S.A. Bobde, J.
1. This Petition is by persons claiming to be the heirs of the deceased tenant one Maniram Waghmare challenging the order of the Maharashtra Revenue Tribunal by which that Tribunal has declared the Respondents to be the tenant of the land in question. The land in question is Survey No. 49 admeasuring 5 H. 20 Gunthas situate within the Nashik Municipal limits. The present proceedings were initiated by the Respondents under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948, hereinafter referred to as 'the Bombay Tenancy Act', for a declaration that they were the tenants of the land in question. They claimed that they are the legal heirs of one Mhalsabai and the original tenant Maniram. Mhalsabai and Maniram were admittedly not married to each other. They claimed tenancy over the claim to the said tenancy by the Petitions who are legal heirs of Maniram through the lawfully wedded wife.
2. Earlier Mhalsabai had filed a civil suit claiming that she had succeeded to the tenancy in respect of land in question under a document dated 19th July, 1958 styled as a Gift Deed executed by Maniram. Mhalsabai claimed on injunction against the Petitioners i.e. the children of Maniram from the lawfully wedded wife. The trial Court granted her an injunction, however, this Court in Second Appeal No. 1115 of 1965 confirmed the appellate decree and reversed the order of the trial Court. This court held that Mhalsabai got no right to the tenancy under the Gift Deed since the Gift Deed amounted to an assignment in contravention of Section 27 of the Bombay Tenancy Act. This Court observed that Mhalsabai ought to have filed a proceeding under Section 70 of the Bombay Tenancy Act instead of approaching the Civil Court and directed the Petitioners herein to get decided their claim regarding tenancy before the appropriate authority.
3. The Petitioners, i.e. the heirs of Maniram through the lawfully wedded wife did not initiate the proceedings. The heirs of Mhalsabai initiated the present proceedings under Section 70(b) of the Bombay Tenancy Act.
4. The Tahsildar held on the basis of crop inspection report and on the basis of the evidence or one of the landlord namely Pandharinath v. Ambedkar that Mhalsabai's heirs are the tenants of the suit. They have paid rent to the landlord and relied on receipts of rent for the year 1975-76 to 1976-77.
5. Thus the trial Court held that the respondents were tenants de hors the Deed dated 19th July, 1958 which had been held by this Court to be in contravention of Section 27 of the Bombay Tenancy Act.
6. The Petitioners preferred an appeal before the Sub-Divisional Officer. The appellate Court by the judgment and order dated 13th September, 1982 disbelieved the evidence of one of the landlords i.e. Pandharinath and held that the Respondents cannot be declared to be the tenant. The Sub-Divisional Officer also negatived the claim of the Respondents to tenancy under Section 40 of the Bombay Tenancy Act since according to the Sub-Divisional Officer there was no definite act on the part of the Applicants to show that they were willing to continue their tenancy under the provisions of law. According to the Sub-Divisional Officer since Mhalsabai could not have been a tenant by virtue of Deed dated 19th July, 1958 having been held to be invalid, her heirs could not claim tenancy either.
7. The Respondents preferred a revision before the Maharashtra Revenue Tribunal. The Maharashtra Revenue Tribunal has reversed the finding of the Sub-Divisional Officer that the Respondents were not tenants and has held them to be the tenants. The findings of the Maharashtra Revenue Tribunal are based mainly on the fact that the document dated 19th July, 1958 which was held to be invalid being in contravention of Section 27 of the Bombay Tenancy Act, can nonetheless be construed to be a will in favour of Mhalsabai and therefore capable of creating a tenancy in her name. This finding of the Maharashtra Revenue Tribunal is plainly insupportable in view of the settled position of law vide judgment of this Court in the case of Bhaskar Bhagwant Deshpande v. Dattatraya Narsingrao Deshpande and Anr., reported in 1993 B.C.J. 626 that a tenancy cannot be assigned either by gift or will. The Maharashtra Revenue Tribunal has reversed the finding of the Sub-Divisional Officer that the Respondents application is barred by limitation and held that it was not barred by limitation since the Respondents have been in possession.
8. Having heard the learned Counsel for both the sides, it is clear that the order of the Maharashtra Revenue Tribunal in that relies on the document dated 19th July, 1958 and declares it to be effective as a will, when it has already been declared to be ineffective as a gift for the purpose of assignment of tenancy right is clearly insupportable. The Maharashtra Revenue Tribunal ignored the settled position in law that a tenant cannot assign tenancy rights in agricultural land by an instrument styled as a will vide Bhaskar Bhagwant Deshpande (supra). And such an assignment would be in contravention of Section 27 of the Bombay Tenancy act. Therefore, the writ petition must succeed.
9. In the result, the impugned order of the Maharashtra Revenue Tribunal dated 2/3rd July, 1882 passed in Ten. Appeal NO. 258 of 1980 is set aside and the matter is remanded back to the appropriate authority exercising powers under Section 76 of the Bombay Tenancy Act for decision afresh in accordance with law. Petition allowed. Rule made absolute accordingly. Office to forthwith despatch the records proceedings to the appropriate authority.
10. All issues raised by the parties are left open for the decision.
In the circumstances of the case, however, there shall be no order as to costs.
All Authorities concerned to act on an ordinary copy of this order duly authenticated as true copy by the Sheristedar of this Court.