RAJENBHAI BALDEVBHAI SHAH Vs. BAIJIBEN KABHAIBHAI PATANVADIA

JUDGEMENT

(1.) WE are called upon to decide as to whether Section 63 of the bombay Tenancy and Agricultural Lands Act, 1948 (for short 'the Bombay tenancy Act') debars an agriculturist from parting with his agricultural land to a non-agriculturist through a Will, so also, whether Section 43 (1) of the Tenancy Act restricts transfer of any land or interest purchased by the tenant under Section 17b, 32, 32f, 321, 32o, 32u, 33 (1) or 88e or sold to any person under Section 32p or 64 of the Tenancy Act through the execution of a Will by way of testamentary disposition.

(2.) LEARNED Single Judges of this Court have taken a consistent view that such transfer of property through testamentary disposition would not violate Section 43 or 63 of the Tenancy Act. Justice J. B. Mehta in the case of MANHARLAL RATANLAL @ RADMANSINH CHAUSINH V. TAIYABALI JAJI MOHMED and OTHERS (1967-68 (VOL. 5) GLT 199)while interpreting Section 43 (1) of the Tenancy Act took the view that the expression 'transfer' which is used in Section 43 (1) of the Tenancy act must be interpreted in light of the Transfer of Property Act viz. the transfer by way of act of parties. Learned Judge took the view that, if the Legislature wanted to include a transfer by operation of law as to include succession, insolvency, inheritance, etc. or sales by public auction, specific provision would have been made to that effect. Learned Judge held all the specific categories which are mentioned are all of transfers by act of parties, bequest by Will cannot be included in the scope of the terms 'gift' or 'assignment'. Justice Rajesh Balia in GHANSHYAMBHAI nabheram V. STATE OF GUJARAT AND OTHERS (1999 (2) GLR 1061) while interpreting Section 63 of the Tenancy Act took a view that just like, a non-agriculturist be not deprived of his inheritance, a legatee under a Will, can also be a non-agriculturist, hence, there is no bar in succeeding the property through a testamentary disposition. Learned judge held that Revenue Laws dealing with agricultural lands have not made the land uninheritable and they also do not disqualify a non-agriculturist from inheritance nor a number of persons are disentitled from succeeding to estate of an agriculturist as body of successors, which may result in well defined share of the estate of deceased vesting in them individually. Justice Rajesh Balia again in PRAVINBHAI bhailalbhai GOR V. RAJIVKUMAR GUPTA, COLLECTOR, vadodara ( 1999 (1) GLR 440 ) while interpreting Section 43 and 63 of the Tenancy Act took the view that both provisions clearly go to show that it refers to only to transaction or transfer or agreement to transfer of land or any interest therein which are inter vivos and not to vesting of such rights in anyone as a result of transmission or as a result of succession on death of holder and the provisions do not affect the operation of law of inheritance. Appeal filed against the above judgment was, however, dismissed in STATE OF GUJARAT V. P. B. GOR [ 2000 (3)GLR 2168 ]. Justice KA. Puj also took identical view in GASFULBHAI mohmadbhai BILAKHIA V. STATE OF GUJARAT (2005 (1) GLR 575)AND GOPIRAJ DEDRAJ AGRAWAL (GOPIRAM TUDRAJ AGRAWAL)V. STATE OF GUJARAT (2004 (1) GLR 237 ). Learned Judge also made reference to the Circular dated 13. 02. 1989 issued by the State government and took a view that that Section 43 as well as 63 of the tenancy Act would not debar transfer of property by testamentary disposition. Justice R. K. Abichandani also took the same view in babubhai MERYANBHAI PATEL V. STATE OF GUJARAT, 2005 (1)GLH (UJ) 3. Learned Single Judge Justice Jayant Patel expressed some doubts about the views expressed in the aboverreferred judgments and felt that the matter requires, reconsideration in light of the decisions rendered by the Apex Cqurt in SANGAPPA KALYANAPPA BANGI (DEAD) THROUGH LR (AIR 1998 SC 3229) AND JAYAMMA V. MARIA bai AND ANOTHER [ (2004) 7 SCC 459 ] and hence, these matters have been placed before us.

(3.) WE may, before examining the. scope and ambit of Section 43 and 63 of the Tenancy Act, examine the object and purpose of the tenancy Act. The Bombay Tenancy Act was enacted with an avowed object of safeguarding interest of the tenants who held the land for over a number of years, on principle that the land tilled to the tillers of the soil and also to preserve agricultural lands to safeguard interest of the agriculturists. Object is also to improve the economic and social conditions of peasants ensuring the full and efficient use of land for agriculture, and to assume management of estates held by landholders and to regulate and impose restrictions on the transfer of agricultural lands, dwelling houses, sites and lands appurtenant thereto belonging to or occupied by agriculturists, agricultural labourers and artisans. Chapters II and III of the Act deal with tenancies in general and protected tenants' and their special rights, and privileges, in particular. Legislature also thought it necessary to confer on protected tenants' the right to purchase their holdings from their landlords, to prevent uneconomic cultivation and to create and encourage peasant proprietorship in respect of holdings of suitable sizes. The Act is covered by Entry 18 in List II of the Seventh schedule to the Constitution of India and was enacted for the protection of tenants and to organize agriculture by maintaining agricultural lands so as to be in tune with the directive principles of the State policy. Article 48 of the Constitution of India state that the State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines, and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows, calves and other milch and drought cattle. The necessity of meeting agricultural production and to preserve agricultural land is clearly discernible in the above constitutional provisions. Further, by enacting clause (g) in Article 51 (A), parliament has given the status of fundamental duties to Article 48 and honoured the spirit and message of Article 48 as a fundamental duty of the citizens. The Bombay Tenancy Act not only takes a positive step towards achieving the goal of transferring the land tilled to the tillers, but also wanted to preserve and protect agricultural lands and for improving the economic and social conditions of persons and to ensure the full and efficient use of land for agriculture. Section 43, which appears in Chapter III of the Tenancy Act, deals with special rights and privileges of tenants and provisions for distribution Of land for personal cultivation. Section 63 appears in Chapter V of the Tenancy Act deals with restrictions on transfers of agricultural lands, management of uncultivated lands and acquisition of estates and lands.