# HIRALAL PRABHUBHAI AND OTHERS v. NAGINDAS ATMARAM KHATRI

- **Citation:** [1964] 6 S.C.R. 773
- **Court:** Supreme Court of India
- **Decided:** 1964-02-14
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hiralal-prabhubhai-and-others-v-nagindas-atmaram-khatri-3218
- **Pages:** 8

## Headnote

fi S.C.R.
SUPREME COURT REPORTS
773
HIRALAL PRABHUBHAI AND OTHERS
V.
NAGINDAS ATMARAM KHATRI
IK. SUBBA RAo AND J. R. MUDHOLKAR JJ.)
Bombay T<nancy Agricultural Lands Act (Bom. LXV/l of 1948), ss. 88
and 89-Suit for eviction-Agricultural land within two miles of
the limir.r of Municipalily-Applicubility of Act.
'fhe respondent gave aotice to the appellants terminating the lease
of agricultural land situated within two miles of the limits of the
Municipality and filed a suit for eviction. The suit was contested,
inter alia, on the ground that under the provisions of the Bombay
Tenancy Act, 1939, the defendants had acquired tenancy rights.
The
civil Judge, inter alia, held ~that the 1939 Act was repealed by the
Bombay Tenancy and Agricultural Land Act, 1948, which did not
apply to the suit land, as it was within two n1iie~ of the limits of the
Surat Borough Municipality and decreed the suit.
On appeal, the
District Judge held that the 1948 Act applied to the Suit land and set
aside tpe decree of the trial Court.
In second appeal by the plaintiff,
the High Court held that the suit land was within two miles of the
limit:. of the Municipality and therefore, the 1948 Act did not :.tppJy
to the suit land. On appeal by Special Leave the appellants contended
that their rie;hts under the 1939 Act were saved and preserved under
s. 89(2) of the 1948 Act with the result that the lease extended to
IO years under the 1939 Act was saved thereunder, and by reason of
the Bombay Tenancy and Agricultural Lands (Amendment} Act, 1952,
which brought the suit land within the scope of the 1948 Act, their
rights so preserved came to be governed by the provisions of rhe 1948
Act and, therefore, they could not be evicted except in the manner
prescribed tiy the provisions of the Act. The respondent contended that
the savin& provi•ion in s. 89(2) of the 1948 Act operates only if there
is no express provision to the contrary and that the saving of the
appellant'• right would be otiose, as he could not enforce his right
under the 1948 Act.
Held: (i) Before the suit was disposed of, the 1952 Act came into
force, and by reason of the extension of the 1948 Act to the suit land,
the respondent could not evict the appellants except in the manner
prescribed by the 1948 Act.
(ii) The respondent's contention must be rejected.
There is an
express provision found in s. 88(1) of the 1948 Act, in as much as
it says that the provisions of ss. 1 to 87 will not apply to the area in
question.
(iii) As there was a right recognized by law there was a remedy
and, therefore. in the absence of any special provisions
indicating a
l!lfl
Febrw,., If.
774
. SUPREME COURT REPORTS
1961
particular forum for enforcing a particular right the general law of the
HINlalP bh
land would naturally take its course. The High Court. therefore, was
bhai ra
U• wrong in holding that the appellants could not claim the benefit of the
"·
provisions of the 1948 Act.
NagindtU
.A.Ima.
ram.
Sakharam (a) Bapusaheb Nara)'an Sanos v. Manikchand Morichand
Shah [1962] 2 S.C.R. S9, relied on.

## Text

fi S.C.R.
SUPREME COURT REPORTS
773
HIRALAL PRABHUBHAI AND OTHERS
V.
NAGINDAS ATMARAM KHATRI
IK. SUBBA RAo AND J. R. MUDHOLKAR JJ.)
Bombay T<nancy Agricultural Lands Act (Bom. LXV/l of 1948), ss. 88
and 89-Suit for eviction-Agricultural land within two miles of
the limir.r of Municipalily-Applicubility of Act.
'fhe respondent gave aotice to the appellants terminating the lease
of agricultural land situated within two miles of the limits of the
Municipality and filed a suit for eviction. The suit was contested,
inter alia, on the ground that under the provisions of the Bombay
Tenancy Act, 1939, the defendants had acquired tenancy rights.
The
civil Judge, inter alia, held ~that the 1939 Act was repealed by the
Bombay Tenancy and Agricultural Land Act, 1948, which did not
apply to the suit land, as it was within two n1iie~ of the limits of the
Surat Borough Municipality and decreed the suit.
On appeal, the
District Judge held that the 1948 Act applied to the Suit land and set
aside tpe decree of the trial Court.
In second appeal by the plaintiff,
the High Court held that the suit land was within two miles of the
limit:. of the Municipality and therefore, the 1948 Act did not :.tppJy
to the suit land. On appeal by Special Leave the appellants contended
that their rie;hts under the 1939 Act were saved and preserved under
s. 89(2) of the 1948 Act with the result that the lease extended to
IO years under the 1939 Act was saved thereunder, and by reason of
the Bombay Tenancy and Agricultural Lands (Amendment} Act, 1952,
which brought the suit land within the scope of the 1948 Act, their
rights so preserved came to be governed by the provisions of rhe 1948
Act and, therefore, they could not be evicted except in the manner
prescribed tiy the provisions of the Act. The respondent contended that
the savin& provi•ion in s. 89(2) of the 1948 Act operates only if there
is no express provision to the contrary and that the saving of the
appellant'• right would be otiose, as he could not enforce his right
under the 1948 Act.
Held: (i) Before the suit was disposed of, the 1952 Act came into
force, and by reason of the extension of the 1948 Act to the suit land,
the respondent could not evict the appellants except in the manner
prescribed by the 1948 Act.
(ii) The respondent's contention must be rejected.
There is an
express provision found in s. 88(1) of the 1948 Act, in as much as
it says that the provisions of ss. 1 to 87 will not apply to the area in
question.
(iii) As there was a right recognized by law there was a remedy
and, therefore. in the absence of any special provisions
indicating a
l!lfl
Febrw,., If.
774
. SUPREME COURT REPORTS
1961
particular forum for enforcing a particular right the general law of the
HINlalP bh
land would naturally take its course. The High Court. therefore, was
bhai ra
U• wrong in holding that the appellants could not claim the benefit of the
"·
provisions of the 1948 Act.
NagindtU
.A.Ima.
ram.
Sakharam (a) Bapusaheb Nara)'an Sanos v. Manikchand Morichand
Shah [1962] 2 S.C.R. S9, relied on.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
120/62.
Appeal by special leave from the judgment and decree
dated April 23, 1959, of the former Bombay High Court
in Second Appeal No. 1359 of 1955.
M. S. K. Sastri and M. S. Narasimhan, for the appellants.
0. C. Mathur, I. B. Dadachanii and Ravinder Narain,
for the respondent.
February 14, 1964.
The Judgment of the Court was
delivered by
'llubba Rao 1.
'SuBBA RAo J.-This appeal by special leave raises the
question of the applicability of the Bombay Tenancy and
Agricultural Lands Act. 1948 (Born. Act No. 67 of 1948),
hereinafter called the '1948 Act', to the tenancy of the land
in dispute.
The appellants are the legal representatives of one
Prabhubhai Ratanji. The suit property is agricultural land
situate within two miles of the limits of the Surat Municipal
Borough. It was rpart of the erstwhile Sachin State.
On
May 7, 1946, Nagindas Atmaram Khatri, the respondent
herein, who was the owner of the said land, gave a lease
of the same in favour of the said Prabhubhai Ratanji for a
period of six years.
On July 28, 1948, Sachin State became
part of the State of Bombay. From that date the Bombay
Tenancy Act, 1939, heremafter called the "1939 Act", was
made applicable to the said area.
On April 23, 1951,
Nagindas Atmaram Khatri, the landlord, gave a notice to
the defendant terminating the lease from March 31, 1952.
After givfog the said notice, he filed Reg. Suit No. 403 of
1952 in the Court of the Subordinate Judge, Surat, for
eviction of the lessee Parbhubhai Ratanji.
The suit was
contes.ted on various grounds, the main contention being
that under the provisions of the 1939 Act, the defendant
'
6 S.C.R.
SUPREME COURT REPORTS
775
had acquired tenancy rights therein. As the defendant died
~
on September 30, 1955, his legal representatives were Hlralal
Prabhu·
brought on record in his place. The learned Civil Judge,
bhal
inter alia, held that the 1939 Act was repealed by the 1948 Nagindu•· Allfllloo
Act and that the latter Act did not ~ply to the suit land,
ram
as it was within two miles of the limits of the Surat Borough
subba Rao J.
Municipality. On that finding, he gave a decree for
possession, arrears of rent and mesne profits. Against the
said decree, the defendant preferred an appeal to the District
Judge.
The learned District Judge held that the landlord
failed to prove that the suit property was within a distance
of two miles of the limits of the Surat Borough Municipality
and, on that finding, he ·came to the conclusion that the
1948 Act applied to the suit land and set aside the decree
of the trial court awarding possession to the plaintiff, but
maintained the decree for arrears of rent. Thereupon, the
plaintiff preferred a second appeal to the High Court insofar
as the decree of the District Court went against him. The
said appeal came up before a Division Bench of that High
Court. The High Court held that the suit land was within
two miles of the limits of the Surat Borough Municiipality
and that, therefore, the 1948 Act did not apply to the suit
land.
On that finding, it set aside the decree passed by
the learned District Judge and restored that passed by the
learned Civil Judge. The legal representatives of the
defendant have preferred the present appeal.
Learned counsel for the appellants contended that the
High Court should have held that tbe rights of the ~pellants
under the 1939 Act were saved by the 1948 Act. He contended broadly that the right of the appellants under the
1939 Act were preserved under s. 89(2) of the 1948 Act,
with the result that the lease extended to 10 years under
the 1939 Act was saved thereunder, and that by reason of
the Bombay Tenancy and Agricultural Lands (Amendment)
Act, 1952 (Born. Act 33 of 1952), hereinafter called the
"1952 Act'', which brought the suit land within the scope
of the 1948 Act, their rights so preserved came to be
governed by the provisions of the 1948 Act and, therefore,
the respondent could not evict them except in the manner
prescribed by the provisions of that Act.
SUPREME COURT REPORTS
196#
To appreciate the contentions of the parties it is neces·
fi1ralal-Prabhu- sary to trace briefly the history of the relevant provisions.
bhai
Section 23 ( 1 ) of the 1939 Act, as amended by the 1946
Naginda:· Atma- Aot, read :
ram
Subba Rao I
"(a) No lease of any land situated in any area in
which this section comes into force made after
the date of the coming into force of this section
in such area, shall be for a period of less than
10 years; and
(b) every lease subsisting on the said date or made
after the said date in respect of any land in
such area sha!J be deemed to be for a period
of not less than l 0 years."
The 1939 Act was repealed by the 1948 Act. Section 88 ( 1)
of the 1948 Act, as it stood before· the amendment by the
1952 Act, read:
"Nothing in the foregoing provisions of this Act shall
apply-
{ a)
(b)
( c) to any area within the limits of Greater
Bombay or within the limits of the Municipal Borough of. ..... Surat. ; .... and
within a distance of 2 miles of the limits
such boroughs."
Section 89 thereof read :
"(I ) The enactment specified in the schedule is
hereby repealed to the extent mentioned in the
fourth column thereof.
(2) But nothing in this Act or any repeal effected
thereby-
( a)
(b) shall save as expressly provided in this Act
affect or deemed to affect,
6 S.C.R.
SUPREME COURT REPORTS
777
( i) any right, title, interest, obligation or
~
liability already acquired, accrued or Hiralal
Pro,..,._
incurred before the commencement
hhal
V,
of this Act; ........ ".
Nagindas
A.-
SCHEDULE I
-~-·------- ----------------
Year
No.
Short Title
Extent of repeal
1
2
3
4
-----------------------
1939
XXIX
The Bombay TenThe whole except sections
ancy Act, 1939.
3, 3-A and 4 as modified
in the following manner . ..
~---------------------
Section 88 of the 1948 Act was amended by the 1952 Act.
The relevant part of the amended section reads :
" ( I) Nothing in the foregoing provisions of this Act
shall apply-
( a)
(b)
( c) to any area within the limits of Greater
Bombay within the limits of the Municipal
Corporations constituted under tli.e Bombay Provincial Municipal Co!ipOration Act,
1949, within the limits of the Municipal
Boroughs constituted under the Bombay
Municipal Boroughs Act, 1925, and within
the limits of any cantonment; ......... ".
The gist of the provisions in their application to a lease
of agricultural land situated within two miles of the limits
of the Surat Borough Municipality may be stated thus :
Such a lease subsisting on the date of the amending Act of
1946, which came into force on April 11, 1946, shall be
deemed to be for a period of not less than I 0 years. The
1939 Act was repealed by the 1948 Act. Under s. 88(1) (c)
ram
Subba Rao I.
778
SUPREME COURT REPORTS
t06f
ot the 1948 Act, the provisions of that Act were not applicRirt11al-Prt1bhu· able to any area within the municipal limits of the said
bhal
borough of Surat and within a distance of two .miles of the
Nailnd.;· Atma· limits of the said borough; but the right, title and interest
•am
of a lessee in such area was preserved under s. 89(2) (b) (i)
.~ubba Rao 1.
of the said Act.
Section 8 8 ( 1) of the 1948 Act, among
other things, was amended by the 1952 Act, which came
into force on January 12, 1953.
By the said amendment
the 1948 Act was extended to any area within a distance .
of two miles of the limits of the Surat Borough Municipality.
With the result. all the provisions of the 1948 Act would
be applicable to a lease of agricultural land subsisting in
such an area after the amendment came into force. If so,
. such a lease can be terminated only in the manner prescribed
by s. 14 thereof.
What is the effect of this legal position on the facts of
the present case? The relevant facts on which there is really
no dispute may now be stated.
The lease deed between the appellants' predecessor and
the respondent w:is executed on May 7, 1946, for a period
of six years commencing from May 3, 1946; that is to say,
it would expire in the ordinary course on May 2, 1952.
Sachin State became part of the Bombay State from July 28.
1948. After it became part of the Bombay State, the 1939
Act, as amended by the 1946 Act, was extended to that
State; with the result the lease which would have expired
in May 1952 was statutorily extended by another 4 years,
that is, till May 1956. On December 28, 1948, the 1948
Act came into force.
That Act repealed the 1939 Act. It
also exempted the lands within , the limits of the Surat
Borough Municipality and also lands within two miles of
the limits of the said Municipality from the operation of
the provisions of the said Act.
But, it saved the right or
interest of the lessee which he had acquired under the 1939
Act. When the 1952 Act came into force on January 12,
1953, the said lease, protected under the saving clause, was
subsisting. By the said amendment, the 1948 Act was made
applicable to the land in question which is within two miles
of the limits of the Surat Borough Municipality.
With the
result, the interest of the appellants could be terminated
-
6 S.C.R.
SUPREME COURT RI<;P(JRTS
779
only under s. 14 of the 1948 Act. On April 23, 1951, the
~
respondent gave a notice to the appellants terminating the Hiralal
Prabhulease from March 31, 1952, and filed the suit for eviction
bliai ..
on April 21, 1952. But before the suit was dis.posed of, the Nagindas
At,,,...
1952 Act came into force, and by reason of the extension
ram
of the 1948 Act to the said land, ¢he respondent could not
Subba Rao J.
evict the appellants except in the manner prescribed by the
1948 Act. The High Court, therefore, was wrong in holding
that the appellants could not daim the benefit of the provisions of the 1948 Act
At this stage another argument advanced by learned
counsel for the respondent may also be noticed. The argument is that the saving provision in s. 89 (2) operates only
if there is no express provision to the contrary, but such an
express provision is found in s. 88 (1), inasmuch as it
says that the provisions of ss. 1 to 87 will not apply to the
area in question.
It is further contended that the saving
of the appellant's right would be otiose, as he could not
enforce his right under the Act. . A similar argument was
advanced but was repelled by this Court in Sakharam alias
Bapusaheb Narayan Sanas
v.
Manikchand Motichand
Shah ( 1 ).
There the lands in dispute were situ3!te within
two miles of the limits of the Poona Municipal Borough.
The question was whether the rights of the appellants as
protected tenants were affected by the repeal. This Court
held that the provisions of s. 88 ( 1) were entirely prospective and that they applied to lands of the description contained in the said Set"tion from the date on which the Act
came into force and that they were not intended, in any
sense, to be·of confiscatory character. When it was further
contended that the right would be illusory, as it could not
be enforced under the Act, this Court pointed out that as
there was a right recognized by law there was a remedy and,
therefore,_ in the absence of any special provisions indicating
a particular forum for enforcing a particular right the
general law of the land would naturally take its course.
This decision is binding on us. We, therefore, reject this
contention.
----···---
l I) [1962] l S.C.R. 59.
SUPREME COURT REPORTS
IPM
Even so, learned counsel for the resflondent contended
Hiralal-Prabhu- that in the view taken by the High Court it had become
bhai
unnecessary for it to give its findings on two of the important
Nagind:· Atma- issues that arose in the case, namely, issues 3 a.'!d 4, which
ram
are as follows :
Subba Rao J.
Issue 3. Whether the plaintiff proves that he wants
1964
February 14.
possession for bona fide personal cultivation.
Issue 4. Whether the defendant proves that he had
not damaged the suit property in view of the
decision in Reg. C. Suit No. 619 of 1950 by
the Joint Civil Judge (J.D.J, Surat;
He, therefore, pointed out that the matter would have to
be remanded to the High Court for its decision on the said
two points.
In view of the supervening circumstances, it is not
possible to accede to this argument. As pointed out earlier,
on April 23, 1951, the respondent issued the notice on the
ground that the tenancy of six years would expire on March
31, 1952. But by reason of the 1939 Act the tenancy was
statutorily extended till 1956. So the said notice had become
ineffective and the respondent would not be entitled to any
relief on its basis.
It would be open to him to take any
appropriate proceedings, which the law allows, m a proper
tribunal. In the circumstances the only course open to us
is to set aside the decree of the High -Court and to restore
that of the Dirstict Judge. The parties will bear their
respective costs throughout.
Appeal allowed.
S. M. KARIM
v.
MST. BIBI SAKINA
(M. HIDAYATULLAH AND RAGHUBAR DAYAL JJ.)
Benami Transaction-Protection under s. 66-lf available to transferttSub-s. (2) applies to creditors-Suit for adverse possession, if lie.rCode of Civil Procedure, 1908 (Act 5 of 1908), •· 66.
-