Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
PETITIONER:
DADU RAU YELAVADE (DEAD) BY HIS HEIRS AND LRS.
Vs.
RESPONDENT:
HIMMAT RASUL PATEL
DATE OF JUDGMENT10/03/1992
BENCH:
RANGNATHAN, S.
BENCH:
RANGNATHAN, S.
RAMASWAMI, V. (J) II
YOGESHWAR DAYAL (J)
CITATION:
1992 AIR 1093 1992 SCR (2) 101
1992 SCC (2) 573 JT 1992 (3) 394
1992 SCALE (1)613
ACT:
Bombay Tenancy and Agricultural Lands Act,
1948-Sections 32, 32G 32M, 43, 64(8)-Transfer of land by
landlord after tiller’s day-Void-Sale by landlord-
Ratification-Effect-Vesting of title on tenants on
21.12.1969-Sale of share by a co-tenant on 11.5.1966-
Validity of.
HEADNOTE:
The landlord, Prabhu’s lands measuring 3 acres 25
gunthas were under the cultivation of rau, the tenant-
appellant.
The landlord u/s. 31 read with section 29 of the Bombay
Tenancy and Agricultural Lands Act, 1943 instituted a
proceeding against the tenant.
During the pendency of the proceeding Rau died and his
tenancy rights were inherited by his four sons, the present
appellants.
The landlord on 27.4.1961 decided to sell the suit land
to the fourth son of the demised tenant, who effected a
partition of the property.
On 24.5.1961, the proceeding u/ss.29, 31 of the Act was
dismissed.
Mahadu, one of the sons of Rau, sold his share in the
suit land in favour of the respondent on 11.5.1966 by a
registered deed.
In 1969, the Tahsildar initiated proceedings u/s. 32G
of the Act, and on 21.12.1969 by his order he declared the
fourth son of Rau as the purchaser and also directed that a
certificate u/s. 32 M read with section 43 of the Act should
be issued to the tenants. He also held that the sale
effected by Mahadu in favour of the respondent was contrary
to law and directed the removal of the respondent’s name
from the revenue records.
In the meanwhile one of the sons of Rau instituted a
suit against the respondent for an injunction restraining
him from obstructing his possession of the property. The
respondent contested the suit contending that he,
102
being the purchaser of Mahadu’s share, was entitled to
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
remain in possession as a co-owner along with the plaintiff.
The Civil Court u/s. 85 of the Act referred two issues
for determination of the tenancy authorities, which were:-
"(1) Was the plaintiff a tenant of the suit-
property and did he subsequently become its deemed
purchaser ?
(2) Was the sale deed by Mahadu to Patel
(respondent) invalid under Act?"
The Tahsildar answered both questions in
affirmative.
In appeal, the findings of the Tahsildar, that the
plaintiff was the deemed purchaser of the land on 1.4.1959
and that the transfer by Mahadu in favour of the respondent
was hit by the provisions of section 43 of the Act, were
confirmed.
Respondent’s revision was allowed by the Revenue
Tribunal, holding at the sale by Mahadu in favour of
respondent was not invalid; that the ons of Rau were deemed
purchasers only on 24.5.1961 and became actual purchaser
only on 21.12.1969, when the sale in their favour was
regularised u/s. 32M of the Act.
The High Court dismissed the revision petition filed
under Article 227 of the Constitution by the appellants,
holding that section 64 did not prohibit the landlord from
selling his land to the tenants by private agreements; that
the ownership rights of the tenants were acquired not u/s.
32 of the Act but by virtue of a sale between the landlord
and the tenants;that since the sale was not one u/s.32,
provision of section 43 of the Act were not attracted; and
that the tenants became owners not on 24.5.1961 but on
27.4.1961.
Against the order of the High Court by special leave,
the present appeal was preferred by the tenants.
The appellants-tenants-plaintiffs contended that the
High Court erred in holding that the sale in favour of the
appellants-tenants was not affected by section 64 of the
Act.
103
Disposing of the appeal on the question, whether by the
sale deed dated 11.5.66 any valid title to the suit land was
conferred upon the respondent the Court
HELD : 1.01. The High Court has over-looked the clear
provisions of section 64(8), which declare that any transfer
by a landlord after tiller’s day would be void. The tenants
could not, therefore, have acquired any rights or title
under the sale deed executed by the landlord. [107H-108]
1.02. Though the order under section 32-G purports to
ratify the earlier transaction of sale by the landlord to
the tenants, the transaction acquires its validity not by
virtue of the sale deed of 27.4.1961 but only by virtue of
the order under section 32-M dated 21.12.1969. [108B]
1.03. On 11.5.1966 - the date of the sale to the
respondent - the tenants (including Mahadu) had no title to
the property which they could validly convey in favour of
thr respondent. That title vested in them only on
21.12.1969, when the order under section 32G was passed.
This being so, the logic that the transfer in favour of the
respondent was not of property acquired under section 32 but
of a property acquired by a voluntary process is not
correct. [108B-C]
1.04. On the date of the sale deed in favour of the
respondent, the vendor had no tittle to the land in view of
the provision of section 64(8). Even if the subsequent
conferment of title on them by the order under section 32G
be treated to date back to 24.5.61, still Mahadu, being a
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
tenant who acquired title under the Act, his sale to the
respondent will fail in view of the of section 43(2) of the
Act. [1980D]
1.05. The question referred to the tenancy courts by
the civil court are answered accordingly by saying that the
sale deed by Mahadu in favour of the respondent is invalid
under the provision of the Act. The High Court erred in
upholding the order of the Revenue Tribunal. [108F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2407(N)
of 1979.
From the Judgment and Order dated 20.9.1978 of the
Bombay High Court in S.C.A. No. 993 of 1974.
V.N.Ganpule, Ashok K. Singh, Ms. Punam Kumari and Ms.
H. Wahi,
104
before the Appellants.
S.V. Deshpande for the Respondent.
The Judtgment of the Court was delivered by
RANGANATHAN, J. This is an appeal from a judgement of
the Bombay High Court dismissing a petition filed by Dadu
Rau Yelavade (now represented by his legal representatives)
under Article 227 of the Constitution of India.
One Anant Gopal Prabhu (‘Prabhu’ for short) was the
owner of 3 acres 25 gunthas of land bearing Survey No. 54 in
village Ingali in Hatakanangale Taluka of Kolhapur
district. The lands were under the cultivation of one Rau,
who was the father of the petitioner before the High Court.
The landlord instituted proceedings under section 31 read
with section 29 of the Bombay Tenancy and Agricultural Lands
Act, 1948 (hereinafter called ‘the Act’ against the tenant
Rau. During the pendency of these proceedings, Rau died and
his tenancy rights were inherited by his four sons, Dadu
(predecessor of the present appellants), Mahadu, Ganpati and
Shripati. These proceedings came to an end eventually by an
order dated 24.5.1961, on which date the petition under
section 29 read with section 31 was dismissed.
Subsequently, proceedings were initiated by The Tahsildar
under section 32G of the Tenancy Act. This was sometime in
1969 and will be referred to later. In the meantime, on
27.4.1961, the landlord Prabhu had decided to sell the suit
land to the fourth son of Rau, who effected a partition of
the property and Mahadu, one of the other sons of Rau, sold
his share in the suit land in favour of the present
respondent Patel by registered document dated May 11,1966.
In view of this, the proceedings under section 32G,
initiated by the Tahsildar, came to an end with and order of
the Tahsildar declaring the fourth son of Rau as the
purchaser. His order was passed on 21.12.1969. After
discussing the questions whether the tenants were in lawful
possession of the suit land, whether they were entitled to
purchase the suit land and whether the purchase price fixed
in the voluntary sale between Prabhu and Rau’s fourth son
was reasonable and whether the sale effected between the
landlord and tenants could be regularised, the Tahsildar
decided to regularise the purchase of the suit land by the
tenants, and directed that a certificate under section 32M
read with section 43 of the Act should be issued to the
tenants Dadu Rau and his brothers. In the course of his
order, he also discussed
105
the alleged sale in respect of Patel, on whom notice had
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
been served and who had participated in the proceedings. He
came to the conclusion that the sale effected by Mahadu in
favour of Patel, being contrary to law, was illegal and
directed that his name should be removed from the revenue
records.
In the meanwhile, the petitioner, one of the sons of
Rau, had instituted a suit against Patel for an injunction
restraining him from obstructing his possession of the
property, Patel resisted the suit claiming to be the
purchaser of share of Mahadu and, therefore, entitled to
remain in possession as a co-owner alongwith the petitioner.
In view of the rival contentions of the parties, the civil
court referred the following two issues for determination of
the tenancy authorities as contemplated by provisions of
section 85A of the Act :
(1) Was the plaintiff a tenant of the suit property
and did he subsequently become its deemed purchaser
?
(2) Is the sale deed by Mahadu to Patel invalid
under the Act?
In the proceedings before the revenue authorities, the
Tahsildar answered both questions in the affirmative. He
held that the plaintiff were the deemed purchasers of the
land on 1.4.1959 and he also came to the conclusion that the
transfer by Mahadu in favour of Patel was hit by the
provisions of section 43 of the Tenancy Act. According to
him, therefore, Patel had no right of title to the portion
of the land in suit which Mahadu had sold him. This order
was confirmed in appeal, on 23.10.71, by the Assistant
Collector.
Patel thereupon filed a revision before the Revenue
Tribunal which set aside the order of the authorities below
and held that the sale deed by Mahadu in favour of
respondent no.1 was not invalid under the provision of the
Act. The Revenue Tribunal agreed that the sons of Rau
became deemed purchasers only on 24.5.1961 and became actual
purchasers only on 21.12.1969 when the sale in their favour
was regularised under s.32M of the Act. However, in regard
to the sale by Mahadu, it observed:
"But, the important point to be gone into in this
case is, whether the sale of such a land by Mahadu,
one of the owners of deceased Rau, to Himmat was
hit by the provision of section
106
43 of the Act. It is nobody’s case that the sale
to Himmat by Mahadu was after 21.12.69. According
to Himmat, it is on 11.5.66. This is not
challenged. It will be thus seen that this sale to
Himmat, of his share in the suit land by Mahadu is
dated 11.5.66 long before Mahadu and his brothers
came to be regarded as purchasers under section 32
of the Act. Section 43 of the Act, according to me,
applied to transfers subsequently effected by
purchasers under sections 32, 32-F, 31-I, 32o, 33C
or 41-D. Similarly, restriction contained in sec.
43-G of the Act, applied to transfers by persons,
after the land was sold to them under section 32-P
or 64 of the Act. In this case, it is clear that
while selling his share in the property, Mahadu was
not a landlord intending to sell the tenanted land.
So a sale by him to Himmat could not be said to be
a sale in contravention of section 64 of the Act.
The point, whether Himmat Patel was an
agriculturist or non-agriculturist or whether he
was or was not an agriculturist labourer is not
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
enquired into even if it is held for some time,
that he was a person to whom the land could not be
sold under section 63 of the Act. But Mahadu
ventured to do so. The sale by Mahadu would be at
the most hit by section 63 of the Act. This
section (43 of the Act) does not mention section 63
of the Act. Therefore, it is not possible to
uphold the findings of the first two Courts with
regard to the transfer of a portion of land by
Mahadu to Himmat Patel. This sale effected in
favour of Himmat Patel by Mahadu in 1966 is of date
prior to Mahadu, and his brothers came to be
regarded as purchasers of the land under section 32
of the Act.
We have seen that originally the sale in favour of
Rau’s sons by Prabhu was in contravention of
section 64 of the Act. But such sale is not
covered by section 43 of the Act. This view can be
fortified by following in Special C.A.605 of 61
referred to on page 179 of Tenancy Law Digest
(reported and un-reported cases_) by Gadgil, 1965.
It is observed that to such a sale even, section 43
of the Act does not apply. Such a sale, even if it
is validated under provision to section 84(2) can
not be regarded as a sale under section 64 of the
Act. Where a sale is made in favour of a tenant by
the landlord in contravention of section 64, it may
be regularised by the Mamlatdar. Where the same
107
is sold by the tenant to some other person, such a
sale is valid and is not affected by provisions of
section 43 of the Act."
In this view of the matter, the Revenue Tribunal
answered the questions referred by saying (a) that the
plaintiff and his brothers had become deemed purchasers on
the postponed day under the Act and (b) that the sale deed
by Mahadu in favour of Patel was not invalid.
The present appellants preferred a petition under
Article 227 of the Constitution. The High Court endorsed
the conclusion of the Revenue Tribunal but on a ground
somewhat different from the one on which the Tribunal
allowed the revision petition. It was pointed out that the
Revenue Tribunal had proceeded on the footing that the
tenants (including Mahadu) had become purchasers of the suit
land under the provisions of section 32 of the Tenancy Act on
May 24, 1961 when proceedings under section 31 came to an
end. But this ingnored the fact that, during the pendency
of the proceedings under sections 29 and 31 of the Act, the
landlord and tenants by a private agreement had transferred
the ownership of the property in favour of the tenants on
27.4.1961. The tenants, therefore, became owners not on
24.5.61 but on 27.4.61. Section 64 did not, in the opinion
of the Court, prohibit the landlord from selling his land to
the tenants by a private agreement. It only required the
owner, in case he desired to sell, to have a reasonable
price fixed therefore by moving the Land Tribunal. This
being so, the ownership rights of the tenants had been
acquired not under the provisions of section 32 of the Act
but by virtue of a sale between the landlord and the
tenants. Since the transfer in favour of the tenants was
not one under section 32, the provisions of section 43 of
the Act were not attracted by the sale of 11.5.1966. In this
view of the matter, the revision petition before the High
Court was also dismissed.
Dadu Rau is in appeal from the order of the High Court.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
Though the proceedings have had a chequered history, the
issue before us is a very simple one : Does the sale by
Mahadu to Patel on 11.5.66 confer on the latter any valid
title to the land in question ? The High Court has answered
this question in the affirmative by upholding the sale by
Prabhu to his tenants on 27.4.61. Sri Ganpule argues, and
rightly in our opinion, that the High Court erred in
holding that the sale in favour of the tenants was not
affected by section 64 of the Act. The High Court has over-
looked the clear provisions of section 64(8), which declare
that any transfer by a landlord
108
after tiller’s day would be void. The tenants could not,
therefore, have acquired any right or title under the sale
deed executed by the landlords. It is no doubt true that
ultimately the proceedings under section 32-G went in their
favour and the sale certificates issued in their favour was
regularised. Though the order under section 32-G purports
to ratify the earlier transaction of sale by the landlord to
the tenants, the transaction acquires its validity not by
virtue of the sale deed of 27.4.1961 but only by virtue of
the order under section 32-M dated 21.12.1969. On
11.5.1966,- the date of the sale to Patel presently impugned
- the tenants (including Mahadu) had no title to the
property which they could validly convey in favour of Patel.
That title vested in them only on 21,12,1969, when the order
under section 32G was passed. This being so, the logic of
the Tribunal and High Court that the transfer in favour of
Patel was not of property acquired under section 32 but of a
property acquired by a voluntary process is not correct. As
we have already pointed out, on the date of the sale deed in
favour of patel, the vendor had no title to the land in view
of the provisions of section 64(8). Even if the subsequent
conferment of title on them by the order under section 32G
be treated to date back to 24,5,61, still Mahadu, being a
tenant who acquired title under the Act, his sale to Patel
will fail in view of the provisions of section 43(2) of the
Act. We may indeed point out that this decision had already
been given by the revenue authorities in the order dated
21.12.1969. There is a reference in the order of the
Assistant Collector to an appeal claimed to have been
preferred by Patel from this order but we are informed that
no such appeal was filed or is pending. But this
circumstance apart, Patel’s claim cannot be upheld for the
reasons given above.
We are, therefore, of the opinion that the High court
erred in upholding the order of the Revenue Tribunal. The
orders of the High Court and the Revenue Tribunal are
therefore set aside and the order of the lower revenue
authorities restored. The questions referred to the tenancy
courts by the civil court have to be answered accordingly by
saying that the sale deed by Mahadu in favour of Patel is
invalid under the provisions of the Act. The appeal is
disposed of accordingly and the matter will go back to the
civil court for the disposal of the civil suit filed before
it in the light of the answers given to the referred
questions set out above. In the circumstances of the case
we make no order regarding costs.
V.P.R. Appeal disposed of.
109