NARAYAN BALKRISHNA THAKURDESAI Vs. VAMAN NARAYAN BHAVE

JUDGEMENT

(1.) THE plaintiffs who are occupancy tenants of the suit lands brought this suit for possession of the lands alleging that the defendant was an annual tenant. THE defendant set up permanent tenancy. Both the Courts found against him on the point. THE finding is supported by evidence. It was contended that the finding was erroneous at law. I do not think that this contention should be allowed. It is clear from the evidence in the case that the lands had been let in 1864-65 to another tenant. This precludes the defendant from contending that the tenancy was ancient. Another point that was raised on behalf of the defendant (who is a khot of the village) was that the plaintiffs without the consent of the khot had agreed to sell the suit land to one Nilkanth Desai for Rs. 400, and in pursuance of the contract the consideration was paid to the plaintiffs. As to the payment of the consideration the evidence is not convincing, and even assuming that the amount was paid, it is admitted that the purchaser was not placed in possession of the property which continued to be with the plaintiffs. It is also clear that no registered document of sale was passed. Mr. Kane for the defendant-appellant contended that the expression "does any act purporting to transfer such land" in Section 10 of the Khoti Settlement Act includes the case of a contract to sell. In my judgment, this construction is not correct. Section 10 of the Khoti Settlement Act will have to be read with Section 9 of the Act. Section 9 enacts that occupany tenants rights shall be heritable, but shall not be otherwise transferable without the consent of the khot unless in cases where the right of the transfer has been exercised or granted as mentioned in the section. Section 10 enacts that if the land in the holding of a privileged occupant lapses for failure of heirs, or is forfeited on the occupant's failure to pay the rent due in respect thereof, or that if any occupancy tenant resigns the land or any portion of the land in his holding or does any act purporting to transfer such land or any portion thereof or any interest therein without the consent of the khot (except in the cases provided for in Section 9), such land shall be at the disposal of the khot. Beading the two sections together, it is clear that what is intended is a completed transaction either by way of lapse, forfeiture, resignation or transfer, and the words "does any act purporting to transfer such land" do not include the case of a contract to sell. It may be that in the case of a contract to sell an occupancy holding, the managing khot may give consent to the transfer and the transaction will then be good. (Vide Ibrahim V/s. Krishnaji . If so, it will not be correct to allow the contention advanced by Mr. Kane. It is not necessary to consider whether the provision in Section 10 was enacted in the interest of the khot alone or was meant for the benefit of both the khot and the occupancy tenant. THE provision is, however, of a penal nature and must be construed strictly: Krishnaji V/s. Gangaji (1925) 28 Bom. L.R. 71. Lastly, by Section 54 of the Transfer of Property Act, a contract for the sale of immoveable property does not of itself create any interest in the property agreed to be sold. It is, therefore, clear that a mere contract to sell will not be sufficient to amount to a transfer and will not attract the operation of Section 10 and place the land at the disposal of the khot. It may also be noted that the meaning given to the word "purport" in Webster's Dictionary does not go to the extent of supporting the argument advanced on behalf of the appellant, I, therefore, dismiss the appeal with costs.