Sakharam Shrawan Bhise vs Ramesh Dhannu Rathod
2017 Latest Caselaw 7333 Bom

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                                       1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH : NAGPUR
                        Second Appeal No.177 of 2017


 Sakharam Shrawan Bhise,
 aged 71 years,
 occupation - Agriculturist,
 resident of Nanad [Ijara],
 Tq. Pusad, Distt. Yavatmal.                    .....           Appellant
                                                              Org. Deft.


                                  Versus


 Ramesh Dhannu Rathod,
 aged about 45 years,
 occupation - Contractor,
 resident of Nanad [Ijara],
 Tq. Pusad, Distt. Yavatmal.                    .....        Respondent
                                                             Org. Plaintiff


                                 *****
 Mr. V. N. Patre, Adv., for the Appellant.

 Mr. Amol S. Deshpande, Adv., for respondent.


                                   *****


                                CORAM :        A.S. CHANDURKAR, J.

                                Date       :   20th September, 2017

 ORAL JUDGMENT :





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01. Admit on the following substantial question of law:-

"The suit property being Class-II occupancy land that was allotted to Tukaram Rathod, whether execution of Will in favour of the plaintiff is hit by provisions of Section 29 (3) (a) of the Maharashtra Land Revenue Code, 1966?"

Heard finally with consent of counsel for the parties.

02. The appellant is the original defendant in the suit filed for

declaration by the respondent herein that he was the owner of Field

Survey No.2/1/A admeasuring 1 hectare 21 Are on the basis of a Will

executed on 18th February, 2006 by one Tukaram Hari Rathod in his

favour. According to the plaintiff, said Tukaram was unmarried and

the plaintiff being his nephew, such Will was executed bequeathing the

suit property to the plaintiff. As the defendant was in possession on the

basis of a lease alleged to be granted by said Tukaram, the suit for

possession came to be filed.

03. In the Written Statement, it was pleaded that the land in

question was found to be excess holding of the erstwhile owner. Under

the provisions of the Maharashtra Agricultural Lands (Ceiling on

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Holdings) Act, 1961 [for short, "the Act of 1961"] it was treated as

excess land and was allotted to Tukaram. Said Tukaram on 5th

February, 1992 executed a lease for a period of ninety-nine years in

favour of the wife of the defendant - Yashoda and on that basis, the

defendant was in possession.

04. Shri V. N. Patre, learned counsel for the appellant-defendant,

submitted that both the Courts committed an error in holding that the

plaintiff had got title on the basis of Will executed by Tukaram.

According to him, in view of provisions of Section 29 (3) (a) of the

Maharashtra Land Revenue Code, 1966 [short, "the said Code"], as the

suit land was occupancy Class-II land, it could not have been

transferred without obtaining prior permission of the competent

authority. He submitted that no such permission was obtained by

Tukaram before executing the Will. In support of his submissions,

learned counsel placed reliance on the decision in Attaur Raheman

Fateh Mohmmad Vs. Hari Peeraji Burud died through LRs.

Neelabai @ Chandrakala Haribhau & others [2008 (2) Mh.L.J. 633]

and urged that as Tukaram had no authority to transfer the Class-II

land, the Will executed in favour of the plaintiff could not have been

acted upon. He then submitted that though Tukaram had executed a

Will, prior thereto, in the year 1992, he had executed a Lease-Deed in

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favour of the defendant's wife for a period of ninety-nine years.

Without cancelling said Lease-Deed, the possession of the suit property

was directed to be delivered to the plaintiff.

05. Shri Amol S. Deshpande, learned counsel for the respondent,

supported the impugned judgment. According to him, the plaintiff had

become owner by virtue of the Will executed by Tukaram. Disposal of

property by means of testamentary disposition would not amount to

transfer either under the Act of 1961 or Section 5 of the Transfer of

Property Act, 1882. He submitted that this legal aspect is clear from

the decision of the Honourable Supreme Court in Mahadeo (dead)

through L.Rs. Vs. Shakuntalabai [2017 (2) Mh. L.J. 371] as well as

the judgment of learned Single Judge in Prabhakar Chinappa

Chavan Vs. State of Maharashtra [2004 (4) Mh.L.J. 886]. He,

therefore, submitted that there was no legal restriction on Tukaram to

bequeath the suit property in favour of the plaintiff. As the execution of

the Will had been duly proved, the suit was rightly decreed by the trial

Court and the appellate Court confirmed said decree.

06. I have heard the learned counsel for the parties and I have

perused the material placed on record.

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07. The execution of the Will dated 18th February, 2006 by

Tukaram in favour of the plaintiff has been held to be duly proved by

the trial Court and this finding has been affirmed by the first appellate

Court. It is the case of the defendant that on 5th February, 1989, said

Tukaram had executed a Lease-Deed in favour of the defendant's wife

for a period of ninety-nine years. The question is whether Tukaram

could have executed the Will in favour of the plaintiff so as to confer

title on him.

08. In Mahadeo (dead) through L.Rs . [supra], the Honourable

Supreme Court after considering various earlier decisions has held that

a testamentary disposition by executing a Will would not amount to

transfer within the meaning of Section 57 of the Bombay Tenancy &

Agricultural Lands (Vidarbha Region) Act, 1958. It has been held that

disposition by a Will is not a transfer but a mode of devolution. A

similar view has been taken earlier in point of time in Prabhakar

Chinappa Chavan [supra] while considering the expression "transfer"

under the Act of 1961. It is, thus, clear that for the purposes of the Act

of 1961 or the Transfer of Property Act, 1882 devolution by a Will

would not amount to transfer.

09. In so far as Section 29 (3) of the Code is concerned, the

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same places a restriction on the right to transfer Occupancy Class-II

land. The word "transfer" has not been specifically defined under the

Code. In view of provisions of Section 5 of the Transfer of Property Act,

1882, a similar analogy would have to be applied to the expression

"transfer" under the Code. Thus, even for the purposes of Section 29

(3) of the Code, the restriction for transfer by executing a Will is not

prohibited as testamentary disposition would not amount to transfer.

In any event, the land in question was granted to Tukaram under the

Act of 1961 and as per provisions of Section 29 (3) of the Act of 1961,

transfer does not include disposition by way of a Will.

In so far as the decision relied upon by the learned counsel

for the appellant is concerned, there cannot be any dispute with regard

to the legal proposition that a person not having transferable interest

cannot transfer the property in question. In the present case,

however, the property has been bequeathed in favour of the plaintiff

and the same does not amount to transfer.

10. It can, thus, be seen that Tukaram did not 'transfer' the suit

property in favour of the plaintiff by executing the Will in his favour.

On the contrary, the execution of the lease by Tukaram in favour of the

defendant's wife amounted to transfer which, according to the

defendant himself, is impermissible. In other words, there is no legal

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basis for the defendant to contend that his occupation of the suit field

is on the strength of a valid 'transfer' in favour of his wife. The ground

urged by the defendant is self-destructive for his defence.

11. In view of aforesaid discussion, the substantial question of

law as framed is answered by holding that execution of Will by

Tukaram in favour of the plaintiff was not hit by the provisions of

Section 29 (3) (a) of the Code. Hence, there is no reason to interfere

with the impugned judgments. Second Appeal is, therefore, dismissed.

No costs.

12. The order of status quo shall continue to operate for a

period of four weeks from today.

Judge

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