Gujarat High Court
Vanitaben D-O Natvarbhai Gordhan Patel vs Kamlaben Sukhabhai Mali on 13 August, 2025
NEUTRAL CITATION
C/FA/2086/2013 JUDGMENT DATED: 13/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2086 of 2013
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2013
In R/FIRST APPEAL NO. 2086 of 2013
With
R/SPECIAL CIVIL APPLICATION NO. 10729 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
✓
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VANITABEN D-O NATVARBHAI GORDHAN PATEL
Versus
KAMLABEN SUKHABHAI MALI & ORS.
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Appearance:
MR P P MAJMUDAR(5284) for the Appellant(s) No. 1
MR SHITAL R PATEL(2166) for the Defendant(s) No. 4,5,6,7
RULE NOT RECD BACK for the Defendant(s) No. 10,8,9
RULE SERVED for the Defendant(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 13/08/2025
ORAL JUDGMENT
ORDER IN FIRST APPEAL NO.2086 OF 2013
1. The present First Appeal has been filed under Section 96
read with Order 41 of the Code of Civil Procedure, 1908
(hereinafter referred to as “the CPC“). The appeal is filed at the
instance of the original plaintiff of Special Civil Suit No. 244/2012,
challenging the judgement and decree dated 30.04.2013 passed by
the 12th Additional Senior Civil Judge, Vadodara, below Exhs. 17
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and 19, whereby the suit came to be rejected under Order 7, Rule
11(a), (c), and (d) of the CPC.
2. As far as possible, the parties to the appeal will be referred to
as per their original position in the suit
3. Short Facts of the case appears to be reads as under:-
3.1. The Appellant herein is original plaintiff, whereas
Respondents herein are original Defendants of Regular Civil Suit
No.244/2012. The Defendant Nos.8 to 10 happen to be siblings
(sisters) of plaintiff.
3.2. Whereas, plaint disclosed the facts that the Will executed
in favour of father of plaintiff in relation to suit property, so plaintiff
filed the suit considering herself having right and ownership over
the suit property by way of the aforesaid Will. The registered sale
deed dated 17/04/2009 executed by Defendants Nos. 1 to 3 in
favour of Defendants No. 4 to 7 is null and void and illegal, and as
such, the plaintiff is in legal use and possession of the suit
property.
3.3. Defendants No. 4 to 7 and Defendant Nos. 1 to 3 have filed
impugned applications vide Ex Nos. 17 and 19 respectively, praying
that the suit filed with a deficit court fee, is barred by law, and that
there is no cause of action for filing this suit and as such barred by
law. The defendants further state that looking to the prayer of the
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plaintiff, there was a deficit court fee and, looking to the market
value of the suit property and the various prayers of the plaintiff,
the plaintiff is liable to pay a deficit court fee of Rs. 1,50,000/- in
all, and considering the deficit court fee, this suit is also required to
be dismissed
3.4. While Defendants No. 1 to 3 have filed this application
vide Ex. 19 under Order 7, Rule 11(a) and (d) of the C.P.C. to reject
the plaint. In the said application, it is stated that the plaintiff has
filed this suit for declaration and permanent injunction on the
ground of a “Will” as described for the suit land situated at
Tandalja, bearing R.S. No. 2. It is stated that the plaintiff has no
cause of action to file this suit, as well as the plaintiff having no
litigant interest in the suit. The ‘banakhat’ of the suit land was
executed between the father of plaintiff and the defendant No.1 to
3’s father and under such pretext, Will dated 27.12.1990 was
executed in favour of father of plaintiff. But later on, such Will was
cancelled by defendant No. 1to 3’s father having executed Will
dated 20.10.1995. So, an earlier Will was rejected as it was made
by cheating by the father of the plaintiff, and as per the last Will, it
was decided to give the suit land to the heirs as per the Will. And in
that Will, the names of the defendants No. 1to 3 were mentioned as
nominees.
3.5. It is further stated in the application that the plaintiff has
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filed this suit without getting Probate of the said Will to get relief in
respect of ownership, right, and possession of the waste land. That
the suit is barred by Section 213 of the Indian Succession Act and
Section 9 of the CPC. That this Court has no jurisdiction to decide
this suit because the testimony of the Will is to be decided or heard
only by the designated Probate Court, and even as proposed per
Section 213 of the Indian Succession Act, whether this Will is last
and final is decided only by the designated Court. Hence, as per
Section 213 of the Indian Succession Act, whether this Will is last
or not? Even right or wrong? The said question is to be decided by
the Probate Court, and therefore, this suit cannot proceed as it is
barred by law and is required to be rejected.
3.6. It is further contended that suit property was new tenure
land which was restricted tenure and as per provisions of Gujarat
Tenancy and Agricultural Act, 1948 (hereinafter referred to as the
“Tenancy Act, 1948”) especially Section 43 of Tenancy Act, 1948,
even through Will as well, such land could not have bequeathed in
favour of father of plaintiff in turn by way of Will in favour of
plaintiffs. There is a clear bar under law thus, neither cause of
action to file suit nor could have been decided on its merit being
barred by law.
3.7. The plaintiff has opposed both these applications filed
below Exhs. 17 and 19, thereby contending that the suit requires to
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be decided on its merits by giving her an opportunity to lead
evidence to prove her case.
3.8. After hearing the parties, the trial Court has found that
there is no cause of action arising in the matter and as such, no
relief can be granted in favour of the plaintiff as it is barred under
Section 43 of Tenancy Act, 1948. It was also observed by the trial
Court that the plaintiff has not even paid the requisite court fee to
maintain the suit when seeking the declaratory relief prayed for in
the suit.
3.9. Thus, in view of the aforesaid, the trial Court, vide the
impugned order dated 30.04.2013, rejected the suit. Hence, the
present appeal has been filed.
4. SUBMISSION OF APPELLANT – PLAINTIFF:-
4.1. Learned Counsel Mr. Shegun Chokshi for learned
Advocate Mr. P.P. Majmudar submits that the impugned order
passed by the trial Court is without jurisdiction inasmuch as it has
traveled beyond the ambit and scope of Order 7, Rule 11 of the
CPC.
4.2. Learned Counsel Mr. Chokshi would further submit that
the trial Court could not have relied upon the documents which
were submitted by the defendants along with their written
statement, while adjudicating the impugned application filed below
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Exhs. 17/19 under Order 7, Rule 11 of the CPC.
4.3. It is submitted that whether the original owner of the suit
land had the right to bequeath the suit land in favour of the father
of the plaintiff by way of a will would be a matter of trial and could
not have been examined in an application filed under Order 7, Rule
11 of the CPC.
4.4. Learned Counsel Mr. Chokshi would further submit that
the judgment which was cited and relied upon by the defendants
would not be applicable to the case on hand, inasmuch as the
execution of the will in favour of the father of the original plaintiff
was on 27.12.1990 and, as such, the owner of the suit land, namely
Sukharam, died on 05.09.1997. At that point in time, there was no
such decision of this Court which prohibited the transfer of suit
land by virtue of a will.
4.5. It was submitted that when the original owner of the suit
land died in the year 1997, on the strength of his registered will
dated 27.12.1990 in favour of the father of the plaintiff, he became
the owner of the suit land. When the father of the plaintiff died on
07.02.2000, the plaintiff became a co-owner of the suit land along
with Defendants Nos. 7 to 9.
4.6. Learned Counsel Mr. Chokshi further submitted that there
are disputed questions of fact in the matter; thereby, the trial Court
could not have rejected the plaint at the threshold. It is respectfully
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submitted that as per the settled position of law, whenever there is
a disputed fact in question, the suit cannot be rejected without
allowing the parties to lead evidence.
4.7. Learned Counsel Mr. Chokshi would further submit that,
considering the facts and circumstances of the present case, none
of the provisions of the Tenancy Act, 1948, would be applicable. It
is respectfully submitted that neither Section 43 nor Section 63 of
the Tenancy Act, 1948, would apply to the facts of the present case
and, as such, there was no bar under the law for the execution of a
will, in relation to the suit land. And as such, the trial Court has
committed a serious error of law while rejecting the suit.
4.8. Making the above submissions, I would request this Court
to allow the present appeal.
5. POINT FOR DETERMINATION:-
i) Whether, in the facts and circumstances of the case, the trial
Court has committed any error of law while rejecting the plaint
under Order 7, Rule 11(a), (c), and (d) of the CPC or not?
6. ANALYSIS:-
7. The facts which are observed herein above are not in dispute.
The plaintiff, claiming to be one of the legal heirs of one Late
Natvarbhai Gordhanbhai Patel, who was allegedly holding a
registered Will dated 27.12.1990 of one Late Mr. Sukhabhai
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Shamalbhai Mali (erstwhile owner of suit land) whereby, Late Mr.
Sukhabhai bequeathed the suit land in favour of said late Mr.
Natvarbhai.
8. The averments made in the plaint would indicate that Late
Mr. Sukhabhai was tilling the suit land and by virtue of a Gujarat
Government circular dated 30.06.1962 and an order passed
thereon dated 19.09.1962, Mr. Sukhabhai and Mr. Chhotabhai
Mansukhbhai received the land. As Late Mr. Sukhabhai deposited
some amount as per a circular dated 25.01.1963, the suit land was
occupied and owned by him as a new tenure land.
9. The revenue records were also submitted by the plaintiff
herself along with the plaint. The bare reading of such averments
made in the plaint, coupled with the documents/evidence produced
on record by the plaintiff herself, it would appear that the suit land
was a new tenure land. Further, it appears that such land was
made available to Late Mr. Sukhabhai as he was tilling the land.
This fact remains undisputed, as stated by the plaintiff herself in
the plaint, which can surely be looked into by the trial Court while
adjudicating the impugned application filed below Exhs. 17/19 by
the original Defendants Nos. 1 to 7 under Order 7, Rule 11 of the
CPC.
9.1. The trial Court has considered such averments made in
the plaint and so also referred revenue records made available by
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plaintiff on record along with his suit and so also referred a
decision of Division Bench of this Court in the case of Rajenbhai
Baldevbhai Shah Vs. Baljiben Kabhaibhai Patanwadia And
Others, reported in 2009 (2) GLR 1784 whereby, rejected the
suit.
9.2. The issue germane in the present appeal is, as such,
squarely covered by decision of Division Bench of this Court in the
case of Rajenbhai (supra) which was confirmed by Full Bench of
Hon’ble Supreme Court of India, in the case of Rajenbhai
Baldevbhai Shah Vs. Laxmanbhai Fakirbhai And Others
reported in 2020 18 SCC 144.
10. The Division Bench of this Court in the case of Rajenbhai
Shah (supra) held thus:-
“1. Leave granted. These appeals arise out of the common judgment and
order dated 17-3-2009 passed by the Division Bench of the High Court of
Gujarat at Ahmedabad in Special Civil Application No. 25058 of 2006 and all
other connected matters while answering the questions referred to it by a
Single Judge of the High Court. The questions that arose for consideration
and the circumstances in which the matters were referred to it were set out
by the Division Bench as under : (SCC OnLine Guj)
“We are called upon to decide as to whether Section 63 of the Bombay
Tenancy and Agricultural Lands Act, 1948 (for short “the Bombay Tenancy
Act”) debars an agriculturist from parting with his agricultural land to a
non-agriculturist through a “will” so also, whether Section 43(1) of the
Tenancy Act restricts transfer of any land or interest purchased by the
tenant under Sections 17-B, 32, 32-F, 32-I, 32-O, 32-U, 33(1) or 88-E or
sold to any person under Section 32-P or 64 of the Tenancy Act through the
execution of a will or by way of testamentary disposition.
Learned Single Judges of this Court have taken a consistent view that such
transfer of property through testamentary disposition would not violatePage 9 of 24
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Section 43 or 63 of the Tenancy Act. J.B. Mehta, J. in Manharlal Ratanlal v.
Taiyabali Jaji Mohamed [Manharlal Ratanlal v. Taiyabali Jaji Mohamed,
(1967-68) 5 Guj LT 199] while interpreting Section 43(1) of the Tenancy Act
took the view that the expression “transfer” which is used in Section 43(1) of
the Tenancy Act must be interpreted in the light of the Transfer of Property
Act viz. the transfer by way of act of parties. Learned Judge took the view that,
if the legislature wanted to include a transfer by operation of law as to include
succession, insolvency, inheritance, etc. or sales by public auction, specific
provision would have been made to that effect. Learned Judge held that all the
specific categories which are mentioned are all of transfers by act of parties,
bequest by will cannot be included in the scope of the term “gift” or
“assignment”. Rajesh Balia, J. in Ghanshyambhai Nabheram v. State of
Gujarat [Ghanshyambhai Nabheram v. State of Gujarat, 1998 SCC OnLine
Guj 266 : (1999) 40 (2) GLR 1061] while interpreting Section 63 of the
Tenancy Act took a view that just like, a non-agriculturist be not deprived
Leave granted. These appeals arise out of the common judgment and order
dated 17-3-2009 passed by the Division Bench of the High Court of Gujarat at
Ahmedabad in Special Civil Application No. 25058 of 2006 and all other
connected matters while answering the questions referred to it by a Single
Judge of the High Court. The questions that arose for consideration and the
circumstances in which the matters were referred to it were set out by the
Division Bench as under : (SCC OnLine Guj)“We are called upon to decide as to whether Section 63 of the Bombay
Tenancy and Agricultural Lands Act, 1948 (for short “the Bombay Tenancy
Act”) debars an agriculturist from parting with his agricultural land to a non-
agriculturist through a “will” so also, whether Section 43(1) of the Tenancy
Act restricts transfer of any land or interest purchased by the tenant under
Sections 17-B, 32, 32-F, 32-I, 32-O, 32-U, 33(1) or 88-E or sold to any person
under Section 32-P or 64 of the Tenancy Act through the execution of a will or
by way of testamentary disposition.
Learned Single Judges of this Court have taken a consistent view that such
transfer of property through testamentary disposition would not violate
Section 43 or 63 of the Tenancy Act. J.B. Mehta, J. in Manharlal Ratanlal v.
Taiyabali Jaji Mohamed [Manharlal Ratanlal v. Taiyabali Jaji Mohamed,
(1967-68) 5 Guj LT 199] while interpreting Section 43(1) of the Tenancy Act
took the view that the expression “transfer” which is used in Section 43(1) of
the Tenancy Act must be interpreted in the light of the Transfer of Property
Act viz. the transfer by way of act of parties. Learned Judge took the view that,
if the legislature wanted to include a transfer by operation of law as to includePage 10 of 24
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succession, insolvency, inheritance, etc. or sales by public auction, specific
provision would have been made to that effect. Learned Judge held that all the
specific categories which are mentioned are all of transfers by act of parties,
bequest by will cannot be included in the scope of the term “gift” or
“assignment”. Rajesh Balia, J. in Ghanshyambhai Nabheram v. State of
Gujarat [Ghanshyambhai Nabheram v. State of Gujarat, 1998 SCC OnLine
Guj 266 : (1999) 40 (2) GLR 1061] while interpreting Section 63 of the
Tenancy Act took a view that just like, a non-agriculturist be not deprived of
his inheritance, a legatee under a will, can also be a non-agriculturist, hence,
there is no bar in succeeding the property through testamentary disposition.
Learned Judge held that Revenue laws dealing with agricultural lands have
not made the land uninheritable and they also do not disqualify a non-
agriculturist from inheritance nor a number of persons are disentitled from
succeeding to estate of an agriculturist as body of successors, which may
result in well-defined share of the estate of deceased vesting in them
individually. Rajesh Balia, J. again in Pravinbhai Bhilalbhai Gor v.
Rajivkumar Gupta [Pravinbhai Bhilalbhai Gor v. Rajivkumar Gupta, 1998
SCC OnLine Guj 260 : (1999) 40 (1) GLR 440] while interpreting Sections 43
and 63 of the Tenancy Act took the view that both provisions clearly go to
show that they refer only to transaction or transfer or agreement to transfer of
land or any interest therein which are inter vivos and not to vesting of such
rights in anyone as a result of transmission or as a result of succession on
death of holder and the provisions do not affect the operation of law of
inheritance. Appeal filed against the above judgment was, however, dismissed
in State of Gujarat v. Pravinbhai Bhailalbhai Gor [State of Gujarat v.
Pravinbhai Bhailalbhai Gor, 1999 SCC OnLine Guj 476 : (2000) 41 (3) GLR
2168] . K.A. Puj, J. also took identical view in Gasfulbhai Mohmadbhai
Bilakhia v. State of Gujarat [Gasfulbhai Mohmadbhai Bilakhia v. State of
Gujarat, 2004 SCC OnLine Guj 242 : (2005) 46 (1) GLR 575] and Gopiram
Dedraj Agrawal v. State of Gujarat [Gopiram Dedraj Agrawal v. State of
Gujarat, 2003 SCC OnLine Guj 405 : (2004) 45 (1) GLR 237] . Learned
Judge also made reference to the Circular dated 13-2-1989 issued by the State
Government and took a view that that Section 43 as well as Section 63 of the
Tenancy Act would not debar transfer of property by testamentary disposition.
R.K. Abichandani, J. also took the same view in Babubhai Mervanbhai Patel
v. State of Gujarat [Babubhai Mervanbhai Patel v. State of Gujarat, 2004
SCC OnLine Guj 623 : (2005) 1 GLH (UJ) 3] . Learned Single Judge Jayant
Patel expressed some doubts about the views expressed in the abovereferred
judgments and felt that the matter requires reconsideration in the light of the
decisions rendered by the Supreme Court in Sangappa Kalyanappa Bangi v.
Land Tribunal, Jamkhandi [Sangappa Kalyanappa Bangi v. Land Tribunal,Page 11 of 24
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Jamkhandi, (1998) 7 SCC 294] (Rajendra Babu, J.) and Jayamma v. Maria
Bai [Jayamma v. Maria Bai, (2004) 7 SCC 459] (Sinha, J.) and hence these
matters have been placed before us.”of his inheritance, a legatee under a will,
can also be a non-agriculturist, hence, there is no bar in succeeding the
property through testamentary disposition. Learned Judge held that Revenue
laws dealing with agricultural lands have not made the land uninheritable and
they also do not disqualify a non-agriculturist from inheritance nor a number
of persons are disentitled from succeeding to estate of an agriculturist as body
of successors, which may result in well-defined share of the estate of deceased
vesting in them individually. Rajesh Balia, J. again in Pravinbhai Bhilalbhai
Gor v. Rajivkumar Gupta [Pravinbhai Bhilalbhai Gor v. Rajivkumar Gupta,
1998 SCC OnLine Guj 260 : (1999) 40 (1) GLR 440] while interpreting
Sections 43 and 63 of the Tenancy Act took the view that both provisions
clearly go to show that they refer only to transaction or transfer or agreement
to transfer of land or any interest therein which are inter vivos and not to
vesting of such rights in anyone as a result of transmission or as a result of
succession on death of holder and the provisions do not affect the operation of
law of inheritance. Appeal filed against the above judgment was, however,
dismissed in State of Gujarat v. Pravinbhai Bhailalbhai Gor [State of Gujarat
v. Pravinbhai Bhailalbhai Gor, 1999 SCC OnLine Guj 476 : (2000) 41 (3)
GLR 2168] . K.A. Puj, J. also took identical view in Gasfulbhai Mohmadbhai
Bilakhia v. State of Gujarat [Gasfulbhai Mohmadbhai Bilakhia v. State of
Gujarat, 2004 SCC OnLine Guj 242 : (2005) 46 (1) GLR 575] and Gopiram
Dedraj Agrawal v. State of Gujarat [Gopiram Dedraj Agrawal v. State of
Gujarat, 2003 SCC OnLine Guj 405 : (2004) 45 (1) GLR 237] . Learned
Judge also made reference to the Circular dated 13-2-1989 issued by the State
Government and took a view that that Section 43 as well as Section 63 of the
Tenancy Act would not debar transfer of property by testamentary disposition.
R.K. Abichandani, J. also took the same view in Babubhai Mervanbhai Patel
v. State of Gujarat [Babubhai Mervanbhai Patel v. State of Gujarat, 2004
SCC OnLine Guj 623 : (2005) 1 GLH (UJ) 3] . Learned Single Judge Jayant
Patel expressed some doubts about the views expressed in the abovereferred
judgments and felt that the matter requires reconsideration in the light of the
decisions rendered by the Supreme Court in Sangappa Kalyanappa Bangi v.
Land Tribunal, Jamkhandi [Sangappa Kalyanappa Bangi v. Land Tribunal,
Jamkhandi, (1998) 7 SCC 294] (Rajendra Babu, J.) and Jayamma v. Maria
Bai [Jayamma v. Maria Bai, (2004) 7 SCC 459] (Sinha, J.) and hence these
matters have been placed before us.”
7. The Division Bench considered the scope and ambit of Sections 43 and
63 of the Act as under : (Rajenbhai Baldevbhai Shah case [Rajenbhai
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Baldevbhai Shah v. Baijiben Kabhaibhai Patanvadia, 2009 SCC OnLine Guj
1804 : (2009) 50 (2) GLR 1784] , SCC OnLine Guj)
“We may, before examining the scope and ambit of Sections 43 and 63 of
the Tenancy Act, examine the object and purpose of the Tenancy Act. The
Bombay Tenancy Act was enacted with an avowed object of safeguarding
interest of the tenants who held the land for over a number of years, on
principle that the land tilled belongs to the tillers of the soil and also to
preserve agricultural lands to safeguard interest of the agriculturists. Object
is also to improve the economic and social conditions of peasants ensuring the
full and efficient use of land for agriculture, and to assume management of
estates held by landholders and to regulate and impose restrictions on the
transfer of agricultural lands, dwelling houses, sites and lands appurtenant
thereto belonging to or occupied by agriculturists, agricultural labourers and
artisans. Chapters II and III of the Act deal with tenancies in general and
“protected tenants” and their special rights, and privileges, in particular.
Legislature also thought it necessary to confer on “protected tenants” the
right to purchase their holdings from their landlords, to prevent uneconomic
cultivation and to create and encourage peasant proprietorship in respect of
holdings of suitable sizes. The Act is covered by Schedule VII List II Entry 18
to the Constitution of India and was enacted for the protection of tenants and
to organise agriculture by maintaining agricultural lands so as to be in tune
with the directive principles of the State Policy. Article 48 of the Constitution
of India state that the State shall endeavour to organise agriculture and
animal husbandry on modern and scientific lines, and shall, in particular, take
steps for preserving and improving the breeds, and prohibiting the slaughter
of cows, calves and other milch and drought cattle. The necessity of meeting
agricultural production and to preserve agricultural land is clearly
discernible in the above constitutional provisions. Further, by enacting clause
(g) in Article 51-A, Parliament has given the status of fundamental duties to
Article 48 and honoured the spirit and message of Article 48 as a fundamental
duty of the citizens. The Bombay Tenancy Act not only takes a positive step
towards achieving the goal of transferring the land tilled to the tillers, but also
wanted to preserve and protect agricultural lands and for improving the
economic and social conditions of persons and to ensure the full and efficient
use of land for agriculture. Section 43, which appears in Chapter III of the
Tenancy Act, deals with special rights and privileges of tenants and provisions
for distribution of land for personal cultivation. Section 63 appears in Chapter
V of the Tenancy Act deals with restrictions on transfers of agricultural lands,
management of uncultivated lands and acquisition of estates and lands.”
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8. In these appeals challenging the correctness of the decision [Rajenbhai
Baldevbhai Shah v. Baijiben Kabhaibhai Patanvadia, 2009 SCC OnLine Guj
1804 : (2009) 50 (2) GLR 1784] of the Division Bench of the High Court, we
have heard Mr Sanjay Parikh, learned Senior Advocate and Mr Raghavendra
S. Srivatsa, learned advocate for the appellants and Mr Aniruddha P. Mayee,
learned advocate for the State.
9. It is submitted by the learned counsel for the appellants that what is
prohibited under Sections 43 and 63 of the Act is transfer inter vivos, and
not any “testamentary disposition” by the holder of the land. In their
submission, the expressions used in Sections 43 and 63 like “sale”, “gift”,
“exchange”, and “mortgage” are suggestive of transfers by a living person
and the expression “assignment” in Section 43(1) of the Act must be read
ejusdem generis with the preceding expressions appearing in that section and
that the expression “assignment” does not even appear in Section 63. It is,
therefore, submitted that both these provisions do not deal with any
“testamentary disposition”.
10. It is also submitted by Mr Srivatsa that the concept of succession,
whether testamentary or intestate, being part of Schedule VII List III Entry 5
to the Constitution and a concurrent subject, the Central legislation, namely,
the Succession Act, 1925 must hold the field and any prohibition in the State
enactment inconsistent with the general principles of the Central legislation,
in the absence of any assent of the President, would be void. It is further
submitted that the State Legislature must be taken to be fully aware of this
legal position and, therefore, while construing the term “assignment” due
regard to this aspect must also be given. As an extension of this submission, it
is contended that the decisions of this Court in relation to the provisions of the
Karnataka Land Reforms Act, 1961 in Sangappa [Sangappa Kalyanappa
Bangi v. Land Tribunal, Jamkhandi, (1998) 7 SCC 294] and Jayamma
[Jayamma v. Maria Bai, (2004) 7 SCC 459] are distinguishable as the
provisions of the Karnataka Land Reforms Act, 1961 had received
Presidential assent, whereas, the provisions of the Act have not received any
such assent. Reliance is also placed on the judgment of this Court in Mahadeo
v. Shakuntalabai [Mahadeo v. Shakuntalabai, (2017) 13 SCC 756 : (2017) 5
SCC (Civ) 749] in which similar provisions from the Bombay Tenancy and
Agricultural Lands Act, 1958 (as applicable to Vidarbha Region of the State
of Maharashtra) came up for consideration before this Court.
12. We may now consider the decisions of this Court which have dealt with
issues concerning testamentary disposition of agricultural holdings–
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12.1. In Sangappa [Sangappa Kalyanappa Bangi v. Land Tribunal,
Jamkhandi, (1998) 7 SCC 294] , the facts were noted as under : (SCC p. 296,
para 2)
“2. The facts leading to this appeal are as follows:
Sangappa Bangi made an application under Section 45 of the Karnataka Land
Reforms Act, 1961 (hereinafter referred to as “the Act”) in Form 7 claiming
occupancy rights in respect of the land in question. During the pendency of
the proceedings, he made a will on 8-4-1975 bequeathing his tenancy rights in
respect of the land in favour of one Ameerjan who claims to be the legal
representative of the appellant Sangappa who died during the pendency of
proceedings before the Tribunal. She in turn executed another will under
which Husensab is making a claim to the land through the said Sangappa.
Respondent 2 is the wife of the said Sangappa while Respondents 3 to 5 are
the children of Sangappa. The Land Tribunal as well as the Appellate
Authority examined the question whether right to tenancy could have been the
subject-matter of a bequest under a will. In answering that question, the
Appellate Authority referred to a decision of the High Court of Karnataka in
Shivanna v. Rachiah [Shivanna v. Rachiah, (1977) 1 Kant LJ (SN 160) 146]
wherein it was stated that there was no prohibition against a tenant disposing
of his interest by testamentary disposition. However it was stated that such
testamentary disposition must be confined to the heirs of the deceased or an
interpretation of the provision of Sections 21 and 24 of the Karnataka Land
Reforms Act that the tenancy rights are inherited only by legal representatives
and not by anybody else; that tenancy could be deemed to have been
continued in favour of the heirs of the tenant. It is also made clear that
transfer of tenancy rights made in violation of the provisions of Section 21
would be void. The High Court did not give any detailed reasons, but taking
the view that the Appellate Authority and the Land Tribunal having
concurrently held that Respondents 2 to 5 are entitled to grant of occupancy
rights, found no reasons to interfere with the order made by them.”
12.2. The question that arose for consideration was dealt with by this Court as
under : (SCC pp. 298-99, paras 5-6)
“5. This case gives rise to a difficult and doubtful question, whether a devise
under a will would amount to an assignment of interest in the lands and,
therefore, would be invalid under the provisions of Section 21 of the Land
Reforms Act. What is prohibited under Section 21 of the Act is that there
cannot be any sub-division or sub-letting of the land held by a tenant or
assignment of any interest thereunder. Exceptions thereto are when the tenant
dies, the surviving members of the joint family and if he is not a member of the
joint family, his heirs shall be entitled to partition and sub-divide the landPage 15 of 24
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leased subject to certain conditions. Section 24 of the Act declares that when a
tenant dies, the landlord is deemed to continue the tenancy to the heirs of such
tenant on the same terms and conditions on which the tenant was holding at
the time of his death. We have to read Section 21 with Section 24 to
understand the full purport of the provisions. Section 24 is enacted only for
the purpose of making it clear that the tenancy continues notwithstanding the
death of the tenant and such tenancy is held by the heirs of such tenant on the
same terms and conditions on which he had held prior to his death. The heirs
who can take the property are those who are referable to in Section 21. If he is
a member of the joint family, then the surviving members of the joint family
and if he is not such a member of a joint family, his heirs would be entitled to
partition. Again, as to who his heirs are will have to be determined not with
reference to the Act, but with reference to the personal law on the matter. The
assignment of any interest in the tenanted land will not be valid. A devise or a
bequest under a will cannot be stated to fall outside the scope of the said
provisions inasmuch as such assignment disposes of or deals with the lease.
When there is a disposition of rights under a will, though it operates
posthumously is nevertheless a recognition of the right of the legatee
thereunder as to his rights of the tenanted land. In that event, there is an
assignment of the tenanted land, but that right will come into effect after the
death of the testator. Therefore, though it can be said in general terms that the
devise simpliciter will not amount to an assignment, in a special case of this
nature, interpretation will have to be otherwise.
6. If we bear in mind the purpose behind Section 21, it becomes clear that the
object of the law is not to allow strangers to the family of the tenant to come
upon the land. The tenanted land is not allowed to be sub-let i.e. to pass to the
hands of a stranger nor any kind of assignment taking place in respect of the
lease held. If the tenant could assign his interest, strangers can come upon the
land, and therefore, the expression “assignment” will have to be given such
meaning as to promote the object of the enactment. Therefore, the deceased
tenant can assign his rights only to the heirs noticed in the provision and such
heirs could only be the spouse or any descendants or one who is related to the
deceased tenant by legitimate kinship. We must take into consideration that
when it is possible for the tenant to pass the property to those who may not
necessarily be the heirs under the ordinary law and who become heirs only by
reason of a bequest under a will in which event, he would be a stranger to the
family and imported on the land thus to the detriment of the landlord. In that
event, it must be taken that a devise under a will will also amount to an
assignment and, therefore, be not valid for the purpose of Section 21 of the
Act. If Section 24 is read along with Section 21, it would only mean that the
land can pass by succession to the heirs of a deceased tenant, but subject to
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the conditions prescribed in Section 21 of the Act. Therefore, we are of the
view that the broad statement made by the High Court in the two decisions in
Shivanna [Shivanna v. Rachiah, (1977) 1 Kant LJ (SN 160) 146] and
Dhareppa v. State of Karnataka [Dhareppa v. State of Karnataka, 1978 SCC
OnLine Kar 308 : (1979) 1 Kant LJ 18] would not promote the object and
purpose of the law. Therefore, the better view appears to us is as stated by the
High Court in Timmakka Kom Venkanna Naik v. Land Tribunal [Timmakka
Kom Venkanna Naik v. Land Tribunal, 1987 SCC OnLine Kar 172 : (1987) 2
Kant LJ 337] .”
12.3. Similar issues regarding disposition by will were dealt with by this Court
in Jayamma [Jayamma v. Maria Bai, (2004) 7 SCC 459] , as follows : (SCC
pp. 464-65, paras 16 & 18-22)
“16. We would discuss the construction of the provision of Section 61 of the
said Act, a little later, but we have no hesitation in holding that in the event if
it be held that the testator could not have executed the will in favour of a
person who could not be declared to be a tenant having occupancy right, such
a will would be void ab initio and, therefore, non est in the eye of the law. The
court in such an event would not be determining a disputed question of title
but would be considering the effect of the statute vis-à-vis the will in question.
***
18. As we have noticed hereinbefore, that the statutory embargo on transfer of
land is stricter in a case where the tenant has become occupant than a land
held by a tenant simpliciter. We have also noticed that the embargo on
transfer is not only by way of sale, gift, exchange, mortgage, lease but also by
assignment. What is permitted under the law is partition of the land amongst
the members of the family. Section 61 of the Act is to be read in its entirety.
19. Sub-section (3) of Section 61 lays down that any transfer of land in
contravention of sub-section (1) shall be invalid whereupon the same shall
vest in the State Government free from all encumbrances. The legislative
intent that the land should not be allowed to go into the hands of a stranger to
the family is, therefore, manifest. Whereas in terms of Section 21, strangers to
the family of the tenant to come upon the land is not allowed, the tenor of
Section 61 is that except partition amongst the co-sharers, no transfer of the
property, in any manner, is permissible.
20. When an assignment or transfer is made in contravention of statutory
provisions, the consequence whereof would be that the same is invalid, and
thus, being opposed to public policy the same shall attract the provisions of
Section 23 of the Indian Contract Act.
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21. It is not disputed that in view of the purport and object the legislature
sought to achieve by enacting the said provision the expression “assignment”
would include a will.
22. In this case, there is also no dispute that grant of agricultural land with
occupancy right in terms of the provisions of the said Act was made on 14-10-
1981. The will in question having been executed on 20-2-1984; the transfer
has been made within a period of fifteen years from the date of grant which is
prohibited in law.”
12.4. Both these decisions were in the context of prohibition against transfer
or assignment under the provisions of the Karnataka Land Reforms Act, 1961.
In Mahadeo [Mahadeo v. Shakuntalabai, (2017) 13 SCC 756 : (2017) 5 SCC
(Civ) 749] , this Court dealt with Section 57 of the Bombay Tenancy and
Agricultural Lands Act, 1958 as applicable to Vidarbha Region of the State
Maharashtra, and observed : (SCC pp. 757-58, paras 4-6)
“4. The High Court took the view [Mahadeo v. Shakuntalabai, 2003 SCC
OnLine Bom 453 : (2004) 2 Bom CR 456] that the provisions of Section 57 of
the Bombay Tenancy and Agricultural Lands Act, 1958 pertaining to
Vidarbha Region do not permit the transfer of land by way of a will. Section
57 of the Act which is relevant reads as follows:
’57. Restriction on transfers of land purchased or sold under this Act.–(1)
No land purchased by a tenant under Section 41 or 46 or 49-A or 57-D or 130
or sold to any person under Section 91 or 122 shall be transferred by sale,
gift, exchange, mortgage, lease or assignment without the previous sanction of
the Collector. Such sanction shall be given by the Collector in such
circumstances and subject to such conditions as may be prescribed by the
State Government.
(2) Any transfer of land in contravention of sub-section (1) shall be invalid:
Provided that nothing in this section shall apply to the lands purchased by an
occupancy tenant.’
5. On a plain reading of the aforesaid provision, it is clear that transfer
without the previous sanction of the Collector is impermissible by way of sale,
gift, exchange, mortgage, lease or assignment. There is no prohibition insofar
as the transfer of land by way of a will is concerned. In fact, in view of the
decision of this Court in State of W.B. v. Kailash Chandra Kapur [State of
W.B. v. Kailash Chandra Kapur, (1997) 2 SCC 387] , devolution of property
by way of a will does not amount to a transfer of the property. This is clear
from para 12 of the aforesaid decision wherein it has been observed that
transfer connotes, normally, between two living persons during life. However,Page 18 of 24
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a will takes effect after demise of the testator and transfer in that perspective
becomes incongruous.
6. That the beneficiary of a will receives the property by way of devolution
and not by way of transfer is also made clear by the decision of this Court in
S. Rathinam v. L.S. Mariappan [S. Rathinam v. L.S. Mariappan, (2007) 6 SCC
724] wherein this Court has held in para 21 that : (SCC p. 732)
’21. A testator by his will, may make any disposition of his property subject to
the condition that the same should not be inconsistent with the laws or
contrary to the policy of the State. A will of a man is the aggregate of his
testamentary intentions so far as they are manifested in writing. It is not a
transfer but a mode of devolution.’
In coming to this conclusion, this Court referred to Beru Ram v. Shankar Dass
[Beru Ram v. Shankar Dass, 1998 SCC OnLine J&K 19 : AIR 1999 J&K
55] .”
12.5. It must be stated here that the decisions in Sangappa [Sangappa
Kalyanappa Bangi v. Land Tribunal, Jamkhandi, (1998) 7 SCC 294] and
Jayamma [Jayamma v. Maria Bai, (2004) 7 SCC 459] were rendered by
Benches of two Judges and so was the decision in Mahadeo [Mahadeo v.
Shakuntalabai, (2017) 13 SCC 756 : (2017) 5 SCC (Civ) 749] . However, the
decision in Mahadeo [Mahadeo v. Shakuntalabai, (2017) 13 SCC 756 : (2017)
5 SCC (Civ) 749] does not show that the attention of the Bench was invited to
the earlier decisions in Sangappa [Sangappa Kalyanappa Bangi v. Land
Tribunal, Jamkhandi, (1998) 7 SCC 294] and Jayamma [Jayamma v. Maria
Bai, (2004) 7 SCC 459] .
12.6. The decision of this Court in Sangappa [Sangappa Kalyanappa Bangi v.
Land Tribunal, Jamkhandi, (1998) 7 SCC 294] had approved the decision of
the Division Bench of the High Court of Karnataka in Timmakka [Timmakka
Kom Venkanna Naik v. Land Tribunal, 1987 SCC OnLine Kar 172 : (1987) 2
Kant LJ 337] , wherein the following observations were made by the Division
Bench : (SCC OnLine Kar paras 13-15)
“13. Two decisions of the Supreme Court were also referred, in support of his
contention by the learned counsel. In Jaspal Singh v. Addl. District Judge,
Bulandshahr [Jaspal Singh v. Addl. District Judge, Bulandshahr, (1984) 4
SCC 434] , a question arose under U.P. Act 13 of 1972. There was a bar
against transfer of the tenant’s interest during his lifetime. Similarly, if a
tenant sub-leases the premises, he was liable to be ejected. Therefore, is was
held that the scheme of the Act did not warrant the transfer of the tenancy
right, to be effective after the lifetime of the tenant. Thus the claim of the
nephew of the tenant who claimed the right under a will executed by the
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deceased tenant was rejected.
14. In Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala [Bhavarlal
Labhchand Shah v. Kanaiyalal Nathalal Intawala, (1986) 1 SCC 571] the
question was whether the tenant of a non-residential premises continuing in
occupation after the period of contract is over, can bequeath his right of
occupation by will. The Supreme Court negatived such a contention. The
Supreme Court approved the observations of the Bombay High Court in Anant
T. Sabnis v. Vasant Pratap Pandit [Anant T. Sabnis v. Vasant Pratap Pandit,
1979 SCC OnLine Bom 90 : AIR 1980 Bom 69] which were extracted….
15. Having regard to the above decisions, we are of the opinion that the
deceased Hammi could not have bequeathed the tenancy right in favour of
Respondents 2 and 3 or to any one of them. If so, any possession and
cultivation by Respondents 2 and 3, after the death of the original tenant
Hammi, cannot be termed as lawful and they cannot be termed as tenants. It
has also come on record that throughout there was protest by the appellant
against registering the names of Respondents 2 and 3 or any one of them as a
tenant in the record-of-rights. Therefore, as on 1-3-1974 neither Respondent 2
nor Respondent 3 was cultivating the lands in question as a tenant and hence
Sections 44, 45 or 48-A of the Act cannot govern their claim. The Land
Tribunal erred in granting occupancy right in favour of Respondents 2 and 3
on the basis of the alleged will and hence the same is liable to be set aside. In
this view of the matter, the learned Single Judge should have reversed the
order of the Land Tribunal. Therefore, the order of the learned Single Judge
also cannot be sustained.”
12.7. On the other hand, the decision in Mahadeo [Mahadeo v. Shakuntalabai,
(2017) 13 SCC 756 : (2017) 5 SCC (Civ) 749] had placed reliance on the
decisions of this Court in State of W.B. v. Kailash Chandra Kapur [State of
W.B. v. Kailash Chandra Kapur, (1997) 2 SCC 387] and in S. Rathinam [S.
Rathinam v. L.S. Mariappan, (2007) 6 SCC 724] . In neither of these cases
any statutory prohibition or restriction on transfer or assignment was
involved.
(emphasis supplied)
10. As referred to hereinabove, the aforesaid judgment passed by
the Division Bench of this Court was carried to the Hon’ble
Supreme Court, which has confirmed the aforesaid judgment in a
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case of Laxmanbhai Fakirbhai And Others (supra) held thus:-
“35. If the provisions referred to in Section 43 of the Act and allied provisions
are considered in light of the settled principles extracted earlier, it emerges
that the primary concern of those provisions is to see that the legislative
scheme of granting protection to persons from disadvantaged categories and
conferring the right of purchase upon them, and thereby ensure direct
relationship of a tiller with the land. The provisions, though lay down a norm
which may not be fully consistent with the principles of the Succession Act,
are principally designed to attain and subserve the purpose of protecting the
holdings in the hands of disadvantaged categories. The prohibition against
transfers of holding without the previous sanction of the authorities
concerned, is to be seen in that light as furthering the cause of legislation.
Even if by the process of construction, the expression “assignment” is
construed to include testamentary disposition, in keeping with the settled
principles, the incidental encroachment cannot render the said provisions
invalid. In pith and substance, the legislation and the provisions concerned
are completely within the competence of the State Legislature and by
placing the construction upon the expression “assignment” to include
testamentary disposition, no transgression will ensue.
37. In the premises, we accept the construction put by the Division Bench
on the provisions that fell for consideration. The challenge to the view
[Rajenbhai Baldevbhai Shah v. Baijiben Kabhaibhai Patanvadia, 2009 SCC
OnLine Guj 1804 : (2009) 50 (2) GLR 1784] taken by the Division Bench
must therefore be rejected. We must also observe that the decision of this
Court in Mahadeo [Mahadeo v. Shakuntalabai, (2017) 13 SCC 756 : (2017) 5
SCC (Civ) 749] which had failed to notice the earlier decisions in Sangappa
[Sangappa Kalyanappa Bangi v. Land Tribunal, Jamkhandi, (1998) 7 SCC
294] and Jayamma [Jayamma v. Maria Bai, (2004) 7 SCC 459] and which is
inconsistent with the decisions referred to hereinabove and what we have
concluded, must be held to be incorrectly decided.”
(emphesis supplied)
11. Thus, in view of the above-stated legal position of law, it is
now a well-settled legal position of law that the land which is
restricted tenure land/new tenure land as per the provisions of the
Tenancy Act, 1948, such land cannot be bequeathed by way of
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execution of Will. If it done so, no right would accrue in favour of
the beneficiary of the Will. Once such is the position of law, the
execution of any alleged Will by Late Mr. Sukhabhai in favour of
the father of the plaintiff, in relation to the suit land concerned, the
father of the plaintiff could not have derived any benefit out of such
Will, as the land is undisputedly a new tenure – restricted nature of
land given by the Government to Late Mr. Sukhabhai, who was
tilling it when it was offered.
12. When no right accrued in favour of the father of the plaintiff
in relation to the suit land is concerned, the question of any
transfer of such alleged non-exist right would not be passed on to
the plaintiff and/or her siblings. So, there would not be any cause of
action accrued for filing the aforesaid suit seeking any declaration
as prayed for in the suit. Likewise, the execution of a Will could not
be considered as a transfer in favour of the father of the plaintiff,
having a bar under Section 43 read with Section 63 of the Tenancy
Act, 1948. In light of aforesaid provisions of law, the suit itself
would not be maintainable whereby the plaintiff is questioning the
sale deed executed by the legal heirs of Late Mr. Sukhabhai, i.e.,
Defendants Nos. 1 to 3 in favour of Defendants Nos. 4 to 7 on
17.04.2012.
13. Further, observation as regards deficient court fees is
concern, considering nature of dispute and declaration sought for
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by plaintiff, she required to pay court fee as per valuation of suit
property as plaintiff is seeking declaration qua suit property apart
from seeking declaration that sale deed in question is null and void
not binding to plaintiff. So, on all counts, suit deserves to be
rejected.
14. Thus, in view of aforesaid, none of the arguments canvassed
by learned Advocate Mr. Chokshi impressed me to take a different
view than that taken by the trial Court. As such, I do not find any
error committed by the trial Court while rejecting the suit as,
according to my view also, the suit would not be maintainable as
stated aforesaid.
15. In view of the aforesaid observations, discussions, and
reasons, there is no merit in the appeal, which requires to be
dismissed, which is hereby dismissed. No order as to costs. The
Record and Proceedings if any received by this Court shall be
returned to the trial Court forthwith. The Civil Application is also
disposed of accordingly.
ORDER IN SPECIAL CIVIL APPLICATION NO. 10729
of 2013:-
1. The present writ application is filed under Article 227 of the
Constitution of India by the original plaintiff of Regular Civil Suit
No. 244 of 2012, thereby challenging the impugned order dated
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13.04.2013 passed by the 12th Additional Senior Civil Judge,
Vadodara, below Exh. 17 in the aforesaid suit.
2. As such, in view of the order, judgment, and decree dated
13.08.2025 passed by this Court while dismissing First Appeal No.
2086 of 2013 as aforesaid, the present writ application is not
required to be further adjudicated upon.
3. Accordingly, the present writ application is also rejected.
Rule is discharged. No order as to costs. Interim relief stands
vacated forthwith
(MAULIK J.SHELAT,J)
KKN
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