Gujarat High Court
Heirs Of Decd. Mangaji Sanaji & 3 vs State Of Gujarat & 4 on 11 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13857/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13857 of 2017
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HEIRS OF DECD. MANGAJI SANAJI & 3....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR MRUGEN K PUROHIT, ADVOCATE for the Petitioner(s) No. 1-4
MS. THAKORE, AGP for the RESPONDENT(s) No. 1
MR KV SHELAT, CAVEATOR for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 11/09/2017
ORAL ORDER
1. Mr. R.P. Desai, the learned counsel appearing on behalf of Mr. Mrugen Purohit for the applicants seeks to rely on a decision of this Court in the case of Ramdevsinh Balvantsinh Chudasama vs. Mansangbhai Lagharabhai Dodia, Special Civil Application No.14346 of 2004, decided on 24th November, 2016, wherein this Court held in paras-5 and 6 as under;
"5. Having regard to the submissions made by the learned Counsels for the parties and to the documents on record, it appears that the Entry No.908 was posted in the revenue record in favour of the petitioner on the basis of the Will dated 30.7.1975 executed by the deceased Ramsangbhai Lagharabhai. The said entry was certified on 16.9.1983 by the Mamlatdar and ALT. Subsequently, the proceedings under Section 84C of the Tenancy Act, though were initiated, were dropped by the Mamlatdar vide the order dated 7.12.1987 by holding Page 1 of 5 HC-NIC Page 1 of 5 Created On Tue Sep 12 00:11:52 IST 2017 C/SCA/13857/2017 ORDER that there was no violation of Section 43 of the Tenancy Act. At this juncture, it is required to be noted that the issues whether Section 63 of the Bombay Tenancy Act debars an agriculturist from parting with his agricultural land to a non-agriculturist through a Will and whether Section 43(1) of the Tenancy Act restricts transfer of any land or interest purchased by the tenant under Section 17B, 32, 32F, 32O, 32U, 33I, or 88E or sold to any person under Section 32P or Section 64 of the Tenancy Act, through execution of a Will by way of testamentary disposition, were referred to and considered by the Division Bench in case of Rajenbhai Baldevbhai Shah Vs. Baijiben Kabhaibhai Patanvadia and Ors. (supra) and it is held as under:-
Section 43 of the Tenancy Act, however, uses word `assignment'. Word `assignment' has been given statutory meaning by the Apex Court while examining the scope of Section 21 of the Karnataka Land Reforms Act in Sangappa Kalyanappa Bangi (Supra). In that case, one Sangappa Bangi made an application under Section 45 of the Karnataka Land Reforms Act, 1961 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 pendency of the proceedings before the Tribunal. She in turn executed another Will under which Husensab is making a claim to the land through the said Sangappa. Land Tribunal as well as Appellate Tribunal examined whether rights to tenancy could have been the subject matter of a bequest under a Will. Apex Court took the view that 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 provision inasmuch as such assignment disposes of or deals with the lease. Apex Court also held that when there is a disposition of rights under a Will though operates posthumously is nevertheless 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 Page 2 of 5 HC-NIC Page 2 of 5 Created On Tue Sep 12 00:11:52 IST 2017 C/SCA/13857/2017 ORDER will come into effect after the death of the testator. The purpose behind Section 21 is not to allow strangers to the family of the tenant to come upon the land. The Apex Court held that tenanted land is not allowed to be sublet 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' in Section 21 will have to be given such meaning as to promote the object of the enactment. Above decision in Sangappa Kalyanappa Bangi (Supra) was later followed in Jayamma case while interpreting Section 61(1) & (3), 21(1), 2(A)(12) & (17) of the Karnataka Land Reforms Act, 1961 The question arose whether the expression `assignment' would take in a will. The Court held that on a fair construction of Section 61, a transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs, who would be entitled to claim partition of land, and not others, having regard to the definition of `family' as contained in Section 2(12) and `joint family' as contained in Section 2(17) of the said Act. The Court felt that the purpose and object of the Legislature sought to be achieved by enacting Section 61 of the KLR Act is such that `assignment' would include `assignment by a will'.
Section 43 of the Bombay Tenancy Act uses same expression `assignment', and in our view, the same meaning attributed by the Apex Court to the word `assignment' be attributed to Section 43 as well. We find no reason to ascribe a different meaning to that word in the context of Bombay Tenancy Act. We also hold that when there is a disposition of rights under a Will, though operates posthumously, is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. If Section 43 of the Bombay Tenancy Act does not apply in such a situation then the tenant could assign his interest to strangers, which will completely negatives the object and purpose of Section 43 and defeat the intents of the legislature. We, therefore, hold that the word `assignment' in Section 43 would take in a `Will' also and is Page 3 of 5 HC-NIC Page 3 of 5 Created On Tue Sep 12 00:11:52 IST 2017 C/SCA/13857/2017 ORDER governed by the statutory provisions and the same shall be parted, only with the previous sanction of the Collector. Statutory tenancies, therefore, cannot be devised by `Will', nor do they become subject to the rules of intestacy. We, therefore, answer the reference accordingly.
6. In view of the afore-stated legal position settled by the Division Bench, there does not remain any doubt that the land of restricted tenure could not have been transferred by execution of a Will, which would otherwise tantamount to violation of Section 43 of the Tenancy Act. The SSRD, therefore, had rightly relied on the decisions of this Court to hold that the Will in question was executed by the deceased in favour of the petitioner with a view to circumvent the provisions of the Tenancy Act and therefore, the proceedings closed by the Mamlatdar under Section 84C were required to be reviewed by the Collector in respect of the lands in question. It is true that genuineness of the Will has to be challenged before the competent Civil Court as submitted by the learned Advocate Mr.Jadeja, however, this Court has not expressed any opinion on the genuineness or validity of the Will executed by the deceased. Even if the said Will remains unchallenged or is challenged and held to be genuine, the transfer of land through such Will in favour of the petitioner can not be validated being prima facie in violation of Section 43 of the Tenancy Act."
2. The principal argument of the learned counsel is that the reasonings assigned by the GRT while allowing the revision application filed by the private respondents herein are quite contrary to the law laid down in the above referred decision of this Court. It is submitted that indisputably, a restricted tenure land came to be transferred by way of a will which is otherwise not permissible in law. The matter requires consideration.
3. Let rule be issued to the respondents, returnable on 15.12.2107. Ms. Thakore, the learned AGP, waives service of notice of rule for and on behalf of the respondent No.1-State. Mr. K.V. Shelat, the learned counsel, waives service of notice of Page 4 of 5 HC-NIC Page 4 of 5 Created On Tue Sep 12 00:11:52 IST 2017 C/SCA/13857/2017 ORDER rule for and on behalf of the respondent No.4.
4. Let status quo be maintained as regards the nature, character and possession of the property in question.
5. Let this matter be heard along with the Special Civil Application No.2194 of 2013.
6. Direct service is permitted qua the other respondents.
(J.B.PARDIWALA, J.) Vahid Page 5 of 5 HC-NIC Page 5 of 5 Created On Tue Sep 12 00:11:52 IST 2017