Full Judgment Text
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PETITIONER:
VITHAL DATTATRAYA KULKARNI & ORS.
Vs.
RESPONDENT:
SHAMRAO TUKARAM POWER & ORS.
DATE OF JUDGMENT21/03/1979
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SARKARIA, RANJIT SINGH
KAILASAM, P.S.
CITATION:
1979 AIR 1121 1979 SCR (3) 572
1979 SCC (3) 212
ACT:
Bombay Tenancy and Agricultural Lands Act, 1948-S. 40-
Scope of-Whether heirs of a protected tenant who died before
the commencement of the 1956 Amendment Act are entitled to
recover possession from the landlord.
HEADNOTE:
Section 3 of the Bombay Tenancy Act, 1939 classified a
tenant as a protected tenant in respect of any land if he
had held such land continuously for a period of six years
immediately preceding 1st January, 1938 to 1st January, 1945
and had cultivated such land personally during that period.
Tenancy held by a protected tenant could be terminated only
in the circumstances stated in s. 5 as for example, failure
to pay arrears of rent subletting and so on. Section 7
provided that the landlord could recover possession of the
land from the protected tenant on the ground that he
bonafide required such and for the purpose of cultivating it
personally or for a non-agricultural purpose. If after
taking possession of the land he ceased to use it for that
purpose at any time within 12 years from the date on which
he took possession the landlord was required to restore
possession of the land under s. 7(2) to the protected
tenant. The Act also defined that a protected tenant shall
include his heirs by an explanation to this section.
The 1939 Act was repealed and replaced by the Bombay
Tenancy and Agricultural Lands Act, 1948. This Act also
empowered the landlord to terminate the tenancy of a
protected tenant by giving the tenant one year’s notice in
writing if he bonafide required the land for any of the
purposes mentioned in the Act and the grounds on which a
tenancy could be terminated were also enumerated in the Act.
A provision similar to s. 7(i) of the 1939 Act was contained
in s.34(i) of this Act. The 1948 Act did not contain
provisions corresponding to Explanation (ii) to s. 7 of the
1939 Act declaring that a tenant shall include his heirs.
Section 40 provided that if a protected tenant died the
landlord shall offer to continue the tenancy on the same
terms on which such tenant was holding it at the time of his
death, to the heir or heirs of the deceased tenant. The
Explanation to s. 40 declared that a heir meant the lineal
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descendant of a tenant or his adopted son and failing both,
his widow.
The 1948 Act underwent substantial changes in 1956.
Section 40 as amended in 1956 provided that on the death of
the tenant the landlord shall be deemed to have continued
the tenancy on the same terms and conditions on which such
tenant was holding it at the time of his death to such heir
or heirs of the deceased tenant as may be willing to
continue the tenancy.
The land in dispute belonging to the appellants was
held by the respondent’s father who was a protected tenant
within the meaning of that term in the 1939 Act. In June,
1950 the appellants recovered possession of the
573
land allenging that they needed it for their personal
cultivation. In 1951 the potected tenant died. In 1962 the
landlords sold a part of the land, whereupon the respondents
who were the heirs of the late protected tenant filed a
petition alleging that the landlords had ceased to cultivate
the land personaily within 12 years from the date of
dispossession of the protected tenant and, therefore, they
were entitled to recover possession of the land. While the
Aval Karkun and the Deputy Collector held in favour of the
heirs of the tenant, the Revenue Tribunal allowing the
revision application of the landlords dismissed the
application of the tenant/respondents. The High Court in a
petition under Art. 226 of the Constituton reversed the
order of the Revenue Tribunal.
In appeal to this Court it was contended on behalf of
the appellants that the right of a protected tenant whose
tenancy had been determined and who had been dispossessed of
the land under s. 39 of the Bombay Tenancy and Agricultural
Lands Act was a right which was personal to the tenant
himself and, which could not for that reason be exercised by
the tenant’s heirs.
Allowing the appeal.
^
HELD: The contrast between s. 40 before and after its
amendment in 1956 was that while after the amendment, the
heirs of the tenant were automatically deemed to succeed to
the tenancy there was no such deeming before the 1956
amendment. The landlord was merely required to make an offer
and it was not stipulated what would happen if he did not
make the offer. Where the landlord had obtained possession
of the land for cultivating it personally there could be no
question of making an offer to continue the tenancy. The
1948 Act before its amendment in 1956 contained no provision
corresponding to Explanation (ii) to s. 7 of the 1939 Act.
Therefore under the provisions of 1948 Act as it stood
before the 1956 amendment the right of a tenant to recover
possession of the land from the landlord who had obtained
possession of such land on the ground that he required it to
cultivate it personally was not a heritable right. [581 B-E]
Explanation (ii) to s. 7 of the 1939 Act expressly
provided that for the purpose of that section a tenant
included his heirs. The position under the 1948 Act after
its amendment in 1956 as could be seen from ss. 4B and 40
was that the tenancy under the Act was heritable. When it is
found that the tenancy was heritable the right given to the
tenant may be exercised by the heirs of the tenant also. In
the instant case death of the protected tenant occurred in
1951 i.e. before the 1956 Act came into force. His heirs had
therefore no right to recover possession from the landlords.
[579 G-H, 581 B]
Vasant Hariba Londhe v. Jagannath Ramchandra Kulkarni
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71 B.L.R. 12; Bai Jamna v. Bai Dhani, 61 Bom. L.R. 419;
Thakorelal v. Gujarat Revenue Tribunal, A.I.R. 1964 Guj.
183; Damadilal & Ors. v. Pareshram & Ors., AIR 1976 SC
2229
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1296 of
1969.
Appeal by Special Leave from the Judgment and order
dated 11-11-1968 of the Bombay High Court in Special Civil
Application No. 1080/65.
574
M. C. Bhandare, B. Datta and K. K. Manchanda for the
Appellant.
A. N. Karkhanis for the Respondent.
The Judgement of the Court was delivered by
CHINNAPPA REDDY, J.-In respect of an extent of ten
acres and 23 guntas of land in Survey No. 215 of Village
Nathare, Haranax, one Tukaram Patla Power was a protected
tenant under the provisions of the Bombay Tenancy Act, 1939,
as amended by Act 26 of 1946. The landlords, Vithal
Kulkarni, Vasudeo Kulkarni and Krishnaji Kulkarni gave a
notice to Tukaram on 8th March, 1948 under Section 7(1) of
the Bombay Tenancy Act, 1939, alleging that they required
the land for their personal cultivation. In December, 1948,
the Bombay Tenancy Act, 1939 was repealed and replaced by
the Bombay Tenancy and Agricultural Lands Act (57 of 1948).
There after, on 25th April, 1949, the Kulkarni brothers
filed Tenancy Case No. 102 of 1949, before the Aval Karkun,
to recover possession of the land from Tukaram. The
application was dismissed by the Aval Karkun on 29th August,
1949, but in Tenancy Appeal No. 20 of 1950 filed by the
landlords, the Collector of South Satara, Sangli, by his
order dated 9th May, 1950, directed that possession of the
land should be given to the Kulkarni brothers. The landlords
accordingly recovered possession of the land on 18th June,
1950. Tukaram died on 31st August, 1951. On 18th April,
1961, Vasudeo Kulkarni executed a deed of conditional sale
in favour of Sopan Power in respect of a joint 1/9th share
in the land. It was recited in the deed that possession was
delivered to Sopan but that was disputed. However, on 27th
June, 1962, Sopan executed a deed of reconveyance in favour
of Vasudeo Kulkarni. On 16th April, 1962, Vithal Kulkarni
executed a deed of sale in respect of his 1/3rd share in the
land in favour of Bapu Bhau More and Vilas Ganpati More. On
7th July, 1962, Tukaram’s heirs filed Tenancy Case No. 87 of
1962 against the Kulkarni brothers and their alienees, under
Section 37 and Section 39 of the Bombay Tenancy and
Agricultural Lands Act alleging that the landlords had
ceased to cultivate the lands personally within twelve years
from the date of dispossession of the tenant (Tukaram) and,
therefore, they were entitled to recover possession of the
land. The Aval Karkun made an order in favour of Tukaram’s
heirs on 26th November, 1963. The order was confirmed by the
Special Deputy Collector on 31st March 1964. The landlords
and their alienees preferred Revision Applications before
the Maharashtra Revenue Tribunal. The Revenue Tribunal
allowed the Revision Applications on 27th October, 1964, and
dismissed the application of Tukaram’s heirs filed under
Sections 37 and 39 of the Bombay
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Tenancy and Agricultural Lands Act. Tukaram’s heirs invoked
the jurisdiction of the High Court under Article 226 of the
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Constitution. The High Court of Bombay by its judgment dated
11th November, 1968 allowed the Writ Petition, quashed the
order of the Tribunal and restored the order of the Aval
Karkun as affirmed by the Special Deputy Collector. The
three Kulkarni brothers, Bapu Bhau More and Vilas Ganapati
More, have preferred this appeal by special leave.
Shri M. C. Bhandare, learned Counsel for the appellants
argued that the right of a protected tenant whose tenancy
had been determined and who had been dispossessed of the
land under Section 39 of the Bombay Tenancy and Agricultural
Lands Act was a right which was personal to the tenant
himself and, which could not for that reason be exercised by
the tenant’s heirs. He argued that whatever may be the right
of the heirs of a protected tenant dying subsequent to the
Amending Act of 1956, the heirs of a protected tenant who
died before the commencement of the 1956 Amending Act had no
right to recover possession from the landlords. He urged
that there was a substantial difference between Section 40
of the Bombay Tenancy and Agricultural Lands Act as it stood
before and after the 1956 amendment. He submitted that the
decision of the Full Bench of the High Court of Bombay in
Vasant Hariba Londhe v. Jagannath Ramchandra Kulkarni, (1)
applied to cases where the tenant died after the Amending
Act of 1956 and not before. Some other contentions were also
raised to which it is unnecessary to refer.
Shri A. N. Karkhanis, learned Counsel for the
respondents, who presented the case of the respondents
exteremely well, drew our attention to the provisions of the
Bombay Tenancy Act and the Bombay Tenancy and Agricultural
Lands Act before and after it was amended in 1956. He
submitted that a comprehensive view of the provisions of the
Act showed that the right given to the protected tenant was
heritable and, therefore, the heirs of Tukaram were entitled
to exercise the right given to the tenant under Section 37
of the Act. He submitted that the position was not different
even under Section 40 of the Bombay Tenancy and Agricultural
Lands Act as it stood before the 1956 amendment. He also
advanced some other minor contentions which we do not
consider necessary to mention here.
The Bombay Tenancy Act, 1939 preceded the Bombay
Tenancy & Agricultural Lands Act, 1948. Chapter III of the
Bombay Tenancy Act, 1939 (Section 13A to Section 26) dealt
with tenants generally, while Chapter II (Sections 3 to 13)
of the Act dealt with a special class of tenants described
in the Act as protected tenants. Section 3
576
classified a tenant as a protected tenant in respect of any
land if he had held such land continuously for a period of
six years immediately preceding 1st January 1938 to 1st
January, 1945 and had cultivated such land personally during
the aforesaid period. Section 3A was introduced by way of
amendment in 1946 and it provided that every tenant shall be
deemed to be a protected tenant for the purpose of the Act,
on the expiry of one year from the date of coming into force
of the amending Act. Section 5 enumerated the rights and
liabilities of a protected tenant and it was expressly
provided that the tenancy of land held by a protected tenant
shall not be terminated unless the tenant failed to pay the
arrears of rent for a specified period or before the
specified date or had done any Act which was destructive or
partly injurious to the land or had sub-divided or sub-let
the land or failed to cultivate personally or had used the
land for a purpose other than agricultural. Section 7(1)
invested the landlord with a special right to determine
protected tenancy by giving the protected tenant one year’s
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notice in writing on the ground that he bonafide required
the land for the purpose of cultivating the land personally
or for a nonagricultural purpose. Section 7(2) provided that
if after taking possession of the land after the termination
of the tenancy the landlord failed to use it for the purpose
for which he had obtained possession within one year from
the date on which he took possession or ceased to use it for
that purpose at any time within twelve years from the date
on which he took possession, the landlord shall restore
possession of the land to the tenant whose tenancy was
terminated by him unless the tenant had refused in writing
to accept the tenancy on the same terms and conditions as
before or that the tenant, on an offer being made to him in
writing, had failed to accept the offer within three months
of the receipt thereof. Explanation II to Section 7 provided
"For the purposes of this Section a tenant shall include his
heir as specified in sub-section (3) of Section 9". Section
9(3) specified that the lineal male descendants of a
protected tenant or his adopted son, or, in absence of any
lineal male descendant or an adopted son, his widow shall be
deemed to be his heirs for the purposes of this section.
Section 9(1) provided that if a protected tenant died, the
landlord should continue the tenancy on the same terms and
conditions on which the protected tenant was holding it at
the time of his death to such one of his heirs who, within
four months of the death of such tenant, gave notice in
writing to the landlord that he is willing to hold the land
on such terms and conditions.
The Bombay Tenancy Act, 1939, was repealed and replaced
by the Bombay Tenancy and Agricultural Lands Act, 1948.
Chapter II
577
of the Act (Section 3 to Section 30) contained ’General
provisions regarding Tenancies’ while Chapter III (Section
31 to Section 43) dealt with ’Protected tenants, their
special rights and privileges’. ’Tenant’ was defined to mean
an Agriculturist who held the land on lease and to include a
person who was deemed to be a tenant under the provisions of
the Act. ’Protected tenant’ was defined to mean a protected
tenant under Section 31 of the Act. Section 5 prescribed
that no tenancy of any land shall be for a period of less
than ten years and further provided that at the end of the
said period and thereafter at the end of ten years, in
succession, the tenancy shall, subject to the provisions of
sub-section (2) and (3), be deemed to be renewed for a
further period of ten years on the same terms and
conditions, notwithstanding any agreement to the contrary.
Section 5(3) provided that a tenancy was liable to be
terminated on any of the grounds mentioned in Section 14.
Section 5(2) further empowered the landlord to terminate the
tenancy by giving the tenant one year’s notice in writing if
he bonafide required the land for any of the purposes
specified in Section 34(1). Section 14 enumerated certain
general grounds which entitled a landlord to terminate the
tenancy, such as non payment of rent within the prescribed
period, doing of an act which was destructive or permanently
injurious to the land, division of the land in contravention
of Section 27, sub-letting, failure to cultivate personally
and use of land for a purpose other than agriculture.
Section 31 declared as protected tenants persons who were
deemed to be protected tenants under Sections 3, 3A or 4 of
the Bombay Tenancy Act, 1939. Section 32 clothed the
protected tenant with the right to purchase from the
landlord the land held by him as a protected tenant. Section
34(1) gave to the landlord a special right to terminate the
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tenancy of a protected tenant by giving him one year’s
notice in writing that he required the land for cultivating
personally or for any non agricultural use for his own
purpose. Section 34(1) of the Bombay Tenancy and
Agricultural Lands Act, 1948, corresponded to section 7(1)
of the Bombay Tenancy Act, 1939. Section 37 of the 1948 Act
provided that if after taking possession of the land after
terminating the tenancy under Section 34(1), the landlord
failed to use it for the purpose for which he had obtained
possession within one year from the date on which he took
possession or ceased to use it for that purpose at any time
within twelve years from the date on which he took
possession the landlord shall restore possession to the
tenant whose tenancy was terminated by him unless he
obtained from the tenant his refusal in writing to accept
the tenancy on the same terms and conditions or the tenant
had failed to accept the offer made by him in writing to
give possession of the land on the same terms and
conditions. Section
578
37(1) of the 1948 Act corresponded to Section 7(2) of the
1939 Act. One noticeable feature in the 1948 Act was that
there was no provision corresponding to Explanation II to
Section 7 of the 1939 Act which declared that for the
purposes of Section 7 a tenant shall include his heir as
specified in Section 9(3) of that Act. This was a
significant omission. Section 39 of the 1948 Act enabled the
tenant to make an application where the landlord failed to
comply with the provisions of Section 37. Section 40
provided that if a protected tenant died the landlord shall
offer to continue the tenancy on the same terms on which
such tenant was holding it at the time of his death to the
heir or heirs of the deceased tenant. The Explanation to
Section 40 declared that for the purposes of the Section, an
heir meant the lineal male descendants of a tenant or his
adopted son and failing both, his widow. Section 40 of the
1948 Act replaced Section 9 of the 1939 Act though not in
the same terms.
The 1948 Act underwent some substantial amendments in
1956. ’Tenant’ under the Amended Act was defined to include
a protected tenant and the provisions relating to the
special rights and privileges of the protected tenants
contained in Chapter III of the Act were extended to all
tenants. Instead of providing as Section 5 of the unamended
Act did, that no tenancy shall be for a period of less than
ten years, and for renewal of the tenancy for ten year
periods there after, Section 4B of the amended Act provided
that no tenancy of any land shall be terminated merely on
the ground that the period fixed by the agreement or usage
had expired. Section 31 of the 1948 Act as it stood
originally was repealed and replaced by a new Section 31
which substantially enacted the provisions of Section 34 of
the Act as it stood before the amendment. What was Section
37 of the Act before amendment continued to be Section 37
after the amendment. Section 40 was amended and it was
declared that on the death of a tenant, the landlord shall
be deemed to have continued the tenancy on the same terms
and conditions on which such tenant was holding it at the
time of his death to such heir or heirs of the deceased
tenant as may be willing to continue the tenancy. In this
appeal we are concerned with Section 40 as it stood before
it was amended in 1956. In order to understand the real
controversy between the parties it is necessary to extract
here Section 40 both as it stood before and after the 1956
amendment. Before the 1956 amendment Section 40 was as
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follows:
"If a protected tenant dies, the landlord shall
offer to continue the tenancy on the same terms and
conditions on
579
which such tenant was holding it at the time of his
death to the heir or heirs of the deceased tenant:
Provided that the offer required to be made by the
land-lord under this section shall be made in writing:
Provided further that if any heirs of the deceased
tenant do not agree to continue the tenancy on the same
terms and conditions on which the deceased protected
tenant was holding the land, the Collector may select
an heir or heirs who is or are willing to continue the
tenancy on the same terms and conditions. The decision
of the Collector shall be final.
Explanation:-For the purposes of this section, an
heir means the lineal male descendants of a tenant or
his adopted son and failing both his widow who has not
remarried".
Section 40 as it stood after the 1956 amendment is as
follows:
"(1) Where a tenant (other than a permanent
tenant) dies, the landlord shall be deemed to have
continued the tenancy on the same terms and conditions
on which such tenant was holding it at the time of his
death, to such heir or heirs of the deceased tenant as
may be willing to continue the tenancy.
(2) Where the tenancy is inherited by heirs other
than the widow of the deceased tenant, such widow shall
have a charge for maintenance on the profits of such
land".
The question for consideration is whether the heirs of
a tenant whose tenancy was terminated by the landlord on the
ground that he required the land for his personal
cultivation were entitled to exercise the right which the
tenant would have, if alive, to obtain possession of the
land if the landlord ceased to cultivate the land at any
time within twelve years after he obtained possession, in
other words, whether the right of the tenant to have the
possession of the land restored on the failure of the
landlord to cultivate the land personally at any time during
the twelve years subsequent to his obtaining possession was
a heritable right. The position was clear under the Bombay
Tenancy Act, 1939. Explanation II to Section 7 of that Act
expressly provided that for the purposes of the Section a
tenant included his heirs, as specified in Section 9(3). The
position under the Bombay Tenancy and Agricultural Lands
Act, 1948, after it was amended in 1956 is also quite clear.
Section 4B and Section 40 show that the tenancy under the
Act is heritable. As already mentioned, while Section 4B
provides for the continuation of the tenancy even after the
expiry of the period fixed by the agreement or usage,
Section 40
580
expressly provides for the continuation of the tenancy on
the death of the tenant, the heirs of the tenant stepping
into the position of the tenant. Once it is found that the
tenancy is heritable it follows that the right given to the
tenant under Section 37(1) may be exercised by the heirs of
the tenant also. A Full Bench of the High Court of Bombay in
Vasant Hariba Londhe v. Jagannath Ramchandra Kul-karni(1)
came to the same conclusion, Kotwal, C.J. observed:
"Section 40(1) provides that where a tenant other
than a permanent tenant dies, the landlord shall be
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deemed to have continued the tenancy on the same terms
and conditions on which such tenant was holding it at
the time of his death, to such heir or heirs of the
deceased tenant as may be willing to continue the
tenancy. It will be noticed that prior to the amendment
of the Tenancy Act by the Bombay Act XIII of 1956 this
section was worded thus "If a protected tenant dies,
the landlord shall offer to continue the tenancy on the
same terms and conditions on which such tenant was
holding it at the time of his death to the heir or
heirs of the deceased tenant..." The expression used in
the old S.40 was "offer to continue the tenancy" and
there was no indication whatever as to what was to
happen if the offer was not made but by the amendment
made by the Amending Act XIII of 1956, sub-s. (1) was
wholly re-cast and now there is no question of the
landlord merely making an offer to the tenant to
continue the tenancy on the same terms and conditions,
but on the other hand, the section provides that "the
landlord shall be deemed to have continued the tenancy
on the same terms and conditions". The amendment,
therefore, meets precisely the argument that is here
advanced that the heir succeeding to the erstwhile
tenant does not continue as a tenant on the same terms
and conditions. Besides, the new section introduced a
fiction by the use of the words "deemed to have
continued the tenancy" and therefore, whatever may have
been the position prior to the amendment, s.40 as it
now stands after the Amending Act XIII of 1956
automatically confers on the heir a tenancy on the same
terms and conditions as were applicable to the deceased
tenant".
The learned Chief Justice then referred to the decisions in
Bai Jamna v. Bai Dhani(2) and Thakorelal v. Gujarat Revenue
Tribunal(3) and
581
distinguished the two cases on the ground that on the date
on which the death of the tenant took place in those cases
Section 40 as amended in 1956 had not come into force,
whereas, in the case before the Full Bench the tenant had
died after Section 40 was amended in 1956. In the case now
before us, however, the death of the tenant took place
before the Bombay Tenancy and Agricultural Lands Act was
amended in 1956. We have already extracted Section 40 before
and after it was amended in 1956. The contrast is apparent.
While under the amended Section 40 the heirs of the tenant
were automatically deemed to succeed to the tenancy there
was no such "deeming" before the 1956 amendment. The
landlord was merely required to make an offer and it was not
stipulated what would happen if he did not make the offer.
Where the landlord had obtained possession of the land under
Section 34 for cultivating the land personally, there could
be no question of making an offer to continue the tenancy
since such an offer would be an exercise in futility. There
was also the significant circumstance that the 1948 Act
(before it was amended in 1956) contained no provision
corresponding to Explanation II to Section 7 of the 1939
Act. The only reasonable conclusion, therefore, is that
under the provisions of the Bombay Tenancy and Agricultural
Lands Act, 1948, as it stood before it was amended in 1956,
the right of a tenant to recover possession of land from a
landlord who had obtained possession of such land on the
ground that he required it to cultivate it personally was
not a heritable right.
Shri Karkhanis, learned Counsel for the respondents
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relied on the decision of this Court in Damadilal & Ors. v.
Parashram & Ors. (1) and argued that a statutory tenancy was
heritable like a contractual tenancy. This Court did not lay
down the wide proposition that every statutory tenancy was
heritable but the Court did quite definitely lay down that
it would be wrong to import the notions of English law
relating to "statutory tenancy" and on that basis to hold
that it was not transferable or heritable. It was observed
by A. C. Gupta, J., as follows:
"We find it difficult to appreciate how in this
country we can proceed on the basis that a tenant whose
contractual tenancy has determined but who is protected
against eviction by the statute, has no right of
property but only a personal right to remain in
occupation, without ascertaining what his rights are
under the statute. The concept of a statutory tenant
having no estate or property in the premises which he
occupies is derived from the provisions of the English
Rent
582
Acts. But it is not clear how it can be assumed that
the position is the same in this country without any
reference to the provisions of the relevant statute.
Tenancy has its origin in contract. There is no dispute
that a contractual tenant has an estate or property in
the subject-matter of the tenancy, and heritability is
an incident of the tenancy. It cannot be assumed,
however, that with the determination of the tenancy the
estate must necessarily disappear and the statute can
only preserve his status of irremovability and not the
estate he had in the premises in his occupation. It is
not possible to claim that the "sanctity" of contract
cannot be touched by legislation. It is therefore
necessary to examine the provisions of the Madhya
Pradesh Accommodation Control Act, 1961 to find out
whether the respondents’ predecessors in interest
retained a heritable interest in the disputed premises
even after the termination of their tenancy."
The learned Judge thereafter referred to the definition of
tenant in the Madhya Pradesh Act and held that the
definition made a person continuing in possession after the
determination of his tenancy a tenant, unless a decree or
order for eviction had been made against him, thus putting
him at par with a person whose contractual tenancy still
subsisted. It was observed that the incidents of such
tenancy and the contractual tenancy had to be the same in
the absence of a contrary intention conveyed by any
provision of the Act. It was further observed that the so
called statutory tenant had, under Section 14 of the Madhya
Pradesh Act, the right to sublet in common with the
contractual tenant and, therefore, he must be said to have
an interest in the premises occupied by him.
Thus the question whether a tenancy other than a
contractual tenancy has any or all the incidents of a
contractual tenancy has to be decided with reference to the
provisions of the particular statute. Though Section 5 of
the Bombay Tenancy and Agricultural Lands Act as it stood
before it was amended in 1956, did indicate by providing
that notwithstanding any agreement to the contrary the
minimum period of a tenancy shall be ten years renewable
thereafter for successive periods of ten years, that the
tenancy was heritable, the indication was definitely to the
contrary when it came to the right of a protected tenant to
have the land restored to him on the failure of the landlord
to cultivate the land personally. Our conclusion regarding
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the non-heritability of this right rests solely on our
understanding of Section 40 of the Bombay Tenancy and
Agricultural Lands Act as it
583
stood before it was amended in 1956, in relation to the
right under Section 37. Nothing that we have said should be
understood as indicating that any other right of a tenant or
this very right after the 1956 amendment is not heritable.
Shri Karkhanis argued that having regard to the
position that obtained both under the Bombay Tenancy Act and
under the Bombay Tenancy and Agricultural Lands Act after
the 1956 amendment, we should so interpret Section 40 as to
make the right under Section 37 heritable. We are unable to
do so in view of the language of Section 40 before it was
amended in 1956. In the result we allow the appeal, set
aside the judgment of the High Court and restore the
decision of the Maharashtra Revenue Tribunal. In the
circumstances of the case there will be no order regarding
costs.
N.V.K. Appeal allowed.
584