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

In respect of an extent of ten acres and 23 guntas of land in Survey No. 215 of Village Nathare, Haranax, one Tukaram Patla Power was a protected tenant under the provisions of the Bombay Tenancy Act, 1939, as amended by Act 26 of 1946. The landlords, Vithal Kulkarni, Vasudeo Kulkarni and Krishnaji Kulkarni gave a notice to Tukaram on 8th March, 1948 under Section 7(1) of the Bombay Tenancy Act, 1939, alleging t hat they required the land for their personal cultivation. In December, 1948, the Bombay Tenancy Act, 1939 was repealed and replaced by the Bombay Tenancy and Agricultural Lands Act (57 of 1948). There after, on 25th April, 1949, the Kulkarni brothers filed Tenancy Case No. 102 of 1949, before the Aval Karun, to recover possession of the land from Tukaram. The application was dismissed by the Aval Karkun on 29th August, 1949, but in Tenancy Appeal No. 20 of 1950 filed by the landlo rds, the Collector of South Satara, Sangli, by his order dated 9th May, 1950, directed that possession of the land should be given to the Kulkarni brothers. The landlords accordingly recovered possession of the land on 18th June, 1950. Tukaram die d on 31st August, 1951. On 18th April, 1961, Vasudeo Kulkarni executed a deed of conditional sale in favour of Sopan Power in respect of a joint 1/9th share in the land. It was recited in the deed that possession was delivered to Sopan but that was disputed. However, on 27th June, 1962, Sopan executed a deed of reconveyance in favour of Vasudeo Kulkarni. On 16th April, 1962, Vithal Kulkarni executed a deed of sale in respect of his 1/3rd share in the land in favour of Bapu Bhau More and Vila s Ganpati More. On 7th July, 1962, Tukarams heirs filed Tenancy Case No. 87 of 1962 against the Kulkarni brothers and their alienees, under Section 37 and Section 39 of the Bombay Tenancy and Agricultural Lands Act alleging that the landlord s had ceased to cultivate the lands personally within twelve years from the date of dispossession of the tenant (Tukaram) and, therefore, they were entitled to recover possession of the land. The Aval Karkun made an order in favour of Tukarams heirs on 26th November, 1963. The order was confirmed by the Special Deputy Collector on 31st March 1964. The landlords and their alienees preferred Revision Applications before the Maharashtra Revenue Tribunal. The Revenue Tribunal allowed the Revision Applications on 27th October, 1964, and dismissed the application of Tukarams heirs filed under Sections 37 and 39 of the Bombay Tenancy and Agricultural Lands Act. Tukarams heirs invoked the jurisdiction of the High Court under Article 226 of the Constitution. The High Court of Bombay by its judgment dated 11th November, 1968 allowed the Writ Petition, quashed the order of the Tribunal and restored the order of the Aval Karkun as affirmed by the Special Deputy Collector. The three Kulkarni brothers, Bapu Bhau More and Vilas Ganapati More, have preferred this appeal by special leave.

Reasoning: 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.