# VITHAL DATTATRAYA KULKARNI & ORS v. SHAMRAO TUKARAM POWER & ORS

- **Citation:** [1979] 3 S.C.R. 572
- **Court:** Supreme Court of India
- **Decided:** 1979-03-21
- **Case number:** Civil Appeal No. 1296 of 1969
- **Bench:** R. S. Sarkaria, P. S. Kailasam, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/vithal-dattatraya-kulkarni-ors-v-shamrao-tukaram-power-ors-7651
- **Pages:** 12

## Headnote

Bombay Tenancy and Agricultural Lands Act,
1948-S. 40-Scope ofWhether heirs of a protected tenant who died before the commencement of
the 1956 Am·endn1ent Act are entitl:ed to recover possession from the landlord.
Section 3 of the Bombay Tenancy Act, 1939 classified a tenant as a pro ..
tected tenant in respect of any land if he 'had held such land continuously for
a period of six years immediately preceding 1st January, 1938 to 1st January,_
1945 and had cultivated such land personally during that period. Tenancy
held by a protected tenant could be
terminated only in the
circumstances
stated in s. 5 as for example, failure to pay arrears of rent subletting and so·
on. Section 7 provided that the landlord could recover possession of the·
land from the protected tenant on the ground that he bonafide required such
and for the purpose of cultivating it personally or for a non·agricultu.ral
purpose.
If after taking possession of the land he ceased to use it for that
purpose at any time within 12 years from the date on which he took posses~
sion the landlord was required to restore possession of the land under s. 7(2)
to the protected tenant. The Act also defined that a protected tenant shall
include his heirs by an explanation to this section.
The 1939 Act was repealed and replaced by the Bombay Tenancy and·
Agricultural Lands Act, 1948. This Act also empowered the
landlord to
terminate the tenancy of a protected te:ant by giving the tenant one year's.
notice in writing if he bonafide required the land for any of the purposes
mentioned in the Act and the grounds on which a tenancy could be tern1i 4
nated were also enumerated in the Act. A provision similar to s. 7(i) of
the
1939
Act
was
contained
in s. 34(i)
of
this
Act.
The
1948
Act
did
not
contain
prov1s1ons
corresponding
to
Explanation
(ii)
to s. 7 of the 1939 Act declaring that a tenant shall include his
heirs. Section 40 provided that if a protected tenant died the landlord shall
offer to continue the tenancy on the same terms on which such tenant was.
holding it at the tin1e of his death, to the heir or heirs of the deceru.ed
tenant. The Explanation to s. 40 declared that a heir meant the lineal de5 ..
cendant of a tenant or his adopted son and failing both, his widow.
The 1948 Act
underwent substantial changes
in 1956. Section 40 as
amended in 1956 provided that on the d~ath of the tenant the landlord shall
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be deemed to have continued the tenancy on the same terms and conditions
"-...,
on which such tenant was holding it at the time of his death to such heir
or heirs of the deceased tenant as may be willing to continue· the tenancy.
The land in dispute belonging to the appellants was held by the respondent's father who was a protected tenant within the meaning of that term·
in the 1939 Act.
In June, 1950 the appellants recovered possession of thee
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573
land allenging that they needed it for their personal cultivation. In 1951 the
potected tenant died. In 1962 the landlords sold a part of the land, whereupon the respondents who were the heirs of the late protected tenant filed
a petition alleging that the landlords had ceased to cultivate the land personally
within 12 years from the date of dispossession of the protected tenant and,
therefore, they were entitled to recover possession of the land. While the
Aval Karkun and the Deputy Collector held in favour of the heirs of the
tenant, the Revenue Tribunal allowing the revision application of the
landlords dismissed the application of the tenant/respondents.
The High Court
in a petition under Art.
226 of the Constituton reversed the order of the
Revenue Tribunal.
In appeal to this Court it was contended on behalf of the appellants that
the right of a protected tenant whose tenancy had been determined and \\'ho
had been dispossessed of the land under s. 39 of the Bombay Tenancy and
Agricultural Lands Act was a right which was personal to the tenant himself and, which could not for

## Text

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572
VITHAL DATTATRAYA KULKARNI & ORS.
v.
SHAMRAO TUKARAM POWER & ORS.
March 21, 1979
(R. S. SARKARIA, P. S. KAILASAM AND 0. CHINNAPPA REDDY, JJ.J
Bombay Tenancy and Agricultural Lands Act,
1948-S. 40-Scope ofWhether heirs of a protected tenant who died before the commencement of
the 1956 Am·endn1ent Act are entitl:ed to recover possession from the landlord.
Section 3 of the Bombay Tenancy Act, 1939 classified a tenant as a pro ..
tected tenant in respect of any land if he 'had held such land continuously for
a period of six years immediately preceding 1st January, 1938 to 1st January,_
1945 and had cultivated such land personally during that period. Tenancy
held by a protected tenant could be
terminated only in the
circumstances
stated in s. 5 as for example, failure to pay arrears of rent subletting and so·
on. Section 7 provided that the landlord could recover possession of the·
land from the protected tenant on the ground that he bonafide required such
and for the purpose of cultivating it personally or for a non·agricultu.ral
purpose.
If after taking possession of the land he ceased to use it for that
purpose at any time within 12 years from the date on which he took posses~
sion the landlord was required to restore possession of the land under s. 7(2)
to the protected tenant. The Act also defined that a protected tenant shall
include his heirs by an explanation to this section.
The 1939 Act was repealed and replaced by the Bombay Tenancy and·
Agricultural Lands Act, 1948. This Act also empowered the
landlord to
terminate the tenancy of a protected te:ant by giving the tenant one year's.
notice in writing if he bonafide required the land for any of the purposes
mentioned in the Act and the grounds on which a tenancy could be tern1i 4
nated were also enumerated in the Act. A provision similar to s. 7(i) of
the
1939
Act
was
contained
in s. 34(i)
of
this
Act.
The
1948
Act
did
not
contain
prov1s1ons
corresponding
to
Explanation
(ii)
to s. 7 of the 1939 Act declaring that a tenant shall include his
heirs. Section 40 provided that if a protected tenant died the landlord shall
offer to continue the tenancy on the same terms on which such tenant was.
holding it at the tin1e of his death, to the heir or heirs of the deceru.ed
tenant. The Explanation to s. 40 declared that a heir meant the lineal de5 ..
cendant of a tenant or his adopted son and failing both, his widow.
The 1948 Act
underwent substantial changes
in 1956. Section 40 as
amended in 1956 provided that on the d~ath of the tenant the landlord shall
'
•
be deemed to have continued the tenancy on the same terms and conditions
"-...,
on which such tenant was holding it at the time of his death to such heir
or heirs of the deceased tenant as may be willing to continue· the tenancy.
The land in dispute belonging to the appellants was held by the respondent's father who was a protected tenant within the meaning of that term·
in the 1939 Act.
In June, 1950 the appellants recovered possession of thee
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573
land allenging that they needed it for their personal cultivation. In 1951 the
potected tenant died. In 1962 the landlords sold a part of the land, whereupon the respondents who were the heirs of the late protected tenant filed
a petition alleging that the landlords had ceased to cultivate the land personally
within 12 years from the date of dispossession of the protected tenant and,
therefore, they were entitled to recover possession of the land. While the
Aval Karkun and the Deputy Collector held in favour of the heirs of the
tenant, the Revenue Tribunal allowing the revision application of the
landlords dismissed the application of the tenant/respondents.
The High Court
in a petition under Art.
226 of the Constituton reversed the order of the
Revenue Tribunal.
In appeal to this Court it was contended on behalf of the appellants that
the right of a protected tenant whose tenancy had been determined and \\'ho
had been dispossessed of the land under s. 39 of the Bombay Tenancy and
Agricultural Lands Act was a right which was personal to the tenant himself and, which could not for that reason be exercised by the tenant's heirs.
Allowing the appeal.
HELD : The contrast betvveen s. 40 before and after its amendment in
19 56 was that while after the amendment, the heirs of the tenant were automatically deemed to succeed to the· tenancy there was no such deeming before
the 1956 amendment. The landlord was merely required to make an offer and
it was not stipulated what would happen if he did not make the offer. Where
the landlord had obtained possession of the land for cultivating it personally
there could be no question of making an offer to continue the tenancy.
The
1948 Act before its amendment in 1956 contained no provision corresponding
to Explanation (ii) to s. 7 of the 1939 Act.
Therefore under the provisions
of 1948 Act as it stood before the 1956 amendment the right of a
tenant
to recoVer possession
of the land from
the landlord who had
obtained
possession of such land on the ground that he required it to cultivate it perso~
nally was not a heritable right. [581 B-E]
Explanation (ii) to s. 7 of the 1939 Act expressly provided that for the
purpose of that section a tenant included his heirs. The position under the
1948 Act after its amendment in 1956 as could be seen from ss. 4B and 40 was
that the tenancy under the Act was heritable. When it is found that the
tenancy was heritable the right given to the tenant may be exercised by the
heirs of the tenant also. In the instant case death of the protected tenant
occurred in 1951 i.e. before the 1956 Act came into force.
His heirs had
therefore no right to recover possession from the landlords. [579 G-H, 581 BJ
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Vasant Hariba Londhe v. Jagannath Rarnchandra Kulkarni 71 B.L.R.
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12; Bai Jarnna v. Bai Dhani, 61 Born. L.R. 419; Thakorelal v. Gujarat
Revenue Tribunal, A.I.R. 1964 Guj.
183; Damadi/al & Ors.
v.
Pareshrarn
& Ors., AIR 1976 SC 2229 @ 2234; referred to.
CivIL APPELLATE JURISDICTION : Civil Appeal No. 1296 of 1969.
Appeal by Special Le,ave from the Judgment and Order dated
H
11-11-1968 of the Bombay High Court in Special Civil Application
No. 1080/65.
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574
SUPREME COURT REPORTS
[1979] 3 s.c.R.
M. C. Bhandare, B. Datta and K. K. Manchanda for the Appellant.
A. N. Karkhanis for the Respondent.
The Judgement of the Court was delivered by
CHINNAPPA REDDY, J.-In respect of an extent of ten acres and
23 guntas of land in Survey No. 215 of Village Nathare, Haranax,
one Tukaram Patla Power was a protected tenant under the provisions
of the Bombay Tenancy Act, 1939, as amended by Act 26 of 1946.
The landlords, Vithal Kulkarni, Vasudeo Kulkarni
and
Krishnaji
Kulkarni gave a: notice to Tukaram on 8th March, 1948 under Section
7(1) of the Bombay Tenancy Act, 1939, alleging that they required
the land for their personal cultivation.
In December,
19~!8, the
Bombay Tenancy Act, 1939 was repealed and
replaced
by
the
Bombay Tenancy and Agricultural Lands Act (57 of 1948). Thereafter, on 25th April, 1949, the Kulkarni brothers filed Tenancy Case
No. 102 of 1949, before the Aval Karkun, to recover possession of the land from Tukariim.
The application was dismissed
by the AYal Karkuu on 29th August, 1949, but in Tenancy Appeal
No. 20 of 1950 filed by the landlords, the Collector of South Satara,
Sangli, by his order dated 9th May, 1950, directed that possession
of the land should be given to the Kulkarni brothers. The landlords
accordingly recovered possession of the land on 18th June,
1950.
Tukaram died on 31st August, 1951. On 18th April, 1961, Vasudeo
Kulkarni executed a deed of conditional sale in favour of Sopan Power
in respect of a joint 1/9th share in the land. It was recited in the deed
that possession was delivered to Sopan but that was disputed.
However, on 27th June, 1962, Sopan executed a deed of recoriveyance in
favour of Vasudeo Kulkarni. On 16th April, 1962, Vithal Kulka.mi
executed a deed of sale in respect of his 1/3rd share in the land in
favour of Bapu Bhan More and Vilas Ganpatl More. On 7th July,
1962, Tukaram's heirs filed Tenancy Case No. 87 of 1962 against the
Kulkarni brothers arid their alienees, under Section 3 7 and Sectioh
39 of the Bombay Tenancy and Agricultural Lands Act alleging that
the landlords had ceased to cultivate the lands personally
within
twelve years from the date of dispossession of the tenant (Tukaram)
and, therefore, they were entitled to recover possession of the land.
The Aval Karkun made an order in favour of Tukaram's heirs
on
26th November, 1963. The order was confirmed by the Special
Deputy Collector on 31st March 1964. The landlords
and their
alienees preferred Revision Applications before the Maharashtrll
Revenue Tribunal.
The Revenue Tribunal allowed
the
Revision
Applications on 27th October, 1964, and dismissed the application
of Tukare.m's heirs filed under Sections 37 and 39 of the Bombay
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v. D. KULKARNI v. s. T. POWER (Chinnappa Reddy, I.)
575
Tenancy and Agricultural Lands Act.
Tukaram's heirs invoked the
jurisdiction of the High Court under Article 226 of the Constitution.
The High Court of Bombay by its judgmeut dated 11th November,
1968 allowed the Writ Petition, quashed the order of the Tribunal
anj restored the order of the Aval Karkun as affirmed by the Special
Deputy Collector.
The three Kulkarni brother~, Bapu Bhau More
and Vilas Ganapati More, have preferred this appeal by special leave.
Shri M. C. Bhandare, learned Counsel for the appellants argued
that the right of a protected tenant whose tenancy had been determined
and who had been dispossessed of the land under Section 39 of the
Bombay Tenancy and Agricultural Lands Act was a right which was
personal to the tenant himself and, which could not for that reason be
exercised by the tenant's heirs.
He argued that whatever may be
the right of the heirs of a protected tenant dying subsequent to the
Amending Act of 1956, the heirs of a protected tenant who
died
before the commencement of the 1956
Amending Act had no right
to recover possession from the landlords.
He urged that there was
a substantial difference between Section 40 of the Bombay Tenanc)
and Agricultural Lands Act as it stood before and after the 1956
amendment. He submitted that the decision of the Full Bench of the
High Court of Bombay in Vasant Hariba
Londhe v.
Jagannath
Ramclzandra Kulkarni, U) applied to cases where the tenant died
after the Amending Act of 1956 and not before. Some other conten·
tions were also raised to which it is unnecessary to refer.
Shri A. N. Karkhanis, learned Counsel for the respondents,
who
presented the case of the respondents exteremely well, drew our attention to the provisions of the Bombay Tenancy Act and the Bombay
Tenancy and Agricultural Lands Act before and after it was amended in 1956.
He submitted that a comprehensive view of the provisions of the Act showed that the right given to the protected tenant
was heritable and, therefore, the heirs of Tukaram were entitled to
exercise the right given to the tenant under Section 37 of the Act.
He submitted that the position was not different even under Section
40 of the Bombay Tenancy and Agricultural Lands Act as it stoud
before the 1956 amendment.
He also advanced some other minor
contentions which we do not consider necessary to mention here.
The Bombay Tenancy Act, 1939 preceded the Bombay Tenancy
& Agricultural Lands Act, 1948.
Chapter III of the Bombay Tenancy
Act, 1939 (Section 13A to Section 26) dealt with tenants generally,
while Chapter II (Sections 3 to 13) of the Act dealt with a special
class of tenants described in the Act as protected tenants. Section 3
(I) 71 B.L.R. 12
17-253SC1/79
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SUPREME COURT REPORTS
[1979] 3 s.c.R.
classified a tenant as a protected tenant in respect of any land if he
had held such land continuously for a period of six years immediately
preceding 1st January 1938 to 1st January, 1945 and had cultivated
such land personally during the aforesaid period. Section 3A was
introduced by way of amendment in 1946 and it provided that every
tenant shall be deemed to be a pro\ected tenant for the purpose of the
Act, on the expiry of one year from the date of coming into force of
the amending Act.
Section 5 enumerated the rights and liabilities of
a protected tenant and it was expressly provided that the tenancy of
land held by a protected tenant shall not be terminated unless
the
tenant failed to pay the arrears of rent for a specified period or before
the specified date or had done any Act which was destructive or partly
injurious to the land or had sub-divided or sub-let the land or failed
to cultivate personally or had used the land for a purpose other than
agricultural.
Section 7 ( 1) invested the landlord with a special right
to determine protected tenancy by giving the protected tenant
one
year's notice in writing on the ground that he bonafide required the
land for the purpose of cultivating the land personally or for a nonagricultural purpose.
Section 7 (2) provided that if after taking possession of the land after the termination of the tenancy the landlord
faikd to use it for the purpose for which he had obtained possesshm
within one year from the date on which he took possession or ceased
to use it for that purpose at any time within twelve years from the
date on which he took possession, the landlord shall restore possession
of the land to the tenant whose tenancy was terminated: by him unless
the tenant had refused iri writing to accept the tenancy on the same
terms and conditions as before or that the tenant, on an offer being
made to him in writing, had failed to accept the offer within three
months of the receipt thereof. Explanation II to Section 7 provided
"For the purposes of this Section a tenant shall include his heir as
specified in sub-section (3) of Section 9''.
Section 9(3) specified that
the lineal male descendants of a protected tenant or his adopted son,
or, in absence of any lineal male descendant or an adopted son, his
widow shall be deemed to be his heirs for the purposes of this section.
Section 9 (1) provided that if a protected tenant died, the landlord
should continue the tenancy on the same terms and conditions on which
the protected tenant was holding it at the time of his death to such
one of his heirs who, within four months of the death of such tena:~t,,
gave notice in writing to the landlord that he is willing to hold the
land on such terms and conditions.
The Bombay Tenancy Act, 1939, was repealed and replaced by
the Bombay Tenancy and Agricultural Lands Act, 1948. Chapter II
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v. D. KULKARNI v. s. T. POWER (Chinnappa Reddy, J.)
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of the Act (Section 3 to Section 30) contained 'General provisions regarding Tenancies' while Chapter III (Section 31 to Section 43) dealt
with 'Protected tenants, their special rights and privileges'. 'Tenant'
was defined to mean an Agriculturist who held the land on lease and
to include a person who was deemed to be a tenant under the provisions
of the Act.
'Protected tenant' was defined to mean a protected t~nant
under Section 31 of the Act.
Section 5 prescribed that no tenancy of
any land shall be for a period of less than ten years and further provided that at the end of the said period and thereafter at the end of
ten years, in succession, the tenancy shall, subject to the provisions
of sub-section (2) and (3), be deemed to be renewed for a further
period of ten years on the same terms and conditions, notwithstand:
ing any agreement to the contrary. Section 5(3) provided that a tenancy was liable to be terminated on any of the grounds mentioned in
Section 14. Section 5(2) further empowered the landlord to terminate the tenancy by giving the tenant one year's notice in writing if he
bonafide required the land for any of the purposes specified in Section
34(1 ). Section 14 enumerated certain general grounds which entitled
a landlord to terminate the tenancy, such as non payment of rent within
the prescribed period, doing of an act which was destructive or permanently injurious to the land, division of the land in contravention
of Section 27, sub-letting, failure to cultivate personally and use of
land for a pnrpose other than agricu_Iture.
Section 31 declared as
protceted tenants persons ·who were deemed to be protected tenants
under Sections 3, 3A or 4 of the Bombay Tenancy Act, 1939. Section 3 2 clothed the protected tenant with the right to purchase from
the landlord the land held by him as a protected tenant.
Section
34(1) gave to the landlord a special right to terminate the tenancy of
a protected tenant by giving him one year's notice in writing that he
required the land for cultivating personally or for any non agricultural
use for his own purpose. Section 34(1) of the Bombay Tenancy and
Agricultural Lands Act, 1948, corresponded to section 7(1) of the
Bombay Tenancy Act, 1939. Section 37 of the 1948 Act provided
that if after taking possession of the land after terminating the tenancy
under Section 34 ( 1) , the landlord failed to use it for the purpose for
which he had obtained possession within one year from the date on
which he took possession or ceased to use it for that purpose at any
time within twelve years from the date on which he took possession
the landlord shall restore possession to the tenant whose tenancy was
terminated by him unless he obtained from the tenant his refusal in:
writing to accept the tenancy on the same terms and conditions or the
tenant had failed to accept the offer made by him in writing to give
possession of the land on the same terms and conditions.
Section
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SUPREME COURT REPORTS
[1979] 3 S.C.Et.
37(1) of the 1948 Act corresponded to Section 7(2) of the 1939 Act.
One noticeable feature in the 1948 Act was that there was no provision
corresponding to Explanation II to Section 7 of the 1939 Act which:
declared that for the purposes of Section 7 a tenant shall include his
heir as specified in Section 9 (3) of that Act.
This was a significartt
omission.
Section 39 of the 1948 Act enabled the tenant to make an
application where th(l landlord failed to comply with the provisions
of Section 37. Section 40 provided that if a protected tenant died the
landlord shall offer to continue the tenancy on the same terms on
which such tenant was holding it at the time of his death to the heir
or heirs cf the deceased tenant. The Explanation to Section 40 de1:-
Jared that for the purposes of the Section, an heir meant the line:il
male descendants of a tenant or his adopted son and failing ooth, his
widow.
Section 40 of the 1948 Act replaced Section 9 of the 1939
Act though not in the same terms.
The 1948 Act underwent some substantial amendments in 1956.
'Tenant' under the Amended Act was defined to include a protected
tenant and the provisions relating to the special rights and privileg1is.
of the protected tenants contained in Chapter III of the Act were
extended to all tenants.
Instead of providing as Section 5 of the unamended Act did, that no tenancy shall be for a period of less th2n
ten years, and for renewal of the tenancy for ten year periods thereafter, Section 4B of the amended Act provided that no tenancy of any
land shall be terminated merely on the ground that the period fixed
by the agreement or usage had expired. Section 31 of the 1948 Act
as it stood originally was repealed and replaced by a new Section
31 which substantially enacted the provisions of Section 34 of the Act
as it stood before the amendment.
What was Section 37 of the Act
before amendment continued to be Section 37 after the amendment.
Section 40 was amended and it was declared that on the death of a
tenant, the landlord shall be deemed to have continued the tenancy on
the same terms and conditions on which such tenant was holding it at
the time of his death to such heir or heirs of the deceased tenant as
may be willing to continue the tenancy.
In this appeal we are concerned with Section 40 as it stood before it was amended in 19 5 6.
In order to understand the real controversy between ihe parties it is
necessary to extract here Section 40 both as it stood before and after
the 1956 amendment. Before the 1956 amendment Section 40 was
as follows:
"If a protected tenant dies, the landlord shall offer to
continue the tenancy on the same terms and conditions on
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v. D. KULKARNI v. s. T. POWER (Chinnappa Reddy, J.)
579
which such tenant was holding it at the time of his death to
the heir or heirs of the deceased tenant :
Provided that the offer required to be made by the landlord under this section shall be made in writing :
,,,
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Provided further that if any heirs of the deceased tenant
do not agree to continue the tenancy on the same terms and
·conditions on which the deceased protected tenant was holding the land, the Collector may select an heir or heirs who
is or are willing to continue the tenancy on the same terms
and conditions.
The decision of the Collector shall be final.
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Explanation :-For the purposes of this section, an heir
means the lineal male descendants of a tenant or his adopted
son and failing both his widow who has not remarried".
Section 40 as it stood after the 1956 amendment is as follows :
" ( 1) Where a tenant (other than a permanent tenant)
dies, the landlord shall be deemed to have continued the
temincy on the same terms and conditions on which such
tenant was holding it at the time of his death, to such heir
or heirs of the deceased tenant as may be willing to continue
the tenancy.
(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 profits of such land".
The question for consideration is whether the heirs of a tenant
whose tenancy was terminated by the landlord on the ground that he
required the land for his personal cultivation were entitled to exercise
the right which the tenant would have, if alive, to obtain possession
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within twelve years after he obtained possession, in other words,
whether the right of the tenant to have the possession of the land
restored on the failure of the landlord to cultivate the land personally
at any time during the twelve years subsequent to his obtaining possession was a heritable right. The position was clear under the Bombay
Tenancy Act, 1939. Explanation II to Section 7 of that Act expressly
provided that for the purposes of the Section a tenant included his
heirs, as specified in Section 9(3). The position under the Bombay
Tenancy and Agricultural Lands Act, 1948, after it was amended in
1956 is also quite clear.
Section 4B and Section 40 show that the
tenancy under the Act is heritable.
As already mentioned, while
Section 4B provides for the continuation of the tenancy even after
the expiry of the period fixed by the agreement or usage, Section 40
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expressly provides for the continuation of the tenancy on the death
of. the tenant, the heirs of the tenant stepping into the position of the
tenant.
Once it is round that the tenancy is heritable it follows that
the right given to the tenant under Section 37(1) may be exercised
by the heirs of the tenant also.
A Full Bench of the High Court of
Bombay in Vasant Hariba Londhe v. Jagannath Ramchandra Ku/c
karni(') came to the same conclusion, Kotwal, C.J. observed:
"Section 40(1) provides that where a tenant other than
a permanent tenant dies, the landlord shall be deemed to
have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his
death, to such heir or heirs o! the deceased tenant as may
be willing to continue the tenancy. It will be noticed that
prior to the amendment of the Tenancy Act by the Bombay
Act XIII of 1956 this section was worded thus "If a pro-
. tected tenant dies, the landlord shall offer to continue the
tenancy on the same terms and conditions on which such
tenant was holding it at the time of his death to the heir or
heirs of the deceased tenant .... " The expression used in
the old S.40 was "offer to continue the tenancy" and there
was no indication whatever as to what was to happen if the
offer was not made but by the amendment made by the
Amending Act XIII of 1956, sub-s. (!) was wholly re-cast
and now there is no question of the landlord merely making
an offer to the tenant to continue the tenancy on the same
terms and conditions, but on the other hand, the section
provides that "the landlord shall be deemed to have continued
the tenancy on the same terms and conditions". The amendment, therefore, meets precisely the argument that is here
advanced that the heir succeeding to the erstwhile tenant does
not continue as a tenant on the same terms and conditions.
Besides, the new section introduced a fiction by the use of
the words "deemed to have continued the tenancy" and therefore, whatever may have been the position prior to the
amendment, s.40 as it now sta~ds after the Amending Act
XIII of 1956 automatically confers on the heir a tenancy on
the same terms and conditions as were applicable to the
deceased tenant".
..,
The learned Chief Justice then referred to the decisions in Bai Jamna
v. Bai Dhani(') and Thakorelal v. Gujarat Revenue Tribunal(•) andt
(1) 71 B.L.R. 12.
(2) 61 Born. LR. 419
(3) A.I.R. 1964 Gujarat 183
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V. D. KULKARNI v. s. T. POWER (Chinnappa Reddy, J.)
581
distinguished the two cases on the ground that on the date on which
the death of the tenant took place in thos'e cases Section 40 as amended
in 1956 had not come into force, whereas, in the case before the Full
Bench the tenant had died after Section 40 was amended in 1956. In
the case now before us, however, the death of the tenant took place
before the Bombay Tenancy and Agricultural Lands Act was amended
in 1956.
We have already extracted Section 40 before and after it
was amended in 1956.
The contrast is
apparent.
While under
the amended Section 40 the heirs of the tenant were automatically
deemed to succeed to the tenancy there was no such "deeming" before
the 1956 amendment. The landlord was merely required to make an
offer and it was not stipulated what would happen if he did not make
the offer. Where the landlord had obtained possession of the land
under Section 34 for cultivating the land presonally, there could be no
question of making an offer to continue the tenancy since such an offer
would be an exercise in futility.
There was also the significant circum·
stance that the 1948 Act (before it was amended in 1956) contained
no provision corresponding to Explanation II to Section 7 of the 1939
Act.
The only reasonable conclusion, therefore, is that under the
provisions of th!! Bombay Tenancy and Agricultural Land's Act, 1948,
as it stood before it was amended in 1956, the right of a tenant to
recover possession of land from a landlord who had obtained posses·
sion of such land on the ground 'that he required it to cultivate it
personally was not a heritable right.
Shri Karkhanis, learned Counsel for the respondents relied on the
decision of this Court in Damadilal & Ors. v. Parashram & Ors. ( ')
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and argued that a statutory tenancy was heritable like a contractual
tenancy.
This Court did not lay down the wide proposition that every
statutory tenancy was heritable but the Court did quite definitely lay
F
down that it would be wrong to import the notions of English law
relating to "statutory tenancy" and on that basis to hold that it was
not transferable or heritable. It was observed by A. C. Gupta, J., as
follows :
"We find it difficult to appreciate how in this
country
we can proceed on the basis that a tenant whose contractual
tenancy has determined but who is protected against eviction
by the statute, has no right of property but only a personal
right to remain in occupation, without ascertaining what hi~
rights are under the statute.
The concept of a
statutory
tenant having no estate or property in the premises which he
occupies is derived from the provisions of the English Rent
(l l AIR 1976 S.C. 2229 at 2234
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582
SUPREME COURT REPORTS
(1979] 3 s.c.R.
Acts. But it is not clear how it can be assumed that the position is the same in this country without any reference to tht:
provisions of the relevant statute.
Tenancy has its origin
in contract.
There is no dispute that a contractual tenant
has an estate or property in the subject-matter of the tenancy,
and heritability is an incident of the tenancy. It cannot be
assumed, however, that with the determination of the tenancy
the estate mnst necessarily disappear and the statute can
only preserve his status of irremovability and not the estate
he had in the premises in his occupation. It is not possible
to claim that the "sanctity" of contract cannot be touched
by legislation.
It is therefore necessary
to examine the
provisions of the Madhya Pradesh Accommodation Control
Act, 1961 to find ant whether the respondents' predecessors in interest retained a heritable interest in the disputed
premises even after the termination of their tenancy."
The learned Judge thereafter referred to the definition of tenant in
the Madhya Pradesh Act and held that the definition made a person
continuing in possession after the determination of his tenancy a tenant, unless a decree or order for eviction had been made against
him, thus putting him at par with. a person whose contractual tenancy
still subsisted. It was observed that the incidents of such tenancy
and the contractual tenancy had to be the same in the absence of a
contrary intention conveyed by any provision of the Act. It was
further observed that the so called statutory tenant had, under Section
14 of the Madhya Pradesh Act, the right to sublet in common with
the contractual tenant and,
therefore, he must be said to have an
interest in the premi~es occupied by him.
Thus the question whether a tenancy other than a contractual tenancy has any or all the incidents of a contractual tenancy has to be
decided with reference to the provisions of the
particular statute.
Though Section 5 of the Bombay Tenancy and
Agricultural Lands
Act as it stood before it was amended in 1956, did indicate by providing that notwithstanding any agreement to the contrary the minimum
period of a tenancy shall be ten years renewable thereafter for successive periods of ten years, that the tenancy was heritable, the indication
was definitely to the contrary when it came to the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate the land personally.
Our conclusion regarding the
non-heritability of this right rests solely on our understanding of Section 40 of the Bombay Tenancy and
Agricultural Lands Act as it
•
I
v. D. KULKARNI v. s. T. POWER (Chinnappa Reddy, 1.)
5 8 3
stood before it was amended in 1956, in relation to the right under
Section 37. Nothing that we have said should be understood as indicating that any other right of a tenant or this very right after the 1956
amendment is not heritable.
Shri Karkhanis argued that having regard to the position that
obtained both under the Bombay Tenancy Act and under the Bombay
Tenancy and Agricultural Lands Act after the 1956 amendment, we
'should so interpret Section 40 as to make the right under Section 37
heritable. We are unable to do so in view of the language of Section
40 before it was amended in 1956. In the result we allow the appeal,
set aside the judgment of the High Court and restore the decision of
the Maharashtra Revenue Tribunal. In the circumstances of the case
there will be no order regarding costs.
N.V.K.
Appeal allowed.
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