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TMI Blog1979 (3) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... Karkun, to recover possession of the land from Tukaram. The application was dismissed by the Aval Karkun 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 reconveyance in favour of Vasudeo Kulkarni. On 16th April, 1962, Vithal Kulkarni executed a deed of sale in respect of his 1/3rd share in the land in favour of Bapu Bhau More and Vilas Ganpati More. On 7th July, 1962, Tukaram's heirs filed Tenancy Case No. 87 of 1962 against the Kulkarni brothers and their alienees, under Section 37 and Section 39 of the Bombay Tenancy and Agricultural Lands Act alleging that the landlords had ceased to cultivate th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icultural 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 stood 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 tenant 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, notwithstanding 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the 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 of the deceased tenant. The Explanation to Section 40 declared that for the purposes of the Section, an heir meant the lineal male descendants of a tenant or his adopted son and failing both, 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 privileges 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 than ten years, and for renewal of the tenancy for ten year periods there after, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the land if the landlord ceased to cultivate the land at any time 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 expressly provides for the continuation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tenant took place in those 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 personally, 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 circumstance 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh 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 premises 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 y ..... X X X X Extracts X X X X X X X X Extracts X X X X
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