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PETITIONER:

DADU RAU YELAVADE (DEAD) BY HIS HEIRS AND LRS.

Vs.

RESPONDENT:

HIMMAT RASUL PATEL

DATE OF JUDGMENT10/03/1992

BENCH:

RANGNATHAN, S.

BENCH:

RANGNATHAN, S.

RAMASWAMI, V. (J) II

YOGESHWAR DAYAL (J)

CITATION:

1992 AIR 1093 1992 SCR (2) 101

1992 SCC (2) 573 JT 1992 (3) 394

1992 SCALE (1)613

ACT:

Bombay Tenancy and Agricultural Lands Act,

1948-Sections 32, 32G 32M, 43, 64(8)-Transfer of land by

landlord after tiller's day-Void-Sale by landlord-

Ratification-Effect-Vesting of title on tenants on

21.12.1969-Sale of share by a co-tenant on 11.5.1966-Validity of.

HEADNOTE:

The landlord, Prabhu's lands measuring 3 acres 25

gunthas were under the cultivation of rau, the tenant-

appellant.

The landlord u/s. 31 read with section 29 of the Bombay

Tenancy and Agricultural Lands Act, 1943 instituted a

proceeding against the tenant.

During the pendency of the proceeding Rau died and his

tenancy rights were inherited by his four sons, the present

appellants.

The landlord on 27.4.1961 decided to sell the suit land

to the fourth son of the demised tenant, who effected a

partition of the property.

On 24.5.1961, the proceeding u/ss.29, 31 of the Act was

dismissed.

Mahadu, one of the sons of Rau, sold his share in the

suit land in favour of the respondent on 11.5.1966 by a

registered deed.

In 1969, the Tahsildar initiated proceedings u/s. 32G

of the Act, and on 21.12.1969 by his order he declared the

fourth son of Rau as the purchaser and also directed that a

certificate u/s. 32 M read with section 43 of the Act should

be issued to the tenants. He also held that the sale

effected by Mahadu in favour of the respondent was contrary

to law and directed the removal of the respondent's name

from the revenue records.

In the meanwhile one of the sons of Rau instituted a

suit against the respondent for an injunction restraining

him from obstructing his possession of the property. The

respondent contested the suit contending that he,

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being the purchaser of Mahadu's share, was entitled to

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remain in possession as a co-owner along with the plaintiff.

The Civil Court u/s. 85 of the Act referred two issues

for determination of the tenancy authorities, which were:-

"(1) Was the plaintiff a tenant of the suit-

property and did he subsequently become its deemed

purchaser ?

(2) Was the sale deed by Mahadu to Patel

(respondent) invalid under Act?"

The Tahsildar answered both questions in

affirmative.

In appeal, the findings of the Tahsildar, that the

plaintiff was the deemed purchaser of the land on 1.4.1959

and that the transfer by Mahadu in favour of the respondent

was hit by the provisions of section 43 of the Act, were

confirmed.

Respondent's revision was allowed by the Revenue

Tribunal, holding at the sale by Mahadu in favour of

respondent was not invalid; that the ons of Rau were deemed

purchasers only on 24.5.1961 and became actual purchaser

only on 21.12.1969, when the sale in their favour was

regularised u/s. 32M of the Act.

The High Court dismissed the revision petition filed

under Article 227 of the Constitution by the appellants,

holding that section 64 did not prohibit the landlord from

selling his land to the tenants by private agreements; that

the ownership rights of the tenants were acquired not u/s.

32 of the Act but by virtue of a sale between the landlord

and the tenants;that since the sale was not one u/s.32,

provision of section 43 of the Act were not attracted; and

that the tenants became owners not on 24.5.1961 but on

27.4.1961.

Against the order of the High Court by special leave,

the present appeal was preferred by the tenants.

The appellants-tenants-plaintiffs contended that the

High Court erred in holding that the sale in favour of the

appellants-tenants was not affected by section 64 of the

Act.

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Disposing of the appeal on the question, whether by the

sale deed dated 11.5.66 any valid title to the suit land was

conferred upon the respondent the Court

HELD : 1.01. The High Court has over-looked the clear

provisions of section 64(8), which declare that any transfer

by a landlord after tiller's day would be void. The tenants

could not, therefore, have acquired any rights or title

under the sale deed executed by the landlord. [107H-108]

1.02. Though the order under section 32-G purports to

ratify the earlier transaction of sale by the landlord to

the tenants, the transaction acquires its validity not by

virtue of the sale deed of 27.4.1961 but only by virtue of

the order under section 32-M dated 21.12.1969. [108B]

1.03. On 11.5.1966 - the date of the sale to the

respondent - the tenants (including Mahadu) had no title to

the property which they could validly convey in favour of

thr respondent. That title vested in them only on

21.12.1969, when the order under section 32G was passed.

This being so, the logic that the transfer in favour of the

respondent was not of property acquired under section 32 but

of a property acquired by a voluntary process is not

correct. [108B-C]

1.04. On the date of the sale deed in favour of the

respondent, the vendor had no tittle to the land in view of

the provision of section 64(8). Even if the subsequent

conferment of title on them by the order under section 32G

be treated to date back to 24.5.61, still Mahadu, being a

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tenant who acquired title under the Act, his sale to the

respondent will fail in view of the of section 43(2) of the

Act. [1980D]

1.05. The question referred to the tenancy courts by

the civil court are answered accordingly by saying that the

sale deed by Mahadu in favour of the respondent is invalid

under the provision of the Act. The High Court erred in

upholding the order of the Revenue Tribunal. [108F-G]

JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2407(N)

of 1979.

From the Judgment and Order dated 20.9.1978 of the

Bombay High Court in S.C.A. No. 993 of 1974.

V.N.Ganpule, Ashok K. Singh, Ms. Punam Kumari and Ms.

H. Wahi,

104

before the Appellants.

S.V. Deshpande for the Respondent.

The Judtgment of the Court was delivered by

RANGANATHAN, J. This is an appeal from a judgement of

the Bombay High Court dismissing a petition filed by Dadu

Rau Yelavade (now represented by his legal representatives)

under Article 227 of the Constitution of India.

One Anant Gopal Prabhu (`Prabhu' for short) was the

owner of 3 acres 25 gunthas of land bearing Survey No. 54 in

village Ingali in Hatakanangale Taluka of Kolhapur

district. The lands were under the cultivation of one Rau,

who was the father of the petitioner before the High Court.

The landlord instituted proceedings under section 31 read

with section 29 of the Bombay Tenancy and Agricultural Lands

Act, 1948 (hereinafter called `the Act' against the tenant

Rau. During the pendency of these proceedings, Rau died and

his tenancy rights were inherited by his four sons, Dadu

(predecessor of the present appellants), Mahadu, Ganpati and

Shripati. These proceedings came to an end eventually by an

order dated 24.5.1961, on which date the petition under

section 29 read with section 31 was dismissed.

Subsequently, proceedings were initiated by The Tahsildar

under section 32G of the Tenancy Act. This was sometime in

1969 and will be referred to later. In the meantime, on

27.4.1961, the landlord Prabhu had decided to sell the suit

land to the fourth son of Rau, who effected a partition of

the property and Mahadu, one of the other sons of Rau, sold

his share in the suit land in favour of the present

respondent Patel by registered document dated May 11,1966.

In view of this, the proceedings under section 32G,

initiated by the Tahsildar, came to an end with and order of

the Tahsildar declaring the fourth son of Rau as the

purchaser. His order was passed on 21.12.1969. After

discussing the questions whether the tenants were in lawful

possession of the suit land, whether they were entitled to

purchase the suit land and whether the purchase price fixed

in the voluntary sale between Prabhu and Rau's fourth son

was reasonable and whether the sale effected between the

landlord and tenants could be regularised, the Tahsildar

decided to regularise the purchase of the suit land by the

tenants, and directed that a certificate under section 32M

read with section 43 of the Act should be issued to the

tenants Dadu Rau and his brothers. In the course of his

order, he also discussed

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the alleged sale in respect of Patel, on whom notice had

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been served and who had participated in the proceedings. He

came to the conclusion that the sale effected by Mahadu in

favour of Patel, being contrary to law, was illegal and

directed that his name should be removed from the revenue

records.

In the meanwhile, the petitioner, one of the sons of

Rau, had instituted a suit against Patel for an injunction

restraining him from obstructing his possession of the

property, Patel resisted the suit claiming to be the

purchaser of share of Mahadu and, therefore, entitled to

remain in possession as a co-owner alongwith the petitioner.

In view of the rival contentions of the parties, the civil

court referred the following two issues for determination of

the tenancy authorities as contemplated by provisions of

section 85A of the Act :

(1) Was the plaintiff a tenant of the suit property

and did he subsequently become its deemed purchaser

?

(2) Is the sale deed by Mahadu to Patel invalid

under the Act?

In the proceedings before the revenue authorities, the

Tahsildar answered both questions in the affirmative. He

held that the plaintiff were the deemed purchasers of the

land on 1.4.1959 and he also came to the conclusion that the

transfer by Mahadu in favour of Patel was hit by the

provisions of section 43 of the Tenancy Act. According to

him, therefore, Patel had no right of title to the portion

of the land in suit which Mahadu had sold him. This order

was confirmed in appeal, on 23.10.71, by the Assistant

Collector.

Patel thereupon filed a revision before the Revenue

Tribunal which set aside the order of the authorities below

and held that the sale deed by Mahadu in favour of

respondent no.1 was not invalid under the provision of the

Act. The Revenue Tribunal agreed that the sons of Rau

became deemed purchasers only on 24.5.1961 and became actual

purchasers only on 21.12.1969 when the sale in their favour

was regularised under s.32M of the Act. However, in regard

to the sale by Mahadu, it observed:

"But, the important point to be gone into in this

case is, whether the sale of such a land by Mahadu,

one of the owners of deceased Rau, to Himmat was

hit by the provision of section

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43 of the Act. It is nobody's case that the sale

to Himmat by Mahadu was after 21.12.69. According

to Himmat, it is on 11.5.66. This is not

challenged. It will be thus seen that this sale to

Himmat, of his share in the suit land by Mahadu is

dated 11.5.66 long before Mahadu and his brothers

came to be regarded as purchasers under section 32

of the Act. Section 43 of the Act, according to me,

applied to transfers subsequently effected by

purchasers under sections 32, 32-F, 31-I, 32o, 33C

or 41-D. Similarly, restriction contained in sec.

43-G of the Act, applied to transfers by persons,

after the land was sold to them under section 32-P

or 64 of the Act. In this case, it is clear that

while selling his share in the property, Mahadu was

not a landlord intending to sell the tenanted land.

So a sale by him to Himmat could not be said to be

a sale in contravention of section 64 of the Act.

The point, whether Himmat Patel was an

agriculturist or non-agriculturist or whether he

was or was not an agriculturist labourer is not

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enquired into even if it is held for some time,

that he was a person to whom the land could not be

sold under section 63 of the Act. But Mahadu

ventured to do so. The sale by Mahadu would be at

the most hit by section 63 of the Act. This

section (43 of the Act) does not mention section 63

of the Act. Therefore, it is not possible to

uphold the findings of the first two Courts with

regard to the transfer of a portion of land by

Mahadu to Himmat Patel. This sale effected in

favour of Himmat Patel by Mahadu in 1966 is of date

prior to Mahadu, and his brothers came to be

regarded as purchasers of the land under section 32

of the Act.

We have seen that originally the sale in favour of

Rau's sons by Prabhu was in contravention of

section 64 of the Act. But such sale is not

covered by section 43 of the Act. This view can be

fortified by following in Special C.A.605 of 61

referred to on page 179 of Tenancy Law Digest

(reported and un-reported cases_) by Gadgil, 1965.

It is observed that to such a sale even, section 43

of the Act does not apply. Such a sale, even if it

is validated under provision to section 84(2) can

not be regarded as a sale under section 64 of the

Act. Where a sale is made in favour of a tenant by

the landlord in contravention of section 64, it may

be regularised by the Mamlatdar. Where the same

107

is sold by the tenant to some other person, such a

sale is valid and is not affected by provisions of

section 43 of the Act."

In this view of the matter, the Revenue Tribunal

answered the questions referred by saying (a) that the

plaintiff and his brothers had become deemed purchasers on

the postponed day under the Act and (b) that the sale deed

by Mahadu in favour of Patel was not invalid.

The present appellants preferred a petition under

Article 227 of the Constitution. The High Court endorsed

the conclusion of the Revenue Tribunal but on a ground

somewhat different from the one on which the Tribunal

allowed the revision petition. It was pointed out that the

Revenue Tribunal had proceeded on the footing that the

tenants (including Mahadu) had become purchasers of the suit

land under the provisions of section 32 of the Tenancy Act on

May 24, 1961 when proceedings under section 31 came to an

end. But this ingnored the fact that, during the pendency

of the proceedings under sections 29 and 31 of the Act, the

landlord and tenants by a private agreement had transferred

the ownership of the property in favour of the tenants on

27.4.1961. The tenants, therefore, became owners not on

24.5.61 but on 27.4.61. Section 64 did not, in the opinion

of the Court, prohibit the landlord from selling his land to

the tenants by a private agreement. It only required the

owner, in case he desired to sell, to have a reasonable

price fixed therefore by moving the Land Tribunal. This

being so, the ownership rights of the tenants had been

acquired not under the provisions of section 32 of the Act

but by virtue of a sale between the landlord and the

tenants. Since the transfer in favour of the tenants was

not one under section 32, the provisions of section 43 of

the Act were not attracted by the sale of 11.5.1966. In this

view of the matter, the revision petition before the High

Court was also dismissed.

Dadu Rau is in appeal from the order of the High Court.

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Though the proceedings have had a chequered history, the

issue before us is a very simple one : Does the sale by

Mahadu to Patel on 11.5.66 confer on the latter any valid

title to the land in question ? The High Court has answered

this question in the affirmative by upholding the sale by

Prabhu to his tenants on 27.4.61. Sri Ganpule argues, and

rightly in our opinion, that the High Court erred in

holding that the sale in favour of the tenants was not

affected by section 64 of the Act. The High Court has over-

looked the clear provisions of section 64(8), which declare

that any transfer by a landlord

108

after tiller's day would be void. The tenants could not,

therefore, have acquired any right or title under the sale

deed executed by the landlords. It is no doubt true that

ultimately the proceedings under section 32-G went in their

favour and the sale certificates issued in their favour was

regularised. Though the order under section 32-G purports

to ratify the earlier transaction of sale by the landlord to

the tenants, the transaction acquires its validity not by

virtue of the sale deed of 27.4.1961 but only by virtue of

the order under section 32-M dated 21.12.1969. On

11.5.1966,- the date of the sale to Patel presently impugned

- the tenants (including Mahadu) had no title to the

property which they could validly convey in favour of Patel.

That title vested in them only on 21,12,1969, when the order

under section 32G was passed. This being so, the logic of

the Tribunal and High Court that the transfer in favour of

Patel was not of property acquired under section 32 but of a

property acquired by a voluntary process is not correct. As

we have already pointed out, on the date of the sale deed in

favour of patel, the vendor had no title to the land in view

of the provisions of section 64(8). Even if the subsequent

conferment of title on them by the order under section 32G

be treated to date back to 24,5,61, still Mahadu, being a

tenant who acquired title under the Act, his sale to Patel

will fail in view of the provisions of section 43(2) of the

Act. We may indeed point out that this decision had already

been given by the revenue authorities in the order dated

21.12.1969. There is a reference in the order of the

Assistant Collector to an appeal claimed to have been

preferred by Patel from this order but we are informed that

no such appeal was filed or is pending. But this

circumstance apart, Patel's claim cannot be upheld for the

reasons given above.

We are, therefore, of the opinion that the High court

erred in upholding the order of the Revenue Tribunal. The

orders of the High Court and the Revenue Tribunal are

therefore set aside and the order of the lower revenue

authorities restored. The questions referred to the tenancy

courts by the civil court have to be answered accordingly by

saying that the sale deed by Mahadu in favour of Patel is

invalid under the provisions of the Act. The appeal is

disposed of accordingly and the matter will go back to the

civil court for the disposal of the civil suit filed before

it in the light of the answers given to the referred

questions set out above. In the circumstances of the case

we make no order regarding costs.

V.P.R. Appeal disposed of.

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