V.M. Kanade, J.
1. The appellant is the original plaintiff and the respondents are the original defendants. For the sake of convenience, the parties shall be referred to as 'plaintiff' and 'defendants'.
2. The plaintiff had filed a suit for declaration of his ownership and for possession of the suit property which consisted of suit fields and a house and for mesne profits. The trial Court partly decreed the suit and directed the defendants to deliver the vacant possession of the suit house to the plaintiff. However, his claim in respect of the field property mentioned in Schedule 'A' of the plaint was rejected. Both the plaintiff and defendants preferred an appeal before the Additional District Judge. However, both the appeals were dismissed by the lower Appellate Court. Two second appeals were filed, one by the plaintiff and other by the defendants. It is an admitted position that the second appeal filed by the defendants was summarily rejected. The second appeal filed by the plaintiff was admitted on 4-12-1990 on the grounds enumerated at Serial Nos. 1, 2 and 4 in the appeal memo. The defendants have also filed cross-objection. However, cross-objection will not survive in view of the substantive second appeal being dismissed by this Court.
3. Brief facts are as under:
Sampat son of Hari Sawarkar was the owner of the property mentioned in Schedules A, B and C. The property mentioned in Schedule C was not the subject matter of the suit as the said property was bequeathed by Will in favour of the original defendant No. 1 Shakuntala. The original defendant No. 1 is the daughter of the said Sampat Hari Sawarkar. Plaintiff Mahadeo is the nephew of Sampat Hari Sawarkar being the son of his real elder brother Ganpat.
4. Sampat Hari Sawarkar was cultivating the field property mentioned in the Schedules A and C as a tenant of Kisan Suryabhan Harale more than 20 years and he becomes the owner of the field property on 1st April, 1961 as per the provisions of the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as 'Act'). Sampat executed a Will on 15th January, 1966 and by the said Will be bequeathed the property mentioned in the Schedule A to the plaint in favour of the plaintiff Mahadeo and land admeasuring 2 acres on the northern side out of the field Survey No. 110/1-A was bequeathed to Shakuntalabai as mentioned in Schedule C. By this Will, Sampat bequeathed the suit house and other moveable property in favour of Janabai during her lifetime and after her death in favour of the plaintiff. In the Will, it was specifically mentioned that the plaintiff was made responsible for the maintenance of Janabai during her lifetime. Sampat died on 16th January, 1966 and Janabai died in the suit house on 8th August, 1977. After the death of Janabai, plaintiff took possession of the field property mentioned in Schedule A, but the defendants and their associates obstructed the plaintiff and, therefore, the plaintiff filed suit for declaration that he was the owner of the suit field and a house as per the Will.
5. The defendant filed her written statement and opposed the suit of the plaintiff. It was her case that after the death of Sampat, Janabai had become the owner of the suit house and after the death of Janabai on 8th August, 1977. Shakuntalabai had inherited the suit house and she was in possession of the suit house since 8th August, 1977. Further the case of the defendant was that so far as the suit field is concerned, Sampat's wife Janabai cultivated the suit field as a legal heir and the Agricultural Lands Tribunal, Akot decided the revenue case on 28th July, 1969 and Janabai was ordered to pay the purchase price in four instalments and accordingly Janabai paid the instalments and, thereafter, Agricultural Lands Tribunal, Akot issued the certificate of purchase of the fields mentioned in the Schedules A and C in favour of Janabai on 11th January, 1973 and the same was registered on 12th January, 1973 and, therefore, Janabai had become the owner of the field property mentioned in Schedules A and C.
6. It was further contended by defendant No. 1 that Janabai executed a registered Will dated 31st August, 1974 and by the said Will the field property mentioned in Schedules A and C was bequeathed in her favour and she had become the owner of the suit field after the death of Janabai. The original defendant No. 2 Sevakram adopted the same written statement.
7. The trial Court held that the deceased Sampat had a title in respect of the house property and that he was a deemed owner in respect of the field property. The trial Court held that the Will of Sampat was properly proved. The trial Court, however, held that Sampat had bequeathed the house property to the plaintiff. However, the trial Court held that Sampat could not make a Will of the tenanted and as described in Schedules A and C and, therefore, held that the plaintiff was not entitled to get the said field property mentioned in Schedule A. The trial Court, therefore, partly decreed the suit in favour of the plaintiff in respect of the house property and against him in respect of the field property.
8. As stated hereinabove, both the plaintiff and defendant No. 1 preferred an appeal before the lower Appellate Court, but both the appeals were dismissed and the Judgment and Order of the lower Appellate Court was confirmed.
9. The second appeal preferred by the defendant No. 1 is admittedly dismissed in limine at a admission stage. Second appeal filed by the plaintiff is admitted on ground Nos. 1, 2 and 4 of the appeal memo. The defendant No. 1 has filed her cross objection after the appeal was admitted. However, in my view, since the substantive second appeal filed by the defendant No. 1 is dismissed, her cross-objection cannot be taken into consideration.
10. The substantial question of law raised in this second appeal is whether the transfer by a Will of the agricultural lands by a tenant who had become deemed owner, by virtue of section 46(1) is permissible under the provisions of Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, and secondly, whether the tenant become the owner of the tenanted land after the deemed date or whether the ownership of the agricultural lands would vest in him after the certificate was issued by the Agricultural Lands Tribunal declaring him to be the owner after the payment of purchase price.
11. Learned Counsel appearing on behalf of the appellant submitted that Sampat had become the deemed owner under section 46(1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, on 1st April, 1961. He submitted that the issuance of certificate was a procedural formality and a tenant became the owner of the premises on the deemed date i.e. 1st of April, 1961. He submitted that once he had become a owner of the suit field, he could bequeath that property by a Will. He submitted that though the certificate was issued in favour of Janabai after the death of Sampat before the certificate was issued in favour of Janabai, Sampat had bequeathed the property by a Will. He submitted that therefore both the lower courts have clearly erred in holding that the tenanted property could not be bequeathed by a Will. He submitted that by virtue of section 46(1) of the said Act, the tenanted property lost its character of tenancy and the tenant steped into the shoes of the owner and he became a complete owner of the property and he could dispose of the same in any manner he liked.
12. Shri Chandurkar, learned Counsel appearing on behalf of the appellant, further submitted that bar of section 57 of the said Act was not applicable to a Will and, therefore, the said property would be bequeathed by a Will and the permission or previous sanction of the Collector was not required.
13. Shri Kaptan, learned Counsel appearing on behalf of the respondent, submitted that the field property could be inherited only as per the provisions of section 54 by a member of the family and, therefore, the defendant No. 1, in any case, was entitled to inherit the said property. He submitted that a tenant could not bequeath the property by a Will, as the rights of the statutory tenant are the purely personal rights and the said rights would become heritable only by virtue of the provisions of section 54 of the Act. He further submitted that as per the provision of section 57 of the said Act, since the previous sanction of the Collector was not obtained, the said transfer by a Will was itself void. He further submitted that the ownership of the property vested in Janabai after the certificate of ownership was issued by the Agricultural Lands Tribunal on her payment of the purchase price in four instalments and as such, any transfer by Sampat prior to the certificate being issued was void ab initio.
14. He relied on an unreported judgment in the case of Spl. C. Application No. 320/69, decided on 20-1-1970 by this Court (Nagpur Bench) in the case of Niwrutti v. Shrimati Renukabai, wherein this Court had held that the rights of the statutory tenant become heritable only because of provision of section 54 of the said Act.
15. I have perused the judgment and order passed by the lower Appellate Court as well as the trial Court. I have perused the judgment referred to by Counsel appearing on behalf of the appellant. In my view, the agricultural lands as mentioned in Schedule A of the plaint could not have been transferred by a Will without the previous sanction of the Collector in view of the specific bar under section 57 of the said Act and secondly though a tenant become a deemed owner on the deemed date i.e. 1st April, 1961, the transfer of the said ownership would take place only in accordance with the provisions of the Tenancy Act. Thus, the statutory rights of the tenant would become heritable only as per the provisions of section 54 or in the alternative by any other mode with the previous sanction of the Collector under section 57 of the said Act. In my view, the tenant would become a deemed owner on the deemed date i.e. 1st April, 1961 and by operation of statute, he would be in a position to bequeath the property only after obtaining the necessary previous sanction of the Collector. I have come to the aforesaid conclusion after examining the provisions of section 46(1), section 54 and section 57 of the said Act. The relevant provisions are reproduced herein below:
'Section 46(1). Notwithstanding anything in this chapter or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary, with effect on and from the first day of April, 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under any of the provisions of this chapter shall stand transferred to and vest in, such tenants and from such date such tenants shall be deemed to be the full owners of such lands:
Provided that if on such date any such tenant is of the following category, namely:---
(a) a minor,
(b) a widow,
(c) a serving member of the armed forces,
(d) a person subject to any physical or mental disability,
the ownership of the land shall stand transferred---
(i) to the tenant on the expiry of one year from the date on which the tenant of category (a) attains majority, the tenant of category (c) ceases to serve on such in force, the tenant of category (d) ceases to be subject to such disability; and
(ii) in the case of a widow to her successor-in-title on the expiry of one year from the date on which the widow's interest in the land ceases to exist:
Provided further that where in respect of any such land, any proceeding under sections 19, 20, 21, 36 or 38 is pending on the date specified in sub-section (1) the transfer of ownership of such land shall take effect on the date on which such proceeding is finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding.
Section 54(1). Where a tenant dies, the landlords shall be deemed to have continued the tenancy---
(a) if such tenant was a 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.
Section 57(1). No land purchased by a tenant under section 41 or 46 (or 49-A (57-D)) or 130 or sold to any person under section 91 or 122 shall be transferred by sale, gift, exchange, mortgage, lease or assignment (***) without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government.
(2) Any transfer (***) of land in contravention of sub-section (1) shall be invalid:
Provided that nothing in this section shall apply to the lands purchased by an occupancy tenant.
From the perusal of the aforesaid provisions, it is clear that as per section 46 Clause (1) by a legal fiction from 1st April, 1961, the ownership shall stand transferred in favour of the tenant and from the said date tenants shall be deemed to be the full owners of such lands. This section itself clearly envisages an automatic transfer of ownership on the deemed date and for all intents and purposes from the said date, the agricultural land absolutely vests in the tenant as a full owner. Thus, on 1st April, 1961 Sampat had become owner of the suit field described in Schedules A and C of the plaint. The act has, therefore, laid down the other formalities which are required to be followed but irrespective of completing these formalities, the ownership of the tenanted land vest in the tenant by virtue of section 46(1) of the said Act.
16. Section 54 of the said Act lays down the provisions regarding the inheritance by particular class of heirs. This, however, does not bar inheritance by a Will. There is no specific bar described under the Act for transfer of the property from the tenant who has become a owner on the deemed date to transfer the land by a Will. The only prohibition in respect of any kind of transfer is as per the provisions of section 57 of the said Act. The section contemplates that the tenant who has purchased the land under section 46, can transfer the land only with the previous sanction of the Collector.
17. The submission made by the learned Counsel appearing on behalf of the appellant that transfer by a Will is not covered by the provisions of section 57 of the said Act because it is not specifically mentioned in the said section. The said submission cannot be accepted, as the wording of section 57 of the said Act, clearly envisages any kind of transfer. The words 'shall be transferred by sale, gift, exchange, mortgage lease or assignment' illustrates the various situations.
18. Learned Counsel appearing on behalf of the appellant relied on a Division Bench judgment reported in the case of Dr. Anant Trimbak Sabnis v. Vasant Pratap Pandit, : AIR1980Bom69 , wherein the Division Bench considered the meaning of the words 'assign' and 'transfer', which expression appeared in section 15 etc. of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. A Division Bench, however, has in para 9 held that even the restricted concept of 'transfer' inter vivos in section 5 of the T.P. Act contemplated its becoming effective at some future date in a given case. The Division Bench further held that though it is different in its nature from the sale, mortgage, lease or gift, however, Will was a transfer in its generic sense. The ratio of the said judgment therefore would not be applicable to the facts of this case and cannot be of any assistance to the appellant.
19. The Apex Court in the case of Laxminarayan Dipchand Maheshwari and others v. Maharashtra Revenue Tribunal and others, : [1975]3SCR537 , had held that under section 46(1) the tenants become full owner of the tenanted lands by operation of law and there is a statutory vesting of the lands in them. Similar view taken by Division Bench of this Court in the case of Sitaram Deoba Marathe v. Hawadya Piraji and others 1975 Mh.L.J. 521.
20. In my view, both the lower courts have rightly relied on an unreported judgment of this Court in Slp.C.AppN. No. 320/69 decided by Shri Chandurkar, J. (as he then was), wherein this Court in para 4 had observed as follows:
'The learned Counsel for the petitioners then contended that the respondent No. 1 has no right in the field after the death of Tukaram because Tukaram had by a Will dated 21-9-1962 bequeathed his tenancy rights to Narayan and by virtue of the rights which thus vested on him, Narayan was entitled to be a tenant of the field. It was also contended that the Revenue Tribunal was not justified in holding that the Will was not properly proved. I do not propose to enter into the question whether the Will was proved or not, because assuming that the Will was proved, I fail to see how Tukaram was competent to make any Will in respect of the tenancy rights. Tukaram died on 14-11-1962. He was on that date a tenant under the Tenancy Act and his status was that of a statutory tenant whose rights were governed by the provisions of the Tenancy Act. The rights of a statutory tenant are purely personal rights and he remains in possession of the land and enjoys it so long as he complies with the provisions of the Tenancy Act and he has no estate or interest in the land as an ordinary tenant has. As held by this Court in Bai Jamna v. Bai Dhani 61 Bom.L.R. 419, a right of a statutory tenant is purely a personal one and unless the statute expressly authorises him to pass on that right to another person, the right must cease the moment he (the statutory tenant) dies. Therefore, the statutory tenancy does not create a right in property and it becomes heritable only because of the provisions of section 54 of the Tenancy Act. If Tukaram who was a statutory tenant had no estate or interest which could be willed away by him, the Will dated 21-9-1962 could not have vested any right in favour of Narayan. The rights of the statutory tenant after his death are, therefore, governed exclusively by the provisions of section 54 of the Tenancy Act and the only heirs who would be entitled to inherit these rights would be, in the absence of other heirs on record, the two daughters of Tukaram out of whom one is the respondent No. 1. Thus, even on the basis of the Will Narayan could not claim to be in possession as a tenant.'
The submission made by the learned Counsel appearing on behalf of the appellant, therefore, cannot be accepted.
21. The second appeal is, therefore, dismissed. Under the circumstances, there shall be no order as to costs.