# DAJI KRISHNAJI DESAI TAMBULKAR v. GANESH VISHNU KULKARNI AND OTHERS - **Citation:** [1962] 1 S.C.R. 905 - **Court:** Supreme Court of India - **Decided:** 1962 - **Case number:** Civil Appeal No. 90 of 1956 - **Bench:** K. Subba Rao, Raghubar Dayal, J. R. Mudholkar - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/daji-krishnaji-desai-tambulkar-v-ganesh-vishnu-kulkarni-and-others-2105 - **Pages:** 5 ## Headnote Khoti Land-Transfer prior to Ig46 without consent of KhotRights of purchaser-Bombay Tenancy Act, I939 (Bom. 290] I9J9), s. 3r-Khoti Settlement Act, I88o (Born. I of I88o), ss, 3, 9, The land in suit was Khoti land and s. 9 of the Khoti Settlement Act, r88o, prior to its amendment prohibited the transfer of the occupancy right without the consent of the Khot. Section 31 of the B)mbay Tenancy Act, r939, which came into force from April 1946, amended s, 9 of the Khoti Settlement Act by which no consent of the Khot was necessary for transferring the occupancy rights in the land. In 1892, R sold his occupancy right without the consent of the Khot to L, the predecessor-in-interest of respondent No. I. In 1945, R's successor again sold the same occupancy right to the appellant also without the consent of the Khot. The appellant's case was that the sale deed in 1892 in favour of the predecessor-in-interest of respondent No, r was void as the transfer of the occupancy right was made ·without consent of the Khat; whereas respondent No. l contended that R by the sale deed in 1892 had already lost, his right to the property in suit and therefore R's successors had no title to pass in 1945 in favour of the appellant. Held, that the occupancy right in a Khoti land could not be transferred without consent of the Khat prior to April r946, when the Bombay Tenancy Act, 1939, came into force. Il4 Ig6I Colltctor of Customs, Baroda v. Digvijaysinhji Spinning & fVeaving 1\-1 ills Ltd. Subba Rao ]. April I2. 906 SUPREME COURT REPORTS [1962] I96I Held, further, that in the present case as both the sales of 1892 and 1945 were without the consent of the Khat, it was Daji J(rishnaji not necessary to determine whether such a transfer was void Desai Tambulkar or voidable, If void, the plaintiff had no title. If voidable, v. the first sale in 1892, validly conveyed title to respondent No. Ganesh Vishnu r's predecessor-in-interest, and consequently no title passed to Kulkarni the plaintiff under the sale deed in 1945, as the transferor had no title. Raghubar Dayal ]. ## Text '• > l S.C.R. SUPREME COURT REPORTS 905 not been established that the Chief Customs Authority made its order under s. 190 of the Act with the consent of the respondent. This will not preclude the State from establishing by relevant evidence that the penalty was imposed under s. 190 of the Act with the consent of the owner of the goods in an appropriate proceeding. In the result the order of the High Court )s correct and the appeal is dismissed. Appeal dismissed. DAJI KRISHNAJI DESAI TAMBULKAR v. GANESH VISHNU KULKARNI AND OTHERS (K. SUBBA RAO, RAGHUBAR DAYAL and J. R. MUDHOLKAR, JJ.) Khoti Land-Transfer prior to Ig46 without consent of KhotRights of purchaser-Bombay Tenancy Act, I939 (Bom. 290] I9J9), s. 3r-Khoti Settlement Act, I88o (Born. I of I88o), ss, 3, 9, The land in suit was Khoti land and s. 9 of the Khoti Settlement Act, r88o, prior to its amendment prohibited the transfer of the occupancy right without the consent of the Khot. Section 31 of the B)mbay Tenancy Act, r939, which came into force from April 1946, amended s, 9 of the Khoti Settlement Act by which no consent of the Khot was necessary for transferring the occupancy rights in the land. In 1892, R sold his occupancy right without the consent of the Khot to L, the predecessor-in-interest of respondent No. I. In 1945, R's successor again sold the same occupancy right to the appellant also without the consent of the Khot. The appellant's case was that the sale deed in 1892 in favour of the predecessor-in-interest of respondent No, r was void as the transfer of the occupancy right was made ·without consent of the Khat; whereas respondent No. l contended that R by the sale deed in 1892 had already lost, his right to the property in suit and therefore R's successors had no title to pass in 1945 in favour of the appellant. Held, that the occupancy right in a Khoti land could not be transferred without consent of the Khat prior to April r946, when the Bombay Tenancy Act, 1939, came into force. Il4 Ig6I Colltctor of Customs, Baroda v. Digvijaysinhji Spinning & fVeaving 1\-1 ills Ltd. Subba Rao ]. April I2. 906 SUPREME COURT REPORTS [1962] I96I Held, further, that in the present case as both the sales of 1892 and 1945 were without the consent of the Khat, it was Daji J(rishnaji not necessary to determine whether such a transfer was void Desai Tambulkar or voidable, If void, the plaintiff had no title. If voidable, v. the first sale in 1892, validly conveyed title to respondent No. Ganesh Vishnu r's predecessor-in-interest, and consequently no title passed to Kulkarni the plaintiff under the sale deed in 1945, as the transferor had no title. Raghubar Dayal ]. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 90 of 1956. Appeal by special leave from the judgment and decree dated August 5, 1953, of the Bombay High Court in Appeal from the Appellate Decree No. 915 of 1951. M. S. K. Sastri, for the appellant. A.G. Ratnaparkhi, for respondent No. 1. 1961. April 12. The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is against the judgment and decree of the High Court of Bombay, dismissing the suit of the plaintiffappellant. The plaintiff sued for a declaration. that the property in suit which is situate at Monje Digvale, a village held by khots in the district of Ratnagiri, was owned by him, was under his management and that the defendants had no right or interest therein. He claimed title to the property on the basis of the sale of occupancy rights under the sale deed executed in his favour by Sitabai on February 10, 1945. Sitabai was the widow ofVishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram Raghu Shirsat sold the occupancy rights in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892. By a compromise in a civil suit between the heirs of Laxman Chandba Rant and Tanu Daulat Gavade Sakaram, the heir of Laxman Raut got 3/5ths share and Tanu Daulat got 2/5ths share in these occupancy rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent no. 1, purchased the shares of these persons by _, -" 1 S.C.R. SUPREME COURT REPORTS 907 , the sale deeds dated December 14, 1903, and February r96r 13, 1904. On Kulkarni's death, respondent no. 1 D .. K . h .. b th f h R d t a;i ris na;i ecame e owner o t e property. espon en s nos. Desai Tambutkar 2 to 4 are the tenants of respondent no. 1. v. The land in suit is khoti land as defined in cl. (10) Ganesh Vishnu of s. 3 of the Khoti Settlement Act, 1880 (Born. Act I J{ulkarni of 1880), hereinafter called the Act. It is not disputed that Ram Raghu Shirsat was the occupancy tenant of Raghubar Dayal]. the land in suit and that he could not transfer his tenancy right without the consent of the khot, which, according to cl. (2) of s. 3, includes a mortgagee lawfully in possession of khotki and all co-sharers in a khotki. It is also admitted that the transferors of the afore-mentioned sale deeds of 1892 in favour of the predecessor-in-interest of respondent no. 1, or of the sale deed of 1945 in favour of the appellant, did not obtain the consent of the khot before executing the deed of transfer. The plaintiff alleged that the sale deed in favour of respondent no. 1 was void and that therefore he had title to the suit land on the basis of the sale deed in his favour. Respondent no. 1 contended that Ram Raghu Shirsat lost his rights in the property in suit after he had executed the sale deed on March 8, 1892, and that, therefore the plaintiff obtained no title on the basis of the sale deed in his favour. The trial Court held the sale deed of 1892 to be good sale deed and pinding on the plaintiff and dismissed the suit. On appeal, the Assistant Judge reversed the decree and decreed the suit holding that a transfer of the occupancy rights in the suit lands by Ram Raghu Sirsat in favour of Laxman Raut was void and that the plaintiff obtained good title under the sale deed in his favour in view of the amendment of s. 9 of the Act bys. 31 of the Bombay Tenancy Act, 1939 (Act XXIX of 1939), by which no consent of the khot was necessary for executing the sale deed in 1945. Respondent no. 1 preferred a second appeal to the High Court which set aside the decree of the Assistant Judge and restoring the decree of the trial Court, dismissed the suit. It held that the sale deed in favour 908 SUPREME 'COURT REPORTS [1962) '- '- '96' of the plaintiff too would be hit by the provisions of D .. I< . h .. s. 9 of the Act. It further held that the provisions of a;i "' na;i 9 · d" h h b l h"b" . Desai Tanibulka• s. m icate t at t ere was no a so ute pro 1 1t10n v. against a transfer of the occupancy right. A transfer Ganesh Vishnu by an occupancy tenant without the consent of the Kulkarni khot cannot be held to be void for all purposes and it Raghubar Dayal ]. would be invalid only in so far as it would be contrary to the right of the khot and not otherwise. It therefore held the transfer in favour of the respondent no. l's predecessor-in-interest in 1892 not to be void. It is the correctness of this order that is challenged ir! this appeal. This appeal has no force. Section 31 of the Bombay Tenancy Act, 1939, made amendments to s. 9 of the Act and the section after amendment reads: "The rights of khots and privileged occupants shall be heritable and transferable". 'Privileged occupant' included a permanent tenant under cl. (5) of s. 3 of the Act. The Bombay Tenancy A.ct received assent of the Governor of Bombay on April 2, 1940, but it came into force in April 1946 when the Government issued the necessary notification in exercise of the powers conferred under subs. (3) of s. 1 of that Act. It is clear therefore that s. 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in favour of the appellant, made the rights of permanent tenants non-transferable without the consent of the khot, and that therefore the sale in favour of the appellant was as much hit adversely by the provisions of s. 9 of the Act as the sale of the land in suit in favour of the predecessor-in-interest of respondent no. 1. It is therefore not necessary to determine the question whether the sale wa" absolutely void or voidable as held by the Court below, as neither of the two sales has been challenged by the khot whose consent for the transfer was necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or voidable. If such a transfer is void, the sale in favour of the appellant did not convey any title to him. If such a sale was merely voidable at the instance of the khot, the first sale in favour of the ' 1 S.C.R. SUPREME COURT REPORTS 909 respondent no. l's predecessor-in-interest was not r96r avoided by the khot, and therefore validly conveyed .. , . .. · I h" C I "ti d t th J · Da)l Rnshna)l tit e to 1m. onsequent y no t1 e passe .o e Pam- Desai Tambulkar tiff under the sale deed in his favour as his transferor v. had no title. In either case the plaintiff fails to prove Ganesh Vishnu his title to the land in suit. The dismissal of his suit Hulkarni is therefore correct. We accordingly dismiss this appeal with costs. Appeal dismissed. ABDUL GAFOOR v. STATE OF MYSORE (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. W ANCHOO, K; C. DAS GUPTA and N. RAJAGOPALA AYYANGAR, JJ.) Motor Transport-Scheme published and approved-PermitsApplication for by State Transport Undertaking-Publicatio1t of application and notice of date for making representation by other Transport Services, if necessary-Motor V chicles Act, I939 (IV of I939), ss. 68-C, 68-F (I), Ch. IV-A. After a scheme was published by the Mysore Transport Undertaking under s. 68-C of the Motor Vehicles Act, r939, and approved by the State Government the State Transport Undertaking made applications for permits under s. 68-F(r) of the Act to the Regional Transport Authority but before the permits were granted the secorid respondent made an application for a Writ of Certiorari prohibiting the Regional Transport Authority from dealing with the second respondent's application for permit unless and until they were duly publishe