Gujarat High Court
Shamjibhai vs Principal on 7 October, 2010
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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LPA/1522/2010 1/ 13 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1522 of 2010
In
Special Civil Application No. 11616 of 2009
With
CIVIL APPLICATION No.8665 of 2010
In
Letters Patent Appeal No.1522 of 2010
WITH
LETTERS
PATENT APPEAL No. 1549 of 2010
In
Special Civil Application No. 1203 of 2010
With
CIVIL APPLICATION No.7519 of 2010
In
Letters Patent Appeal No.1522 of 2010
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE K.M.THAKER
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=================================================
SHAMJIBHAI
KESHAVJIBHAI KANSAGRA (PATEL) & 4 - Appellant(s)
Versus
PRINCIPAL
SECRETARY, REVENUE DEPARTMENT (APPEALS) & 4 - Respondent(s)
=================================================
Appearance
:
MR
KK TRIVEDI and MR SP MAJUMDAR for Appellant(s) : 1 - 5.
MR JASWANT
K SHAH AGP for Respondent(s) : 1 -
5.
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 07/10/2010
C.A.V.
JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) In both the cases, as similar issue is involved, they were heard together and are being disposed of by this common judgment.
2. The brief facts of the cases are as follows:-
According to appellant of Letters Patent Appeal No. 1522 of 2010, the 1st appellant is an agriculturist, holds agricultural land bearing Block No.1900 admeasuring 3642 sqm. and Block No.1958 admeasuring 1040 sqm. of village Degam, Taluka Chikhali, District Navsari. One Manilal Hirabhai Patel executed a will on 16.10.2003 in respect of land admeasuring 6372 sqm. of Block No.1985 of village Degam, Taluka Chikhali, District Navsari, registered in the office of Sub-Registrar, Chikhali, at Sr.No. 910 of Book No.3. Said Manilal Hirabhai Patel died on 10.11.2004. Appellants nos. 2 to 5 are the sons of said deceased Manilal Hirabhai Patel. 1st appellant being the legatee for the land bearing Block No.1985, made an application on 21.04.2005 u/Sec.135(3) of the Bombay Land Revenue Code, 1879 (hereinafter referred to as `the Code' for short) to the village Talati, Degam, to enter his name in the revenue record on the basis of the registered will. It was entered in the revenue record by Mutation Entry No.10459 dated 01.09.2005, but subsequently, notices u/Sec.135D of the Code were issued on all the persons, including appellants nos. 2 to 4, but no objection was made. Later on, the Mamlatdar, Chikhali, refused to sanction and cancelled the Mutation Entry by order dated 11.05.2006 on the ground that the land is of restricted tenure u/Sec.73AA of the Code, as the 1st appellant belong to a different caste. It is alleged that the Mamlatdar, Chikhali, did not follow the provisions of Rule 107 of Gujarat Land Revenue Rules, 1972 (hereinafter referred to as `the Rules' for short), before cancelling the Mutation Entry.
3. The 1st appellant, thereafter, preferred R.T.S. Appeal No.46 of 2006 before the 3rd respondent, which was rejected on 12.03.2007, against which, he moved a R.T.S. Revision Application No.17/2007 before the 2nd respondent, who by order dated 31.12.2007, set aside the matter, and remanded it back to the 3rd respondent, who registered the case as R.T.S. Remand Case No.18/2008, and after hearing, rejected the same by order dated 31.03.2008. The said respondent refused to believe the registered will, Manilal Hirabhai Patel being a Schedule Tribe person, having four sons and a daughter as lineal descendants. Thereafter, R.T.S. Remand Case No.18/2008 was also rejected on 15.12.2008. Thereafter, a Revision Application No. RTS/NVS/3/2009 was preferred by the 1st appellant before the 1st respondent-State under Rule 108(6)(A) of the Rules, which was also rejected on 11/18.09.2009. The said order having been affirmed by the learned Single Judge, present appeal has been preferred.
4. The authorities rejected the application, as u/Sec.73AA of the Code, there is a restriction on `transfer of occupancies' of tribals to tribals or non-tribals. Having noticed that the land belonged to a tribal who sought to have transferred, its occupancy, by executing a will to the 1st appellant, a non-tribal, inspite of having the lineal descendants, i.e. four sons and a daughter, the authorities doubted the execution of the will and refused to mutate the land in favour of the 1st appellant.
5. Learned counsel for the appellants would contend that the Legislature consciously having not included the expression `will' in Section 73AA of the Code, it cannot be read into something as `cautious omissus'. When the words used are capable of only one construction, it will not be open to the respondents to adopt any hypothetical construction on the ground that such construction is more consistent with the object and policy of the Code.
6. In the analogous case, Letters Patent Appeal No.1549 of 2010, the appellant claims right, title and interest of land bearing Survey No.264-paiki of village Chandrapur, Taluka Wankaner, District Rajkot, which originally belong to one Bhanushankar Vyas. It was new tenure land, the interest of which was not transferrable except in the manner prescribed u/Sec.63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as `the Bombay Tenancy Act' for short).
7. The case of the appellant is that the aforesaid land, being Survey No. 264-paiki of village Chandrapur, Tal. Wankaner, District Rajkot, devolved upon him by a registered will No.1891 dated 26.11.1987 executed in his favour by the original landholder. It was mutated in the name of the appellant by Entry No.2893 dated 12.07.1991. The 3rd respondent, subsequently, took out suo motu revision proceeding, and after notice and hearing, by order dated 04.10.1997 cancelled the mutation. As against the same, the appeal preferred by the appellant before the 2nd respondent was rejected on 28.10.1998, followed by rejection of Revision Application No.13/98 by order dated 15.12.2003. All the aforesaid orders having been affirmed by the learned Single Judge, the other appeal has been preferred.
8. In this case also, similar plea has been taken as in the previous case that the Legislature consciously having not included expression of `will' in Sec.63 of the Bombay Tenancy Act, the Court cannot read into something as `cautious omissus'. When the words used are capable of only one construction, it is not open to the respondents to adopt any hypothetical construction as such construction is more consistent with the object and policy of the Court.
9. The questions that arise in these cases are:
(a) Whether by execution of a will `occupancy of land' of a tribal can be transferred to any tribal or a non-tribal in view of restriction u/Sec.73AA of the Code?
(b) Whether by execution of a will `interest' on an agricultural land can be transferred by a tenant - landholder to a non-agriculturist, except in the manner prescribed u/Sec.63 of the Bombay Tenancy Act?
10. In the first case, LPA No.1522/10, the tribal landholder sought to have transferred the occupancy by execution of a will in favour of a non-tribal. On the basis of such will, the non-tribal-appellant, claimed mutation of land in his favour.
11. In the second case, LPA No.1549/10, the landholder sought to have transferred the interest by way of execution of a will of agricultural land in favour of a non-agriculturist. On the basis of such will, the transferee- appellant sought for mutating the land in his favour.
12. We have heard learned counsel for the parties and perused the record. It is desirable to notice and refer to the relevant provisions of the Acts to decide the issue.
13. Chapter VI of the Code relates to `grant, use and relinquishment of unalienated land'. Under Sec.68 occupants' rights are conditional. An occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited or if the period is unlimited or a survey settlement has been extended to the land in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same. Under the proviso thereto, the Collector may grant permission to any person to occupy any unalienated unoccupied land for certain period. Under Sec.73 occupancy is transferrable and inheritable subject to Sec.56 of the Act. Sec.73A empowers the State Government to restrict the right of transfer. Under Sec.73AA, there is restriction on transfer of occupancies of tribals to tribals or non-tribals notwithstanding anything contained in Sec.73 except without previous sanction of the Collector as evident from the said provision, relevant portion of which is quoted hereunder:
"73AA.
Restriction on transfer of occupancies of tribals to tribals or non-tribals.-(1) Notwithstanding anything contained in section 73, an occupancy of a person belonging to any of the Schedule Tribes hereafter in this section and in section 73AB referred to as `the tribal' shall not be transferred to any person without the previous sanction of the Collector.
(2) The previous sanction of the Collector under sub-section (1) may be given in such circumstances and subject to such conditions as may be prescribed."
14. From the aforesaid provision, it will be evident that there is a restriction on `transfer of occupancy' of land of tribals by any mode, whether sale, gift, exchange, mortgage, lease or assignment or even under a will.
15. Chapter V of the Bombay Tenancy Act, 1948, deals with restriction of transfers of agricultural land, management of uncultivated land and acquisition of estates and lands. Under Sec.63, transfer to non-agriculturist is barred. No sale, including sale by execution of decree of a civil court or for sums recoverable as arrears of land revenue, gift, exchange or lease of any land or interest therein, mortgage of land, interest, etc. is permissible. Relevant provision is as follows:
"63.Transfers to non-agriculturists barred.(1)
Save as provided in this Act,-
(a) no sale (including sales in execution of a decree of a Civil Court or for sums recoverable as arrears of land revenue, gift, exchange or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, or
(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein.
shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner of tenant or partly as owner and partly as tenant or who is not an agricultural labourer:
Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, or for such agreement on such conditions as may be prescribed.
Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.(2)
Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease or the agreement for the sale, gift, exchange or lease, of a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan or a person carrying on any allied pursuit.(3)
Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtor Relief Act, 1947.(4)
Nothing in section 63A shall apply to any sale made under sub-section (1)."
16. Under Sec.84C of Bombay Tenancy Act, 1948, the Mamlatdar is empowered to decide the question of validity of a transfer or acquisition of land. After requisite inquiry, he may invalidate a transfer or acquisition, if made in contravention of the Act.
17. Learned counsel for the appellant would contend that bequest under a will does not amount to transfer of property, and therefore, the provisions u/Sec.73AA of the Code or Sec.63 of the Bombay Tenancy Act are not attracted to bequest under will.
18. Learned counsel for the respondent-State would submit that there being restriction on `transfer of occupancy' of land of a tribal to another tribal or non-tribal u/Sec.73AA of the Code, no will can be executed in contravention of the same. Similarly, he would contend that there being a restriction on `transfer of interest' of an agricultural land to a non-agriculturist u/Sec.63 of the Bombay Tenancy Act, the said provision cannot be flouted. Nobody can claim any right, including the claim of mutation' on the basis of such will. Reliance was also placed on a Division Bench decision of this Court in Rajenbhai Baldevbhai Shah Vs. Baijiben Kabhaibhai Patanvadia and others reported in 2009(2) GLR 1784, wherein the Court held that the landholder cannot part with the land through execution of will by way of testimonial dispensation to defeat the intent of the Legislature.
19. It is true that there is a difference between a transfer of property and a bequest under will. Transfer of Property Act, 1882, deals with transfers intervivos, that is, by a living person who conveys the property to one or more living persons. The provisions of Transfer of Property Act are inapplicable to testamentary successions, which are governed by Indian Succession Act, 1925. Whereas a transfer is a conveyance of an existing property by one living person to another. On the other hand, a will is a legal expression of a wish and intention of a person in regard to his properties. When a person makes a will, he provides for testamentary succession. A will is revocable and comes into operation only after the death of the testator. Thus, on demise of the testator, the will cannot be treated to be a document of transfer of an existing property. By execution of a will, no right or title or interest is created in favour of anyone during the lifetime of the deceased. Right only flows after the death of testator.
20. In the first case, i.e. LPA No.1522/2010, the matter relates to restriction on `transfer of occupancies'. It did not relate to transfer of property as such. The word `occupant' as defined u/Sec.3(16) of the Code means a holder in actual possession of unlimited land, other than a tenant: provided that where the holder in actual possession is tenant, the landlord or superior landlord, as the case may be, shall be deemed to be the occupant. The word `occupier' has been defined u/Sec.3(17) of the Code means a portion of land held by an occupant. The meaning of `to occupancy land' as defined u/Sec.3(18) means to possess or take possession of land. Thus, it will be evident that there is a restriction u/Sec.73AA of the Code to transfer the occupancy of a tribal to a non-tribal, which means the possession of the land cannot be handed over.
21. So far as the second case of appellant - Babubhai Manchhabhai Bharvad is concerned, we have noticed that transfer of interest of agricultural land to a non-agriculturist is barred. Under clause (a) of Section 63(1) the interest cannot be transferred. Even the interest of agricultural land cannot be mortgaged under clause (b) of Sec.63(1). If such interest cannot be transferred or mortgaged, irrespective of right of the landholder an erstwhile tenant, the question of transfer interest by will does not arise.
22. The question arises as to whether any living person can execute a document in contravention of any law. The answer is always in negative. If law do not permit and there is a prohibition to do certain thing, or there is a prohibition to do certain act except in certain manner, any document or agreement or anything in contravention to such provision of law, is illegal and invalid. During the lifetime of a living person, if the person is under restriction to execute certain document and thereby has no right to transfer his occupancy or no right to transfer his interest under one or other Act, he cannot execute any document, including a will showing his wish and intention in regard to such property in contravention of such law. Therefore, a tribal even cannot wish nor can show his intention to transfer his right of occupancy to a tribal or non-tribal, there being restriction u/Sec.73AA of the Bombay Land Revenue Code. Similarly, a tenant-owner of agricultural land cannot wish nor can show his intention to transfer his right on agricultural land to a non-agriculturist by executing a will in contravention of Sec.63 of the Bombay Tenancy Act, except in the manner prescribed thereunder. Any such wish and intention shown by testator during his lifetime, being in contravention of law, as noticed above, is invalid and can be ignored.
23. Somewhat similar matter fell for consideration before a Division Bench of this Court in the case of Rajenbhai Baldevbhai Shah (supra).
Under Sec.43, there is a restriction on transfer of land purchased or sold under the Act without previous sanction of the Collector and accepting consideration of payment of such amount as the State Government may determine. Under the said provision, neither land nor any interest therein can be partitioned without the previous sanction of the Collector. In the case of Rajenbhai Baldevbhai Shah (supra) a will was executed by the land holder in favour of the legatee, who claimed recognition of his right, having bequest under will. Having noticed the restriction on transfer of land and interest therein, as imposed u/Sec.43 and Sec.63 of the Bombay Tenancy Act, the Court held as follows:-
"8.
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 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.
"9. ....
Section 63 unlike Section 43 of the Act does not contain the word `assignment'. Contention was raised that since no such word `assignment' occurs in Section 63, there is no restriction in the matter of transfer of agricultural lands to non-agriculturist through a testamentary disposition. Before examining the contention, it may be mentioned the word `Will' as such is not defined under the Bombay Tenancy Act, but Section 2(h) of the Indian Succession Act defines the word `Will' to mean a legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. A Will, therefore, is dependent upon the testator's death for its vigour and effect and is liable to be revoked or altered during his life time. Question is while he is alive, can he make an illegal declaration through a `Will' so as to defeat the object and purpose of the legislation. Will not such a declaration be opposed to public policy being repugnant to the public interest. Policy of the Act is discernible from the preamble, marginal note, title and Section 43 and 63 and other related provisions and the Directive Principles of State Policy. Where the legislature deem it expedient to fetter the privilege of free alienation, the prohibition founded upon conditions of public interest, must be treated as obsolete. General rule is that property of any kind may be transferred by way of gift or Will, sale, etc. unless non-transferability is barred due to existence of any law. Willian's law relating to Will, Sixth Edition, Volume I, page 60 states that the power of disposition by Will is not at the testators caprice, but extends only to the creation of those interests, which are recognized by law. Theobold on Wills, Fourth Edition, Pg.629, says that a condition which is illegal or contrary to the policy of the law is void. Tenancy Act has not authorised parting of agricultural land to a non-agriculturist without the permission of the authorised officer, therefore, if it is permitted, through a testamentary disposition, it will be defeating the very soul of the legislation, which cannot be permitted. We wonder when testator statutorily debarred from transferring the agricultural lands to a non-agriculturist during his life time, then how he can be permitted to make a declaration of his intention to transfer agricultural land to a non-agriculturist to be operative after his death. Such attempt of testator, in our view, is clearly against the public policy and would defeat the object and purpose of the Tenancy Act. Section 30 of the Hindu Succession Act acknowledges testamentary succession as a mode of succession, but not, by defeating the purpose and object of any legislation, like Tenancy Law. The legislative intent that an agricultural land shall not go into the hands of a non-agriculturist is manifest in Section 63 of the Bombay Tenancy Act. In a country like ours where agriculture is the main source of livelihood, the restriction imposed in Section 63, cannot be given a go-by, by a devise. Obvious purpose of Section 63, is to prevent indiscriminate conversion of agricultural lands for non agricultural purpose and that provision strengthens the presumption that agricultural land is not to be used as per the holders caprice or sweet-will.
"10. We have noticed, that the title of Chapter V, and the marginal note to Section 63 restricts and bars the transfer of agricultural land to non-agriculturist, which also gives us a clue, when we interpret that Section. Object, title and marginal note indicates the underlying purpose and policy of the legislation. Underlying purpose and objects of the Tenancy Act is not to transfer the agricultural land to a non-agriculturist but will be frustrated if permitted by a testamentary disposition. Such a devise, is void, if it defeats the purpose of a legislation for an illegal purpose."
24. Therefore, even if it is accepted that the transfer under the Transfer of Property Act is a conveyance of an existing property by one living person to another, and will does not involve any transfer, but if a will is executed in contravention of law, it is always open tot he authority to ignore such will and may refuse to mutate the name on the basis of such will.
25. This apart, there being concurrent finding of fact by all the authorities in both the cases, starting from original authority, appellate authority, revisional authority and learned Single Judge, no interference is called for in either of the appeals. There being no merit, both the Letters Patent Appeals and the connecting Civil Applications are dismissed, but there shall be no order as to costs.
(S.J. MUKHOPADHAYA, C.J.) (K.M. THAKER, J.) [sn devu] pps Top