Judgment:
A.M. Khanwilkar, J.
1. This writ petition takes exception to the judgment of the Maharashtra Revenue Tribunal, Bombay dated 23rd July, 1984 in Tenancy Application No. 156 of 1983.
2. The petitioners are the landlords in respect of the agricultural land bearing R.S.No. 21/6A admeasuring 26 Are and R.S.No. 21/128 admeasuring 7 Are of Village - Jamsande situated in Deogad Tahsil, Dist.- Sindhudurg. The respondents are the successors of Sitaram Raut, who was admittedly a protected tenant in respect of the suit land. It is not in dispute that proceedings in relation to declaring the said Sitaram Raut as protected tenant were held sometime in the year 1948 wherein he was declared as a protected tenant on 15-3-1948. The mutation entry in that behalf has also been recorded. The said Sitaram Raut expired on 30th December, 1948 i.e. two days after the Bombay Act No. LXVII of 1948 (The Bombay Tenancy and Agricultural Lands Act, 1948) came into effect.
3. The present case is therefore, governed by the provisions of Tenancy Act of 1948. The main issue which arises for consideration is whether the respondents who are the heirs of deceased Sitaram Raut the protected tenant in respect of the suit lands, would inherit the tenancy rights within the meaning of the said Act It is not in dispute that the respondents are in possession of the suit lands even today. Another relevant fact is that, after the tenant died, although the respondents possessed and cultivated the suit land having inherited from the original tenant, the village record continued to show the name of the respondent's predecessor Sitaram Raut as the protected tenant as late as till October, 1958. It is on 31st October, 1958 the name of the predecessor of the respondents was sought to be deleted by Mutation Entry No. 8072 dated 31st October, 1958. Even after the deletion of the name of the predecessor of the respondents, the respondents continued to cultivate the suit lands without any obstruction from any quarter. However, it is sometime in the year 1971 that the petitioners instituted suit against the respondents for injunction before the Civil Court. In the said suit, the respondents appeared and raised plea of tenancy consequent to which the Civil Court referred the issue of tenancy to be decided by the Tahsildar as required under the provisions of the Tenancy Act. In the meantime, the respondents had already filed an application under section 70(b) of the Act for declaring them as tenants in respect of the suit lands. Both the reference made by the Civil Court as well as the said application were consolidated and heard together by the Tahsildar, Deogad. The Tahsildar, by the judgment and order dated 31st March, 1981 was pleased to hold that the respondents were the tenants in respect of the suit land on the tillers' day i.e. 1-4-1957 and have become deemed purchasers. The petitioners filed appeal before the Collector, Sindhudurg, which was also dismissed on 17-8-1982. The Appellant Court confirmed the findings of facts recorded by the said Court that respondents inherited the tenancy rights and became deemed purchasers on the tillers' day. The petitioners therefore carried the matter in revision before the Maharashtra Revenue Tribunal. The Tribunal, in turn, vide its judgment and order dated 23rd July, 1984 was pleased to dismiss the revision application.
4. Accordingly, the consistent view of the courts below is that the respondents have stepped into the shoes of their predecessor Sitaram Raut who died on 30th December, 1948 and since they were in possession of the suit lands on the tillers' day they have became deemed purchasers in respect of the suit lands. In other words, the courts below have held that the respondents being the heirs of deceased protected tenant they were entitled to inherit the tenancy rights of their predecessor. Naturally, the only question which arises for consideration in the present petition is - whether section 40 as it stood on 30th December, 1948 gives any right to the heirs or the successors of the protected tenant so as to enable them to inherit the tenancy rights or whether the tenancy automatically comes to an end on the death of the tenant.
5. The learned Counsel for the petitioners in support of his submission urged that during the relevant period i.e. on 30th October, 1948 the law as it stood did not provide any inheritance of tenancy rights. He has placed reliance on the decision of the Apex Court reported in Vithal Dattatraya Kulkarni v. Smt. Shamrao Tukaram Powar : [1979]3SCR572 . He contends that section 40 of the Act as it stood then provided that the right of the heirs for continuation of the tenancy on the death of the protected tenant would come into effect only if the landlord offered tenancy right to the heirs of the deceased tenant. According to him, it was the landlord's prerogative to accept the heirs of the deceased tenant for inheriting the tenancy rights and unless the landlord made such offer to the heirs no right would enure in favour of the heirs irrespective of the possession of the lands in question by them. He further contends that, on facts, the respondents have not produced any material on record to show that they were the tenants in respect of the suit lands. According to him, the documents in the shape of receipts, lease deed, etc. ought to have been produced by the respondents to show that they have some statable plea of tenancy in respect of the suit lands and in absence of that their status is no more than that of trespassers. Reliance is placed on the decision of the Apex Court reported in : AIR1996SC223 , to contend that it is obligatory on the tenant to produce such documents to establish their right in respect of the suit lands, if any.
6. The learned Counsel for the respondents on the other hand adopted the reasons recorded by the courts below. He has argued that the provisions of the Act of 1939, when compared with the provisions of Act of 1948, would clearly indicate that the right of the heirs of deceased protected tenant are totally unaffected. According to him, the heirs of the deceased protected tenant are entitled to inherit the tenancy right in respect of the suit lands within the purport of the said provisions. He has distinguished the judgment of the Apex Court reported in : [1979]3SCR572 . According to him, the Supreme Court was required to examine the matter in the context of right of a tenant under section 37 of the Act and, therefore, the observations contained in the said judgment will have no application when examining the rights of the heirs to inherit the tenancy right of the deceased protected tenant viz-a-viz section 40 of the Act of 1948. He has further emphasized that the respondents have throughout remained in possession of the suit lands and at no point of time the petitioners took any steps in obtaining possession thereof from the respondents. He further contends that the purport of section 40 read with section 5 of the Act of 1948, even before the Amendment Act of 1956, as applicable on 30th December, 1948, clearly entitles the heirs of deceased protected tenant to inherit the tenancy rights. He has also placed reliance on the decision of this Court in Spl. Civil Application No. 2351 of 1969 decided on 28th April, 1973 in the matter of Gajanan Govind Gavankar v. Bhimabai Lakhu, reported in Tenancy Law Reporter Vol.-XXIII-No. 8 at pages 78-80. He submits that the said decision of this Court has already taken the view that it is obligatory on the landlord to make an offer to the heirs of deceased protected tenant and merely because such an offer is not made it would not amount to termination of the rights which have crystalized in their favour. He has also placed reliance on the decision of the Apex Court reported in Shriram Mandir Sansthan @ Shri Ramsansthan v. Vatsalabai particularly para 12 of the said decision, to contend that section 40 does not exclude the right of the heirs of deceased protected tenant to inherit the tenancy and, as such, the respondents were entitled to inherit the suit lands. He has also relied on the decision of the Apex Court reported in Sakharam alias Bapusaheb Narayan Sanas v. Manikchand Motichand Shah : [1962]2SCR59 , to counter the second point made by the learned Counsel for the petitioner. According to him, since the respondents were claiming through their predecessor who was already declared to be a protected tenant and the Record of Rights having been amended to that effect, nothing more was necessary for the heirs and the burden, if at all, was on the landlords to bring on record contrary material to dispel the said position. Reliance has been placed on para 5 of the said decision of the Apex Court which has held that, once a person is recognized as a protected tenant he has to do nothing more to bring his case within the expression of right which is accrued to him under the Act.
7. Having considered the rival submissions, before examining the correctness thereof, it would be appropriate to extract section 40 of the Act of 1948 as applicable as on 30th December, 1948.:
'Sec. 40. Continuation of tenancy.---If a protected tenant dies, the landlord shall offer to continue the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death to the heir or heirs of the deceased tenant:
Provided that the offer required to be made by the landlord under this section shall be made in writing:
Provided further that if any heirs of the deceased tenant do not agree to continue the tenancy on the same terms and conditions on which the deceased protected tenant was holding the land, the Collector may select an heir or heirs who is or are willing to continue the tenancy on the same terms and conditions. The decision of the Collector shall be final.
Explanation---For the purposes of this section, an heir means the lineal male descendants of a tenant or his adopted son and failing both his widow who has not re-married.'
Another relevant provision would be section 5 as applicable as on 30th December, 1948 which reads thus.-
'5. Period of tenancy.---(1) No tenancy of any land shall be for a period of less than ten years:
Provided that at the end of the said period and thereafter at the end of each period of ten years in succession, the tenancy shall subject to the provisions of sub-sections (2) and (3), be deemed to be renewed for a further period of ten years on the same terms and conditions notwithstanding any agreement to the contrary.
(2) The landlord may, by giving the tenant one year's notice in writing before the end of each of the periods referred to in sub-section (1), terminate the tenancy, with effect from the thirty-first day of March in the last year of each of the said period, if he bona fide requires the land for any of the purposes specified in sub-section (1) of section 34, but subject to the provisions of sub-section (2) and (2A) of the said section, as if such tenant was a protected tenant.
(3) Notwithstanding anything contained in sub-section (1)-
(a) every tenancy shall, subject to the provisions of sections 24 and 25, be liable to be terminated at any time on any of the grounds mentioned in section 14: and
(b) a tenant may terminate the tenancy at any time by surrendering his interest as a tenant in favour of the landlord:
Provided that such surrender shall be in writing and shall be verified before the Mamlatdar in the prescribed manner.'
8. It is vehemently contended on behalf of the petitioners that the right to inherit tenancy is not an automatic right but subject to the pre-condition that the landlord shall offer to the heirs of the tenant to continue the tenancy on the same terms and conditions on which such tenant was holding at the time of his death to the heir or heirs of the deceased tenant. Although the said provision postulates that the landlord shall make an offer in writing, however, there is no commensurate provision for the consequences of failure to give such an offer by the landlord to the heirs of deceased tenant. The learned Counsel for the petitioners has referred to the decision of the Apex Court reported in : [1979]3SCR572 . After carefully examining the said decision, I am in full agreement with the reasons recorded by the Tribunal that the said decision will have no application to the case on hand. The Tribunal has correctly analysed the said decision as having been rendered in the facts of that case and particularly in the context of the right of a tenant under section 37 of the Act. This is evident from para 6 as well as para 8 of the said decision. In fact, in para 8, the Apex Court has made it amply clear that the observations in the said decision were in the context of the right of a tenant under section 37 of the Act and nothing more. What is important to note is that this decision of the Apex Court observes that the tenancy right was heritable, except for the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate the land personally. The Apex Court has taken this view because a tenant who was not in possession of the land on the date of his demise, the provisions of section 40 can have no application to such a situation. Section 40 would apply only when the tenant was holding the land at the time of his death. It is no doubt that the Apex Court has ruled that during the intervening period between 28th December, 1948 and 18th January, 1956, when the Amendment Act of 1956 came into effect, there was no provision for inheritance of the tenancy. The Apex Court obviously made the said observations when comparing the provisions of Act of 1939 with the Act of 1948 in the context of the issue which arose before it.
9. The learned Counsel for the respondents has rightly placed reliance on the provisions of the Act of 1939 to contend that having regard to section 3-A of the said Act, it would be seen that every tenant had a right to apply to the Mamlatdar for being declared as a deemed protected tenant on the expiry of one year from the date of coming into force of the Amendment Act, 1946 and upon such application being made his rights could be recorded in the Record of Rights of the protected tenant. The said provision further postulates that, it would be open to the landlord to apply within the same period i.e. within one year for a declaration that the tenant is not a protected tenant. The learned Counsel also relied Explanation I to section 3 as well as Explanation II to section 7 to contend that the said provision recognizes that the heirs of the tenant would have right to move to obtain possession of the land in question.
10. The decision of the Apex Court reported in : [1979]3SCR572 has no application to the present case, inasmuch as, in the said case, the tenancy was determined by the landlord and the landlord had already obtained possession of the land more than 12 years back and thereafter the heirs of deceased tenant moved under section 37 of the Act for possession of the said land. In the context of these facts the Supreme Court has observed that the right of a tenant for restoration of possession was not inheritable. The said observations will have to be thus understood to have been made in the context of the provisions of section 37 of the Act and in fact even the Supreme Court was fully aware of this position as is seen from para 8 of the said judgment wherein it has been made amply clear that the observations in the said decision should be understood to be in the context of section 37 of the Act only.
11. After having examined the relevant provisions, in my view, it would negate the legislative interest of enacting section 40, if we were to hold that the heirs of deceased protected tenant will have no right to inherit the interest of the deceased tenant. It is well settled that heritability is an incident of the tenancy. Even the decision of the Apex Court (supra) has in terms held in para 8 that even before amendment of 1956 tenancy was heritable. Section 40 of the Act merely recognizes the right of heirs of the tenant to inherit the tenancy. The condition prescribed in section 40 does not and cannot be understood to be destructive of the right of the heirs to inherit tenancy. On the other hand, as per the Act of 1939, tenancy could be inherited only by one of the heirs of the deceased tenant, whereas the provisions as on 30-12-1948, when the tenant died in this case, was that all the heirs of the deceased tenant inherited the tenancy rights. There is no qualitative difference between the language of section 40 as applicable on 30-12-1948 and the provisions after 1-8-1956 in so far as the recognition of right of inheritance is concerned. By the Act of 1956 the legislature has only declared that the landlord shall be deemed to have continued the tenancy in favour of the heirs of deceased tenant who may be willing to continue the tenancy on the same conditions. Whereas, even prior to 1956 amendment, the right to continuation of tenancy nevertheless existed, as section 40, as it then was, provided that the landlord 'shall offer' to continue the tenancy. No doubt, the offer was to be in writing, but no consequence were provided in the Act for failure to give such an offer. Since no consequences were provided, in case the landlord failed to give an offer in writing, cannot be said to be an indication that the right of inheritance is defeated or extinguished. If the legislature had intended to do so it would have surely made an express provision in that behalf. When an inherent right or pre-existing right is to be affected then the legislature ought to make an express provision in that behalf. As aforesaid, it is well settled that inheritability is an incident of the tenancy and therefore, if legislature had any intention to affect such a right it would have surely made an express provision in the statute. The view taken by this Court in the case of Gajanan Govind Gavankar (supra) is that when the landlord had failed to make an offer in writing to the heirs of deceased tenant for continuation of tenancy, it would not mean that the heirs of tenant refused to obtain the tenancy rights. The expression employed in section 40 is 'the landlord shall offer', which means that the landlord is duty bound to continue the tenancy in law. This legal obligation cannot be allowed to be obliterated or defeated by the voluntary act of an individual landlord. Thus there cannot be any qualitative difference in the position prior to amendment of 1956 and after 1956 as in both the cases the landlord is under an obligation to continue the tenancy in favour of the heirs of deceased tenant. In the circumstances, I reject the submission advanced by the learned Counsel for the petitioner that section 40 of the Act as it stood on 30th December, 1948 did not give right to the respondents to inherit the tenancy in respect of the said lands and I further accept the reasons of the courts below that the respondents were tenants on the tillers' day in possession of the suit lands i.e. on 31st April, 1956, and thus became deemed purchasers thereof.
12. Coming to the second point which has been argued by the learned Counsel for the petitioners, the same deserves to be stated to be rejected for the simple reason that, it is an admitted position that the predecessor of the respondents was declared as the protected tenant and mutation entry to that effect also came to be recorded. It is not in dispute that the said mutation entry was never challenged by the petitioners' landlords. In view of the decision of the Apex Court reported in : [1962]2SCR59 , the respondents were, therefore, not required to bring on record any further material in support of their claim of tenancy, but, if the petitioners who were disputing their claim of tenancy, ought to have produced positive evidence to the contrary. Accordingly, the contention that for want of evidence it should be held that the respondents have failed to establish their tenancy in respect of the suit lands, also deserves to be rejected.
13. In the circumstances, writ petition does not merit any interference as I see no infirmity in the conclusions reached by the three courts below which would warrant interference under Article 227 of the Constitution of India.
14. Accordingly, writ petition is dismissed with costs. Rule stands discharged.
C.C. expedited.
Parties to act on the copy of this judgment duly authenticated by the Associate of this Court.