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Expression “Assignment” to include Testamentary Disposition under S.43 of Bombay Tenancy Act: SC

Expression “Assignment” to include Testamentary Disposition under Section 43 of Bombay Tenancy and Agricultural Lands Act, 1948: SC

Vinodchandra Sakarlal Kapadia v. State of Gujrat and Ors.

Civil appeal No.2573 of 2020 (Arising out of Special Leave Petition (Civil) No.18525 of 2009)

Decided on June 15, 2020.

Counsel for Appellants: Mr. Sanjay Parikh & Mr. Raghavendra S. Srivatsa.

Counsel for Respondents: Mr. Aniruddha P. Mayee.

A Three-Judge Bench of the Supreme Court consisting of Justice Uday Umesh Lalit, Justice Indu Malhotra and Justice A.S. Bopanna has dismissed the appeal by stating Testamentary Disposition by Will to a Non-agriculturist will be void in matters of Agricultural Land under Bombay Tenancy and Agricultural Lands, Act, 1948.

The Appellant herein purporting to bequeath the said land. Upon the demise of Samubhai on 02.02.1991, who had transferred the suit land to him through a Will. Samubhai had executed a registered Will on 24.01.1991 in favour of Vinodchandra Sakarlal Kapadia, the Appellant. The Revenue Authorities however found that the Appellant was not an agriculturist and accordingly proceedings under Section 84C of the Act were registered and notice was issued to the Appellant. All the concerned parties appeared in the proceedings and the legal heirs of deceased Samubhai submitted that they had no objection if the land was given to the Appellant in terms of the Will. After hearing the Appellant, the Additional Mamlatdar by his order dated 04.03.1996 in Vinodchandra Sakarlal Kapadia vs State Of Gujarat. on 15 June, 2020 Tenancy Case No. 78/95 found that the disposal by way of a Will in favour of the Appellant was invalid and contrary to the principles of Section 63 of the Act and therefore declared that the said land vested in the State without any encumbrances. The order passed by the Additional Mamlatdar was affirmed in Tenancy Appeal No.20/1996 by Deputy Collector, Land Development, Surat. The matter was carried further by way of Revision Application No.TEN.B.S.94 of 1996 before Gujarat Revenue Tribunal. The Tribunal thus allowed the Revision and quashed the orders passed by the Additional Mamlatdar and the Deputy Collector.

The appeal arose out of the judgement passed by the Division Bench of the High Court of Gujarat at Ahmedabad in Special Civil Application No.25058 of 2006 and all other Civil Appeal No.2573 of 2020 etc. (arising out of SLP (C) No.18525 of 2009 etc.) Vinodchandra Sakarlal Kapadia etc. vs. State of Gujarat and Ors. Etc. connected matters while answering the questions referred to it by a Single Judge of the High Court. The questions in consideration and the circumstances in which the matters were referred to it were set out by the Division Bench as under:

  1. Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 debars an agriculturist from parting with his agricultural land to a non-agriculturist through a “Will”.

  2. Whether Section 43(1) of the Tenancy Act restricts the transfer of any land or interest purchased by the tenant under Sections 17B, 32,32F. 321. 320, 32U, 33(1) or 88E or sold to any person under Section 32P or 64 of the Tenancy Act through the execution of a Will by way of testamentary disposition.

  3. Should any prohibition in the State enactment inconsistent with the principles emanating from the Central legislation be held void?

Learned Counsel for the Appellant Mr. Srivatsa argued that (i) since transfer by will is not specifically mentioned in the Sec 63 of Bombay Tenancy Act, the property should be rightfully transferred to the appellant. Also, the legal heirs of deceased Samubhai submitted that they had no objection if the land was given to the Appellant in terms of the Will. (ii) the expression ‘assignment’ does not even appear in Section 63. (iii) the concept of succession, whether testamentary or intestate, being part of Entry 5 of List III of Seventh Schedule to the Constitution should fall under the Indian Succession Act, 1925.

Mr. Mayee, learned Counsel for the State has submitted that (i) the basic intent behind the conferral of ownership rights upon a cultivating tenant was to see that the actual tillers and cultivators must be protected and given the ownership rights upon payment of nominal charges. The avowed objective of the Act is to preserve agricultural lands in the hands of actual tillers, and not to let concentration of holdings in a few hands. (ii) Section 63 of the Act gives indications that a transfer to a non-agriculturist is not permissible. (iii) testamentary disposition which violated these basic norms ought not to be allowed and, therefore, the view taken by the Division Bench is correct.

This court agreed with the ratio laid down in the case Shamjibhai Keshavjibhai Kansagra (Patel) & Ors. V.Principal Secretary, Revenue Dept. (Appeals) & Ors, AIR 2011 Gujarat 55, and was of the view that if the transfer of agricultural land to a non-agriculturist is barred inter vivos then how can the testator be allowed to do so after his death, as it would very much destroy the purpose of the provisions made in Sec 63 of the Bombay Tenancy Act, viz. to ensure that agricultural land remains amongst farmers and agro-workers for the land to be always being cultivated by the tillers.

Sec 43 states the restrictions on the transfer of land by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment. So the term Assignment was vague enough to include wills under it.

To answer the 3rd issue this court referred to Burrakur Coal Co. Ltd. v. Union of India (AIR p. 963) and held that if the validity of a law made by a competent legislature is challenged in a court of law that court is bound to presume in favour of its validity. Also, the court will not consider itself restricted to the pleadings of the State and would be free to satisfy itself whether under any provision of the Constitution the law can be sustained.

This court while concluding the judgment stated the following:

If the provisions referred to in Section 43 of the Act and allied provisions are considered in light of the settled principles extracted earlier, it emerges that the primary concern of those provisions is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure a direct relationship of a tiller with the land. The provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. The prohibition against transfers of holding without the previous sanction of the concerned authorities is to be seen in that light as furthering the cause of legislation. Even if by the process of construction, the expression “assignment” is construed to include testamentary disposition, in keeping with the settled principles, the incidental encroachment cannot render the said provisions invalid. In pith and substance, the legislation and the concerned provisions are completely within the competence of the State Legislature and by placing the construction upon the expression “assignment” to include testamentary disposition, no transgression will ensue. (Para 31).

The court hence held that the view taken by the Division Bench of the High Court of Guajrat in the present matter and the judgments in Sangappa Kalyanappa Bangi AIR 1998 SC 3229 in and Jayamma vs. Maria Bai AIR 2004 SCW 4412 are intra vires. Hence, the appeal was dismissed along with the others.

Risikesh Dhanaki



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