VINODCHANDRA SAKARLAL KAPADIA Vs. STATE OF GUJARAT
LAWS(SC)-2020-6-15
SUPREME COURT OF INDIA
Decided on June 15,2020

Vinodchandra Sakarlal Kapadia Appellant
VERSUS
STATE OF GUJARAT Respondents


Referred Judgements :-

KARNATAKA IN SHIVANNA V. RACHIAH [REFERRED TO]
BERU RAM V. SHANKAR DASS [REFERRED TO]
CHARANJIT LAL CHOWDHARY VS. UNION OF INDIA [REFERRED TO]
CHATURBHAI M PATEL VS. UNION OF INDIA [REFERRED TO]
DIAMOND SUGAR MILLS LIMITED VS. STATE OF UTTAR PRADESH [REFERRED TO]
GAMINI KRISHNAYYA VS. GURAZA SESHACHALAM [REFERRED TO]
INDU BHUSHAN BOSE VS. RAMA SUNDARI DEBI [REFERRED TO]
STATE OF PUNJAB NOW HARYANA VS. AMAR SINGH [REFERRED TO]
STATE OF MADHYA PRADESH VS. BABU LAL [REFERRED TO]
WAMAN RAO HANMANTRAO CHANDRA SHEKAR VITHALRAO SHRI BABURAO ALIAS P B SAMANT VS. UNION OF INDIA [REFERRED TO]
MANCHEGOWDA VS. STATE OF KARNATAKA [REFERRED TO]
LINGAPPA POCHANNA APPELWAR KALU GOPYA BANJARI VS. STATE OF MAHARASHTRA [REFERRED TO]
BHAVARLAL LABHCHAND SHAH VS. KANAIYALAL NATHALAL INTAWALA [REFERRED TO]
SYNTHETICS AND CHEMICALS LIMITED VS. STATE OF UTTAR PRADESH [REFERRED TO]
PANDEY ORAON VS. RAM CHANDER SAHU [REFERRED TO]
SAMATHA HYDERABAD ABRASIVES AND MINERALS PRIVATE LIMITED VS. STATE OF ANDHRA PRADESH [REFERRED TO]
SANGAPPA KALYANAPPA BANGI DEAD VS. LAND TRIBUNAL JAMKHANDI [REFERRED TO]
AMRENDRA PRATAP SINGH VS. TEJ BAHADUR PRAJAPATI [REFERRED TO]
LINECAI GAMANGO VS. DAYANIDHI JENA [REFERRED TO]
JAYAMMA VS. MARIA BAI DEAD [REFERRED TO]
DAYANDEO GANPAT JADHAV VS. MADHAV VITHAL BHASKAR [REFERRED TO]
S RATHINAM ALIAS KUPPAMUTHU VS. L S MARIAPPAN [REFERRED TO]
PRAVINBHAI BHAILALBHAI GOR VS. RAJIVKUMAR GUPTA [REFERRED TO]
GHANSHYAMBHAI NABHERAM VS. STATE OF GUJARAT [REFERRED TO]
STATE OF GUJARAT VS. PRAVINBHAI BHAILALBHAI GOR [REFERRED TO]
GOPIRAJ DEDRAJ AGRAWAL GOPIRAM TUDRAJ AGRAWAL VS. STATE OF GUJARAT [REFERRED TO]
GASFULBHAI MOHMADBHAI BILAKHIA VS. STATE OF GUJARAT [REFERRED TO]
DHAREPPA VS. STATE OF KARNATAKA [REFERRED TO]
ANANT T SABNIS VS. VASANT PRATAP PANDIT [REFERRED TO]
MADHAVRAO VAMAN VS. RAGHUNATH VENKATESH [REFERRED TO]
STATE OF RAJASTHAN VS. AANJANEY ORGANIC HERBAL PVT. LTD [REFERRED TO]
KARIMULLAKHAN S/O. MOHD. ISHAQKHAN VS. BHANUPRATAPSINGH [REFERRED TO]
RAJASTHAN HOUSING BOARD VS. NEW PINK CITY NIRMAN SAHKARI SAMITI LTD [REFERRED TO]
MAHADEO VS. SHAKUNTALABAI [REFERRED TO]



Cited Judgements :-

PANKAJKUMAR MULSHANKAR TERAIYA VS. HEIRS OF JIVUBHAI UDESASNG [LAWS(GJH)-2021-1-113] [REFERRED TO]
STATE OF GUJARAT VS. HITESHBHAI LALITCHANDRA LAYWALA [LAWS(GJH)-2021-12-1156] [REFERRED TO]


JUDGEMENT

UDAY UMESH LALIT,J. - (1.)Leave granted.
(2.)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 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 and 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 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, specific provision would have been made to that effect. Learned Judge held all the specific categories which are mentioned are all of transfers by act of parties, 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 estate of an agriculturist as body of successors, which may result in 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 death of holder and the provisions do not affect the operation of 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 identical view in Gasfulbhai Mohmadbhai Bilakhia v. State of Gujarat (2005 (1) GLR 575) and Gopiraj Dedraj Agrawal (Gopiram tudraj Agrawal) v. 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 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 re-consideration 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."

(3.)Sections 43 and Section 63 of the Act (The Bombay Tenancy and Agricultural Lands Act, 1948 as applicable to State of Gujarat.) are quoted here for ready reference:-
"43. Restriction on transfers of land purchased or sold under this Act:

(1) No land or any interest therein purchased by a tenant under section 17B, 32, 32F, 32I, 32O(The words '32O' were deleted by Guj. Act No.10 of 2009), 32U, 43-1D or 88E or sold to any person under Section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector.

Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant:

Provided further that the partition of the land as aforesaid shall not be valid if it is made in contravention of the provisions of any other law for the time being in force:

Provided also that such members of the family or the legal heirs shall hold the land, after the partition, on the same terms, conditions and restrictions as were applicable to such land or interest therein purchased by the tenant or the person.

(1A)The sanction under sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the State Government.

(1AA) Notwithstanding anything contained in sub-section (1), it shall be lawful for such tenant or a person to mortgage or create a charge on his interests in the land in favour of the State Government in consideration of a loan advanced to him by the State Government under the Land Improvement Loans Act, 1983, the Agriculturists' Loans Act, 1984, or the Bombay Non-agriculturists' Loans Act, 1928, as in force in the State of Gujarat, or in favour of a bank or co-operative society, and without prejudice to any other remedy open to the State Government, bank or co- operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the State Government, bank or co-operative society, as the case may be, to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan.

Explanation. ­ For the purposes of this sub-section, "bank" means ­

(a) the State Bank of India constituted under the State Bank of India Act,1955;

(b) any subsidiary bank as defined in clause (k) of Section 2 of the State Bank of India (Subsidiary Banks) Act, 1959;

(c) any correspondent new bank as defined in clause (d) of Section 2 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970;

(d) the Agricultural Refinance and Development corporation, established under the Agricultural Refinance and Development Corporation Act, 1963.

(1B) Nothing in sub-section (1) or (1AA) shall apply to land purchased under Section 32, 32F, or 64 by a permanent tenant thereof, if prior to the purchase, the permanent tenant, by usage, custom, agreement or decree or order of a court, held a transferable right in the tenancy of the land.

(1C) The land to which sub-section (1) applies and for which no permission is required under sub-section (1) of section 65B of the Bombay Land Revenue Code, 1879 for use of such land for a bonafide industrial purpose may, notwithstanding anything contained in sub-section (1) of this section, be sold without the previous sanction of the Collector under sub-section (1) but subject to payment of such amount as may be determined by the State Government under sub-section (1).

(2) Any transfer or partition, or any agreement of transfer, or any land or any interest therein in contravention of sub-section (1) shall be invalid.

63. Transfers to non-agriculturists barred.

(1) Save as provided in this Act:-

(a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or

(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgage, or

(c) no agreement made by an instrument in writing for the sale, gift, exchange, lese or mortgage of any land or interest therein, shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer:

Provided that the Collector or an officer authorised by the State government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, or for such agreement on such conditions as may be prescribed.

Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.

(1A) The State Government may, by notification in the Official Gazette, exempt from the provisions of sub- section (1), for the transfer of any agricultural land to any public trust established for the charitable purpose and which is non-profitable in nature, for the use of such land in the field of health and education, subject to such conditions as may be specified therein.

(2) Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, exchange or lease, of a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan or a person carrying on any allied pursuit.

(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors' Relief Act, 1947.

(4) Nothing in Section 63A shall apply to any sale made under sub-section (1)."

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