JOTIRAO NARAYANRAO DIWAN Vs. ANANDA DADU PATIL

JUDGEMENT

(1.) THIS Special Civil Application under Article 227 of the Constitution raises a short point of law, and it arises in this way.

(2.) SURVEY No. 144 of Mangaon in the district of Kolhapur is owned by the present petitioners. Dadu Tukaram Patil cultivated the land as their protected tenant. He died in 1952, and it appears that he was in arrears in payment of rent for the years 1949 -50, 1950 -51 and 1951 -52. Dadu left as his heirs a minor son and two widows. According to the petitioners, evenafter notice, Dadu's heirs did not pay the arrears of rent. It is common ground that the names of the minor son as well as of the widows of Dadu are entered in the record of rights as heirs of the protected tenant in respect of this land. As these heirs of Dadu did not pay the arrears, the landlords gave them a notice terminating the tenancy, and applied to the Mamlatdar for possession on the ground that the tenants had failed to pay rent for three years. The learned Mamlatdar held that there was failure on the part of the tenants to pay rent, as alleged by the landlords, and therefore he awarded possession of survey No. 144 to the petitioners. There was an appeal by the tenants to the Prant Officer. He was of the view that the notice of the petitioners was not valid, since it was a notice only by one of the joint owners; and since the land stood in the names of both the petitioners, the notice, according to the appellate authority, was not valid. On the question of failure to pay rent, the Prant Officer was of the view that the landlords failed to discharge the onus which lay on them of proving non -payment, because they had not produced any convincing evidence such as counterfoils etc., and he was not disposed to rely on the statement of petitioner No. 1 that there was failure by the opponents in payment of rent. On both these grounds, the learned Prant Officer allowed the appeal and dismissed the landlords' application for possession. In revision before the Revenue Tribunal, it was urged on behalf of the landlords that the view of the Prant Officer that the notice was invalid was not correct, since no notice was necessary under Section 14 of the Bombay Tenancy and Agricultural Lands Act, 1948, on the date when the application was filed. That argument urged on behalf of the landlords was accepted by the Revenue Tribunal. It seems that the tenants were not represented before the Revenue Tribunal, as the notice of the revision was not served on them, on the date that the matter was heard by the Tribunal. The Tribunal, it appears, raised a new point against the maintainability of the landlords' application, and that point was that the heirs of the deceased protected tenant, Dadu Patil, were not liable in law for the consequences of the defaults made by the protected tenant during his lifetime. That contention was accepted by the learned members of the Tribunal, on the ground that Section 40 of the Tenancy Act provided for an offer by the landlord to the heir or heirs of the deceased protected tenant and that was different from successionunder Hindu Law, that the protected tenancy rights were not heritable, and that, therefore, the heirs of the deceased protected tenant could not be evicted, on the ground that the deceased had made a default in payment of rent for three years. In the result, the Tribunal held that the landlords have no right to proceed against the son and widows of the deceased protected tenant, on the ground of default committed by the deceased protected tenant, and consequently the application of the landlords was dismissed.

(3.) NOW , Mr. Paranjpe, the learned advocate for the opponents, contends that the effect of the provisions of Section 40 is that there is an offer by the landlords, which, if accepted, creates a new tenancy altogether, and therefore the heirs who accept the offer cannot be made liable for the defaults committed by the deceased protected tenant. In the case of an ordinary contractual tenancy, according to Mr. Paranjpe, the liability of the tenants would arise on the basis that the tenancy rights are heritable, and since the heirs inherited the tenancy rights, they become liable to pay the rent and the arrears of rent to the landlord. In the case of a protected tenant, however, there is no inheritance as such.