The Supreme Court has upheld the decision of Division Bench of Gujarat High where the questions arose for consideration was set out by the Division Bench as under:-.
“We are called upon to decide as to whether Section 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (for short ‘the Bombay Tenancy Act’) debars an agriculturist from parting with his agricultural land to a non-agriculturist through a “Will” so also, whether Section 43(1) of the Tenancy Act restricts transfer of any land or interest purchased by the tenant under Sections 17B, 32, 32F. 321. 320, 32U, 3(1) or 88E or sold to any person under Section 32P or 64 of the Tenancy Act through the execution of a Will by way of testamentary disposition”
A Three Judge Bench presided by Justice U.U. Lalit, Justice Indu Malhotra and Justice A.S. Bopanna while dismissing the bunch of appeal observed that “In the premises, we accept the construction put by the Division Bench on the provisions that fell for consideration. The challenge to the view taken by the Division Bench must therefore be rejected. We must also observe that the decision of this Court in Mahadeo which had failed to notice the earlier decisions in Sangappa and Jayamma and which is inconsistent with the decisions referred to hereinabove and what we have concluded, must be held to be incorrectly decided. Accordingly, all these appeals are dismissed without any order as to costs.”
Fact of the matter is that Agricultural land bearing Survey No.102 admeasuring 0.88 hectares situated within the revenue limits of village Gabheni, Taluka Chorayasi, District Surat (‘said land’ for short) was in the cultivating possession of one Samubhai Budhiabhai as tenant. Samubhai executed a registered Will on 24.01.1991 in favour of Vinodchandra Sakarlal Kapadia, the Appellant herein purporting to bequeath the said land to the Appellant. Upon the demise of Samubhai on 02.02.1991, vide mutation No.2141 certified on 20.06.1991, the name of the Appellant came to be recorded in the revenue records as owner of the said land. The Revenue Authorities however found that the Appellant was not an agriculturist and accordingly proceedings under Section 84C of the Act were registered and notice was issued to the Appellant.
After hearing the Appellant, the Additional Mamlatdar by his order dated 04.03.1996 in Tenancy Case No. 78/95 found that the disposal by way of a Will in favour of the Appellant was invalid and contrary to the principles of Section 63 of the Act and therefore declared that the said land vested in the State without any encumbrances. Ultimately the matter came before the division bench of High Court who find no infirmity in the order passed by Additional Mamlatdar.
The Appellants counsel submitted that what is prohibited under Sections 43 and 63 of the Act is transfer inter vivos, and not any ‘testamentary disposition’ by the holder of the land. In their submission, the expressions used in Sections 43 and 63 like ‘sale’, ‘gift’, ‘exchange’, and ‘mortgage’ are suggestive of transfers by a living person and the expression ‘assignment’ in Section 43(1) of the Act must be read ejusdem generis with the preceding expressions appearing in that Section and that the expression ‘assignment’ does not even appear in Section 63. It is, therefore, submitted that both these provisions do not deal with any ‘testamentary disposition’.
The Counsel for the State has submitted that the basic intent behind the conferral of ownership rights upon a cultivating tenant was to see that the actual tillers and cultivators must be protected and given the ownership rights upon payment of nominal charges. The avowed objective of the Act, is to preserve agricultural lands in the hands of actual tillers, and not to let concentration of holdings in a few hands. It is further submitted that Section 63 of the Act gives indications that a transfer to a non-agriculturist is not permissible and so also any transfer which results in taking the holding of the transferee beyond ceiling limits, or if the income of the transferee was in excess of Rs.5,000/-, would be impermissible.
“The provisions intend to confer the advantage of statutory purchase upon a cultivating tenant, and see that “the tiller of the land” is conferred ownership with respect to the lands cultivated by him as well as the dwelling house occupied by him. Thus, a cultivating tenant, if his holding is otherwise not beyond the ceiling limit, would be given the right to own the land cultivated by him. In cases where no purchase could be effected either on account of inability of the tenant to pay the purchase price, or on account of other situations, more than one attempt and opportunities are afforded to him. The statute goes to the extent of obliging the State Government to deposit the purchase price on his behalf. Even in cases where the tenant is unable to exercise the right of purchase because his holding would go beyond ceiling limit, the land would not revert to the landlord, but in terms of Section 32P, it must come to the persons or entities listed in the priority list. The priority list includes persons such as agricultural labourers and landless persons. The scheme is, therefore, to effectuate distribution of agricultural lands in such a way that the persons who are disadvantaged, would be conferred the ownership. After such purchase, the law obliges the purchaser to cultivate the land personally and not to transfer it,” noted the Supreme Court in its order.
The Court further stated, “If it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance, but may also have serious impact on agricultural operations.”
“In the circumstances the view taken by the Division Bench of the High Court in the present matter is absolutely correct and does not call for any interference,” said the Court.
The Supreme Court also considers the judgment of Apex Court in Sangappa Kalyanappa Bangi (dead) through LR (AIR 1998 SC 3229 = (1998) 7 SCC 294 Rajendra Babu J. and Jayamma v. Maria Bai and another (2004) 7 SCC 459 Sinha, J.) relied by the Division Bench of the High Court.
Read the Judgment here;
18989_2009_32_1501_22617_Judgement_15-Jun-2020-India Legal Bureau