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Vijaya Govindram Ramavat Vs. Bhayyalal Chhotulal Pardeshi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 681 of 1968
Judge
Reported inAIR1971Bom375; 1971MhLJ694
ActsTenancy Law; Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 - Sections 7, 7(1), 12, 19, 19(1), 33, 33(1), 33(2) and 36(1); Bombay Tenancy and Agricultural Lands Act, 1948 - Sections 3, 5, 14, 14(1), 27, 27(1) and 117; Berar Regulation of Agricultural Leases Act, 1951; Transfer of Property Act, 1882 - Sections 108
AppellantVijaya Govindram Ramavat
RespondentBhayyalal Chhotulal Pardeshi and ors.
Appellant AdvocateK.H. Deshpande, Adv.
Respondent AdvocateA.M. Gorde, Adv.
Excerpt:
bombay tenancy and agricultural lands (vidarbha region) act (xcix of 1958), sections 19, 33, 5 -- bombay tenancy and agricultural lands act (bom. lxvii of 1948), sections 14, 27, 3 -- berar regulation of agricultural leases act (xxiv of 1951), section 7 -- sub-letting by tenant of portion of lands held on lease -- whether such sub-letting entitles landlord to terminate lease.;under section 19 of the bombay tenancy and agricultural lands (vidarbha region) act, 1958, sub-letting by a tenant of a portion of the lands held by him under a lease gives right to the landlord to terminate the lease of the tenant.;chimnabai rama naik v. ganpat jagannath naik (1956) special civil application no. 198 of 1956, decided by j.c. shah and vyas jj. on june 21, 1956 (unrep.) approved and applied.;anandrao.....kotval, c.j.1. a reference in this special civil application has been necessitated by the fact that there has been a difference of opinion between two division benches of this court upon the proper construction of sections 14 and 27 of the bombay tenancy and agricultural lands act, 1948 (no. lxvii of 1948), which sections are equivalent to the provisions of sections 19 and 33 of the bombay tenancy and agricultural lands (vidarbha region) act, 1958 (no. xcix of 1958). for the sake of convenience, we shall hereafter refer to these acts as the 'bombay act' and the 'vidarbha act' respectively. our learned brother padhye j. had referred the following question for our decision:'whether sub-letting by a tenant of a portion of the lands held by him under a lease gives right to the landlord to.....
Judgment:

Kotval, C.J.

1. A reference in this special civil application has been necessitated by the fact that there has been a difference of opinion between two Division Benches of this Court upon the proper construction of Sections 14 and 27 of the Bombay Tenancy and Agricultural Lands Act, 1948 (No. LXVII of 1948), which sections are equivalent to the provisions of Sections 19 and 33 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (No. XCIX of 1958). For the sake of convenience, we shall hereafter refer to these Acts as the 'Bombay Act' and the 'Vidarbha Act' respectively. Our learned Brother Padhye J. had referred the following question for our decision:

'Whether sub-letting by a tenant of a portion of the lands held by him under a lease gives right to the landlord to terminate the lease of the tenant under Section 19 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958?'

We have added the words in brackets so as to leave no doubt that it is with the Vidarbha Act with which we are concerned.

2. The question arises on the following facts: The petitioner, Vijaya Govindram Ramavat, is the landlord. He owned survey No. 126 of village Akoli-Jahagir, taluq Akot, district Akola, admeasuring 14 acres 21 gunthas. The respondents Nos. 1 and 2, Bhayyalal Chhotulal Pardeshi and Kisan Dashrath Randhe were the joint tenants of the field. On 30th March 1963 the landlord applied for possession of this field on the ground that his joint tenants, the respondents Nos. 1 and 2, had sublet part of the field to the respondent No. 3, Gulabrao. Soon after this application was filed by the landlord, the tenants applied on 2nd November 1963 under Section 36 (1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, to eject the respondent No. 3 from the field, on the ground that he was not a sub-lessee but that he had forcibly taken possession and cultivated 6 acres 20 gunthas out of the total area of the field. Certain orders came to be passed by the Revenue officers upon both those applications which were throughout disposed of by a common order. But on 31st August 1965 the Maharashtra Revenue Tribunal, in two separate revision applications, remanded the entire matter raised in the two applications to the Naib-Tahsildar in order to find out whether the respondent No. 3 Gulabrao, was a sub-lessee; or a co-lessee with the respondents Nos. 1 and 2 as he (Gulabrao) had pleaded.

3. On 30th November 1966 the Naib-Tahsildar granted the landlord's application claiming possession of the land from his lessees, respondents. Nos. 1 and 2, and dismissed their application against the respondent No. 3. The Special Deputy Collector (Tenancy Appeals), in appeal confirmed these orders of the Naib-Tahsildar on 21st February 1968. Against the Special Deputy Collector's order the respondents Nos. 1 and 2 the tenants filed revision applications to the Maharashtra Revenue Tribunal, and the Revenue Tribunal allowed their revision applications upon a curious ground. There was a dispute between the respondents Nos. 1 and 2 and the petitioner as to the extent of the land in possession of the respondent No. 3, the respondents Nos. 1 and 2 saying that the respondent No. 3 had taken possession only of 6 acres 20 gunthas, whereas the petitioner was saying that 8 acres were in possession of the respondent No. 3. Now, the Revenue Tribunal held that there was sub-letting and that the area sub-let was 8 acres, but they took the view that since the tenant had commenced proceedings against their alleged sub-lessee, under Section 36 (1) the tenants had rectified their error and were therefore not liable to be elected. The Revenue Tribunal also held that the notice given by the landlord was defective. It may be pointed out here that it was not a point argued before the Revenue Tribunal (or for that matter before any of the Revenue Authorities below at any time) that under the Act sub-letting of a part of the land held by tenant did not entitle the landlord to terminate the tenancy, and that only if the whole of the land was sub-let would the landlord be entitled to terminate the tenancy. Yet, that was the very point which was raised before our learned Brother Padhye J., when the petition came up before him for hearing and it being point of law our learned Brother noticed a sharp difference of opinion between the decisions of two Division Benches of this Court and has therefore referred that question for our decision.

4. Before we proceed to state that difference and how it arises, it is necessary to advert to the findings which our learned Brother gave and which are no longer open for discussion before this Bench. A preliminary objection that the petitioner was major and therefore the petition could not have been presented through his so-called guardian was overruled, the learned Judge holding that the petitioner did not attain majority on the date on which the petition was filed. So far as the attack against the notice given by the landlord, is concerned, it was held that it was a valid notice. The contention that the respondents Nos. 1 and 2, by filing an application under Section 36 (1) of theTenancy Act against their sub-lessee, had rectified their error, if any, in allegedly sub-letting the field, the learned Judge held that there was no valid rectification. Lastly, the question was raised before our learned Brother that no termination of lease was incurred by the respondents Nos. 1 and 2 by sub-letting only a part of the field to the respondent No. 3, because sub-lease of a portion of the field held by the tenants could not give rise to any right in the landlord to terminate the lease.

5. The question as to what was that portion which was sublet was obviously a question of fact, but in order to decide the point of law raised before him, our learned Brother assumed that it could be either 8 acres as the landlord alleged or it could be 6 acres 20 gunthas as the respondents Nos. 1 and 2 alleged. In either case, a part of the field must be held to have been sublet and the point of law raised before him, would survive.

6. In order to determine the controversy which has been raised as a result of the differing judgments of the two Division Benches of this Court, it is best that we should first consider what is the scope and proper effect of the relevant provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Sub-section (i) of Section 19 runs as follows:

'19. (1) Notwithstanding any agreement, usage, decree or order of a court of law, the tenancy of any land held by a tenant shall not be terminated-

(I) unless such tenant-

(a) (i) has failed to pay in any year, before the 31st day of March of that year, the rent of such land for that year, or

(ii) if an application for the determination of reasonable rent is pending before the Tahsildar under Section 12, has failed to deposit within thirty days from the aforesaid date with the Tahsildar, a sum equal to the amount of rent which he would have been liable to pay for that year if no such application had been made, or

(iii) in case the reasonable rent determined under Section 12 is higher than the sum deposited by him has failed to pay the balance due from him within two months from the date of the decision of the Tahsildar;

(b) has done any act which is destructive or permanently injurious to the land;

(c) has sub-divided the land in contravention of Section 33;

(d) has sub-let or assigned the land or failed to cultivate it personally; or

(e) has used such land for a purpose other than agriculture or allied pursuits, and

(II) unless the landlord has given three months' notice in writing, informingthe tenant of his decision to terminate the tenancy and the particulars of the ground for such termination and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated.' Sub-section (1) of Section 33 provides as follows:

'33. (1) No sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid: Provided that if the tenant dies,--

(i) if he is a member of a joint family, the surviving members of the said family, and

(ii) if he is not a member of a joint family, his heirs, shall be entitled to partition and subdivide the land leased subject to the following conditions, namely:--

(a) each sharer shall hold his share as a separate tenant,

(b) the rent payable in respect of the land leased shall be apportioned among the sharers, as the case may be, according to the share allotted to them,

(c) the area allotted to each sharer shall not be less than the unit which the State Government may, by general or special order, specify in this behalf having regard to the productive capacity and other circumstances relevant to the full and efficient use of the land for agriculture.

(d) if such area is less than the unit referred to in Clause (c), the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds,

(e) if any question arises regarding the apportionment of the rent payable by the sharers, it shall be decided by the Tahsildar whose decision shall be final.'

7. It will be clear upon a perusal of these two provisions of the Vidarbha Act that Section 33 is plenary and prohibits in the widest possible terms, (i) the sub-division, (ii) the sub-letting of the land held by a tenant, or (iii) the assignment of any interest therein. The proviso carves out certain exceptions from this general rule. Section 19 deals with the subject of termination and it says also in the most general terms that the tenancy of any land held by a tenant shall not be terminated, and then proceeds to state the exceptions (i) and (ii) preceded by the words 'unless such tenant' Clause (d) of part (i) of Sub-section (1) of Section 19 is the clause with which we are directly concerned in this case, and it provides an exception to the rule that the tenancy of any land held by a tenant shall not be terminated by saying 'unless such tenant .....has sub-let ...... the land'. Similarly, in Sub-section (1) of Section 33, in the opening clause the general prohibition is against 'sub-lettingoil the land held by a tenant', and the short point that arises for our decision is whether in both these provisions, the sub-letting contemplated is the sub-letting only of the whole of the land held by a tenant, or it could also be sub-letting of part of such land. Neither Section 19 nor Section 33 in terms says that the tenancy shall be terminated if sub-letting of the kind prescribed takes place.

8. The expressions used are generally 'sub-let ......... the land' or 'subletting of the land held by a tenant', and these expressions furnish no indication as to what was in the mind of the draftsman when he used these expressions, and therefore, we must of necessity turn for a proper construction of these phrases to the other provisions contained in Sections 19 and 33. In stating the exceptions to the rule that the tenancy of any land held by a tenant shall not be terminated. Section 19 prescribes a number of categories by way of exceptions and at least three of these categories mentioned in part (i) of Section 19 (1) give a strong indication that included in the words 'has sub-let the land' would be the sub-letting of a part of the land held by a tenant. In the first place, the very Clause (d) gives unfailingly that indication. The wording of Clause (d) is 'has sub-let or assigned the land or failed to cultivate it personally.' Now. the subject of subletting of the land is dealt with in the same clause as the subject of failure to cultivate the land personally, and so far as personal cultivation is concerned. it cannot be supposed that the law intended to lay down that so long as the tenant cultivates even a small fraction of the land held by him as a tenant, he has committed no default, and that the right to terminate the tenancy would only arise in favour of the landlord upon the tenant ceasing to cultivate the whole of the land personally. The whole object and purpose of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act is not only to keep the cultivator or the tiller of the soil in possession of his land but also to see to it that he alone cultivates it and does not, in his turn, become so to say a petty landlord by sub-letting it to others. It would therefore be an interpretation which militates against the very purpose and object of the Act, were we to say that it is only on the tenant failing to cultivate the whole of his land personally that the right to terminate the tenancy would arise in favour of the landlord. We must therefore hold that the failure to cultivate personally which the law has mentioned as an exception to the rule that no tenancy shall be terminated, must mean failure to cultivate the whole or any part of the land leased to the tenant. It is in this context thatthe expression has also been used 'has sub-let the land' and we think therefore that the expression must be construed similarly to mean 'sub-let any part of the land' or 'sub-let the land wholly or partly',

9. Other clauses of Section 19 (1) part (1), also give the same indication:--In Clause (b), the exception is stated as follows:-- 'has done any act which Is destructive or permanently injurious to the land'. In this case, surely, it is not to he supposed that the law intended that the landlord should wait until the whole of his land let to the tenant is destroyed or permanently injured in order to entitle him to terminate the tenancy. Necessarily the act of destruction or of inflicting permanent injury upon the land is what is hit at and not the extent of the land or the gravity of the injury. Therefore, the moment any act of destruction or of permanent injury to the land takes place at the hands of the tenant, the right would accrue to the landlord to terminate the tenancy. We can see no reason why if this is the construction of Clause (b) any different construction should be put upon Clause (d).

10. The same conclusion would also flow upon a consideration of Clause (e):-- 'has used such land for a purpose other than agriculture or allied pursuits.' This is a prohibition against the diversion of agricultural land to non-agricultural purposes. The clause will be deprived of all meaning were it to be construed to mean that unless and until the tenant uses the whole of his land -- each and every guntha of it -- for a purpose other than agriculture, the landlord cannot terminate the tenancy and claim it back. Any other construction of this clause would result in large-scale diversions of agricultural lands by tenants so long as they are careful to reserve a small part for purpose of agriculture. That could never have been the intention of this provision and attributing any such intention to this provision would patently militate against the very purpose and object of the Tenancy Act.

11. Turning to Section 33, the opening words of Sub-section (1), so far as this case is concerned, are 'no ...... sub-letting of the land held by a tenant ......shall be valid'. Now, there is no qualification of the word 'sub-letting' and it is difficult to see why sub-letting must necessarily he confined to the whole of the land. If a tenant cultivates 10 acres and parts with 2 acres out of it to another for cultivation, the 2 acres must also be held to be sub-let. It cannot be said that because merely the 2 acres have been given out, it is not sub-letting by the tenant. The plain language of the opening words of Sub-section (1) of Section 33 therefore supports the constructionwhich we have put upon the provisions of Section 19.

12. A similar indication is given by Sub-section (2) of Section 33, which says that notwithstanding anything contained in Sub-section (1) of Section 33, it shall be lawful for a tenant who is of a certain category, namely, a widow, a minor or a person subject to any physical or mental disability, or a serving member of the armed forces, to sub-let such land held by her or him as a tenant. Now, obviously here a person under disability and fulfilling one of the categories mentioned can sub-let any part of his or her land, or the whole. It is a benefit conferred upon that person because of a disability. It is not to be supposed that sub-letting in this context cannot possibly mean sub-letting of the whole of the land held by the tenant under disability. The right of the disabled person is to sublet the whole or part of the land. If that be so and it is a provision of the same section, we can see no reason why the opening words of Sub-section (1) of Section 33 should be given a different meaning and that sub-letting as mentioned therein should be confirmed only to the whole of the land.

13. The consequences of any other construction than the one which we have placed upon these provisions would, in our opinion, be disastrous if the interpretation were to be that unless a tenant has sub-let the whole of his field, the tenancy cannot be terminated. If a tenant were to hold 20 different pieces of land, he could upon such an interpretation sub-let 19 pieces of it, but so long as he cultivates one howsoever small, the tenancy would not be liable to be terminated. If that were to happen on a large scale, once again that class of persons who were farming out their lands to others to cultivate and merely recovering rent of the land would again arise to the great detriment of agriculture. Every tenant in such a case would become an 'absentee landlord' so far as his sub-lessees are concerned. That was the very object and purpose why the Tenancy Act was brought into force. A perusal of its preamble as also other provisions indicate that its provisions were made in order to ensure that the real cultivator of the soil -- the tiller -- stays upon his land and cultivates it personally and the Act, had set its face against permitting the tenant to merely make an income out of the land by letting others cultivate it and not cultivating it himself. The preamble of the present Act moreover states: '........ it is expedient in the interests of the general public to regulate and impose restrictions on the transfer of agricultural lands.' The whole object of the Act therefore was to keep the tenantin cultivation personally and not permit him to transfer his tenancy right. Even the previous Acts which the present Tenancy Act replaced, such as for instance, the Berar Regulation of Agricultural Leases Act, 1951, had as its principal object 'to ensure fixity of tenure in the interest of efficient agriculture in Berar.'

14. Two points made on behalf of the tenant by Mr. Gorde may here be noticed. Firstly, he referred to the opening clause in Section 33 (1) and contrasted the two expressions 'no sub-letting of the land held by a tenant' and 'no assignment of any interest therein' shall be valid. He emphasised that when the Legislature wished to specify each and every interest, they used the word 'any' to qualify it in the latter clause. But in the case of sub-letting they only speak of 'sub-letting of the land', and if they had intended to specify each and every part of the land, they would have said 'sub-letting of any land'. It seems to us that the word 'any' in the third clause of the opening words of Sub-section (1) of Section 33 was used because the entire clause is different from the preceding clauses. The opening words speak of three things: (i) sub-division, (ii) sub-letting of the land and (iii) assignment of any interest in the land. Since there can be different forms of interest in the land which are distinct and separate from each other it was necessary to use the word 'any' to specify that each and every interest cannot be assigned. But so far as sub-division and sub-letting of the land are concerned, there are not two or more categories of sub-divisions or sub-letting and therefore the word 'any' would have been out of place. We do not think that the difference pointed out affects the point we are called upon to decide.

15. Then reference was made to similar provisions regarding sub-letting In the earlier Tenancy Act, namely, the Berar Regulation of Agricultural Leases Act, 1951 which came to be repealed by the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. Section 7 of that Act provided for restrictions on transfer, and in stating the restrictions in Sub-section (1) that Act provided that 'no protected lessee shall, except as provided in this Act. be entitled to transfer by way of ......... sub-lease or otherwise, his right in the land or in any portion thereof ............' (underlining is ours). Counsel urged that when the Legislature intended to say that the land or any part of it shall not be transferred, it did expressly so provide and that therefore when these words are omitted in the later Act, [the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act,] it must mean that the Legislature did not intend to say that if a part is transferred by way ofsub-lease, the tenancy would be liable to be terminated.

16. It would be a dangerous thing in any case to seek to interpret the words of one statute by the words used in another statute. The two statutes moreover were made by different Legislatures and the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act can in no sense be said to be in continuation of the provisions of the Berar Regulation of Agricultural Leases Act. The provisions of the Vidarbha and Bombay Acts are radically different from the provisions of the Berar Act. For the first time, under the Bombay Act, even a person who was in lawful possession came to be defined as a tenant, and the provisions for his acquisition of ownership over the land held by him were a radical departure from the Berar Regulation of Agricultural Leases Act. Moreover, it seems to us that the words 'in any portion thereof' in Sub-section (1) of Section 7 of the Berar Act were merely put into that sub-section by way of abundant caution, and that even if they were not three, we have no doubt that the words 'the land' in that Sub-section would have been construed to mean the land, wholly or in part, and that its operation would not have been confined only to the whole of the land as is contended. It may also have been that similar words in the earlier Bombay Act, and the decision of this Court already given in Special Civil Appln. No. 198 of 1956 Chimnabai Rama Naik v. Ganpat Jagannath Naik decided on 21-6-56. (Bom) which expressly held under provisions similar to the provisions of Sections 19 and 33 of the Vidarbha Act, 1958, that land in the context of subletting means land, wholly or in part, may have influenced the wording of the Vidarbha Act which came to be enacted on 26th December 1958. We do not think therefore that contrasting the language of Section 7 of the Berar Regulation of Agricultural Leases Act will affect the construction we have put upon the provisions of Sections 19 and 33 of the Vidarbha Act.

17. So far we have discussed the matter as if it were res integra, but the decision which we have just referred to above of a Division Bench of this Court supports the view which we have taken. In Chimnabai Naik's case. Spl. Civil Appln. No. 198 of 1956. D/- 21-6-1956 (Bom) the Court was concerned with the provisions of Sections 14 and 27 of the Bombay Act. They are, so far as the point before us is concerned, in identical language, and a Division Bench consisting of Mr. Justice J. C. Shah [as he then was--now Chief Justice of India] and Mr. Justice Vyas held having regard to the terms of Section 27 and the general scheme of that Act, as follows: 'we areunable to hold that the sub-letting must be in respect of the entire area demised before the termination of the tenancy takes place'. They also pointed out that Clause (b) of Section 14(1) of that Act, which provided that if a tenant 'has done any act which is destructive or permanently injurious to the land', the tenancy shall be terminated, could not possibly mean that the act which was destructive or permanently injurious must be destructive of or injurious to the whole land before the tenancy can be terminated. They similarly emphasised Clause (d) of Section 14(1) which deals with the tenant's default in cultivating the land personally as a around for terminating his tenancy and they pointed out that there too it must necessarily be held that if he fails to cultivate even a part of the land personally, the tenancy would be liable to be terminated.

18. In that case, moreover, another contention was raised which is of some importance to the point raised before us. It was urged by counsel on behalf of the tenant that even assuming that even a part of the land has been sub-let by the tenant, the termination should take place only in respect of the land which is sub-let and no more. The Division Bench negatived that contention by saving that after all the tenancy was one whole tenancy, and either the whole of the tenancy could be terminated or not at all. The tenancy cannot be terminated in part. The Division Bench observed:--

'If sub-letting involves the consequences of termination of the tenancy, having regard to terms of Sections 14 and 27 of the Act, we are of the view that it must amount to termination of the entire tenancy and not of the tenancy in so far as it relates to the land which has been sub-let.'

The reasoning of that decision would apply here and it seems to us that its ratio decidendi would completely cover the point raised in this reference. The provisions of Sections 14 and 27 of the Bombay Tenancy and Agricultural Leases Act, 1948, with which the Division Bench in that case were concerned, are for the purposes of the point, identical with the provisions of Sections 19 and 33 of the Vidarbha Act.

19. A contrary view has no doubt been taken and it is that view which has necessitated this reference. In Anandrao v. Eknath. : (1959)61BOMLR1123 a Division Bench of this Court consisting of Mr. Justice Mudholkar and Mr. Justice Mody, held that under Section 27 of the Bombay Tenancy and Agricultural Lands Act, 1948 (as it stood before its amendment), sub-letting by a tenant of a portion of the lands held by him under a lease does not entail a for feature of the lease. That Division Bench took the contrary view for two reasons. Firstly they referred to the provisions of Section 108(j) of the Transfer of Property Act and observed (vide page 1124) :--

'It must be borne in mind that under Section 108(1) of the Transfer of Property Act a lessee has, in the absence of a contract to the contrary, a right to transfer absolutely or by wav of mortgage or sub-lease the whole or any part of his interest in the demised property. The provisions of this section are applicable to tenancies governed by the Bombay Tenancy and Agricultural Lands Act, 1948, because of the provisions of Section 3 thereof. The question is what is the extent to which a tenant's right under Section 108(j) of the Transfer of Property Act is limited or taken away by Section 27 (1) of the Bombay Tenancy and Agricultural Lands Act. 1948.'

Secondly, they referred to Chechire's Modern Real Property and a number of decisions of the English Courts to point out that similar covenants 'not to sub-let' in a deed was not broken by sub-letting part of the premises.

20. As to the first reason which prevailed with the Division Bench in Anandrao's case. : (1959)61BOMLR1123 we may, with respect, point out that Section 117 of the Transfer of Property Act itself provides that the provisions of Chapter V of the Transfer of Property Act dealing with the leases of immovable property shall not apply to leases for agricultural purposes, unless of course a notification has been issued by the State Government, which in the present case has not been done. The learned Judge then referred to Section 3 of the Bombay Tenancy and Agricultural Lands Act, which is identical with Section 5 of the Vidarbha Act, and they assumed (vide the passage Quoted above) that because of the provisions of that section. Section 108 (j) of the Transfer of Property Act would be applicable to tenancies govern-ed by the Bombay Tenancy and Agricultural Lands Act.

21. With respect, we also think that the learned Judges were in error in that reasoning. Section 3 of the Bombay Act or Section 5 of the Vidarbha Act say that the provisions of Chapter V of the Transfer of Property Act 1882, shall, in so far as they are not inconsistent with the provisions of that Act, apply to the tenancies and leases of land to which that Act applies. The crucial words in, these sections are 'in so far as they are not inconsistent with the provisions of this Act.' The import of these words was missed in the Division Bench judgment. Having regard to those words the first thing to determine is, what is it that theTenancy Act provides and it is only when one has understood what the Tenancy Act provides that one can determine whether the provisions of Section 108(j) of the Transfer of Property Act are consistent or inconsistent with its provisions. Section 108(j) of the Transfer of Property Act can only apply if it is not inconsistent with the provisions of the Tenancy Act, and in order to determine whether it is not inconsistent, one must first determine what are the provisions of the Tenancy Act. In no part of the judgment in Anandrao's case : (1959)61BOMLR1123 was any attempt made to interpret the provisions of the Tenancy Act first before applying Section 108(j) of the Transfer of Property Act. Merely to say that Section 108(j) applies is to beg the very question which has been raised before us, namely, whether the words in Sections 19 and 33 of the Vidarbha Act mean sub-letting of the whole of the land held by a tenant or include also sub-letting of any part of the land.

22. Secondly, it seems to us that the reference to English Cases in that case was unjustified, because after referring to all the English Cases, the Court proceeded to construe Sections 14 and 27 of the Bombay Act in the light of those English Cases. We have gone through all the cases referred to at page 1125 in that judgment and we can only say that all those are cases arising upon the construction of the terms of a particular lease or other document, and no doubt in construing a restrictive covenant 'not to sub-let', it was held that the covenant was not broken by sub-letting a part of the premises, 'for the verb 'to sub-let' must have an object and its only possible object was the house which was the subject-matter of the agreement.' That reasoning cannot possibly apply to the construction of a statute such as Section 14 or Section 27 of the Bombay Act, or Section 19 or Section 33 of the Vidarbha Act. Moreover, it seems to us that the sole question in that case was what was the proper construction of Sections 14 and 27 of the Bombay Act, and, in our opinion, it was not permissible to embark upon that construction by first referring to principles of English Law, and particularly principles governing the interpretation of documents. One must construe a particular statute untrammelled by extraneous considerations, and it is only in the event of doubt or difficulty that the Court may resort to extraneous aid.

23. We also do not think that extraneous aid can usefully be derived from cases decided in English Courts as to the construction of documents where the question is of construction of Indian statutes. One such warning has been given by the Supreme Court itself in Ishwarlal v. State of Gujarat, : [1968]2SCR267 , as follows:

'All this discussion by us was necessary to dispel the inferences drawn from dictionaries and reports of cases from England and Ireland, but the safest guide, as always, is the statute itself which is being considered.' A similar observation is also made in A. C. Saha v. Sanat Kumar Sen, : AIR1964Cal460 by a Division Bench of the Calcutta High Court when, they observed in paragraph 19, at Rage 464: 'Technical rules of construction of documents are not, however, always the safest guide for 'construction of statutes.'

24. So far as Chimnabai Naik's case. Spl. Civil Appln. No. 198 of 1956 D/- 21-6-1956 (Bom) is concerned, it was cited before the Division Bench, in Anandrao's ease but they brushed it aside with the following remarks (page 1126):

'The decisions on which reliance was placed by Mr. Gokhale were not cited at the Bar before Shah and Was JJ. in Spl. Civil Appln. No. 198 of 1956, D/- 21-6-1956 (Bom). It cannot, therefore, be said that the learned Judges had occasion to examine the law on the point fully'. Since Chimnabai Naik's case was also a decision of a Division Bench, and binding on them the only proper course for the Division Bench in Anandrao's case : (1959)61BOMLR1123 would have been to refer the matter to a Full Bench since they did not agree with the decision in Chimnabai Naik's case. Spl. Civil Appln. No. 198 of 1956 D/- 21-6-1956 (Bom). We are also not in agreement with the remark that in Chimnabai Naik's case, the learned Judges had no occasion to examine the law on the point fully. As a matter of fact, (and we say so with great respect) they examined the law with great care and pronounced their views upon the law itself which was not considered in the subsequent decision in Anandrao's case, : (1959)61BOMLR1123 . For all these reasons, we are not in agreement with the decision in : (1959)61BOMLR1123 and we accept the decision in S. C. A. No. 198 of 1956 (Bom) as correctly decided. Moreover, we notice that another Division Bench also had occasion to notice both these decisions, in Special Civil Appln. No. 662 of 1959 (Bom) Dattoba Dada Patil v. Shripati Vithu Javandal decided on 4-12-1959 by Shelat and Patwardhan JJ. and they stated:

'We have considered both these judgments with care. For ourselves we prefer the reasoning given by Shah and Vyas JJ. in Special Civil Appln. No. 198 of 1956 (Bom)'. They also stated that they would have referred the question to a larger Bench but since they were deciding the case before them upon another point, they didnot think it necessary to make a reference.

25. We will therefore answer the question referred in the affirmative. The papers may now be remitted to the learned single Judge for decision of the special civil application. The costs of this reference shall be costs in the special civil application.

26. Reference answered in affirmative.


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