural Lands Act after the 1956 amendment, we should so interpret Section 40 as to make the right under Section 37 heritable. We are unable to do so in view of the language of Section 40 before it was amended in 1956.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The position was clear und er the Bombay Tenancy Act, 1939. Explanation II to Section 7 of that Act expressly provided that for the purposes of the Section a tenant included his heirs, as specified in Section 9(3). The position under the Bombay Tenancy and Agricultural Land s Act, 1948, after it was amended in 1956 is also quite clear. Section 4B and Section 40 show that the tenancy under the Act is heritable. As already mentioned, while Section 4B provides for the continuation of the tenancy even after the expiry of the period fixed by the agreement or usage, Section 40 expressly provides for the continuation of the tenancy on the death of the tenant, the heirs of the tenant stepping into the position of the tenant. Once it is found that the tenancy is heritable it follows that the right given to the tenant under Section 37(1) may be exercised by the heirs of the tenanthave already extracted Section 40 before and after it was amended in 1956. The contrast is apparent. While under the amended Section 40 the heirs of the tenant were automatically deemed to succeed to the tenancy there was no such "deeming" before the 1956 amendment. The landlord was merely required to make an offer and it was not stipulated what would happen if he did not make the offer. Where the landlord had obtained possession of the land under Section 34 for cultivating the land personally, there could be no question of making an offer to continue the tenancy since such an offer would be an exercise in futility. There was also the significant circumstance that the 1948 Act (before it was amended in 1956) contained no provision corresponding to Explanation II to Section 7 of the 1939 Act. The only reasonable conclusion, therefore, is that under the provisions ofthe Bombay Tenancy and Agricultural Lands Act, 1948, as it stood before it was amended in 1956, the right of a tenant to recover possession of land from a landlord who had obtained possession of such land on the ground that he required it to cultivate it person ally was not a heritableSection 5 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, did indicate by providing that notwithstanding any agreement to the contrary the minimum period of a tenancy shall be ten years renewable thereafter for successive periods of ten years, that the tenancy was heritable, the indication was definitely to the contrary when it came to the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate the land personally. Our conclusion regarding the non-heritability of this right rests solely on our understanding of Section 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before it was amended in 1956, in relation to the right under Section 37. Nothing that we have said should be understood as indicating that any other right of a tenant or this very right after the 1956 amendment is not heritable.Shri Karkhanis argued that having regard to the position that obtained both under the Bombay Tenancy Act and under the Bombay Tenancy and Agricultural Lands Act after the 1956 amendment, we should so interpret Section 40 as to make the right under Section 37 heritable. We are unable to do so in view of the language of Section 40 before it was amended in 1956.