DATTATRAYA BALWANT BHARADE Vs. WAMANRAO RUSTAMRAO

JUDGEMENT

(1.) MR . W.R. Puranik, advocate, for the appellant heard. I think the provisions of Section 203 (1) and Sub-section (3). C.P. Land Revenue Act have been rightly interpreted. In using the words "A person holding a site shall be incompetent to transfer it except to a person entitled to and not already in possession of such site the legislature must be considered to have recognized a right of transfer subject to the exceptions. In other words the capacity to transfer was circumcribed and limited duly to the two exceptional eases: In laying down a general bar against transfer, the legislature conferred a limited right of transfer by making it possible to the transferring person to choose his own transferee within the statutory exceptions. The circle of persons who could be transferees was thus limited. If the transferee was within the exception the transfer was legal and it gave to the landlord no right of re-entry. If the transferee did not satisfy those conditions, there was no right at all created in his favour in respect of the site, much less would he be classed as a licensee of the landlord. I think, the legislature never intended to lay down that a transfer which was perfectly legal was voidable at the-instance of the landlord, because the transferred and the transferee settled the bargain without reference to him.

(2.) I am asked to treat Sub-section 8 of the Act as sufficiently wide to bring the present case within the operation of an entry in the village administration paper which is said to be in the nature of a contract between the proprietor and the holder of the abadi site. I am not prepared to interpret the word contract" so liberally or widely as to include within its scope the so-called implied covenant in the wajib-ul-arz that the landlords' permission is necessary for the validity of a transfer. I cannot read into the section any provisions of the wajib-ul-arz in the absence of express words to that effect. If the legislature wanted to make any such exception in favour of an entry in the village administration paper, there was nothing to prevent it from doing so expressly in this section itself while enacting the exception in favour of a contract. It could have equally excepted such an entry in the village administration paper also. The fact that in Section 96, O.P. Tenancy Act of 1920 and in Sub-section (5) of Section 203, C.P. Land Eevenue Act of 1917, such exceptions are made is clearly indicative of an intention that wherever the legislature thought fit to enact an exception it did so expressly.