Holding

The sale by Mahadu to Patel on 11 May 1966 is invalid; the tenants had no title until the order under section 32M, and section 64(8) renders the landlord’s earlier transfer void.

Summary

The landlord, Prabhu, sold his 3‑acre agricultural land to the fourth son of tenant Rau on 27‑April‑1961, while another son, Mahadu, sold his share to H.R. Patel on 11‑May‑1966. The Tahsildar, under section 32G of the Bombay Tenancy and Agricultural Lands Act, later declared the fourth son the purchaser and issued a certificate under sections 32M and 43, also holding Mahadu’s sale void. The Revenue Tribunal and the Bombay High Court reversed this, reasoning that the private sale to the tenants was not barred by section 64 and that section 43 did not apply to Mahadu’s sale. The Supreme Court held that section 64(8) makes any transfer by a landlord after the tiller’s day void, so the tenants acquired title only by the order under section 32M dated 21‑December‑1969; consequently Mahadu had no title to convey in 1966 and his sale to Patel is invalid under section 43(2). The Court set aside the High Court and Tribunal orders and disposed of the appeal in favour of the tenants.

Issues considered

Whether a transfer by a landlord after the tiller’s day is void under section 64(8) of the Bombay Tenancy and Agricultural Lands Act, 1948.
Whether the tenants acquired ownership only upon the order under section 32M (21‑December‑1969) and thus lacked title to convey in 1966.
Whether the sale deed by Mahadu to H.R. Patel on 11‑May‑1966 is invalid under section 43(2) of the Act.

Legislation cited

Bombay Tenancy and Agricultural Lands Act, 1948s. 29, s. 31, s. 32G, s. 32M, s. 43, s. 64(8)

Subjects

tenancy lawland transfersection 64section 43void saletitle vestingagricultural landstiller's daylandlord‑tenant

Judgment

DADU RAU YELAVADE(DEAD) BY HIS HEIRS AND LRS. A
v.
HIMMAT RASUL PATEL '

MARCH 10, 1992

[S.RANGANATHAN, V. RAMASWAMI AND YOGESHWAR B
DAYAL. JJ.]

Bombay Tenancy and Agricultural Lands Act, 1948-Sections 32, 32G,
32M, 43, 64(8~Transfer of land by landlord after tiller's day-Void-Sale by
landlord-Ratification-Effect-Vesting of title on tenants on C
21.12.1969-Sale of share by a co-tenant on 11.5.1966-Validity of.

The landlord, Prabhu's lands measuring 3 acres 25 gunthas were
under the cultivation of Rau, the tenant-appellant.

The landlord u/s. 31 read with section 29 of the Bombay Tenancy and D
Agricultural Lands Act, 1943 instituted a proceeding against the tenant.

During the pendency of the proceeding Rau died and his tenancy
rights were inherited by his four sons, the present appellants.

The landlord on 27.4.1961 decided to sell the suit land to the fourth E
son of the demised tenant, who effected a partition of the property.

On 24.5.1961, the proceeding u/ss.29, 31 of the Act was dismissed.

Mahadu, one of the sons of Rau, sold his share in the suit land in
favour of the respondent on 11.5.1966 by a registered deed. F
In 1969, the Tahsildar initiated proceedings u/s. 32G of the Act, and
on 21.12.1969 by his order he declared the fourth son of Rau as the
purchaser and also directed that a certificate u/s. 32 M read with section
43 of the Act should be issued to the tenants. He also held that the sale G
effected by Mahadu in favour of the respondent was contrary to law and
directed the removal of the respondent's name from the revenue records.

In the meanwhile one of the sons of Rau instituted a suit against the
respondent for an injunction restraining him from obstructing his posses-
sion of the property. The respondent contested the suit contending that he, H
101
102 SUPREME COURT REPORTS [1992] 2 S.C.R.

A being the purchaser of Mahadu's .share, was entitled to remain in posses-
sion as a co-owner along with the plaintiff.

The Civil Court u/s. 85 of the Act referred two issues for determina-
tion of the tenancy authorities, which were:-

B "(1) Was the plaintiff a tenant of the suit-property and did he
subsequently become its deemed purchaser ?

(2) Was the sale deed by Mahadu to Patel (respondent) invalid
under Act?"
c The Tahsildar answered both questions in affirmative.

In appeal, the findings of the Tahsildar, that the plaintiff was the
deemed purchaser of the land on 1.4.1959 and that the transfer by Mahadu
in favour of the respondent was hit by the provisions of section 43 of the
D Act, were confirmed.

Respondent;s revision was allowed by the Revenue Tribunal, holding
1at the sale by Mahadu in favour of respondent was not invalid; that the
ons of Rau were deemed purchasers only on 24.5.•1961 and became actual
purchaser only on 21.12.1969, when the sale in their favour was regularised
E
u/s. 32M of the Act.

The High Court dismissed the revision petition filed under Article
227 of the Constitution by the appellants, holding that section 64 did not
prohibit the landlord from selling his land to the tenants by private
F agreements; that the ownership rights of the tenants were acquired not u/s.
32 of the Act but by virtue of a sale between the landlord and the tenants;
that since the sale was not one u/s. 32, provisions of section 43 of the Act
were not attracted; and that the tenants became owners not on 24.5.1961
but on 27.4.1961.
G Against the order of the High Court by special leave, the present
appeal was preferred by the tenants.

The appellants-tenants-plaintiffs contended that the High Court
erred in holding that the sale in favour of the appellants-tenants was not
H affected by section 64 of the Act.
DADU RAU v. H.R. PATEL 103

Disposing of the appeal on the question, whether by the sale deed A
dated 11.5.66, any valid title to the suit land was conferred upon the
respondent, this Court

HELD : 1.01. The High Court has over-looked the clear provisions
of section 64(8), which declare that any transfer by a landlord after tiller's
day would be void. The tenants could not, therefore, have acquired any B
rights or title under the sale deed executed by the landlord. [107H·108A]

1.02. Though the order un~er section 32-G purports to ratify the
earlier transaction of sale by the landlord to the tenants, the transaction
acquires its validity not by virtue of the sale deed of 27.4.1961 but only by C
virtue of the order under section 32-M dated 21.12.1969. rt08B]

1.03. On 11.5.1966 - the date of the sale to the respondent - the
tenants (including Mahadu) had no title to the property which they could
validly convey in favour of the respondent. That title vested in them only
on 21.12.1969, when the order under section 32G was passed. This being D
so, the logic that the transfer in favour of the respondent was not of
property acquired under section 32 but of a property acquired by a
voluntary process is not correct. [108B-C]

1.04. On the date of the sale deed in favour of the respondent, the
vendor had no title to the land in view of the provisions of section 64(8). E
Even if the subsequent conferment of title on them by the order und~r
section 32G be treated to date back to 24.5.61, still Mahadu, being a tenant
who acquired title under the Act, his sale to the respondent will fail in view
of the of section 43(2) of tile Act. [108D]
~ F
1.05. The questions·referred to the tenancy courts by the dvil court
are answered accordi~gly by saying that the sale deed by Mahadu in favour
of the respondent is invalid under the provisions of the Act. The High
Court erred in upholding the order of the Revenue Tribunal. [108F-Gl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2407(N) G
of 1979.

From the Judgrnenc and Order dated 20.9.1978 of the Bombay High
;.-. Court in S.C.A. No. 993 of 1974.
V.N.Ganpule, Ashok K. Singh, Ms. Punam Kumari and Ms. H. Wahi, H
104 SUPREME COURT REPORTS [1992] 2 S.C.R.

. A for the Appellants.
S.V. Deshpande for the Respondent.

The Judgment of the Court was delivered by

I B RANGANATHAN, J. This is an appeal from a judgment of the
Bombay High Court dismissing a petition filed by Dadu Rau Yelavade -{
(now represented by his legal representatives) under Article 227 of the
Constitution of India.

One Anant Gopal Prabhu ('Prabhu' for short) was the owner of 3
C acres 25 gunthas of land bearing Survey No. 54 in village Ingali in
Hatakanangale Taluka of Kolhapur district. The lands were under the
cultivation of one Rau, who was the father of the petitioner before the Hi!!h
Court. The landlord instituted proceedings under section 31 read with
section 29 of the Bombay Tenancy and Agricultural Lands Act, 19~
D (hereinafter called 'the Act') against the tenant Rau. During the pendenc)
of these proceedings, Rau died and his tenancy rights were inherited b)
his four sons, Dadu (predecessor of the present appellants), Mahadu,
Ganpati and Shripati. These proceedings came to an end eventually by an
order dated 24.5.1961, on which date the petition under section 29 read •
with section 31 was dismissed. Subsequently, proceedings were initiated by I
E the Tahsildar under section 32G of the Tenancy Act. This was sometime
in 1969 and will be referred to later. In the meantime, on 27.4.1961, the
landlord Prabhu had decided to sell the suit land to the fourth son of Rau,
who effected a partition of the property and Mahadu, one of the other sons
of Rau, sold his share in the suit land in favour of the present respondent
F Patel by a registered document dated May 11, 1966. In view of this, the
proceedings under section 32G, initiated by the Tahsildar, came to an end
with an order of the Tahsildar declaring the fourtli son of Rau as the
purchaser. His order was passed on 21.12.1969. After discussing the ques-
tions whether the tenants were in lawful possession of the suit land,
G whether they were entitled to purchase the suit ·land and whether the
purchase price fixed in the voluntary sale between Prabhu and Rau's fourth
son was reasonable and whether the sale effected between the landlord and
tenants could be regularised, the Tahsildar decided to regularise the pur-
chase of the suit land by the tenants, and directed thl).1.a certificate under
section 32M read with section 43 of the Act should be issued to the tenants
H Dadu Rau and his brothers. In the\course of his order, he also discussed
DADU RAU v. H.R. PATEL [RANG:.NATHAN, J.] 105

the alleged sale in respect of Patel, on whom notice had been served and A
-' ... who had participated in the proceedings. He came to the conclusion that
the sale effected by Mahadu in favour of Patel, being contrary to law, was
illegal and directed that his name should be removed from the revenue
records.

In the meanwhile, the petitioner, one of the sons of Rau, had in- B
).... stituted a suit against Patel for an injunction restraining him from obstruct-
ing his possession of the property, Patel resisted the suit claiming to be the
purchaser of share of Mahadu and, therefore, entitled to remain in posses-
sion as a co-owner alongwith the petitioner. In view of the rival contentions
.... - _.\i,.. of the parties, the civil court referred the following two issues for deter- c
mination of the tenency authorities as contemplated by provisions of sec-
tion 85A of the Act :
-(
(1) Was the plaintiff a tenant of the suit property and did he
subsequently become its deemed purchaser ?
D
(2) Is the sale deed by Mahadu to Patel invalid under the Act?

In the proceedings before the revenue authorities, the Tahsildar
answered both questions in the affirmative. He held that the plaintiff were
the deemed purchasers of the land on 1.4.1959 and he also came to the
E
conclusion that the transfer by Mahadu in favour of Patel was hit by the
provisions of section 43 of the Tenency Act. According to him, therefore,
Patel had no right of title to the portfon of the land in suit which Mahadu
had sold him. This order was confirmed in appeal, on 23.10.71, by the
Assistant Collector.
F
Patel thereupon filed a revision before the Revenue Tribunal which
j.. set aside the order of the authorities below and held that the sale deed by
Mahadu in favour of respondent no.1 was not invalid under the provisions
>- of the Act. The Revenue Tribunal agreed that the sons of Rau became
deemed purchasers only on 24.5.1961 and became actual purchasers only
on 21.12.1969 when the sale in their favour was regularised under s.32M of
G
the Act. However, in regard to the sale by Mahadu, it observed:

"But, the important point to be gone into in this case is,
)--,
whether the sale of such a land by Mahadu, one of the owners
of deceased Rau, to Himmat was hit by the provisions of section H
106 SUPREME COURT REPORTS [1992] 2 S.C.R.

A 43 of the Act. It is nobody's case that the sale to Himmat by
Mahadu was after 21.12.69. According to Himmat, it is on
11.5.66. This is not challenged. It will be thus seen that this sale
to Himmat, of his share in the suit land by Mahadu is dated
11.5.66 long before Mahadu and his brothers came to be
regarded as purchasers under section 32 of the Act. Section 43
B of the Act, according to me, applied to transfers subsequently
effected by purchasers under sections 32, 32-F, 31-1, 320, 33C -!
or 41-D. Similarly, restriction contained in sec. 43-G of the Act,
applied to transfers by persons, after the land was sold to .them
under section 32-P or 64 of the Act. In this case, it is clear that
c while selling his share in the property, Mahadu was not a
.$._ · -
landlord intending to sell the tenanted land. So a sale by him
to Himmat could not be said to be a sale in contravention of
section 64 of the Act. The point, whether Himmat Patel was
an agriculturist or non-agriculturist or whether he was or was >-
not an agriculturist labourer is not enquired into even if it is >
D
held for.so¥1e time, that he was a person to whom the land
could nor be sold ,under section 63 of the Act. But Mahadu
ventured to do so. The sale by Mahadu would be at the most
hit by section 63 of the Act. This section (43 of the Act) does
not mention section 63 of the. Act. Therefore, it is not possible
E to uphold the findings of the first two Courts with regard to
the transfer of a portion of land by Mahadu to Himmat Patel.
This sale effected in favour of Himmat Patel by Mahadu in '-r
1966 is of date prior to Mahadu, and his brothers came to be
regarded as purchasers of the land under section 32 of the Act.
F
We have seen that originally the sale in favour of Rau's sons
by Prabhu was in contravention of section 64 of the Act. But
such sale is not covered by section 43 of the Act. This view can -\
be fortified by following in Special C.A.605 of 61 referred to .~
on page 179 of Tenancy Law Digest (reported and Un-reported
G cases) by Gadgil, 1965. It is observed that to such a sale even, ·-~

section 43 of the Act does not apply. Such a sale, even if it is
validated under provision to section 84(2) can not be regarded
as a sale under seCtion 64 of the Act. Where a sale is made in
favour of a tenant by the landlord in contravention of section ~
H 64, it may be regularised by the Mamlatdar. Where the same
DADU RAU v. H.R. PAIBL [RANGANATHAN, J.] 107

is sold by the. tenant to some other person, such a sale is valid A
and is not affected by provisions of section 43 of the Act."

In this view of the matter, the Revenue Tribunal answered the
questions referred by saying (a) that the plaintiff and his brothers had
become deemed purchasers on the postponed day under the Act and (b) B
that the sale deed by Mahadu in favour of Patel was not invalid.

The present appellants preferred a petition under Article 227 of the
Constitution. The High Court endorsed the conclusion of the Revenue
Tribunal but on a ground somewhat different from the one on which the
Tribunal allowed the revision petition. It was pointed outthat the Revenue C
Tribunal had proceeded on the footing that the tenants (including
Mahadu) had become purchasers of the suit land under the provisions of
section 32 of the Tenancy Act on May 24, 1961 when proceedings under
section 31 came to an .end. But this ignored the fact that, during the
pendency of the proceedings under sections 29 and 31 of the Act, the D
· landlord and tenants by a private agreement had transferred the ownership
of the property in favour of the tenants on 27.4.1961. The tenants, there-
fore, became owners not on 24.5.61 but on 27.4.61. Section 64 did not, in
the opinion of the Court, prohibit the landlord from selling his land to the
tenants by a private agreement. It only required the owner, in case he
desired to sell, to have a reasonable price fixed· therefore by moving the E
Land Tribunal. This being so, the ownership rights of the tenants had been
acquired not under the provisions of section 32 of the Act but by virtue of
a sale between the landlord and the tenants. Since the transfer in favour
of the tenants was not one under section 32, the provisions of section 43
of the Act were not attracted by the sale of 11.5.1966. In this view of the F
matter, the revision petition before the High Court was also dismissed.

Dadu Rau is in appeal from the order of the High Court. Though
the proceedings have had a chequered history, the issue before us is a very
simple one : Does the sale by Mahadu to Patel on 11.5.66 confer on the
latter any valid title to the land in question ? The High Court has answered G
this question in the affirmative by upholding the sale by Prabhu to his
tenants on 27.4.61. Sri Ganpule argues, and rightly in our opinion, that the
High Court erred in holding that the sale in favour of the tenants was not
affected by section 64 of the Act. The High Court has over-looked the clear
provisions of section 64(8), which declare that any transfer by a landlord H
108 SUPREME COURT REPORTS [1992) 2 S.C.R.

A after tiller's day would be void. The tenants could not, therefore, have
acquired any right or title under the sale deed executed by the landlords.
It is no doubt true that ultimately the proceedings under section 32-G went
in their favour and the sale certificates issued in their favour was
regularised. Though the order under section 32-G purports to ratify the
earlier transaction of sale by the landlord to the tenants, the transaction
B acquires its validity not by virtue of the sale deed of 27.4.1961 but only by
virtue of the order under section 32-M dated 21.12.1969. On 11.5.1966, -
the date of the sale to Patel presently impugned - the tenants (including
Mahadu) bad no title to the property which they could validly convey in
favour of Patel. That title vested in them only on 21.12.1969, when the order
c under section 32G was passed. This being so, th~ logic of the Tribunal and
High Court that the transfer in favour of Patel was not of property acquired
under section 32 but of a property acquired by a voluntary process is not
correct. As we have already pointed out, on the date of the sale deed in
.... favour of Patel, the vendor had no title to the land in view of the provisions
D of section 64(8). Even if the subsequent conferment of title on them by the -,
order under section 32G be treated to date back to 24.5.61, still Mahadu,
being a tenant who acquired title uncler the Act, his sale to Patel will fail
in view of the provisions of section 43(2) of the Act. We may indeed point
out that this decision had already been given by the revenue authorities in
the order dated 21.12.1969. There is a reference in the order of the
E Assistant Collector to an appeal claimed to have been preferred by Patel
from this order but we are informed that no such appeal was filed or is
pending. But this circumstance apart, Patel's claim cannot be upheld for
the reasons given above.

We are, therefore, of the opllllon that the High Court erred in
F
upholding the order of the Revenue Tribunal. The orders of the High
Court and the Revenue Tribunal are therefore set aside and the order of
the lower revenue authorities restored. The questions referred to the --\
tenancy courts by the civil court have to be answered accordingly by saying ~~
that the sale deed by Mahadu in favour of Patel is invalid under the
G provisions of the Act. The appeal is disposed of accordingly and the matter
will go back to the civil court for the disposal of the civil suit filed before
it in the light of the answers given to the referred questions set out above.
In the circumstances of the case we make no order regarding costs.

V.P.R. Appeal disposed of.