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ishverbhai Bhagubhai Vs. Special Secretary, Revenue Department and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Judge
Reported in(1984)2GLR1219
Appellantishverbhai Bhagubhai
RespondentSpecial Secretary, Revenue Department and anr.
Excerpt:
- - it is well-settled that relinquishment of an interest in an immovable property by a co-parcener has the effect of only an effacement or extinction of the interest of the releasor in the property......in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the collector and except in consideration of payment of such amount as the state government may by general or special order determine; and no such land or any interest therein shall be partitioned without the previous sanction of the collector.4. what this section provides is that a tenant who has purchased land under sections 17b, 32, 32f, 32-i, 32-0, 32u or 43-1d or a person to whom land is sold under section 32p or 64 shall not transfer such land either by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the collector. it further provides that such transfer can be effected after obtaining previous sanction of the collector, on.....
Judgment:

G.T. Nanavati, J.

1. Petitioner's father Bhagubhai became deemed purchaser of Survey No. 18 of village Karanj, Taluka Choryasi, District Surat, by virtue of Section 32 read with Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereafter referred to as 'the Tenancy Act'). On his death, his heirs (1) Ishverbhai, (2) Haribhai, (3) Champaklal, (4) Shantaben and (5) Gangaben became the joint owners of the said property. By a deed of relinquishment dated 1-12-1964, the other co-owners relinquished their respective shares in favour of the petitioners. On an application made by the petitioner, a mutation entry was made to that effect in the revenue records. However, the Mamlatdar by his order dated 30-5-1967 cancelled that entry on the ground that the transfer was void according to Section 43 of the Tenancy Act. That order was confirmed in appeal, by the Assistant Collector. The petitioner then filed a further appeal before the Collector, who held that second appeal did not lie; and, therefore, treated it as a revision application under Rule 108 of the Bombay Land Revenue Rules. He confirmed the order passed by the Assistant Collector and dismissed the revision application. The petitioner then filed a revision application before the Special Secretary, Revenue Department. That was also dismissed. The petitioner has, therefore, approached this Court under Article 227 of the Constitution of India.

2. Mr. Shelat, the learned Advocate for the petitioner submitted that relinquishment of a share, as in the present case, cannot amount to a transfer, much less a transfer as contemplated by Section 43 of the Tenancy Act; and, therefore, the authorities below committed an error in taking the view that the transfer was void as it was made in contravention of Section 43 of the Tenancy Act. He further submitted that this erroneous view of law has vitiated the orders passed by the authorities below.

3. Section 43(1) of the Tenancy Act reads as follows:

3.(1) No land or any interest therein purchased by a tenant under Section 17R, 32, 32F, 32-1, 32-0, 32U or 43-1D or sold to any person under Section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest therein shall be partitioned without the previous sanction of the Collector.

4. What this section provides is that a tenant who has purchased land under Sections 17B, 32, 32F, 32-I, 32-0, 32U or 43-1D or a person to whom land is sold under Section 32P or 64 shall not transfer such land either by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector. It further provides that such transfer can be effected after obtaining previous sanction of the Collector, on payment of such amount as the State Government may by general or special order determine. Even in respect of a partition, this section provides that it shall not be effected without the previous sanction of the Collector. On an analysis of this section two things become apparent. It does not prohibit all types of transfers; and secondly, the prohibition is not absolute. For instance, it does not prohibit a transfer pursuant to a testamentary instrument. Even the type of transfers specified in the said section can be effected with the previous sanction of the Collector. It, therefore, becomes obvious that unless the transfer is of a type specified in the section it is not prohibited by it. The question, therefore, which requires to be considered in this case is whether relinquishment of a share, as in the present case, can amount to a transfer as contemplated by Section 43(1) of the Tenancy Act As pointed out earlier, this is a case of relinquishment of a share by a co-parcener in favour of the remaining co-parceners. It is well-settled that relinquishment of an interest in an immovable property by a co-parcener has the effect of only an effacement or extinction of the interest of the releasor in the property. As a result of relinquishment of his share by a co-owner, number of members who remain entitled to participate in the estate gets reduced. It does not lead to any transfer of right, title or interest in the property. This is not a case where a person who had no right or interest in the property was given such a right by the release deed. The Mamlatdar had not cancelled the mutation entry made in the revenue record on the ground that it was not a genuine release deed. In view of the facts and circumstances of this case, it must be held that the authorities below committed an error in taking the view that the relinquishment of shares by the remaining co-owners amounted to a transfer prohibited by Section 43(1) of the Tenancy Act. This basic error of law on the part of the authorities below has vitiated the orders passed by them; and has resulted into miscarriage of justice.

5. In the result, this petition is allowed. The impugned orders passed by the Mamlatdar, the Assistant Collector, the Collector and the Special Secretary, at Annexures A, B and C are hereby quashed and set aside. The Rule is accordingly made absolute with no order as to costs.


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