Bombay High Court
Ashok Dwarkanath Ghurye And Anr. vs Narayan Vasudeo Dhond on 15 February, 1989
Equivalent citations: 1989(1)BOMCR625, 1989MHLJ538
Author: Sharad Manohar
Bench: Sharad Manohar
JUDGMENT Sharad Manohar, J.
1. Three quite interesting questions fall for the determination of this Court in this petition, which arise from the provisions of the Bombay Tenancy & Agricultural Land Act, 1948 (hereafter, the Tenancy Act). To formulate the questions, it is necessary to give a few facts, about which there exists no dispute.
2. The suit property consists of Survey No. 42/2, admeasuring 24 Acres and 24 Gunthas. It belonged originally to one Vishram Ghurye. He parttitioned the property during his life time into 3 parts, one for himself the other for his Sumatibai and the 3rd for Dawarkanath, who was his son from his earlier wife.
In 1957 Vishram filed Civil Suit No. 70 of 1957 against Vishram Vithoba Maharao and one Rukmini for possession of the suit lands in the Court of the Civil Judge, at Vengurle. On 2-7-1957 Vishram Ghurye also executed Will, by which Will he bequeathed his own 1/3rd share in the suit property upon Sumatibai alongwith his 1/3rd in the other property. But it needs to be mentioned specifically that although before the making of the Will, the suit lands were partitioned by Vishram, giving 1/3rd share to each of them, the actual partition by metes & bounds has never taken place. The result was that what Vishram bequeathed upon Sumatibai by the Will was only 1/3rd undivided share in the suit land. It would thus follows that Sumatibai started having 2/3rd un-divided share in the suit land whereas the remaining 1/3rd un-divided share becams of the ownership of Dwarkanath.
3. Vishram Ghurye died on 18-01-1985 and hence in Reg. Civil suit No. 70/57 filed by Vishram against Maharo and Rukmini, his two heirs, Dwarkanath and Sumati were brought on record.
It is not disputed that a dispute arose between Dwarakanath and his step-mother Sumatibai, the bone of contention being the validity of the Will executed by Vishram bequeathing his share upon Sumatibai. An application was therefore filed by Sumatibai in the District Court, at Ratnagiri, for the grant of letters of Administration and on 7-2-1963 the letters of Administration were granted to her by the District Court. The necessary implication was that the Will was held by the Court to be a valid Will. It follows that Sumatibai's contention that she got 2/3rd undivide share in the suit property stood vindicated. It is not disputed that various applications were made by Sumatibai for entering the names of both of them, herself and Dwarkanath, in the Revenue Record as the owners of the undivided share in the proportion of 2/3rd and 1/3rd. Initially, the mutation entry that was made and certified by the Revenue Authoritues excluded the suit land as being of the ownership of Sumatibai and Dwarkanath in the proportion of 2/3rd and 1/3rd. But it is common ground before me that as at present the record of right shos that Sumatibai is having 2/3rd un-divided share in the suit land and Dwarkanath continues to have 1/3rd un-divided share therein.
On 1-12-1967 Civil Suit No. 70/57 filed originally by Vishram and continued thereafter by both Dwarkanath and Sumatibai against Vishram Vithoba Maharao and Rukmini was decreed by the trial Court and both of them even got possession of the suit pursuance of the Darkhast filed by them. The possession was recieved by them on 28-2-1968.
4. Now, we come to the event which has given rise to this legal dispute. On 27-9-1971 it is alleged by Dhond, present Respondent No. 1, Sumatibai created a lease in favour of present respondent No. 1 Dhond. The factum & validity of the lease are in dispute on various grounds. But we are today concerned not with the factum of the lease, but about the validity of the lease or, rather, of the effectiveness of the lease. This question arises squarely because admittedly Sumatibai was having only un-divided 2/3rd share in the suit lands; she could not have created a lease in respect of the entire suit lands unless she had the authority from Dwarkanath to create a lease in respect of his 1/3rd undivided share as well. It is not disputed that there existed and was pending between them a fued as regards the right of Sumatibai vis-a-vis the entire suit land. No doubt the letters of administration were received by Sumatibai, which meant that her title to the 2/3rd share of the suit land was recognised by the Court. But there is nothing to show that Dwarkanath had acquiesced in that decision. Moreover, there is nothing to show that he gave any authority to Sumatibai to create a lease in favour of Dhond even in respect of his 1/3rd undivided share in the suit land. This question has a very great bearing upon the prime point that falls for the consideration of this Court in this petition.
5. On 28-2-1973 Sumatibai made another application to the Talathi for showing her undivided 2/3rd share in the suit land and Dwarkanath's 1/3rd undivided in the revenue records. This clearly means that she had no claim to the right to deal with Dwarkanat's undivided 1/3rd share.
6. In 1973 Regular Civil Suit No. 8 of 19/3 was filed by present Respondent No. 1, Dhond, in the Court of the Civil Judge, Junior Division, Vengurle, against Dwarkanath, Sumatibai and one Ganesh Yashwant pandit for injunction against them restraining them from interfering with his vahiwat of the suit land with the contention that Sumatibai had entered into an agreement of lease of the suit land with him on 27-9-1971, as mentioned above. Her claim was naturally resisted by Dwarkanath. Even Sumatibai contested that claim. Question, therefore, arose specifically for consideration of the Court whether there was a valid Agreement of lease entered into by Sumaibai in favour of present Respondent No. 1, Dhond. The trial Court, therefore, framed an issue and referred the same to the Tenancy Court under section 85-A of the Tenancy Act.
This issue has been decided by all three Tenancy Court's the Tahsildar, the Deputy Collector and the Maharashtra Revenue Tribunal in favour of present respondent No. 1 by holding that present respondent No. 1. Dhond, was deemed to have become to have become the tenant of the suit land. I may state here, and there is no dispute about this position, that the final verdict of the Court is not that there existed a contractual tenancy between Sumatibai and Dwarkanath on the one hand and present respondent No. 1, Dhond, on the other. What the courts have held is that a deemed tenancy has come into existance in favour of present respondent No.1. Mr. Karandikar, appearing for respondent No. 1, pointed out that the trial Court and the Appeal Court have upheld respondent No. 1's plea of contractual tenancy as well. But he fairly stated that so far as the Maharashtra Revenue Tribunal was concerned, it has found respondent No. 1's deemed tenancy having been proved and not his contractual tenancy. However, in my opinion, this distinction loses its significance in view of the ultimate legal position, to which 1 will presently refer.
7. As will be presently pointed out, the legal position is that a person having an undivided share in any land cannot create a valid lease in favour of anybody so long as the land is not divided by metes & bounds and, as will be presently pointed out, this position will prevail whether it is a contractual tenancy or a deemed tenancy within the meaning of section 4 of the Tenancy Act.
8. Three question that inexorably arise in the petition, therefore, are :-
(a) Whether a valid, recognisable and identifiable tenancy could spring into existence in respect of any person's undivided share in any land?
(b) Whether one of the co-owners, who was not seeing eye to eye with the other co-owner, could create a tenancy in respect of the share of the other co-owner by necessary implication?
(c) Whether a person claiming to be a tenant pleads in the Court contractual tenancy in respect of the suit land can be held to be a deemed tenant within the meaning of section 4 of the Tenancy Act in the absence of any pleadings in that behalf upon his failure to prove the contractual tenancy?
I will deal with all the three questions serially,
9. I will examine the 1st question, firstly, on principle.
A tenancy is a right given by the owner to another person to enjoy any particular property for a particular period on payment of rent for the enjoyment of that property. As has been the crystalised view of the Court, there cannot be a tenancy unless the tenant/tenants gets exclusive possession of the land leased to him or them. It may be that tenancy may be in favour of one person, in which case that one person must be in exclusive possession if tenancy should have any meaning. There may be cases where tenancy may be in favour of more person than one. In that case there is a joint tenancy created in favour of all persons. But the point is that whether the tenancy is created in favour of one or more, he or they must get exclusive possession of the land. A tenancy in respect of an un-divided share in any particular piece of land is a contradiction in terms.This concept is just physically not feasible. A tenancy has got to be on the land which has got to be cultivated fully. The tenancy cannot be in the air. If an un-divided share is given for cultivation, the other co-sharer will have a right to cultivate his own land, which share of the land will always be uncertain. It may be that a particular person who is given tenancy of a particular undivided share in the suit land can, with the help of the lessor, file a suit for partition against the other co-owner, In that suit, his own lesser will be probably, the necessary party, In such a suit, the Court may pass a decree for partition giving to the tenant and to his lessor a particular share divided by metes & bounds. But it will be only upon such division by metes & bounds that a real tenancy can come into existence in favour of the tenant. Till that time, the tenancy is a bizqarre conception, because it will be a tenancy in the air.
10. If any authority was necessary for this proposition, it is to be found in the judgment of a Division Bench of this Court in Special Civil Application No. 450 of 1962. Dajisahab alias Nilkantharao Ramchandrarao Raje v. Laxmanrao Daulatrao Jadhao and others, decided on 20th march, 1964. This is how the Division Bench has approached and decided this question in the said judgment :-
"It is the case of respondent No. 1 that there was an oral lease and the lease was in respect of the share of Housabai in the fields. Housabai having become entitled to this share on the death of her husband under the provisions of section 14 of the Hindu Succession Act. The question that has to be considered, therefore, is whether this undivided share of Housabai in the fields can be said to be lands as defined under the Leases Act or under the new Tenancy Act, and if it is a land as so defined under these two Statutes, can there be a valid lease of such undivided share in the fields so as to create in favour of respondent No. 1 the rights of a protected lessee. The word "land" is defined in section 2 of the Leases Act as meaning "Land" which is let or occupied for agricultural purposes or purposes subservient thereto and includes the site of buildings appurtenant to such land but does not include any land used for horticulture or orchardgroves." Similarly under the new Tenancy Act, the word "land" is defined in section 2(17) thereof as meaning "land" which is used or capable of being used for agricultural purposes and includes the sites of farm buildings to such land." Having regard to this definition of the word "land" can it be stated that the undivided share of a co-owner in agricultural land is a land within the meaning of the word 'land" in the statute. It is of essence of these two definitions that the land must be capable of being used or occupied for agricultural purposes. How can an undivided interest in agricultural land be capable, of being used or occupied for this purpose it is difficult to see. Even the owner of this share cannot definitely say that he is the owner of a particular piece of this agricultural land. Co-ownership pre-supposes that there should be unity of possession. It is not open to any co-owner to say that he is entitled to possession or enjoyment of any specific portion of the land of which he is one of the co-owners. If the owner cannot say that he is entitled to possession or enjoyment of exclusive portion of such a land of which he is a co-owner, it is difficult to see how can a lease be created in respect of such an interest in the land. It is of the essence of a lease that the lessee must be entitled to a right to enjoy the property leased. Such a right to enjoy is an exclusive right and privillege of a lessee. Such exclusive right to enjoy can be claimed by a lessee under section 105 of the Transfer of Property Act to the exclusion of everbody including the lessor. If Housabai herself was not exclusively entitled to enjoy her undivided share in the property, it is dificult to see how she can create a transfer of right to enjoy such property in respect of her undivided share in favour of Laxmanrao, who was one of the co-owners, he having only 1/16th share in the suit fields. The fact that Laxmanrao is only one of the co-owners cannot alter the nature of a transaction in question. If such a right was created or Housabai in favour of a stranger, will that third party or stranger be entitled to enjoy any portion of the fields to the exclusion of the other co-owners ? Will that third party be entitled to carry on the agricultural operations in the fields in question as a result of such transfer to the exclusion of the other co-owners of the fields? In our opinion, such an undivided interest of a co-owner in the property, even when it consists of agricultural land, is not the land within the meaning of the Leases Act or the new Tenancy Act, nor can a valid lease be created by one co-owner in favour of another co-owner or a third party in respect of the right to enjoy such undivided interest in respect of the right to enjoy such undivided interest in the property. A person in whose favour such a right is created cannot be considered to be a protected lessee as understood in section 3 of the Leases Act."
With very great respect, I am in complete agreement with each of the observations of the learned Judges.
This being the legal position, the nexorable conclusion must be that no lease whatsoever came into existence in favour of present respondent No. 1.
The petition must succeed on this short point itself.
11. However, it is worthwhile examining the other two questions as well.
Then, it is contended that the lease must not have been only in respect of 2/3rd share of Sumatibai in the suit land, but that it must be in respect of the entire land, inclusive of 1/3rd share of Dwarkanath.
In this connection, I may mention that this contention has not been accepted even by the Tribunal. The Tribunal has not upheld the plea of respondent No. 1 in relation to his claim of contractual tenancy. The essence of the plea was that Sumatibai had the power to enter into an agreement of Lease with present respondent No. 1 in connection with the share of her step-son Dwarkanath as well. In the facts of the case, this is just an impossibility. There was no love lost between the step mother and the step-son. Admittedly Dwarkanath has questioned the validity of the Will in favour of Sumatibai. The fact that the Court upheld Sumatibai's claim and negatived Dwarkanath's caveat is a different story. Fact remains that there could not be spelt out any implicit power given by a feuding & battling step-son in favour of his step-mother with whom he was not even seeing eye to eye. The evidence on record leaves no room for doubt in this connection. The Tribunal's view that contractual tenancy could not be upheld cannot, therefore, be avilled at.
12. But there is a 3rd point raised by Mr. Sawant, appearing for the petitioner, and I may make a reference to the same. He relied upon the judgment of a learned Single Judge of this Court (Chandurkar, J.) in Special Civil Application No. 277 of 1972, decided on 8-8-1977 Balasahab Londhe v. H.D. Nimbal, There it has been held that if a person pleads contractual tenancy, gets an issue framed on that basis from the Civil Court, but fails to prove his contractual tenancy in the Tenancy Court, cannot turn around and contend that if not contractual tenancy, at least a deemed tenancy arising out of section 4 of the Tenancy Act should be held proved. This Court has held that if this plea is accepted by the Tenancy Court, after having negatived the contender's plea of contractual tenancy, the tenancy courts would be exceeding their jurisdiction in recasting of the issue referred to them by the Civil Court. This is precisely the position in the present case.
With very great respect, I see no reason to disagree with this view. The ingredients of a contractual tenancy and a deemed tenancy, contemplated by section 4 of the Tenancy Act, do vary at least to a significant extent. A deemed tenancy postulates absence of a contractual tenancy at the time when deemed tenancy is pleaded. A tenancy cannot be simultaneously a contractual tenancy and also a deemed tenancy. Deemed tenancy postulates lawful cultivation of the land by a tenant which land belongs to another person. The ingredients of the lease, contemplated by section 145 of the Transfer of Property Act, are not present in the case of such deemed tenancy for the very simple reason that if those ingredients are present, it would be a contractual tenancy and there would have been no necessity to invoke the deeming provisions of section 4 of the Tenancy Act delineating a deemed tenancy. Something is deemed to be in existence, because it is not in existence. If it is proved to be in existence, the deeming provision would be meaningless. It is true that contractual tenancy also involves lawful cultivation of the land belonging to another. But lawful cultivation of the land brought about by a regular lease spells something more and different. If therefore a tenant pleads contractual tenancy in a suit and an issue to the effect is referred, normally he should not be allowed by the tenancy courts to turn around at the appellate stage or at the revision stage or even in the trial Court after the evidence is led and to contend that he must be deemed to be a tenant within the meaning of section 4 of the Tenancy Act. I see no reason to disagree with the view taken by the learned Judge in the above judgment.
13. On all the above three points, therefore, the petition must succeed.
The Rule earlier issued is made absolute.
The decisions of all the three courts below are set aside and the issue is answered in the negative against present respondent No. 1.
14. The writ of this judgment shall be sent by the office immediately to the trial Court with the direction that the trial Court shall dispose of the suit in accordance with and in the light of the observations made above.
In view of the fact that this litigation is hanging fire for about 16 years, the trial Court is directed to dispose of the same within 2 months from the receipt of this writ and to report compliance of the order of this Court on or before 21st April, 1989.
15. The petition shall be placed before this Court for consideration of the compliance report and for appropriate directions in this behalf even though the petition stands disposed by this order.
However, in the circumstances of the case, there shall be no order as to costs.