PUNJARAM JAGOBA TELI Vs. RAMU CHINTOO GOND

JUDGEMENT

(1.) I have had the advantage of reading the opinions of my colleagues. We are agreed as to the answer. That is to say I concur in the opinion that the answer to the question referred is in the negative. As there is disagreement as to reasons I consider it preferable to reserve my conclusions on the matters in difference until those matters are directly in issue. To do otherwise would, I feel, not be useful as the opinion expressed would be obiter merely. I have already as a member of a Division Bench in Daryaosingh v. Col Krisimarao Kukde reported in (1939) 26 AIR Nag 91 indicated that as regards absolute occupancy tenancies the tenancy is of a special kind--it is a tenancy which springs out of settlement and statute. Doubtless occupancy tenancies are more akin to the tenancies known to English law, but again there are manifest differences which I do not consider it necessary to review here for the reason above indicated. The case will now go back to the referring Judge for disposal in the light of the answer given to the question referred. Niyogi, J.

(2.) I have had the advantage of perusing the able and elaborate opinion delivered by my learned brother Bose J. His answer to the question referred to the Full Bench is in the negative. I agree with his conclusion but I think he has covered somewhat wider ground than was necessary for the solution of the problem presented to the Full Bench. Bose J., appears to be inclined to the opinion that notwithstanding the conferral of proprietary rights on the malguzars they are not in point of law owners of the land in the village and that the origin of the absolute occupancy and occupancy tenures lies in custom moulded from time to time by legislation. It is not clear whether he wishes to depart from the long series of rulings of the late Court of the Judicial Commissioner such as Wasudeo Gharpure v. Ganu Kunbi (1907) 3 NLR 185, Kanhayalal v. Dularsingli (1912) 8 NLR 163, Ramkrishna v. Soma (1913) 9 NLR 97 and Mt. Kaushilya v. Ghanshyamsingh (1934) 21 AIR Nag 89 in which the principle was accepted that tenancy originates in a contract. If he is not prepared to accept this basic proposition underlying the relationship between malguzar and tenant, it is likely to intro-duce great confusion and uncertainty in the administration of the Tenancy Act.

(3.) IN Government of India's letter No. 2279, dated 28th June 1860, which was a reply to letter No. 60, dated 12th May 1860, from Nagpur Commissioner (Dyer-P. 41) it was stated in para. 13: In regard to the admission or creation of the proprietary right in the malguzar, I am desired to state that the Governor-General in Council is strongly in favour of the measure so far as it can be carried out without prejudice to the rights of others. But his Excellency in Council is in favour of giving the proprietors thus created as large and absolute a control over the property vested in them as is consistent with local usage and feeling. When such usage and feeling are not opposed to the measure it can only tend to the prosperity of the Province to confer on every landholder as nearly as possible a fee simple in his estate, subject only to the payment of revenue of the Government, and to put it in his power to dispose of his interests in the land as he pleases by sale, gift, mortgage and bequest or otherwise; and though it is not desired that this policy should be pushed so far as to do violence to the feelings of the agricultural community, or to interfere with vested interests, yet His Excellency in Council wishes you to bear in mind that it is not the wish of the Government to limit the proprietary right any further than a due respect for such feelings and interests requires.