Gujarat High Court
Rajenbhai Baldevbhai Shah vs Baijiben Kabhaibhai Patanvadia on 17 September, 2004
Author: Jayant Patel
Bench: Jayant Patel
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 11896 of 2004
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Rajenbhai Baldevbhai Shah
Versus
Baijiben Kabhaibhai Patanvadia
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Appearance:
1. Special Civil Application No. 11896 of 2004
Mr.J.M.Patel for the petitioner
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CORAM : HON'BLE MR.JUSTICE JAYANT PATEL
Date of Order: 17/09/2004
ORAL ORDER
Heard Mr.Patel, learned Counsel for the petitioners.
2.One of the issues involved in this petition is that by "will" of an agriculturist, the property is transferred to a non-agriculturist not related by blood in any manner.
3.Mr.Patel has relied upon the decisions of this Court; (1) (Coram: R. Balia, J. - as he was then) in case of "Ghanshyambhai Nabheram vs. State of Gujarat and Others" reported in 1999(2) GLR, 1061 & in case of "Pravinbhai Bhailalbhai Gor v. Rajivkumar Gupta"
reported in 1999(1) GLR, 440; (2) (Coram: J.B. Mehta, J. - as he was then) in case of "Manharlal Ratanlal alias Radmansing Chausing v. Taiyabali Haji Mohmed & Others" reported in 1967(5) GLT, 199 and (3) (Coram:
K.A. Puj, J.) in case of "Gopiraj Dedraj Agrawal (Gopiram Tudraj Agrawal) v State of Gujarat" reported in 2004(1) GLR, 237.
4.In the first decision of this Court in case of HC-NIC Page 1 of 5 Created On Wed Jun 08 01:26:40 IST 2016 "Manharlal Ratanlal" (supra) the matter is considered on the basis that bequeth by "will" cannot be inclued in the category either within the scope of the term "gift" or "assignment". In case of "Sangappa Kallyanappa Bangi (dead) through LRs. v. Land Tribunal, Jamkhandi and Others", reported in AIR 1998 SC, 3229, it has been held by the Apex Court at para 5 as under:
"5....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 provision inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will though operates posthumously in 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."
Further at para 6 it has been observed by the Apex Court in the said decision as under:
"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 to pass to the hands of a stranger nor any kind of assignmnt taking place in respect of the lease held. If the tenant could assign his interest, strangers can come upon the land, that therefore, the expression "assignment" will have to be given such meanning 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 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 HC-NIC Page 2 of 5 Created On Wed Jun 08 01:26:40 IST 2016 on the land thus to the detriment of the landlord. In that event, it must be taken that a devise under a Will also amount to an assignment and, therefore, not valid for the purpose of Section 21 of the Act."
In case of Pravinbhai Bhailalbhai" (supra), at para 5 it was recorded, inter alia, as under:
"5....The provision do not affect the operation of law of inheritance. Learned counsel for the parties are in agreement that Tenancy Act does not provides any separate rule of inheritance to the estate of the deceased tenant, other wise then the personal law governing the estate of the deceased."
5.Section 43 of the Bombay Tenancy Act putting restrictions on the transfer of the land purchased or sold under the Act is required to be read with Section 63 of the Act, which prohibits the transfer to non-agriculturist. The word "agriculturist" is defined under the Act as per Section 2(2) of the Act as "the person who cultivates the land personally". The word "to cultivate" is also defined as per Section 2(5) of the Act, which includes the cultivation through the member of joint family.
6.In the said case of "Pravinbhai Bhailalbhai"
(supra) the Court had proceeded on the basis at para 5 that the Will is not a document of transfer by way of sale, gift, exchange, mortgage, lease or assignment. It is instrument changing the course of devolution of interest by way of inheritance which even otherwise would have taken where the holder had died without a will, by way of intestate succession. It is further observed that neither Section 43 nor Section 63 envisage prior permission of any authority for executing a will that would take effect after the death of a person which he has right to vary, cancel or modify anytime before his death, as many times as the testator desires. Similar is the view taken in case of "Ghanshyambhai" (supra).
7.The aforesaid view taken by the Single Judges of this Court deserves to be considered in light of the observations made by the Apex Court in case of "Sangappa" (supra). It may also be recorded that thereafter in the recent decision of the Apex Court in case of "Jayama v. Maria Bai", reported in AIR 2004 SCW, 4412, after considering the aforesaid decision of the Apex Court in HC-NIC Page 3 of 5 Created On Wed Jun 08 01:26:40 IST 2016 case of "Sangappa" (supra), it has been observed by the Apex Court at para 27 that when the assignment or transfer is made in contravension of statutory provisions, the consequence whereof would be that the same is invalid and thus, oppose to public policy and the same shall attract the provisions of Section 23 of the Contract Act.
8.The domain purpose of Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as "the Act") is to see that the lands are being cultivated by the agriculturist. The "will" as per the provisions of Transfer of Properties Act may result into transfer of the property, but such transfer, if results into frustrating the objects and purpose of the Act, then in such circumstances, the Court while giving interpretation to the provisions of Section 63 read with Section 43 should, in my view, keep in view of the purpose and the objects of the Act. Nobody should be allowed, directly or indirectly, to frustrate the objects of the Act, which primarily is for extending protection to the agriculturists, who were or are cultivating the agricultural lands.
9.The property which has already been transferred under the "will" based on the legal position as prevailing then, may stand on a different footing, but if such mode or procedure of transferring the property under the "will" to a third party, who is neither related by blood, nor connected, in any manner, to the family affairs of the person concerned, is allowed to be made or continued, such may, in my prima facie view shall, frustrate the very object of the Act with which it has been enacted, by the legislature.
10.In view of the aforesaid, I find that it would be just and proper to refer the matter to the Division Bench of this Court. Office to place this matter before the Division Bench as may be ordered by the Hon'ble the Chief Justice on the administrative side.
11.Till the matter is listed before the Division Bench and until further orders are passed, status-quo as regards the land in question and the revenue records shall be maintained. Petitioners to supply second set within period of three weeks from today.
17.9.2004(Jayant Patel, J.) vinod HC-NIC Page 4 of 5 Created On Wed Jun 08 01:26:40 IST 2016 HC-NIC Page 5 of 5 Created On Wed Jun 08 01:26:40 IST 2016