# TM Additin•l Sellkmtnl CommisJion1r v. Ytsltwont M«tihno Mahajan

- **Citation:** [1962] Supp. 1 S.C.R. 710
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Bench:** K. N. Wanchoo, J.C. Sh.Ah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tm-additin-l-sellkmtnl-commisjion1r-v-ytsltwont-m-tihno-mahajan-2566
- **Pages:** 7

## Headnote

Abolition of Propritf4ry Right.-Land lying faUoUJ-When
to ic regarrb.d aa 'horn. farm '-Madhya l'raduh Abolilwn of
Pr<>pri.14ry Right. ( E•lalu, Mahala, Alienated Land.) Act,
1961 (Madh. l'ra. 1of1961), u. 2, 4.
In 1947 S conveyed by a sale deed to M an undivi<kd
half share of Land in his village. On the same day S executed a Kabulayat for 5 years in respect of the same land for
cultivation. In 1951 the Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, Alienated Lands) Act,
1951, came into force and the Compensation Officer started
enquiry about assessment of compensation.
M claimed to
retain possession of the half share in all the fallow lands in
the village which had been lca.cd by him for cultivation to
Son the pica that thc.c lands were •home farm'. The claim
(ll [1962] 2 S, C.R. 59.
..
••
•
-I
I
(1) s.c.R.
SUPREME OOURT REPORTS
711
was rejected by the Compensation Officer and confirmed by
the AdditiMal Settlement Commissioner.
The High Court
of Nagpur quashed the order.
In appeal to the Supreme the
Additional Settlement Commissioner contended that in respect
of an undivided interest in the land, the superior holder is
not entitled to the benefit of s. 4(2) of the Act because it is
not a 'holding', alternatively, that the land which was, at
the date of vesting, lying fallow otherwise than in accordance
with the usual agricultural practice oould never be regarded
as 'home farm'.
Held, that a part of a holding or an undivided int.rest
in a "holding" in Berar may also be 'home farm' land if it
otherwise fulfils the requirement of rl. (i), (ii) or (iii) of subcl. (3) of s. 2(g) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951.
The land having been granted in lease for cultivation
it is by virtue of s. 4(2) of the Act to be retained in the
possession of the proprietor. Grant of a lease for cultivation
evidences an intention on the part of the proprietor that the
land is to be converted to agricultural purposes, and default
on the part of the lessee to cultivate the land will not deprive
the lessor proprietor of the benefit granted to him by the
statute.
CrvIL APPELLATE JURISDICTION : Civil Appeal
No. 281 of 1959.
Appeal by special leave from the judgment
and order dated October 12, 1955, of the former
Nagpur High Court in Misc. Petition 1\o. 288 of
1954.
I
H. R. Khanna and R. H. Dhebar, for the
•
appellants.
S. N. Kherdekar and .4. G. Ratnaparkhi, for
respondent No. l.
·
1961. November 2!l. The Judgment of the
Court was delivered by
SHAH, J.-Out of a tot.a.I area of 2,375 acres 3
gunthas of Dhanora-an Izara village in Ta.Iuka
1961
Thi Additiunal
Sdtlmient
Commissioner
V,
T u~ivant M adhao
Mal,4jan
1110
TM Additin•l
Sellkmtnl
CommisJion1r
v.
Ytsltwont M«tihno
Mahajan
Sluzh J.
712 SUPREME COURT REPORTS [1962] SUPP.
•
Pusad in the State of Madhya Pradesh-2,283 acres
1md 28 gunthas is assessed land nnd the remaining
91 acres and 15 gunthas is unassesged. One Surat
Singh who was the proprietor of the village, by sale
deed dated May 24, 1947, conveyed an undivided
half share in the village to Yeshwant Madhao
Mahajnn--hereinafter
called
Mahajan--for
Ha. 25,000/- and on the same day executed a
kabulayat (lease deed) for five years in respect of the
same land for cultivation at an annual rental of
Rs. 3,000/-. The Legislature of the Madhya Pradesh
St11te enacted the Madhya Pradesh Abolition of
Proprietary Rights (Estates,
Mahala,
Alienated
Lands) Act. l of 1951-hereinafter called the Actto provide for acquisition of the rights of proprietors
in eRtates, mahn!P, alienated villages and alienated
lands in Madhya Pradesh and to make provision
for other matters connect<-d therewith. The Act
was brouvht into operation on March 14, 1951.
The Compensation Officer, Yeotmal sta1ted an
enquiry about assessment of compt>nsation
in
respect of the village Dhnnora which had vested
by tho operation of s. 3 of the Act in the State
Government.
Before
the Compensation Officer,
Mahajan claim

## Text

11111
Tr;mkl. DamMilurr
Ro·j>inkaF
..
Anaram Hir01Mnl
Patti
IHI
710 SUPREME COURT REPORTS [1962] SUPP.
on another decision of this Court in Sakharam alias
Bapu.saheb Narayan Sa1UJ8 v . . Mcmikchand Motichand
Shah (' ).
In that case the Court was called upon
to consider the question as to whether the provisions of ft. 88 of Bombay Act LXVII of 1948 were
retrospective in operation or not, and it has been
held that the said provisions are prospective. However, we do not think that the position with regard
to the provisions contained in s. 88 can be said to
be analogous or similar to the position wit.h regard
to the relevant provisions of the amending Act
XXXIII of-1952 with which we are concerned in
the present appeal. Therefore, we do not think
that Mr. Bengeri can make any effective use of the
said decision.
In the reb11lt t.he appeal fails and is dismissed
with costs.
Appeal di8111illsed.
THE ADDITIONAL SETTLEMENT
COMMISSIONER
v.
YESHWANT MADHAO MAHAJAN
(K. N. WANCHOO and J.C. SH.AH, JJ.)
Abolition of Propritf4ry Right.-Land lying faUoUJ-When
to ic regarrb.d aa 'horn. farm '-Madhya l'raduh Abolilwn of
Pr<>pri.14ry Right. ( E•lalu, Mahala, Alienated Land.) Act,
1961 (Madh. l'ra. 1of1961), u. 2, 4.
In 1947 S conveyed by a sale deed to M an undivi<kd
half share of Land in his village. On the same day S executed a Kabulayat for 5 years in respect of the same land for
cultivation. In 1951 the Madhya Pradesh Abolition of
Proprietary Rights (Estates, Mahals, Alienated Lands) Act,
1951, came into force and the Compensation Officer started
enquiry about assessment of compensation.
M claimed to
retain possession of the half share in all the fallow lands in
the village which had been lca.cd by him for cultivation to
Son the pica that thc.c lands were •home farm'. The claim
(ll [1962] 2 S, C.R. 59.
..
••
•
-I
I
(1) s.c.R.
SUPREME OOURT REPORTS
711
was rejected by the Compensation Officer and confirmed by
the AdditiMal Settlement Commissioner.
The High Court
of Nagpur quashed the order.
In appeal to the Supreme the
Additional Settlement Commissioner contended that in respect
of an undivided interest in the land, the superior holder is
not entitled to the benefit of s. 4(2) of the Act because it is
not a 'holding', alternatively, that the land which was, at
the date of vesting, lying fallow otherwise than in accordance
with the usual agricultural practice oould never be regarded
as 'home farm'.
Held, that a part of a holding or an undivided int.rest
in a "holding" in Berar may also be 'home farm' land if it
otherwise fulfils the requirement of rl. (i), (ii) or (iii) of subcl. (3) of s. 2(g) of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1951.
The land having been granted in lease for cultivation
it is by virtue of s. 4(2) of the Act to be retained in the
possession of the proprietor. Grant of a lease for cultivation
evidences an intention on the part of the proprietor that the
land is to be converted to agricultural purposes, and default
on the part of the lessee to cultivate the land will not deprive
the lessor proprietor of the benefit granted to him by the
statute.
CrvIL APPELLATE JURISDICTION : Civil Appeal
No. 281 of 1959.
Appeal by special leave from the judgment
and order dated October 12, 1955, of the former
Nagpur High Court in Misc. Petition 1\o. 288 of
1954.
I
H. R. Khanna and R. H. Dhebar, for the
•
appellants.
S. N. Kherdekar and .4. G. Ratnaparkhi, for
respondent No. l.
·
1961. November 2!l. The Judgment of the
Court was delivered by
SHAH, J.-Out of a tot.a.I area of 2,375 acres 3
gunthas of Dhanora-an Izara village in Ta.Iuka
1961
Thi Additiunal
Sdtlmient
Commissioner
V,
T u~ivant M adhao
Mal,4jan
1110
TM Additin•l
Sellkmtnl
CommisJion1r
v.
Ytsltwont M«tihno
Mahajan
Sluzh J.
712 SUPREME COURT REPORTS [1962] SUPP.
•
Pusad in the State of Madhya Pradesh-2,283 acres
1md 28 gunthas is assessed land nnd the remaining
91 acres and 15 gunthas is unassesged. One Surat
Singh who was the proprietor of the village, by sale
deed dated May 24, 1947, conveyed an undivided
half share in the village to Yeshwant Madhao
Mahajnn--hereinafter
called
Mahajan--for
Ha. 25,000/- and on the same day executed a
kabulayat (lease deed) for five years in respect of the
same land for cultivation at an annual rental of
Rs. 3,000/-. The Legislature of the Madhya Pradesh
St11te enacted the Madhya Pradesh Abolition of
Proprietary Rights (Estates,
Mahala,
Alienated
Lands) Act. l of 1951-hereinafter called the Actto provide for acquisition of the rights of proprietors
in eRtates, mahn!P, alienated villages and alienated
lands in Madhya Pradesh and to make provision
for other matters connect<-d therewith. The Act
was brouvht into operation on March 14, 1951.
The Compensation Officer, Yeotmal sta1ted an
enquiry about assessment of compt>nsation
in
respect of the village Dhnnora which had vested
by tho operation of s. 3 of the Act in the State
Government.
Before
the Compensation Officer,
Mahajan claimed to retain posaession of a half
share in all the fallow lands in the village which
had been leased by him under the deed (kabulayat)
dated May, 24, 1947, to Surat Singh on the plea
that those lands were "home farm". This claim was
rejected by the Compensation Officer and the order
of the Compensation Officer was confirmed in appeal
by the Additional Settlement Commissioner. Mal:ajan
then applied to the High Court of Judicature at
Nagpur under Art. 226 of the Constitution for a
direction quashing the order of the Additional
Settlement Commissioner and the Compensation
Officer and for a declaration that
the lands
mentiune•l in Scheclu le A attached to the petition
be declared home-farm and for a writ of mandamus
aga.inst the State of Madhya Pradesh to deliver
possession of all the lands mention<>d in that Schedule.
•
•
(1) S.C.R. SUPREME COURT REPORTS
713
The High Court quashed the order of the Additional
Settlement Commissioner in so fa.r as it related to
the undivided half share in Survey Nos. 1 to 91
except those in possession of the specified tenants
and also those already recognised as home-farm
and directed the Compensat.ion Officer to decide the
claim made by Mahajan in the light of the law laid
down in the judgment. Against the order passed
by the High Court, the Additional Settlement
Commissioner and the State of Bombay, whic-h had
by virtue of the States Reorganization Act, 1956,
been substituted for the State of Madhya Pradesh,
have appealed to this Cuurt with special leave.
The dispute in this appeal relates to a half
share in those lands in the village which had
remained fallow on the date of the notification
under s. 3 of the Aot.
By virtue of the sale deed
dated May 24, 1947, Mahajan was the proprietor of
the undivided half share in the entire village and
under the kabulayat he had granted to Surat Singh
a lease for cultivation of the undivided half share
purchased by him. Undoubtedly the lands specified
in Schedule A to the petition were on the crucial
date lying fallow. The question which falls to be
determined is whether those lands oan be regarded
as "home-farm" : if they be so regarded, by virtue
of s. 4(2) of the Act Mahajan will be entitled to
retain possession of those lands.
Section 3 of the Act provides, in so far as it
is material, that "on and from a date to be specified
by a notification by the State Government in this
behalf, all proprietary rights in an estate, mahal,
alienated village or alienated land, as the case may
be, in the area specified in the notification, vesting in
a proprietor of such estate, mahal, alienated village,
alienated land, or in a person having interest in such
proprietary right through the proprietor, shall pae11
from suoh proprietor or such other person to and
veftt in the State for the purposes of the State free
of all encumbrances." Section 4( l) sets out the
IHI
Tlr1 .A.i</111-1
8ettt.ml1U
Comtniuilrur
v.
r uhwant MaJM.
M""4jan
SMllJ.
Jg8J
'IMA'4iti""41
s...-
<Amatiuiatwr
Y,
T u.\zrMnl MadMt
Mwj ..
SWJ,
714 SUP:rtEME OOURT REPORTS (1962) SUP
,
consequence of the vesting.
By cl. ( e.) of e. 4( I ),
all righte, title and interPBt veeting in the proprietor
or any person having interest in such proprietary
right through the proprietor in euch area including
land (cultivable or barren), ceaee e.nd are vested in
the State for the purposes of the State free from
all encumbrances. But sub-a. 2 provides that
"Notwithstimding anything contained
in
subsection (I), the proprietor shall continw~ to retain
the posseBSion of hie home·stead,
home-farm
le.nd .................. ", 'Home.farm land' ie defined,
in so far as it is material, in s. 2(11) as :
"(l) x
x
x
x
(:!) x
x
x
x
(3) in relation to Berar, all
in holdings which isx
x
x
x
lan<l included
(i) under the personal cultivation of the
euperior holder including land allowed to lie
fallow in e.ocordanoe with tho usue.l agricul·
ture.l practice;
(ii) held by a leBBee from the ~uperior
holder; and
(iii) held by a tenant from the superior
holder other than e. specified tenant.''
'Land' ie nefined as "including land covered with
water."
Section
7
authorises
the
Deputy
Commissioner to take charge of all lande, other
than occupied lands and home·St<'ad lande, and of
a.II intercets vesting in the State under s. 3 on the
date of the vesting, e.nd, by e. 8, duty is imposC'd on
the State Government to pay t<very proprietor, who
is diveeted of proprietary rights, compenee.tion in
accordance with the niles contained in SchC'dule I.
Me.haje.n was undoubtedly e.t the date of
vesting the superior holder of th11 half share in th11
fallow le.nds which were held by Sure.t Singh as
Jessee from him. Prima facie the cle.im of Mahajan
(1) s.c.R. SUPREME COURT REPORTS
715
was
covered by cl.
(g) (3) 1ii) of e.
2
of
the Act, and Mahajan was entitled to the benefit
of the exception in e. 4 ( 2).
But counsel for the
State contends that in respect of an undivided
interest in land, the superior
holder
is
not
entitled to the benefit of s. 4(2), because it is not
a "holding." Alternatively, he contends that the
land which is, at the .date of vesting, lying
fallpw otherwise than in accordance with the
usifal agricultural practice can never be regarded
as r•home·fann." In our view, there is no substance
in either of these contentions. Schedule A to the
petition sets out the description of the various lands
which Mahajan cla.imed should be treated as "homefann" land. Each of these lands is assessed.
The
expreSBion 'holding' is not defined in the Act, but by
cl. (d) of s. 2 expressions not defined in the Act in
relation to Berar but used or explained in the Berar
Land Revenue Code, 1928, have the meaning assigned to those expressions in the latter Act. The
Berar Land Revenue Code defines 'holding' as "(a)
a parcel of land separately assessed to land revenue;
and(b)inreference to land held by a tenant-a parcel
of land held from a landlord under one lease or set
of conditions." Evidently, the survey numbel'tl
included
in
Schedule A
to
the
petition
were "holdings" within the meanings of the Berar
Land Revenue Code and therefore within the meaning of that expression as used in the Act. It is true
that Maha.jan was not entitled to the entire area of
each of these holdings but by the definition in the
Act all lands included in holdings in Berar, provided
they fulfil the conditions in cl. (i), (ii) or (iii) of subcl. (3), are "home-farm" lands. In other words a
part of the holding or an undivided interest in the
holding may also be "home-farm" land if it otherwise fulfils the requirements of cl.(i) (ii) or (iii) of
eub-ol.(3 ).
That a half· share in the Tillage-which is
included in the Schedule to the petition-was granted
IHI
TlllAdditi-1
S11t"-1
c.mmuu.-
••
2"11.\wat Madlia
.llaltajon
""" "·
JB8J
T1" AdditiOMI
S,tt""""'
CommUNwtr
••
T•*'-' M UJra.
M~
..
S"4/IJ,
716 SUPREME COURT REPORTS [1962) SUPP.
,
to Surat Singh on lease for cultivation cannot be
gain said in view of the exprcsa covenants of the
kabtdayat. Certain lands in the village, it is true,
were lying fallow wholly or partially at the date of
the vesting, but the lands having been granted in
lease for cultivation, in our judgment, they are by
virtue of s.4(2) to be retained in the poll!lCssion of
the proprietor, provision of cl.(!) of s. 4 notwithstanding. By sub-s. (2) of s.4 all "home-form" lands
are to remain in possession of the proprietor : there
is no express exclusion of lands lying fallow from
the benefit of s.4 (2) and none such can be implied
either from the scheme of the Act or the cc•ntext
in which s.4 (2) occurs. If Mahajan had remained in
occupation as proprietor and h~d allowed the lands
to remain fallow they may have vPsted in the State
and Mahajan may not have boen entitled to claim the
benefit of s.4 (2) unless his ell.Be fell under els. (i) and
(iii) of s. 2 (g)(3), but the grant of a lease for cultivation evidences an intention on tho part of Mahaj1m
that the land be converted to agricultural purposes
and default on the part of the lessee to culth·ato
those lands will not. deprive the lessor-proprietor of
the ben<>fit granted to him by the statute.
In our view, the High Court was right in hold·
ing
that the words of cl. (ii) of s. 2 (g) (3) were
explicit and a survey numb,:r which was lying
fallow but wa.~ hJld by a lessee from the superior
holder fell within the definition of "home-farm."
The appeal, therefore, fails and is di8mi~scd
with costs.
App«al di,mii6sed.