CHINTO MAHADEV KHANDEKAR Vs. MAHADEV RAMACHANDRA PATKAR

JUDGEMENT

(1.) Thirty thikans of Khoti land in the jurisdiction of the Rajapur Court were held prior to 1883 by the Khandekar family as occupancy tenants. Seven of these thikans were attached and sold by Vithal Haldavnekar as mortgagee of the Khoti interest under a decree for payment of the Khot s dues which had been obtained against Yessaji Khandekar. Vithal purchased the attached interests by a Benami sale and having taken a transfer obtained possession from the Khandekars. This led to litigation in which Yessaji s brothers claimed that the sale did not affect 5/6ths of the occupancy rights in these thikans.

(2.) At that time the Khoti Act (Section 9) provided that occupancy rights should be heritable but not otherwise transferable "unless in any case the tenant proves that such right of transfer has been exercised in respect of the land in his occupancy, independently of the consent of the Khot, at some time within...thirty years next previous to the commencement of the revenue year 1865-66". The question of transferability was not discussed in the first Court which decided adversely to the contention of Yessaji s brothers, bat it was apparently considered in the first appellate Court where it was stated by the Judge that as a matter of custom it must be held that this (occupancy) right was transferable as it had been actually sold through the Court at the instance of the Khot.

(3.) The learned Judge held, however, that the decree and sale of Yessaji s interest would not affect the interests of his brother. On second appeal in the High Court it was assumed that the property could be sold under a decree for the Khot s dues and it was held that in fact the interest of all the parties had been sold.