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1. On August 22, 1949, the respondent made an application in the Revenue Court of the Mamlatdar of Sirsi, District Kanara, praying for delivery of possession of property which the appellant was on that date possessing as the tenant under him, on the basis of a "Mulegeni" deed executed by the respondent's predecessor-in-interest in favour of the appellant's predecessor-in-interest. One of the terms of the lease was that if rent for three consecutive years fell in arrears the Mulegeni right will be void and the lessee should hand over possession of the property to the lessor. In the application made in the Mamlatdar's Court the respondent based his claim for possession on this express condition in the lease as also on an alleged termination by him of the tenancy. The Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act No. LXVII of 1948), hereinafter referred to as the Bombay Tenancy Act, which it is not disputed applied to this tenancy contained provision for termination of tenancy in its s. 14.

3. On appeal the Collector of Kanara held that the Mamlatdar who had made the order had no power under the Bombay Tenancy Act and so had no jurisdiction to make such an order. He also held that the plaintiff-respondent was not entitled to an order for possession as the tenancy had not been terminated by due notice. Accordingly, he allowed the appeal and set aside the order of the Mamlatdar.

4. Against this order the landlord (plaintiff-respondent) appealed to the Bombay Revenue Tribunal. Before that Tribunal the question of the Mamlatdar's jurisdiction does not appear to have been raised. The Tribunal held that the Bombay Tenancy Act was applicable to lands held on Mulegeni tenure but the landlord must fail because he had failed to terminate the tenancy by notice before instituting the action for ejectment. Accordingly, he rejected the application for possession.

15. This brings us to the consideration of the effect of s. 3 of the Bombay Tenancy Act. The section runs thus :-

"3. The provision of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies."

16. Chapter V of the Transfer of Property Act contains 12 sections - sections 105 to 116. Of these s. 111 contains provisions as regards the determination of lease. Clause (g) of this section as it stood at the time the Legislature enacted the Bombay Tenancy Act including s. 3 was in these words :-

17. We have in this case a lease which says in express terms that on non-payment of rent for three consecutive years the lessor may re-enter. There will, therefore, be according to the provisions of Clause (g) as they stand now and as they stood in 1948 when the Bombay Tenancy Act was enacted, a determination of the lease provided that the lessor has given notice in writing to the lessee of his intention to determine the lease. If Clause (g) as it stood at the time of the enactment of the Bombay Tenancy Act and as it stands now applies to the tenancy in the present litigation there is no escape from the conclusion that there has been no determination of the tenancy under the provisions of s. 3 of the Bombay Tenancy Act. It has to be noticed, however, that the requirement of a notice in writing being given by the lessor to the lessee of the lessor's intention to determine the lease became a part of Clause (g) only on the amendment of the Transfer of Property Act by Act 20 of 1929. By s. 57 of this Amending Act the words "gives notice in writing to the lessee of" was substituted for the words "does some act showing". Section 63 of the Amending Act provided inter alia that nothing in s. 57 of the Amending Act shall be deemed in any way to affect the terms and incidents of any transfer of property made or effected before the first day of April, 1930. A question has been raised that s. 57 of the Amending Act does not affect the present tenancy the lease having been given long before 1930 and the provisions of s. 111(g) of the Transfer of Property Act which will apply to the tenancy in the present litigation are of clause (g) as it stood before the Amending Act was passed. This argument however is repelled by pointing out that s. 3 of the Bombay Tenancy Act makes no distinction whatsoever as between tenancies and leases made before April 1, 1930, and those made after but instead it says generally that the provisions of Chapter V of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act, apply to the tenancies and leases of lands to which this Act applies. It has been suggested that the proper way of approaching this question is to read as a proviso to s. 111(g) as well as the other sections mentioned in s. 63 of the Amending Act, the words "the terms or incidents of any transfer of property made effective before April 1, 1929, will not be affected hereby." Is this a correct approach to the problem ? When the Bombay Legislature spoke of the provisions of Chapter V of the Transfer of Property Act, 1882, did they have in their mind the Transfer of Property Act as it stood actually in the Statute Book and not as it would have stood with such a proviso added ? Is it not proper to bear in mind in this connection that the Bombay Tenancy Act was intended to benefit the peasants and to improve the cultivation of lands ?