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Sahebrao Anna Ritpure Vs. Dattatraya Krishnajee Patel - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 921 of 1963
Judge
Reported in(1965)67BOMLR774; 1966MhLJ17
AppellantSahebrao Anna Ritpure
RespondentDattatraya Krishnajee Patel
DispositionApplication allowed
Excerpt:
.....admissible in evidence -whether such certificate requires registration.;a certificate issued under section 38(6)(a) of the hyderabad tenancy and agricultural lands act, 1950, operates as a legal transfer and it does not require registration. it is, therefore, admissible in evidence.;narayan laxman v. keshav bhimji (1960) 62 bom. l.r. 889 referred to. - - it will be at once clear that section 38-e is confined to a case of protected tenant whereas section 38 applies to the case of a protected as well as an ordinary tenant. the position of the tenant under section 38(6) is inferior to that of the protected tenant under section 38b, but once the tenant has gone through the procedures of making the offer and getting the price determined and depositing the said amount, i fail to understand..........of the decree for specific performance. therefore defendant no. 1 applied to the agricultural lands tribunal under section 38(5). the tribunal determined the price and defendant no. 2 deposited the amount before the tribunal. it appears that after the written statement, a certificate was issued under section 38(6) of the hyderabad tenancy act, before the framing of the issues defendant no. 2 tendered the certificate in evidence. the plaintiff objected to the admissibility of the document. the trial court held that the document required registration under section 17(7) and inasmuch as it has not been registered it is not admissible under section 49 of the indian registration act. it is against that decision that defendant no1. 2 has come up in revision. the only point for.....
Judgment:

Naik, J.

1. This Revision Application raises a somewhat ticklish point under the Hyderabad Tenancy and Agricultural Lands Act, 1950. Respondent No 1, who is hereinafter described as the plaintiff, filed a suit in ejectment against the petitioner, who is hereinafter described as defendant No. 2, in respect of survey No. 292/D and No. 293/D at village Mangrul, Taluka Kallam. The plaintiff contended that while he was enjoying' the land as owner, the husband of defendant No. 1, Sahebrao, forcibly dispossessed him. According to him the date of dispossession is March 15, 1950. It is common ground that Sahebrao died on September 19, 1950, leaving his widow as the only heir. The plaintiff alleges that defendant No, 2, in collusion with defendant No. 1, entered into possession of the land in suit. The plaintiff has, therefore, claimed possession and mesne profits from both the defendants.

2. Defendant No. 1 appeared and admitted the plaintiff's claim. Defendant No. 2 contended that the land in dispute was gifted to Sahebrao by Krishnaji on the ground that Sahebrao happened to be an illegitimate son of Krishnaji. According to defendant No. 2, he started cultivating the laud as tenant of defendant No. 1 since 1955. Defendant No. 2 alleged that defendant No. 1 entered into a deed agreeing to sell the land for a sum of Rs. 2,500. A deed of agreement was executed and Rs. 2,000 were paid under the agreement. The remaining amount was stipulated to be paid at the time of the execution of the sale-deed. Since defendant No. 1 did not fulfil the contract, he filed a suit for specific performance (Suit No. 24 of 1958) and on admission by defendant No. 1, the suit has also been decreed. Defendant No. 1 did not execute the sale-deed in pursuance of the decree for specific performance. Therefore defendant No. 1 applied to the Agricultural Lands Tribunal under Section 38(5). The Tribunal determined the price and defendant No. 2 deposited the amount before the Tribunal. It appears that after the written statement, a certificate was issued under Section 38(6) of the Hyderabad Tenancy Act, Before the framing of the issues defendant No. 2 tendered the certificate in evidence. The plaintiff objected to the admissibility of the document. The trial Court held that the document required registration under Section 17(7) and inasmuch as it has not been registered it is not admissible under Section 49 of the Indian Registration Act. It is against that decision that defendant No1. 2 has come up in revision. The only point for consideration is whether the certificate is admissible hi evidence or not.

3. Before considering the question of the admissibility or otherwise, it is necessary to refer to the provisions contained in Chapter 4, relating to protected tenants. Section 34 defines a protected tenant to mean a tenant in respect of land if he-

(a) has held such land as a tenant continuously-

(i) for a period of not less than six years, being a period wholly included in the Fasli years 1342 to 1352 (both years inclusive), or

(ii) for a period of not less than six years immediately preceding the 1st day of January 1948, or

(iii) for a period of not less than six years commencing not earlier than the 1st day of the Fasli Year 1353 (6th October 1943), and completed before the commencement of this Act, and

(b) has cultivated such land personally during such period.

Section 35 relates to decisions on claims and Section 36 relates to the recovery of possession by a protected tenant. They are not relevant for the present discussion. Section 37 embodies the definition of 'deemed tenant' and provides that

Every person who at the commencement of this Act holds as tenant any land in respect of which no person is deemed to be a protected tenant under Section 34, shall, on the expiration of one year from such commencement or, the final rejection of all claims by any other person to be deemed under Section 34 to be a protected tenant in respect of such land...

4. Section 37 also relates to another category of deemed tenant and provides that every person who at the commencement of the Hyderabad Tenancy and Agricultural Lands Act, 1950, holds as tenant any land in respect of which he is not deemed to be protected tenant under this Act, shall be deemed to be a protected tenant if the total area of the land owned by the landholder including the land under the cultivation of his tenants is more than three times the area of a family holding. It is not disputed that defendant No. 2 is not a protected tenant either within the meaning of Section 34, 37 or 37A. Defendant No. 1 has himself admitted that defendant No. 2 was his tenant. It is thus clear that defendant No. 2 is an ordinary tenant as distinguished from a protected tenant.

5. That takes me to the consideration of the provisions of Section 38. Sub-section (1) provides that a protected tenant or an ordinary tenant shall at any time after the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1954, be entitled to purchase the landholder's interest in the land held by the former as a protected tenant or an ordinary tenant. Sub-section (1), therefore, speaks of the right of a protected tenant or an ordinary tenant, as the case may be, to get the land sold in his favour. Sub-section (2) relates to a protected tenant and provides that a protected tenant who desires to exercise the right conferred by Sub-section (1) shall make an offer to the land-holder stating the price which he is prepared to pay for the landholder's interest in the land. Sub-section (2a)(a) relates to an ordinary tenant and in effect assimilates his position to that of a protected tenant in Sub-section (2). It is clear that in pursuance of his right to purchase the land, it is open to the protected tenant or an ordinary tenant to make an offer about the price on which he is prepared to purchase the land. Sub-section (3) takes into account the contingency of the landholder refusing to accept the offer within a period of 3 months and provides that in that eventuality the protected tenant or the ordinary tenant may apply to the Tribunal for determination of a reasonable price for the land. Sub-section (4) relates to the procedure to be followed by the Tribunal in determining the price of the land. After the amount is determined Sub-section (5) provides that the protected tenant or the ordinary tenant, as the case may be, shall deposit with the Tribunal the amount of the price determined by the Tribunal either in lump sum or in in-stalments. Sub-section (6)(a) is the most relevant portion for our consideration and it runs thus: (H.T. & A.L. Act) (p. 19) :

On deposit or recovery of the entire amount of the reasonable price (fixed by the tribunal) being made, the tribunal shall issue a certificate in the prescribed form to the protected tenant or the ordinary tenant, as the case may be, declaring him to be the purchaser of the land and such certificate shall be conclusive evidence of the sale as against the land-holder and all persons interested therein.

6. The scheme laid down by Section 38 runs into different stages. The first stage recognises the right of the protected tenant to have the land sold to him. At the second stage the tenant (protected or otherwise) is to make an offer to the landholder regarding the price, of the land. The third stage is reached when the landholder refuses or fails to accept the offer within a period of 3 months. The fourth stage relates to the fixation of the price according to the mode prescribed in Sub-section (4). At the fifth stage the tenant is expected to deposit the amount of the price with the Tribunal either in lump sum or in instalments. After all these stages have been crossed, the final stage is reached and that has been explained in Sub-section (6). Sub-section (6) in effect provides that on the deposit of the entire amount, the Tribunal shall issue a certificate declaring the tenant to be the purchaser and such certificate shall be conclusive evidence of the sale. The form of the certificate is in form 13 of the Rules which runs thus:

Whereas Shri... is the protected/ordinary tenant of the land specified below belonging to the land-holder Shri...and whereas under the provisions of Sub-section (5) of Section 38 of the Tenancy Act, the tenant was required to deposit and has deposited as the price Rs..., it is hereby declared that the said tenant Shri....was deemed to be the purchaser of the land under provisions of Sub-section (6) of Section 38 of the said Act.

7. The effect of the certificate has been stated in Sub-section (6) itself namely that 'such certificate shall be conclusive evidence of the sale as against the landholder and all persons interested therein.'

8. Mr. Choudhari contended that Section 38 envisages the execution of the sale-deed by the landholder, in case an agreement is reached about the price of the land. When such an agreement is not forthcoming- then the price is fixed by the Tribunal and after the amount determined by the Tribunal is deposited, a certificate is issued. According to Mr. Choudhari, a certificate does not and cannot stand on higher footing than a sale-deed. He argued that such a sale-deed would not confer any title in the absence of a registered sale-deed. He carried the argument a step further by referring to Section 38E of the same Act, Section 38E(1) runs thus:.the Government may, by notification (in the Official Gazette) declare in respect of any area and from such date as may be specified therein that ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area under any provision of this chapter shall stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands.

9. Sub-section (2) speaks of the certificate which again is to be issued in the prescribed form. Sub-section (2) also lays down that such certificate shall be conclusive evidence of the protected tenant having become the owner of the land with effect from the date of the certificate. Sub-section (3) reserved the right of the tenant to apply to the Tribunal for determination of reasonable price of the land and the price so fixed can be recovered as arrears of land revenue from the defaulting tenant. It will be at once clear that Section 38-E is confined to a case of protected tenant whereas Section 38 applies to the case of a protected as well as an ordinary tenant. Mr. Choudhari referred to the wording of Section 38-E(1) namely 'that the land shall stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands'.

10. It is true that there is difference in the language of Section 38(6) and Section 38E of the Hyderabad Tenancy Act. All that Section 38(6) provides is that the certificate shall declare the tenant as the purchaser and such certificate shall be a conclusive evidence of the sale as against the land-holder and all persons interested therein. The wording of Section 38-E goes a step further and says 'that the ownership of the land shall stand transferred and vest in the protected tenant'. Mr. Choudhari argued that the transfer under Section 38-E(1) is statutory transfer and would not require any registration. This question was considered by me in Narayan Laxman v. Keshav Bhimji : (1960)62BOMLR889 wherein I observed (p. 891):.Section 38-E applies when the Government issues a notification that the same may be applicable in respect of a particular area. Section 38-E provides for a statutory transfer of ownership and it does not contemplate the execution of a sale-deed by the vendor in favour of the vendee. A protected tenant becomes the owner of the land by virtue of the provisions of Section 38-E of the Act, when all the conditions laid down in that section have been fulfilled notwithstanding that a regular sale-deed has not been passed. There is nothing to suggest in the wording of Section 38-E of the Act that it allows a sort of option to the tenant.

Then I have discussed the scheme of Section 38E of the Act. The mere fact that the wording of Section 38-E(1) is different from the wording of Section 38(6) is no ground for holding that Section 38-E (1) brings about the effect of a statutory transfer and Section 38(6) does not do so but merely contemplates the execution of a further document or the registration of the certificate. It is significant to note that under Section 38(6) the determination of the price and its payment precede the issue of the certificate whereas under Section 38E(1) the statutory transfer takes place as soon as a notification is issued; and then, if the protected tenant fails to pay the amount within 90 days, the amount becomes recoverable as land revenue arrears. It is clear that Section 38-E is intended to confer higher rights because it relates to protected tenant. In the case of a protected tenant as soon as the notification is issued statutory transfer takes place notwithstanding that the price has not been determined and has not been paid. On the other hand under Section 38, the tenant must in the first instance exhaust all his remedies of making an offer and getting1 the price determined and then make a deposit in accordance with the decision of the Tribunal. The position of the tenant under Section 38(6) is inferior to that of the protected tenant under Section 38B, but once the tenant has gone through the procedures of making the offer and getting the price determined and depositing the said amount, I fail to understand why there should be any difference in his position and that of protected tenant. Section 38(6) clearly says that the certificate shall declare the tenant to be the purchaser of the land. This declaration will have the same effect as a regular deed of sale or gift as the case may be. But the section does not stop at this declaration. It goes further and says that the certificate shall be conclusive evidence of the sale as against the landholder and all persons interested therein. Similar effect is given to a statutory transfer under Section 38-E, Sub-section (2). Sub-section (2) also says that the certificate shall declare the protected tenant to be owner and such certificate shall be conclusive evidence of the protected tenant having become the owner of the land. The difference between the two is only of a terminological character. Section 38(6)(a) says that the certificate shall be conclusive evidence of the sale whereas Section 38-E(2) speaks of the certificate affording a conclusive evidence of the tenant having become the owner of the land. I think that the difference is only in form and has no significance in substance. As soon as the certificate is issued under Section 38(6) the person holding the certificate will be assimilated to the position of a person in whose favour declaration of ownership is made under Section 38-E. There is nothing to indicate that the Legislature contemplated the need of registering the certificate. Much less the need of execution of another document. I am unable to understand how another document of sale could be obtained by the holder of the certificate. Ordinarily there is no agreement of sale in his favour, and he cannot seek specific performance of the agreement of sale. Of course in the present case there was an agreement of sale, and defendant No. 2 has obtained a decree for specific performance; but that is neither here nor there. I am unable to see how ordinarily the landholder can be compelled to pass a sale deed voluntarily. All that can be urged is that the certificate should be got registered. But the difficulty will be that the certificate is not an 'instrument' within the meaning of that word in Section 17 of the Registration Act. Apart from this I do not think that the Legislature has contemplated that the certificate needs to be registered. In my view, therefore, as soon as the certificate is issued under Section 38(6), it operates as legal transfer and there is no need of registration of the document. In that view of the case I hold that the document is admissible in evidence and ought to have been allowed to be produced in evidence. I should hasten to add that I am not deciding the question as to whether the certificate would be conclusive so far as the plaintiff is concerned. The question is whether defendant No. 2 who claims to be the tenant of defendant No. 1 acquires any rights of ownership as against the plaintiff and if so what will be the effect of that acquisition upon the plaintiff's rights. This judgment is intended to decide the simple point raised before me namely as to whether the certificate is admissible in evidence or not. The application succeeds. The decision of the trial Court is set aside. It is directed that the certificate should be admitted in evidence. No orders as to costs.


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