J.M. Shelat, J.
1. In and prior to 1888, S. No. 1535 of Dehgam belonged to one Shankar Kahandas. In 1888 Shankar mortgaged that survey number to one Vala Piru. Subsequently Vala Piru transferred the mortgage in favour of one Karamchand Dharamchand. Karamchand thereafter let out the land to the father of the petitioner. After the death of Karamchand his son Ambalal Karamchand continued the tenancy and the petitioners father continued to cultivate the land as a tenant. On the death of the petitioners father the petitioner continued in possession of the land as a tenant. Shankars heir one Shiva Bapu sold the land in 1945 to respondent No. 1 and one Ambalal Purshottamdas whose heirs and legal representatives are respondents 2 to 7. After the aforesaid purchase respondent No. 1 and Ambalal Purshottamdas filed on March 29 1945 a suit for redemption and possession being suit No. 188 against Ambalal Karamchand. A decree for redemption and possession was passed on November 22 1951 Thereafter respondent No. 1 and Ambalal Purshottamdas took out a Darkhast against the mortgagee Ambalal Karamchand. In pursuance of the Darkhast a panchnama as to the standing crop was made hut it appears the actual possession was not taken from the petitioner. Consequently the respondents filed a suit against the petitioner being suit No. 1059 of 1958 or possession and in that suit the issue was as to whether the petitioner was a tenant That issue was referred to the Mamlatdar and the reference was heard by the Tenancy Aval Karkun who held that the petitioner was a deemed tenant under Section 4 of the Bombay Tenancy and Agricultural Lands Act 1948 On the matter having been taken up before the superior revenue Tribunals both the Prant Officer and the Tribunal held that on the redemption of the mortgage the petitioners tenancy ceased and therefore the petitioner was no longer a tenant and was not entitled to the protection of the Tenancy Act.
It may be observed that Dehgam where the land in question is situate was in the former Baroda State territory. The merger of Baroda State territory having taken place in 1949 it was only on July 30 1949 that the Tenancy Act then in force viz. Act LXVII of 1948 was applied for the first time to this area.
2. The finding of the Tribunal was that the petitioner was inducted on the land before. the Tenancy Act in this case the Act of 1948 was brought into operation and possibly before 1948. But it is clear that though the petitioner was brought on the land as a tenant prior to 1948 the Tenancy Act of 1939 did not apply to his tenancy because that Act was never brought into operation in this area and the only Act which was brought into force was the Act of 1948. Consequently it would be the Act of 1948 only that would be applicable. On these findings the Tribunal followed the principle laid down in Kamji Kurji v. Kala Gopal 59 Bom. L.R. 846 that in the case of land situate in the area to which the Act of 1939 was never made applicable as in the case of land situate in the former Baroda State a tenant of a mortgagee in possession who derived title through him could not acquire the status of a deemed tenant or a statutory tenant under the Act of 1948. On this footing the Tribunal held that the applicant was not entitled to claim the status of a deemed tenant or a statutory tenant under the Act of 1948.
3. The question is whether the Tribunal was right in the conclusion it arrived at Supporting the Tribunals decision Mr. Oza appearing for the respondents argued that the suit for redemption was filed in March 1945 and the tenant was brought on land by the mortgagee in or about 1948 i.e. while the suit was pending as found by the Tribunal. The Tenancy Act not having been brought in force in this area the tenancy would be governed by the law then applicable in Baroda territory which it is not in dispute was equivalent to the Transfer of Property Act. Mr. Oza argued that therefore Section 52 of the Transfer of Property Act applied and no valid tenancy could have been created by virtue of the doctrine of lis pendens. He contended that the petitioner therefore acquired no tenancy rights Mr. Oza however is partially right in that the principle in Section 52 of the Transfer of Property Act would apply in such a case. But he is not correct in saying that no valid tenancy at all could be created while the suit was pending. No doubt the suit for redemption was filed as early as March 1945 and as the tenancy was created as held by the Tribunal by the mortgagee sometime prior to 1948 it was subject to Section 52 of the Transfer of Property Act. The tenancy therefore could subsist subject to the result of the suit and therefore until November 22 1951 when the Appellate Court passed the decree for redemption and the mortgagors paid up under that decree the mortgage amount the tenancy was valid and subsisting. This view is supported by Section 89 of the 1948 Act. Sub-section (1) of that section repealed the Tenancy Act of 1939 but Sub-section (2) thereof saved certain things. Sub-section (2)(b) of Section 89 provided:
But nothing in this Act or any repeal effected thereby
xx xx xx xx xx xx(b) shall save as expressly provided in this Act affect or be deemed to affect
(i) any right title interest obligation or liability already acquired accrued or incurred before the commencement of this Act or
(ii) any legal proceeding or remedy in respect of any such right title interest obligation or liability or anything done or suffered before the commencement of this Act
and any such proceedings shall be continued and disposed of as in this Act was not passed.
Therefore any rights obligation or liability already acquired accrued or incurred before the commencement of this Act were not to be affected or be deemed to be affected by the enactment of the Act or the repeal of the 1939 Act save as expressly provided in the Act and the suit which had commenced before the Tenancy Act of 1948 was applied to this area had to be continued and disposed of as if the 1948 Act was not passed. The result therefore was that the suit had to be disposed of under the ordinary law viz. the Transfer of Property Act. Inspite of Section 52 of the Transfer of Property Act the rights of a tenant brought on land pendente lite would continue till the redemption decree was passed and the decretal amount was paid up. This would appear to be the position under the Transfer of Property Act which until July 30 1949 governed the rights and obligations of the parties.
4. The next question is whether these rights were affected when the Act of 1948 was brought into force in this area on July 30 1949 Since the decree for redemption and possession was passed on November 22 1951 and the mortgage therefore subsisted till then the tenancy created in favour of the petitioner subsisted even under the Transfer of Property Act till then. Prima facie from July 3U 1949 and onwards that tenancy would be governed by the Tenancy Act of 1948. Under Section 2(18) of the Act a tenant has been defined as a person who holds land on lease and includes inter alia a person who is deemed to be a tenant under Section 4. A deemed tenant under Section 4 is a person lawfully cultivating any land belonging to another person and which land is not cultivated personally by the owner provided that the tenant does not fall in any of the three excepted categories. The question that really arises in this petition is whether the petitioner can be said to fall under Clause (c) of Section 4.
5. Now in order to visualise the correct position of such a tenant it is necessary to point out briefly certain decisions dealing with a tenant in the position of the petitioner. In Dinkar Bhagwant Salekar v. Rau Babaji Mahamulkar 59 Bom. L.R. 101 Bavdekar and Gokhale JJ. held that under Section 3 of the Bombay Tenancy and Agricultural Lands Act 1948 the provisions of Chapter V of the Transfer of property Act applied to the tenancy created by S in that case the mortgagee in possession and that therefore under Section 111(c) of the Transfer of Property Act when the interest of S came to an end and when the mortgage was redeemed in 1949 the interest of the opponent who was Ss lessee also came to an end and he was not entitled to possession of the lands. They also held that the expression mortgagee in possession in Section 4(c) of the 1948 Act included everyone claiming through the mortgagee in possession and therefore included a tenant of such a mortgagee. Then came the decision of the Full Bench of the High Court of Bombay in Jasvantrai Tricumlal Vyas v. Bai Jiwi 59 Bom. L.R. 168. Though it was a case against a sub-tenant claiming protection under Section 4 of the 1948 Act the decision in Dinkar Bhagwant v. Rau Babaji was considered and the Pull Bench held that the view in Dinkar Bhagwant v. Rau Babaji as to the tenant of a mortgagee in possession was not correct and that as there was no provision in the 1939 Act similar to Section 4(c) of the Act a tenant governed by the 1939 Act by reason of his lawfully cultivating the land of another was a deemed tenant although there was no privity of contract between him and the owner and although he did not derive his right or interest in the land through the owner but derived it through another person viz. the mortgagee. I he decision in Jasvantrai Tricumlal v. Bai Jiwi, thus laid down the principle that in the case of a tenancy governed by the 1939 Act a tenant of a mortgagee would be a deemed tenant entitled to the protection of the Act. Then came the decision in Kanji Kurji v. Kala Gopal 59 Bom. L.R. 846 to which the late Mr. Justice Tendolkar and I were parties. The facts in that case were that Kala Gopal and Anr. (the applicants) applied to the Collector of Amreli under Section 84 of the Act of 1948 for summary eviction of one Kanji Kurji (the respondent) from certain survey numbers situate in Amreli Taluka alleging that they were the heirs of the original mortgagors that on October 10 1954 they had redeemed the lands from their mortgagees and that on redemption of the mortgage the respondent who was a tenant of the mortgagee had ceased to be a tenant and had become a trespasser. The Collector held that the respondent was a trespasser after redemption of the mortgage and therefore granted summary eviction. The respondent applied in revision to the Bombay Revenue Tribunal and the Tribunal upheld the order of the Collector observing thai the amendment effected by Section 4(c) of the Tenancy Act supported the view taken by it that under the old Act all persons lawfully on the land were intended to be protected but that the Legislature realising the difficult postilion in which the mortgagor would find himself if the tenancy created by the mortgagee in possession were to be protected and on redemption the mortgagor was prevented from getting possession of the land made the necessary amendment by enacting Section 4(c). On this reasoning the Tribunal held in that case that Kanji who was the tenant of the mortgagee in possession would cease to be a tenant on redemption of the mortgage. In that case the Division Bench construing the expression a mortgagee in possession in Section 4(c) of the 1948 Act included within its scope all persons who derived title under a mortgage in possession and held that a tenant from a mortgagee in possession who derived through him could not acquire the status of a deemed tenant or a statutory tenant under the Act.
6. Had the position as it stood in Kanji Kurji v. Kala Gopal continued the Tribunal would have been right in its conclusion. But in a recent decision in Civil Appeal No. 16 of 1960 Dahya Lala and Ors. v. Rasul Mahomed Abdul Rahim and Ors. decided on May 3 1962 (since reported in 65 Bom. L.R. 328 the Supreme Court has held that the expression a mortgagee in possession in Clause (c) of Section 4 does not include a tenant of a mortgagee in possession. In that case S. No. 126 of Mauje Talod District Broach belonged to the ancestors of the appellants. By a deed dated July 24 1891 the owners mortgaged the land to one Umiyashanker with possession and shortly after the mortgage the mortgagee inducted the respondent as a tenant on the land. The appellants as owners of the equity of redemption, applied to the Court constituted under the Bombay Agricultural Debtors Relief Act for adjustment of the debt due under the deed dated July 24 1891 and for redemption of the land mortgaged. On February 19 1954 an award was made in this application by a compromise between the parties declaring that Rs. 3,000/- were due to the mortgagee; that the land was in possession of the respondent as the tenant of the mortgagee and that the mortgagor had the right to take possession of the land from the tenant. In execution of the award the respondent was evicted. On July 7 1954 the respondent applied to the Mahalkari of Hansot for an order for possession under Section 29 of the 1948 Act. The Mahalkari rejected the application and that order was confirmed in appeal by the Prant Officer and later by the Bombay Revenue Tribunal. The High Court on an application under Article 227 of the Constitution following the decision in Jasvantrai Tricumlal v. Bai Jiwi set aside the order passed by the Tribunal and directed that possession of the land should be restored to the respondent declaring that the respondent was entitled to continue in occupation as a tenant on the same terms on which he was a tenant of the mortgagee. The mortgagee had inducted in this case the respondent as a tenant on the mortgaged land long before the Act of 1939 was passed. But the tenancy was governed by the 1939 Act after that Act came into force and subsequently by the 1948 Act when it substituted the 1939 Act. Their Lordships of the Supreme Court observed that Section 4 of the 1948 Act sought to confer the status of a tenant upon a person lawfully cultivating the land belonging to another and that such a person was only to establish that he was cultivating the land lawfully that the land belonged to another person and that he was not within the excepted categories. Two contentions were urged in that case on behalf of the appellants viz.
(1) that a person could be said to be lawfully cultivating land only if he derived his right to cultivate directly from the owner of the land and not from some other person who had a limited interest such as a mortgagee from the owner, and
(2) that the expression mortgagee in possession included a person claiming a derivative right such as a tenant of a mortgagee in possession.
7. Both these contentions were however rejected The Supreme Court observed that the only relevant condition imposed by the statute was that the person claiming the status of a deemed tenant must be cultivating land lawfully. It is not the condition that he must cultivate the land with the consent of or under authority derived directly from the owner. Their Lordships then observed that under the transfer of Property Act the right of a tenant inducted by a mortgagee in possession ordinarily comes to an end with the extinction of the mortgage by redemption but they emphasised that that rule has no application in the interpretation of a statute which has been enacted with the object of granting protection to persons lawfully cultivating agricultural lands. As regards the meaning of the expression a mortgagee in possession they negatived the contention that that expression would include a tenant of a mortgagee in possession and observed that a mortgagee in possession was excluded from the class of deemed tenants on grounds of public policy for to confer that status upon a mortgagee in possession would be to invest him with rights inconsistent with his fiduciary character. They held that a transferee of the totality of the rights of a mortgagee in possession may be deemed to be a mortgagee in possession; but a tenant of the mortgagee in possession is inducted on the land in the ordinary course of management under the authority derived from the mortgagor and so long as the mortgage subsists he is not liable even under the ordinary law to be evicted by the mortgagor. They further observed that the Legislature by restricting the exclusion to mortgagees in possession from the class of deemed tenants intended that the tenant lawfully inducted by the mortgagee on redemption of the mortgage must be deemed to be the tenant of the mortgagor. It is clear from these observations that the view taken in Kanji Kurji v. Kala Gopal can no longer be said to be a correct view with regard to the expression a mortgagee in possession in Clause (c) of Section 4 of the 1948 Act and to that extent the decision in Kanji Kurji v. Kala Gopal must be taken as impliedly reversed. The view taken by the Tribunal on the basis of the decision in Kanji Kurji v. Kala Gopal cannot therefore be sustained.
Mr. Oza next relied upon the decision in Ramdas Popatlal v. Fakira Panda Patil 59 Bom. L.R. 46 decided by Bavdekar and Gokhale JJ. where the learned Judges held that leases which were created and which were affected by the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act did not enable the lessee to exercise any rights created in his favour by the Tenancy Act of 1948. Mr. Oza relying upon this decision contended that since the lease in the instant case was created by the mortgagee while the suit for redemption was still pending the petitioner could not claim any rights as a tenant under the Tenancy Act of 1948 and that he was debarred from doing so by the doctrine of lis pendens embodied in Section 52 of the Transfer of Property Act. In that case the lands in question were mortgaged by Dhana Supadu the owner thereof to one Madhav Martand in the year 1928. The mortgage was a simple mortgage. Dhana created a further simple mortgage on the same lands in favour of one Rajmal. Madhav filed a suit against Rajmal and Dhana Supadu upon his own mortgage of 1928 for sale of the mortgaged property. Rajmal in a suit filed by him against Dhana on his mortgage had already obtained a decree and in execution of that decree Rajmal had purchased the lands himself at the auction sale in 1932. In April 1935 Madhav obtained a decree for sale and in 1938 he made an application for execution of the decree. During the pendency of this application Rajmal let the lands to Fakira. Subsequently in the application for execution made by Madhav the lands were sold to Ramdas (the applicant) on March 17 1953 Ramdas then applied to the Mamlatdar for a declaration that the opponent was not his tenant. The Mamlatdar held that the opponent was not the tenant of the applicant relying upon Section 52 of the Transfer of Property Act on appeal by the opponent the District Deputy Collector upheld the order of the Mamlatdar but the Tribunal set aside the order passed by the District Deputy Collector. The Tribunal observed that all that Section 52 provided was that no such transfer during the pendency of the proceeding would affect the right of any other party under any decree or order and that meant that the auction purchaser would not be affected by any transfer made by the mortgagor. The Tribunal observed that this would not mean that the possession of the applicant-tenant at the inception was unlawful and though a decree for sale was passed against Rajmal the mortgagor until then was entitled to cultivate the lands himself or to let them out to any other person till the property was sold and the auction purchaser took possession from him. The Tribunal held that it could not be accepted that merely because the decree for sale was passed and the lease had been created during the pendency of the proceeding the lease was unlawful in the sense that the possession of the tenant was unlawful at the very inception. The Tribunal therefore held that the possession of the tenant at the inception was lawful and therefore he was lawfully cultivating the lands even under the ordinary law. It held that the opponent-auction purchaser might be entitled to evict the applicant under the provisions of the Tenancy Act and rejected the contention that the applicant was not a tenant. Before the High Court the tenant urged that it was permissible for the mortgagor to create a lease even while the proceedings were pending that Section 52 of the Transfer of Property Act did not prevent the mortgagor from creating such a lease and therefore the lease was not invalid in its inception. It was further argued that there was no reason why if a valid lease was created by a mortgagor in favour of opponent No. 1 if subsequently owing to the operation of Section 3 A of the 1939 Act opponent No. 1 became a protected tenant of the mortgagor then he should not subsequently also become a protected tenant of the person who became entitled to the possession of the property as a result of the auction sale in the mortgagees suit. The learned Judges negativing these contentions held that Section 52 of the Transfer of Property Act prevented the mortgagor from creating any lease pending the suit so as to affect the rights of the mortgagee or any person who would purchase the property as a result of the suit. Any rights therefore which would be created in such a tenant because of the operation of the provisions of the Tenancy Act would not help the tenant as against the mortgagee unless there was anything in the provisions of the Tenancy Act which required that notwithstanding the provisions of Section 52 of the Transfer of Property Act such rights could be created in the tenant. This conclusion was it would appear reached by the learned Judges because of the view they took of Section 3A in the Act of 1939. The view that they took was that under Section 3A of the Act opponent No. 1 became a protected tenant but that was only so far as the mortgagor himself was concerned and that under the provisions of Section 3A opponent No. 1 had no rights as against the mortgagee under the lease created in his favour by the mortgagor. It is clear from the judgment that in the first place no contention was urged before them as regards the effect of Section 4 of the 1948 Act and the rights thereunder of the tenant and in the second place it was also not pointed out to the learned judges that though the tenant was inducted by the mortgagor in 1939 or 1940-41 and though the tenancy in its inception was governed by the 1939 Act the tenant continued in possession until the application against him was made in 1953. It was also not pointed out that therefore the tenant was entitled to the benefit of Section 4 of the 1948 Act which had already come into operation when the application against the tenant was made in the year 1953. Thirdly it was also not contended that under Section 4 of the 1948 Act the tenant was a person lawfully cultivating the land that he satisfied all the conditions of Section 4 that he was not a person falling under any of the excepted categories laid down in that section and therefore he was entitled to the benefit and protection of Section 4 of the 1948 Act. The decision in Ramdas Popatlal v. Fakira Pandu must therefore be held to be confined to the effect of Section 3A of the 1939 Act and on the interpretation thereof by the learned Judges that the tenancy did not create any rights in favour of the tenant as against the mortgagee. Therefore the decision in Ramdas Popatlal v. Fakira Pandu cannot be invoked by Mr. Oza in support of his contention.
8. As observed by the Supreme Court in the unreported decision referred to above since reported in 65 Bom. L.R. 328) the Tenancy Acts of 1939 and 1948 were manifestly steps in the process of the agrarian reform launched with the object of improving the economic condition of the peasants and ensuring full and efficient use of land for agricultural purposes and the provisions of the 1948 Act must therefore be viewed in the light of the social reform envisaged thereby. The point that Section 4 had the effect of overriding Section 52 of the Transfer of property Act was not argued before the learned judges and was not in fact considered in Ramdas Popatlal v. Fakira Pandu and that case was decided merely on an interpretation of Section 3A of the 1939 Act adopted by the learned judges there without taking into consideration the effect of Section 4 of the 1948 Act on the status and the rights of a deemed tenant not liable to be evicted except under the provisions of the Tenancy Acts and only on the grounds thereunder provided for his eviction.
Mr. Oza next relied upon Section 76(a) of the Transfer of Property Act and the decision reported in Asa Ram and Anr. v. Mst. Ram Kali and Anr. : 1SCR988 based upon that section. Section 76(a) and the decision in : 1SCR988 are however not applicable in the instant case because it has nowhere been alleged by the respondents throughout these proceedings that the tenancy created by the mortgagee in possession was an imprudent transaction in the sense of its being contrary to the interests of the mortgagor which would arise on and after the redemption of the mortgage. In point of fact it could not have been done because the Tenancy Act was not in force when the tenancy in question was created. On the contrary it has been all along assumed that the petitioner was lawfully cultivating the land. That being so the contention urged by Mr. Oza on the basis of Section 76(a) of the Transfer of Property Act cannot be accepted.
9. Finally Mr. Oza sought to rely upon Section 89(2)(b)(i) of the 1948 Act which provides that nothing in this Act or any repeal effected thereby shall save as expressly provided in this Act affect or be deemed to affect any right title interest obligation or liability already acquired accrued or incurred before the commencement of this Act. Mr. Oza contended that under this provision the right of the mortgagor of redemption and possession was expressly saved and that therefore the right of redemption and possession of the lands in question accrued to the respondents in March 1945 when they filed the suit against the mortgagee for redemption and possession and that that being so any rights of tenancy created after such a right had accrued to the respondents could not deprive the respondent from obtaining possession of the lands from the petitioner who derived his interest in the lands through the mortgagee. The provision in Section 89 invoked by Mr. Oza however cannot assist him because the rights said to have accrued to the respondents under this clause are subject to the express provisions of the Act. Such express provisions are to be found in Sections 4 and 29 of 1948 Act and that being so this contention also cannot be sustained.
For the reasons aforesaid and in view of the decision of the Supreme Court in Civil Appeal No. 516 of 1960 referred to above we must come to the conclusion that the view taken in Kanji Kurji v. Kala Gopal is impliedly reversed and the conclusions therefore arrived at by the Tribunal and the Prant Officer cannot be accepted as correct. The rule therefore must be made absolute. The decision of the Tribunal is set aside and that of the Mamlatdar is restored. There will however be no order as to costs.