VITHAL DATTATRAYA KULKARNI & ORS.

SHAMRAO TUKARAM POWER & ORS.

March 21, 1979

(R. S. SARKARIA, P. S. KAILASAM AND 0. CHINNAPPA REDDY, JJ.J

Bombay Tenancy and Agricultural Lands Act, 1948-S. 40-Scope of- Whether heirs of a protected tenant who died before the commencement of the 1956 Amendn1ent Act are entitl:ed to recover possession from the landlord.

Section 3 of the Bombay Tenancy Act, 1939 classified a tenant as a pro .. tected tenant in respect of any land if he 'had held such land continuously for a period of six years immediately preceding 1st January, 1938 to 1st January,_ 1945 and had cultivated such land personally during that period. Tenancy held by a protected tenant could be terminated only in the circumstances stated in s. 5 as for example, failure to pay arrears of rent subletting and so on. Section 7 provided that the landlord could recover possession of the land from the protected tenant on the ground that he bonafide required such and for the purpose of cultivating it personally or for a nonagricultu.ral purpose.

If after taking possession of the land he ceased to use it for that purpose at any time within 12 years from the date on which he took posses~ sion the landlord was required to restore possession of the land under s. 7(2) to the protected tenant. The Act also defined that a protected tenant shall include his heirs by an explanation to this section.

The 1939 Act was repealed and replaced by the Bombay Tenancy and Agricultural Lands Act, 1948. This Act also empowered the landlord to terminate the tenancy of a protected te:ant by giving the tenant one year's. notice in writing if he bonafide required the land for any of the purposes mentioned in the Act and the grounds on which a tenancy could be tern1i 4 nated were also enumerated in the Act. A provision similar to s. 7(i) of the 1939 Act was contained in s. 34(i) of this Act.

The 1948 Act did not contain prov1s1ons corresponding to Explanation (ii) to s. 7 of the 1939 Act declaring that a tenant shall include his heirs. Section 40 provided that if a protected tenant died the landlord shall offer to continue the tenancy on the same terms on which such tenant was. holding it at the tin1e of his death, to the heir or heirs of the deceru.ed tenant. The Explanation to s. 40 declared that a heir meant the lineal de5 .. cendant of a tenant or his adopted son and failing both, his widow.

The 1948 Act underwent substantial changes in 1956. Section 40 as amended in 1956 provided that on the dath of the 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.

The land in dispute belonging to the appellants was held by the respondent's father who was a protected tenant within the meaning of that term

in the 1939 Act.

In June, 1950 the appellants recovered possession of thee

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y. D. KULKARNI V. S. T. POWER 573

land allenging that they needed it for their personal cultivation. In 1951 the potected tenant died. In 1962 the landlords sold a part of the land, whereupon the respondents who were the heirs of the late protected tenant filed a petition alleging that the landlords had ceased to cultivate the land personally within 12 years from the date of dispossession of the protected tenant and, therefore, they were entitled to recover possession of the land. While the Aval Karkun and the Deputy Collector held in favour of the heirs of the tenant, the Revenue Tribunal allowing the revision application of the landlords dismissed the application of the tenant/respondents.

The High Court in a petition under Art. 226 of the Constituton reversed the order of the Revenue Tribunal.

In appeal to this Court it was contended on behalf of the appellants that the right of a protected tenant whose tenancy had been determined and \\'ho had been dispossessed of the land under s. 39 of the Bombay Tenancy and Agricultural Lands Act was a right which was personal to the tenant himself and, which could not for that reason be exercised by the tenant's heirs.

Allowing the appeal.

HELD : The contrast betvveen s. 40 before and after its amendment in 19 56 was that while after the amendment, 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 for cultivating it personally there could be no question of making an offer to continue the tenancy.

The 1948 Act before its amendment in 1956 contained no provision corresponding to Explanation (ii) to s. 7 of the 1939 Act.

Therefore under the provisions of 1948 Act as it stood before the 1956 amendment the right of a tenant to recoVer possession of the land from the landlord who had obtained possession of such land on the ground that he required it to cultivate it perso~ nally was not a heritable right. [581 B-E]

Explanation (ii) to s. 7 of the 1939 Act expressly provided that for the purpose of that section a tenant included his heirs. The position under the 1948 Act after its amendment in 1956 as could be seen from ss. 4B and 40 was that the tenancy under the Act was heritable. When it is found that the tenancy was heritable the right given to the tenant may be exercised by the heirs of the tenant also. In the instant case death of the protected tenant occurred in 1951 i.e. before the 1956 Act came into force.

His heirs had therefore no right to recover possession from the landlords. [579 G-H, 581 BJ

Vasant Hariba Londhe v. Jagannath Rarnchandra Kulkarni 71 B.L.R.

~.... 12; Bai Jarnna v. Bai Dhani, 61 Born. L.R. 419; Thakorelal v. Gujarat Revenue Tribunal, A.I.R. 1964 Guj. 183; Damadi/al & Ors. v.

Pareshrarn & Ors., AIR 1976 SC 2229 @ 2234; referred to.

CivIL APPELLATE JURISDICTION : Civil Appeal No. 1296 of 1969.

Appeal by Special Le, ave from the Judgment and Order dated H 11-11-1968 of the Bombay High Court in Special Civil Application No. 1080/65.

M. C. Bhandare, B. Datta and K. K. Manchanda for the Appellant.

A. N. Karkhanis for the Respondent.

The Judgement of the Court was delivered by

CHINNAPPA REDDY, J.-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 that they required the land for their personal cultivation.

In December, 19~!8, the Bombay Tenancy Act, 1939 was repealed and replaced by the Bombay Tenancy and Agricultural Lands Act (57 of 1948). Thereafter, on 25th April, 1949, the Kulkarni brothers filed Tenancy Case No. 102 of 1949, before the Aval Karkun, to recover possession of the land from Tukariim.

The application was dismissed by the AYal Karkuu on 29th August, 1949, but in Tenancy Appeal No. 20 of 1950 filed by the landlords, 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 died 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 recoriveyance in favour of Vasudeo Kulkarni. On 16th April, 1962, Vithal Kulka.mi executed a deed of sale in respect of his 1/3rd share in the land in favour of Bapu Bhan More and Vilas Ganpatl More. On 7th July, 1962, Tukaram's heirs filed Tenancy Case No. 87 of 1962 against the Kulkarni brothers arid their alienees, under Section 3 7 and Sectioh 39 of the Bombay Tenancy and Agricultural Lands Act alleging that the landlords 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 Tukaram's 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 Maharashtrll

Revenue Tribunal.

The Revenue Tribunal allowed the Revision Applications on 27th October, 1964, and dismissed the application

of Tukare.m's heirs filed under Sections 37 and 39 of the Bombay

I • . '

Tenancy and Agricultural Lands Act.

Tukaram's heirs invoked the jurisdiction of the High Court under Article 226 of the Constitution.

The High Court of Bombay by its judgmeut dated 11th November, 1968 allowed the Writ Petition, quashed the order of the Tribunal anj restored the order of the Aval Karkun as affirmed by the Special Deputy Collector.

The three Kulkarni brother~, Bapu Bhau More and Vilas Ganapati More, have preferred this appeal by special leave.

Shri M. C. Bhandare, learned Counsel for the appellants argued that the right of a protected tenant whose tenancy had been determined and who had been dispossessed of the land under Section 39 of the Bombay Tenancy and Agricultural Lands Act was a right which was personal to the tenant himself and, which could not for that reason be exercised by the tenant's heirs.

He argued that whatever may be the right of the heirs of a protected tenant dying subsequent to the Amending Act of 1956, the heirs of a protected tenant who died before the commencement of the 1956 Amending Act had no right to recover possession from the landlords.

He urged that there was a substantial difference between Section 40 of the Bombay Tenanc)

and Agricultural Lands Act as it stood before and after the 1956 amendment. He submitted that the decision of the Full Bench of the High Court of Bombay in Vasant Hariba Londhe v.

Jagannath Ramclzandra Kulkarni, U) applied to cases where the tenant died

after the Amending Act of 1956 and not before. Some other conten tions were also raised to which it is unnecessary to refer.

Shri A. N. Karkhanis, learned Counsel for the respondents, who presented the case of the respondents exteremely well, drew our attention to the provisions of the Bombay Tenancy Act and the Bombay Tenancy and Agricultural Lands Act before and after it was amended in 1956.

He submitted that a comprehensive view of the provisions of the Act showed that the right given to the protected tenant was heritable and, therefore, the heirs of Tukaram were entitled to exercise the right given to the tenant under Section 37 of the Act.

He submitted that the position was not different even under Section 40 of the Bombay Tenancy and Agricultural Lands Act as it stoud before the 1956 amendment.

He also advanced some other minor contentions which we do not consider necessary to mention here.

The Bombay Tenancy Act, 1939 preceded the Bombay Tenancy & Agricultural Lands Act, 1948.

Chapter III of the Bombay Tenancy Act, 1939 (Section 13A to Section 26) dealt with tenants generally, while Chapter II (Sections 3 to 13) of the Act dealt with a special class of tenants described in the Act as protected tenants. Section 3

(I) 71 B.L.R. 12

17-253SC1/79

classified a tenant as a protected tenant in respect of any land if he had held such land continuously for a period of six years immediately preceding 1st January 1938 to 1st January, 1945 and had cultivated such land personally during the aforesaid period. Section 3A was

introduced by way of amendment in 1946 and it provided that every tenant shall be deemed to be a pro\ected tenant for the purpose of the Act, on the expiry of one year from the date of coming into force of the amending Act.

Section 5 enumerated the rights and liabilities of a protected tenant and it was expressly provided that the tenancy of land held by a protected tenant shall not be terminated unless the tenant failed to pay the arrears of rent for a specified period or before the specified date or had done any Act which was destructive or partly injurious to the land or had sub-divided or sub-let the land or failed to cultivate personally or had used the land for a purpose other than agricultural.

Section 7 ( 1) invested the landlord with a special right to determine protected tenancy by giving the protected tenant one year's notice in writing on the ground that he bonafide required the land for the purpose of cultivating the land personally or for a nonagricultural purpose.

Section 7 (2) provided that if after taking possession of the land after the termination of the tenancy the landlord faikd to use it for the purpose for which he had obtained possesshm within one year from the date on which he took possession or ceased to use it for that purpose at any time within twelve years from the date on which he took possession, the landlord shall restore possession of the land to the tenant whose tenancy was terminated: by him unless the tenant had refused iri writing to accept the tenancy on the same terms and conditions as before or that the tenant, on an offer being made to him in writing, had failed to accept the offer within three months of the receipt thereof. Explanation II to Section 7 provided

"For the purposes of this Section a tenant shall include his heir as specified in sub-section (3) of Section 9''.

Section 9(3) specified that the lineal male descendants of a protected tenant or his adopted son, or, in absence of any lineal male descendant or an adopted son, his widow shall be deemed to be his heirs for the purposes of this section.

Section 9 (1) provided that if a protected tenant died, the landlord should continue the tenancy on the same terms and conditions on which the protected tenant was holding it at the time of his death to such one of his heirs who, within four months of the death of such tena:t,,

gave notice in writing to the landlord that he is willing to hold the land on such terms and conditions.

The Bombay Tenancy Act, 1939, was repealed and replaced by the Bombay Tenancy and Agricultural Lands Act, 1948. Chapter II

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of the Act (Section 3 to Section 30) contained 'General provisions regarding Tenancies' while Chapter III (Section 31 to Section 43) dealt with 'Protected tenants, their special rights and privileges'. 'Tenant' was defined to mean an Agriculturist who held the land on lease and to include a person who was deemed to be a tenant under the provisions of the Act. 'Protected tenant' was defined to mean a protected tnant under Section 31 of the Act.

Section 5 prescribed that no tenancy of any land shall be for a period of less than ten years and further provided that at the end of the said period and thereafter at the end of ten years, in succession, the tenancy shall, subject to the provisions of sub-section (2) and (3), be deemed to be renewed for a further period of ten years on the same terms and conditions, notwithstand: ing any agreement to the contrary. Section 5(3) provided that a tenancy was liable to be terminated on any of the grounds mentioned in Section 14. Section 5(2) further empowered the landlord to terminate the tenancy by giving the tenant one year's notice in writing if he bonafide required the land for any of the purposes specified in Section 34(1 ). Section 14 enumerated certain general grounds which entitled a landlord to terminate the tenancy, such as non payment of rent within the prescribed period, doing of an act which was destructive or permanently injurious to the land, division of the land in contravention of Section 27, sub-letting, failure to cultivate personally and use of land for a pnrpose other than agricu_Iture.

Section 31 declared as protceted tenants persons who were deemed to be protected tenants under Sections 3, 3A or 4 of the Bombay Tenancy Act, 1939. Section 3 2 clothed the protected tenant with the right to purchase from the landlord the land held by him as a protected tenant.

Section 34(1) gave to the landlord a special right to terminate the tenancy of a protected tenant by giving him one year's notice in writing that he required the land for cultivating personally or for any non agricultural use for his own purpose. Section 34(1) of the Bombay Tenancy and Agricultural Lands Act, 1948, corresponded to section 7(1) of the Bombay Tenancy Act, 1939. Section 37 of the 1948 Act provided that if after taking possession of the land after terminating the tenancy under Section 34 ( 1) , the landlord failed to use it for the purpose for which he had obtained possession within one year from the date on which he took possession or ceased to use it for that purpose at any time within twelve years from the date on which he took possession the landlord shall restore possession to the tenant whose tenancy was terminated by him unless he obtained from the tenant his refusal in:

writing to accept the tenancy on the same terms and conditions or the tenant had failed to accept the offer made by him in writing to give possession of the land on the same terms and conditions.

Section

SUPREME COURT REPORTS [1979] 3 S.C.Et.

37(1) of the 1948 Act corresponded to Section 7(2) of the 1939 Act.

One noticeable feature in the 1948 Act was that there was no provision corresponding to Explanation II to Section 7 of the 1939 Act which: declared that for the purposes of Section 7 a tenant shall include his heir as specified in Section 9 (3) of that Act.

This was a significartt omission.

Section 39 of the 1948 Act enabled the tenant to make an application where th(l landlord failed to comply with the provisions of Section 37. Section 40 provided that if a protected tenant died the landlord shall offer to continue the tenancy on the same terms on which such tenant was holding it at the time of his death to the heir or heirs cf the deceased tenant. The Explanation to Section 40 de1:- Jared that for the purposes of the Section, an heir meant the line:il male descendants of a tenant or his adopted son and failing ooth, his widow.

Section 40 of the 1948 Act replaced Section 9 of the 1939 Act though not in the same terms.

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 privileg1is. of the protected tenants contained in Chapter III of the Act were extended to all tenants.

Instead of providing as Section 5 of the unamended Act did, that no tenancy shall be for a period of less th2n ten years, and for renewal of the tenancy for ten year periods thereafter, Section 4B 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 31 of the 1948 Act as it stood originally was repealed and replaced by a new Section 31 which substantially enacted the provisions of Section 34 of the Act as it stood before the amendment.

What was Section 37 of the Act before amendment continued to be Section 37 after the amendment.

Section 40 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.

In this appeal we are concerned with Section 40 as it stood before it was amended in 19 5 6.

In order to understand the real controversy between ihe parties it is necessary to extract here Section 40 both as it stood before and after the 1956 amendment. Before the 1956 amendment Section 40 was

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 landlord 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 40 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

temincy 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".

The question for consideration is whether the heirs of a tenant whose tenancy was terminated by the landlord on the ground that he required the land for his personal cultivation were entitled to exercise the right which the tenant would have, if alive, to obtain possession ( "" of the land if the landlord ceased to cultivate the land at any time within twelve years after he obtained possession, in other words, whether the right of the tenant to have the possession of the land restored on the failure of the landlord to cultivate the land personally at any time during the twelve years subsequent to his obtaining possession was a heritable right. The position was clear under 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 Lands 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 round 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 tenant also.

A Full Bench of the High Court of Bombay in Vasant Hariba Londhe v. Jagannath Ramchandra Ku/c

karni(') came to the same conclusion, Kotwal, C.J. observed:

"Section 40(1) provides that 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 o! the deceased tenant as may be willing to continue the tenancy. It will be noticed that prior to the amendment of the Tenancy Act by the Bombay Act XIII of 1956 this section was worded thus "If a pro- . tected 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 .... " The expression used in the old S.40 was "offer to continue the tenancy" and there was no indication whatever as to what was to happen if the offer was not made but by the amendment made by the Amending Act XIII of 1956, sub-s. (!) was wholly re-cast and now there is no question of the landlord merely making an offer to the tenant to continue the tenancy on the same terms and conditions, but on the other hand, the section provides that "the landlord shall be deemed to have continued the tenancy on the same terms and conditions". The amendment, therefore, meets precisely the argument that is here advanced that the heir succeeding to the erstwhile tenant does not continue as a tenant on the same terms and conditions.

Besides, the new section introduced a fiction by the use of the words "deemed to have continued the tenancy" and therefore, whatever may have been the position prior to the amendment, s.40 as it now stads after the Amending Act XIII of 1956 automatically confers on the heir a tenancy on the same terms and conditions as were applicable to the deceased tenant". ..,

The learned Chief Justice then referred to the decisions in Bai Jamna

v. Bai Dhani(') and Thakorelal v. Gujarat Revenue Tribunal(•) andt

(1) 71 B.L.R. 12.

(2) 61 Born. LR. 419

(3) A.I.R. 1964 Gujarat 183

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distinguished the two cases on the ground that on the date on which the death of the tenant took place in thos'e 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 presonally, 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 circum stance 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 th!! Bombay Tenancy and Agricultural Land's 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 posses sion of such land on the ground 'that he required it to cultivate it personally 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. ( ')

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 F 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 hi~ 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

(l l AIR 1976 S.C. 2229 at 2234

Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to tht:

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 mnst necessarily disappear and the statute can only preserve his status of irremovability and not the estate 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 ant whether the respondents' predecessors in interest retained a heritable interest in the disputed premises even after the termination of their tenancy."

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 provision 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 premies occupied by him.

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. In the result we allow the appeal, set aside the judgment of the High Court and restore the decision of the Maharashtra Revenue Tribunal. In the circumstances of the case there will be no order regarding costs.

N.V.K.

Appeal allowed.