SC upholds Guj HC’s judgment that agricultural land even by will cannot be transferred to non-agriculturists: Vinodcharndra Sakarlal Kapadia Versus State of Gujarat

Case Covered:

Vinodcharndra Sakarlal Kapadia

Versus

State of Gujarat 

Facts of the case:

These Appeals arise out of the common judgment and order dated 17.03.2009 passed by the Division Bench of the High Court of Gujarat at Ahmedabad in Special Civil Application No.25058 of 2006 and all other connected matters while answering the questions referred to it by a Single Judge of the High Court. The questions that arose for consideration and the circumstances in which the matters were referred to it were set out by the Division Bench as under:-. 

“We are called upon to decide as to whether Section 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (for short ‘the Bombay Tenancy Act’) debars an agriculturist from parting with his agricultural land to a non-agriculturist through a “Will” so also, 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.

Learned Single Judges of this Court have taken a consistent view that such transfer of property through testamentary disposition would not violate Section 43 or 63 of the Tenancy Act, Justice J.B. Mehta in the case of Manharlal Ratanlal @ Radmansinh Chausinh v. Taiyabali Jaji Mohamed & others (1967-68 (Vol.5) GLT 199) while interpreting Section 43(1) of the Tenancy Act took the view that the expression ‘transfer’ which is used in Section 43(1) of the Tenancy Act must be interpreted in light of the Transfer of Property Act viz. the transfer by way of the act of parties. Learned Judge took the view that, if the Legislature wanted to include a transfer by operation of law as to include succession, insolvency, inheritance, etc. or sales by public auction, the specific provision would have been made to that effect. Learned Judge held all the specific categories which are mentioned are all of the transfers by the act of parties, a bequest by Will cannot be included in the scope of the term ‘gift’ or ‘assignment’. Justice Rajesh Balia in Ghanshyambhai Nabheram v. State of Gujarat and others (1999 (2) GLR 1061) while interpreting Section 63 of the Tenancy Act took a view that just like, a non-agriculturist be not deprived of his inheritance, a legatee under a Will, can also be a non-agriculturist, hence, there is no bar in succeeding the property through testamentary disposition. Learned Judge held that Revenue Laws dealing with agricultural lands have not made the land uninheritable and they also do not disqualify a non-agriculturist from inheritance nor a number of persons are disentitled from succeeding to the estate of an agriculturist as the body of successors, which may result in a well-defined share of the estate of deceased vesting in them individually. Justice Rajesh Balia again in Pravinbhai Bhailalbhai Gor v. Rajkumar Gupta, collector, Vadodara (1999(1) GLR 440) while interpreting Section 43 and 63 of the Tenancy Act took the view that both provisions clearly go to show that they refer only to transaction or transfer or agreement to transfer of land or any interest therein which are inter vivos and not to vesting of such rights in anyone as a result of transmission or as a result of succession on the death of the holder and the provisions do not affect the operation of the law of inheritance. Appeal filed against the above judgment was, however, dismissed in State of Gujarat v. P.B. Gor (2000 (3) GLR 2168). Justice K.A. Puj also took an identical view in Gasfulbhai Mohmadbhai Bilakhia v. State of Gujarat (2005 (1) GLR 575) and Gopiraj Dedraj Agrawal (Gopiram tudraj Agrawal) v. the State of Gujarat (2004 (1) GLR 237). Learned Judge also made reference to the Circular dated 13.02.1989 issued by the State Government and took a view that Section 43 as well as Section 63 of the Tenancy Act would not debar transfer of property by testamentary disposition. Justice R.K. Abichandani also took the same view in Babubhai Mervanbhai Patel v. State of Gujarat 2005 (1) GLH (UJ) 3. Learned Single Judge Justice Jayant Patel expressed some doubts about the views expressed in the above-referred judgments and felt that the matter requires reconsideration in light of the decisions rendered by the Apex Court in Sangappa Kalyanappa Bangi (dead) through LR (AIR 1998 SC 3229 = (1998) 7 SCC 294 Rajendra Babu J. and Jayamma v. Maria Bai and another (2004) 7 SCC 459 Sinha, J.) and hence these matters have been placed before us.”

Observations of the court:

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 that may not be fully consistent with the principles of the 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. 

We, therefore, reject the submissions advanced by Mr. Srivatsa, learned Counsel.

Judgement of the court:

In the premises, we accept the construction put by the Division Bench on the provisions that fell for consideration. The challenge to the view taken by the Division Bench must, therefore, be rejected. We must also observe that the decision of this Court in Mahadeo8 which had failed to notice the earlier decisions in Sangappa4 and Jayamma5 and which is inconsistent with the decisions referred to hereinabove and what we have concluded, must be held to be incorrectly decided. 

Accordingly, all these appeals are dismissed without any order as to costs.

Read & Download the full decision in pdf: