Ramchandra Nagoji Bondre & others v. Mangaleshwar Maharaj Sansthan & others — 1985 DIGILAW 217 (BOM)

JUDGMENT - DESHPANDE M.S., J.: - This appeal by the legal representatives of deceased Nagoji the original tenant, is directed against the summary dismissal by a learned Single Judge of Writ Petition No. 1347 of 1979, by which the petitioners had challenged the orders passed by the Sub-Divisional Officer and the Maharashtra Revenue Tribunal, holding that the petitioners could not have succeeded to the rights of the tenant, in view of the provisions of section 129 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (the Vidharba Tenancy Act' for short), and directing possessions of the land to be delivered to the respondent No. 1 Shri Mangaleshwar Maharaj Sansthan, being a Public trust. 2. The deceased Nagoji Bondre was the tenant of Survey No. 96/2, 22 acres and 37 gunthas, situated at Ansing, owned by Shri Mangaleshwar Maharaj Sansthan, a public trust (respondent No. 1). The respondent No. 1 held a certificate under section 129-B of the Vidarbha Tenancy Act. The petitioners, the two sons and the widow of the deceased Nagoji, claiming to be the legal representatives of Nagoji, entered into possession of the land, after Nagoji's death on 2-12-1975. Proceedings were initiated by the respondent No. 1 for possession before the Sub-Divisional Officer, Washim who, by his order dated 29-10-1976, held that the petitioners could not continue in possession of the land after Nagoji's death, and directed them to deliver possession to the respondent No. 1. A revision application filed before the Maharashtra Revenue Tribunal was dismissed on the ground that in view of the provisions of section 129, which excluded the operation of section 54 of the Vidarbha Tenancy Act, the petitioners could not claim to have become tenants by succession. The writ petition filed by the petitioners was dismissed by a learned Single Judge and the dismissal of the writ petition is questioned by the petitioners in this appeal. 3. The writ petition filed by the petitioners was dismissed by a learned Single Judge and the dismissal of the writ petition is questioned by the petitioners in this appeal. 3. On behalf of the appellants, reliance was placed on the observations of a Division Bench of this Court in (Nakabai v. Mahadu)1, 1980 Mh.L.J. 105 to the effect that section 40 of the Bombay Tenancy and Agricultural Lands Act (67 of 1948), ('Bombay Tenancy Act', for short), which related to the right in inheritance, was not the source of that right but was merely restrictive of right of inheritance to a few out of the many heirs and the inapplicability of that section of lands of Public Trusts results only in opening succession to all the heirs of the deceased tenant and not destroying the inheritability itself. On behalf of the respondent No. 1, the contention was that the provisions of the Bombay Tenancy Act which have a bearing on the right of succession, are not analogous to those of the Vidarbha Tenancy Act and the ratio of that ruling, therefore, would not be applicable to the corresponding provisions of the Vidarbha Tenancy Act. 4. For appreciating whether there is a right of inheritance in favour of the tenants of the categories mentioned under section 129 of the Vidarbha Tenancy Act, it is necessary to examine certain provisions. Section 129, which is similar to the provisions of section 88-B of the Bombay Tenancy Act, provides that nothing in the foregoing provisions of that Act, except section 22, the provisions of Chapter II (excluding sections 21, 22, 23, 24 and 37) and section 91 and the provisions of Chapters X and XII in so far as the provisions of the said Chapters are applicable to any of the matters referred to in sections mentioned above shall apply, inter alia, (b) to lands which are the property of a trust for an educational purpose, hospital, Panjarpole, Gaushal, or an institution for public religious worship, provided the entire income of such lands is appropriated for the purposes of such trust. There is no dispute that the land held by the respondent No. 1, which is a public trust, would not be governed by section 54 of the Vidarbha Tenancy Act, which comes under Chapter III. There is no dispute that the land held by the respondent No. 1, which is a public trust, would not be governed by section 54 of the Vidarbha Tenancy Act, which comes under Chapter III. Section 54 of the Vidarbha Tenancy Act has a marginal note, “Right of tenants to be heritable”, and it provides as follows: 54(1) Where a tenant dies, the landlords shall be deemed to have continued the tenancy - (a) if such tenant was member of an undivided Hindu Family to the surviving member of the said family, and (b) if such tenant was not a member of an undivided Hindu Family, to his heirs, on the same terms and conditions on which such tenant was holding at the time of his death. (2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profit of such land. (3) The interest of an occupancy tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his personal law. 5. Shri R.N. Deshpande, the learned Counsel for respondent No. 1 urged that section 54 was the source of the heritability to the rights of the tenants, and if this section was made inapplicable, the heirs of the tenant would not be entitled to claim any right to the tenancy and their possession would be as of trespassers. It would be necessary in this context to refer to the definition of 'tenant' in section 2(32) of the Vidarbha Tenancy Act, under which the tenant means a person who holds land on lease and includes (a) a person who is deemed to be a tenant under sections 6, 7 or 8; (b) a person who is a protected lessee or occupancy tenant and the word “landlord” shall be construed accordingly. The definition of 'tenant', therefore, would not include merely contractual tenant but also those categories of tenants who are covered by section 6 which refers to a person lawfully cultivating a land belonging to another person, section 7 which refers to every person who by himself or through his predecessor-in-interest held alienated land for a certain continuous period, or held a land belonging to public trust and was in possession on the appointed date; and section 8 which refers to the persons whose names appeared in the list prepared by the Tahsildar. Under section 9, no tenancy of any land shall be terminated merely on the ground of efflux of time. Under section 132 of the Vidarbha Tenancy Act, the other enactments, including the Berar Regulation of Agricultural Leases Act, 1951 and the Madhya Pradesh Land Revenue Code, 1954, came to be repealed. 6. Shri Munshi, the learned Counsel for the petitioners, contended that section 54 of the Vidarbha Tenancy Act was not the source of the right of inheritance but it merely regulated the succession. Under section 2(19) of the Madhya Pradesh Land Revenue Code, 1954, 'tenant' means a person holding land from a tenure-holder as an ordinary or occupancy tenant under Chapter XIV. Sections 168 and 172 provided for the devolution of the rights of the ordinary tenants and occupancy tenants. Under section 168, subject to the terms of the contract, the right of an ordinary tenant was, on his death, to pass by inheritance or survivorship, in accordance with his personal law, while under section 172, the interest of an occupancy tenant in his holding was to pass, on his death, by inheritance or survivorship in accordance with his personal law. It was contented that in view of the opening words of section 168 viz. subject to the terms of the contract, it was clear that the source of the right of inheritance was not the statutory provision in sections 168 and 172 but the terms of the contract. It is difficult to agree with this submission, because both the sections provided the source for the right of inheritance, but in the case of an ordinary tenant, the right could be regulated by a contract. Merely because the right was made subject to the contract, it would not follow that as far as the availability of the right was concerned, the source was the contract. Merely because the right was made subject to the contract, it would not follow that as far as the availability of the right was concerned, the source was the contract. In fact, these two sections clearly spell out that heritability was the creature of the statute and the source of that right was not the contract. The consequence of the repeal of these provisions would be that the source of the heritability was taken away, so far as the ordinary tenants and the occupancy tenants were concerned. 7. It is in the context of this legislative background that the provisions of section 54 of the Vidarbha Tenancy Act would fall to be considered. Sub-section (3) clearly provides that the interest of an occupancy tenant in his holding shall, on his death, pass by inheritance or survivorship, in accordance with his personal law. This is a positive provision enacted, after the repeal of the earlier provisions and would be the source of heritability of tenancy rights, in the case of an occupancy tenant. Sub-sections (1) and (2) provide how the manner of succession is to be governed. Clause (a) of sub-section (1) prevents the personal heirs of a tenant who is a member of an undivided Hindu family from exclusively succeeding to the land and it is only in the event of his falling under Clause (b), that is, when he is not a member of an undivided Hindu family, that the tenancy rights go to his own heirs. The provisions of sub-section (2) are significant, in that, the widow of the deceased-tenant shall have a charge for maintenance on the profits of such land, when the tenancy is inherited by the heirs other than the widow of the deceased-tenant. These departures from normal rules of inheritance are significant. In the event of section 129 excluding the operation of section 54, the special rules enacted by section 54 would not apply and the mode of succession, would be different. Such a result could not have been contemplated by the legislature, having regard to the purpose of the Act which was to amend the law relating to tenancies of agricultural lands and sits used or allied pursuits in the State of Maharashtra and to make certain other provisions in regard to those lands. Such a result could not have been contemplated by the legislature, having regard to the purpose of the Act which was to amend the law relating to tenancies of agricultural lands and sits used or allied pursuits in the State of Maharashtra and to make certain other provisions in regard to those lands. The Preamble to the Act shows that the object was also to bring the status of tenants in Vidarbha Region, as far as possible, in line with those prevailing in certain other parts of the State. Obviously, therefore, the intention of the legislature could not have been to create an anomaly as pointed out above. 8. Section 54 appears to us to govern the whole field of succession to the tenancy rights, and it is that section which makes them heritable. The marginal note also points in this direction in (The Commissioner of Income Tax, Gujrat v. Vadilal Lallubhai)2, 1973(3) S.C.C. 17 , the marginal note was taken into consideration as giving an indication as to what exactly was the mischief that was intended to be remedied as it threw light on the intention of the Legislature. In (Indian Aluminium Company v. Kerala State Electricity Board)3, 1975(2) S.C. C. 414, the Supreme Court observed that it is true that the marginal note cannot afford any legitimate aid to construction of a section, but it can certainly be relied upon as indicating the drift of the section or, to show what the section was dealing with. We have already pointed out what the position of law was prior to the enactment of section 54 of the Vidarbha Tenancy Act regarding the heritability of the tenancy rights in respect of the agricultural lands, which go to show that heritability in such cases was the creature of statute, and after the repeal of the previous enactments, provision came to be made by section 54 for the devolution of the tenancy rights by making special Rules in this regard. The construction of section 54, in our view, leads only to the inference that it is a complete Code in itself and the marginal note, which is eloquent, shows the drift of the section. 9. The construction of section 54, in our view, leads only to the inference that it is a complete Code in itself and the marginal note, which is eloquent, shows the drift of the section. 9. The submission of behalf of the appellants was that since this Court has pointed out in Nakabai's case, 1980 Mh.L.J. 105, on the basis of the corresponding provisions of the Bombay Tenancy Act, that the statutory tenancy is heritable and section 40 was not the source of right of inheritance but restrictive of that right to a few out of the many heirs, we should take the same view of the provisions of sections 54 and 129 of the Vidarbha Tenancy Act. In (The Board of Muslim Wakfs, Rajasthan v. Radha Kishan)4, A.I.R. 1979 S.C. 289, it was observed as follows:- “It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act, and decisions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act, unless the two Acts are in pari materia. Further, when there is no ambiguity in the statute, it may not be permissible to refer to, for purposes of its construction, any previous legislation or decisions rendered thereon.” Though, therefore, the Preamble to the Vidarbha Tenancy Act stated that “Whereas it is expedient to amend the law which governs the relations of landlords and tenants of agricultural lands and sites used for allied pursuits in the Vidarbha Region of the State of Maharashtra with a view to bringing the status and right of tenants as far as possible in line with those prevailing in certain other parts of the State”, if the relevant provisions of the two Acts differed in their content and application, it would not be permissible to do violence to the express language of the two different enactments for achieving that object. 10. 10. The marginal note to section 40 of the Bombay Tenancy Act reads, “Continuance tenancy on death of tenant”, and the section reads as follows:- 40(1) Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. (2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land. (emphasis supplied.) There is, thus, a marked difference in the phraseology of section 40 of the Bombay Tenancy Act and that of section 54 of the Vidarbha Tenancy Act, as the former does not lay down any rules of succession or inheritance as does the latter, and leaves the tenancy to be continued in favour of such heir or heirs of the deceased-tenant as may be willing to continue the tenancy. That was why it was held in Nakabai's case that section 40 is not the source of right of inheritance but is merely restrictive of right of inheritance to a few out of the many heirs, and inapplication of section 40 to lands of Public Trusts results merely in opening succession to all the heir of the deceased tenant and not destroying the inheritability itself. According to Shri R.N. Deshpande, the words “shall be deemed to have continued the tenancy” appearing in sub-section (1) of section 40 of the Bombay Tenancy Act were not considered in Nakabai's case but, with respect, we do not think so. Relying on the observations in (Damadilal and others v. Parashram and others)5, A.I.R. 1976 S.C. 2229 and section 3 of the Bombay Tenancy Act which made provisions of Chapter V of the Transfer of Property Act, 1882, applicable to the tenancies and leases of land to which that Act applied, in so far as they are not inconsistant with the provisions of that Act, the Division Bench held that contract of lease created lessee's estate and interest in the immovable property and termination of tenancy did not wipe out this estate and interest when the tenant's possession was protected by statute as long as the tenant complied with terms of the tenancy. The contention of Shri Deshpande was that the decision in Damadilal's case came to be rendered in respect of Madhya Pradesh Accommodation Control Act which applied to house properties and not to agricultural lands, and the considerations would be different. We do not agree. The position came to be considered by Supreme Court in (Vithal Dattatrya Kulkarni v. Smt. Shamrao Tukaram Power)6, A.I.R. 1979 S.C. 1121, where the question for consideration was the right of protected tenant to recover possession of land under section 37 of the Bombay Tenancy Act, and the Court, after considering the provisions of section 40 before and after the amendment in 1956, took the view that the right was not heritable, as prior to the amendment of that section, the landlord was merely required to make an offer of the tenancy to the heirs of the deceased-tenant on the same terms and conditions on which the deceased-tenant was holding it at the time of his death, and it was held that the right under section 37 was not a heritable right. 11. There is no dispute in the case before us that Nagoji was the statutory tenant until his death which occurred on 2-12-1975. Reference was made by Shri Deshpande to the observations in para 7 of the judgment in Vithal's case (supra), that “the Court did not lay down in Damadilal's case the wide proposition that every statutory tenancy was heritable but the Court did quite definitely lay down that it would be wrong to import the notion of English law relating to 'statutory tenancy' and on that basis to hold that it was not transferable or heritable”. After extracting the observations of A.C. Gupta, J., in Damadilal's case, the Supreme Court observed that the question whether a tenancy other than a contractual tenancy has any or all the incidents of a contractual tenancy has to be decided with reference to the provisions of the particular statute and that the conclusion regarding the non-heritability of the right of a protected tenant to have the land restored to him rests solely on the provisions of section 40 of the Bombay Tenancy Act. The Supreme Court laid down the proposition in Damadilal's case that the incidents of a statutory tenancy and the contractual tenancy had to be the same in the absence of a contrary intention conveyed by any provision of the Act. The Supreme Court laid down the proposition in Damadilal's case that the incidents of a statutory tenancy and the contractual tenancy had to be the same in the absence of a contrary intention conveyed by any provision of the Act. Shri Deshpande then urged that so far as the agricultural tenancy is concerned, a Division Bench of this Court had taken the view in (Bai Jamma v. Bai Dhani)7, 61 Bom.L.R. 419 that the tenancy rights of a statutory tenancy under section 5(1) of the Bombay Tenancy and Agricultural Lands Act (Bom. LXVII of 1948) are not heritable rights. But it is obvious that in view of the pronouncements of the Supreme Court, to which we have adverted, that proposition can no longer be regarded as good law, and so far as the provisions of section 40 of the Bombay Tenancy Act are concerned, the proposition laid down in Nakabai's case regarding the heritability of the statutory tenancy under the Bombay Tenancy Act, with respect, cannot be open to question. 12. During the course of the arguments, Shri J.N. Chandurkar, Advocate, sought leave to make his submissions, as the point of law raised in this case was of general importance, and we allowed him to address us. He rightly contended on the basis of the marginal note to section 54 of the Vidarbha Tenancy Act and its express provisions and their applicability, that they left no option to the parties on the question of the continuation of the lease after the death of the original tenant and there was no question of their volition to the matter of succession under section 54. This is in clear contrast with the continuation of the tenancy under section 40 of the Bombay Tenancy Act which is made dependent on the volition of the heir or heirs of the deceased tenants, as may be willing to continue the tenancy, to continue the tenancy. In fact, there is broadly a reference to these factors in para 12 of the judgment in Nakabai's case, and in view of those factors, the Division Bench observed that section 40 cannot beheld to be the source of the right of inheritance. 13. In fact, there is broadly a reference to these factors in para 12 of the judgment in Nakabai's case, and in view of those factors, the Division Bench observed that section 40 cannot beheld to be the source of the right of inheritance. 13. Our attention was also drawn to (Ganpati Sitaram Balvalkar v. Waman Shripad Mage)8, A.I.R. 1981 S.C. 1956, but there it was held that the transfer of a tenancy after it ceases to be contractual is not permissible under the Bombay Rent Act, a proposition which was established in (Jai Singh Mrarji v. M/s. Sovani (P.) Ltd.)9, A.I.R. 1973 S.C. 772 and that Damadilal's case did not arise under the Bombay Tenancy Act but interpreted the provisions of a Madhya Pradesh legislation in regard to landlords and tenants and , so , there was no question of a dissenting note having been struck in Damadilal's case. 14. The argument regarding the improbability of the source of heritability being a contract and not section 54 of the Vidarbha Tenancy Act, cannot be sustained in view of the definition of 'tenant' under section 2(32) of the Vidarbha Tenancy Act, which means a person who holds land on lease and includes a person who is deemed to be a tenant under sections 6, 7 or 8 and a person who is a protected lessee or occupancy tenant. While considering the analogous provisions of the Bombay Tenancy Act, the Supreme Court held in (Dahya Lala v. Rasul Mahomed Abdul Rahim)10, 1962 N.L.J. 682 that a person who is deemed a tenant by section 4 is manifestly in a class apart from the tenant who holds lands on lease from the owner and such a person would be invested with the status of a tenant, if three conditions are fulfilled, viz. that he is cultivating land lawfully, that the land belongs to another person, and that he is not within the excepted categories. A person who derives his right to cultivate land from the owners would normally be a contractual tenant and he will obviously not be a “deemed tenant”, and all persons other than those mentioned in Clauses (a), (b) and (c) of section 4 of the Bombay Tenancy Act who lawfully cultivate land belonging to other persons whether or not their authority is derived directly from the owner of the land must be deemed tenants of the lands. We find that there is considerable force in the submission of Shri R.N. Deshpande that since the term 'tenant' has reference to severely categories of persons, some of whom cannot trace their right to a contract, the source of heritability to the tenancy right cannot be other than section 54 of the Vidarbha Tenancy Act. The positive provisions of section 54 of the Vidarbha Tenancy Act, which must be regarded as a Code in itself, would exclude such an origin. 15. For the above reasons, we find that the view taken in Nakabai's case 1980 Mh.L.J. 105 by a Division Bench of this Court in relation to section 40 of the Bombay Tenancy Act cannot be applied mechanically to the provisions of section 54 of the Vidarbha Tenancy Act, in view of the different legislative backgrounds and an altogether different scheme of section 54 of the Vidarbha Tenancy Act. The source of heritability to the tenancy rights under the Vidarbha Tenancy Act would be section 54 alone, and since by virtue of the provisions of section 129 of the said Act, the provisions of section 54 are rendered inapplicable, the heirs of the deceased-tenant will not be entitled to claim the tenancy rights either by succession or survivorship. In this view of the matter, we find that the Maharashtra Revenue Tribunal was right in affirming the order passed by the Sub-Divisional Officer. The appeal is, therefore, dismissed but with no order as to costs. Appeal dismissed. -----