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PETITIONER: DAJI KRISHNAJI DESAI TAMBULKAR

       Vs.

RESPONDENT: GANESH VISHNU KULKARNI AND OTHERS

DATE OF JUDGMENT: 12/04/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K. MUDHOLKAR, J.R.

CITATION:  1961 AIR 1564            1962 SCR  (1) 905

ACT: Khoti Land--Transfer Prior to 1946 without consent of Khol-- Rights  of purchaser--Bombay Tenancy Act, 1939 (Bom.  29  of 1939), s. 31--khoti  Settlement Act, 1880 (Bom. 1 of  1880), ss. 3, 9.

HEADNOTE: The  land  in  suit was Khoti land land s. 9  of  the  Khoti Settlement Act, 1880, prior to its amendment prohibited the. transfer  of the occupancy right without the consent of  the Khot.   Section  31 of the Bombay Tenancy Act,  1939,  which came  into force from April 1946, amended s. 9 of the  Khoti Settlement Act by which no consent of the Khot was necessary for transferring the occupancy rights in the land.  In 1892, R sold his occupancy right without the consent of tile  Khot to  L, the predecessor-in-interest of respondent No.  1.  In 1945,  R’s successor again sold the same occupancy right  to the  appellant  also without the consent of the  Khot.   The appellant’s case was that the sale deed in 1892 in favour of the predecessor-in-interest of respondent No. 1 was void  as the transfer of the occupancy right was made without consent of  the Khot; whereas respondent No. 1 contended that  R  by the  sale  deed in 1892 had already lost his  right  to  the property  in suit and therefore R’s successors had no  title to pass in 1945 in favour of the appellant. Held, that the occupancy right in a Khoti land could not  be transferred without consent of the Khot prior to April 1946, when the Bombay Tenancy Act, 1939, came into force-               114 906 Held, further, that in the present case as both the sales of 1892  and 1945 were without the consent of the Khot, it  was not necessary to determine whether such a transfer was  void or  voidable,  If  void, the plaintiff  had  no  title.   If voidable, the first sale in 1892, validly conveyed title  to respondent No 1’s predecessor-in-interest, and  consequently no  title  passed to the plaintiff under the  sale  deed  in 1945, as the transferor had no title.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 90 of 1956. Appeal  by special leave from the judgment and decree  dated August 5, 1953, of the Bombay High Court in Appeal from  the Appellate Decree No. 915 of 1951. M.   S. K. Sastri, for the appellant. A.   G. Ratnaparkhi, for respondent No. 1. 1961.  April 12.  The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is against the  judgment  and  decree  of the  High  Court  of  Bombay, dismissing the suit of the plaintiff--appellant. The  plaintiff sued for a declaration that the  property  in suit  which is situate at Mouje Digvale, a village  held  by khots  in the district of Ratnagiri, was owned by  him,  was under his management and that the defendants had no right or interest  therein.  He claimed title to the property on  the basis  of the sale of occupancy rights under the  sale  deed executed  in  his favour by Sitabai on  February  10,  1945. Sitabai was the widow of Vishram Anna Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in suit. Ram  Raghu Shirsat sold the occupancy rights in the land  in suit  to Laxman Chandba Raut by a deed dated March 8,  1892. By a compromise in a civil suit between the heirs of  Laxman Chandba  Raut  and Tanu Daulat Gavade Sakaram, the  heir  of Laxman  Raut  got 3/5ths share and Tanu  Daulat  got  2/5ths share  in these occupancy rights.  Dattatraya  Bhikaji  Khot Kulkarni,  a paternal uncle of respondent no. 1,  purchased. the shares of these persons by 907 the  sale  deeds dated December 14,1903,  and  February  13, 1904.   On  Kulkarni’s death, respondent no.  1  became  the owner  of  the property.  Respondents nos. 2 to  4  are  the tenants of respondent no. 1. The land in suit is khoti land as defined in el. (10) of  s. 3  of the Khoti Settlement Act, 1880 (Bom.  Act 1 of  1880), hereinafter  called  the Act.  It is not disputed  that  Ram Raghu  Shirsat was the occupancy tenant of the land in  suit and that he could not transfer his tenancy right without the consent  of the khot, which, according to cl. (2) of  s.  3, includes  a mortgagee lawfully in possession of  khotki  and all  co-sharers in a khotki.  It is also admitted  that  the transferors  of  the afore-mentioned sale deeds of  1892  in favour  of the predecesror-in-interest of respondent no.  1, or of the sale deed of 1945 in favour of the appellant,  did not obtain the consent of the khot before executing the deed of transfer. The  plaintiff  alleged  that the sale  deed  in  favour  of respondent  no.  1 was void and that therefore he had  title to  the  suit  land on the basis of the  sale  deed  in  his favour. Respondent no.  1 contended that Ram Raghu Shirsat lost  his rights  in  the property in suit after he had  executed  the sale  deed  on  March  8,  1892,  and  that,  therefore  the plaintiff obtained no title on the basis of the sale deed in his favour. The  trial Court held the sale deed of 1892 to be good  sale deed  and binding on the plaintiff and dismissed  the  suit. On  appeal,  the  Assistant Judge reversed  the  decree  and decreed  the suit holding that a transfer of  the  occupancy rights  in the suit lands by Ram Raghu Sirsat in  favour  of Laxman  Raut was void and that the plaintiff  obtained  good title  under  the  sale deed in his favour in  view  of  the amendment of s. 9 of the Act by s. 31 of the Bombay  Tenancy Act,  1939  (Act XXIX of 1939), by which no consent  of  the khot  was  ,necessary for executing the sale deed  in  1945.

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Respondent no. 1 preferred a second appeal to the High Court which  set  aside  the decree of  the  Assistant  Judge  and restoring the decree of the trial Court, dismissed the suit. It held that the sale deed in favour- 908 of  the plaintiff too would be hit by the provisions of  s.9 of  the  Act.  It further held that the  provisions  of  s.9 indicate  that there was no absolute prohibition  against  a transfer of the occupancy right.  A transfer by an occupancy tenant without the consent of the khot cannot be held to  be void for all purposes and it would be invalid only in so far as  it  would be contrary to the right of the khot  and  not otherwise.  It therefore held the transfer in favour of  the respondent no. 1’s predecessor-in-interest in 1892 not to be void.   It  is  the  correctness  of  this  order  that   is challenged in this appeal. This appeal has no force.  Section 31 of the Bombay  Tenancy Act,  1939, made amendments to S. 9 of ado. the Act and  the section after amendment reads:               "The rights of khots and privileged  occupants               shall be heritable and transferable". ’Privileged occupant’ included a permanent tenant under  cl. (5)  of  s. 3 of the Act.  The Bombay Tenancy  Act  received assent  of the Governor of Bombay on April 2, 1940,  but  it came into force in April 1946 when the Government issued the necessary  notification in exercise of the powers  conferred under subs. (3) of s. 1 of that Act.  It is clear  therefore that  s. 9, as it stood on February 10, 1945,  when  Sitabai executed the sale deed in favour of the appellant, made  the rights  of  permanent tenants  nontransferable  without  the consent  of the khot, and that therefore the sale in  favour of the appellant was as much hit adversely by the provisions of s. 9 of the Act as the sale of the land in suit in favour of  the predecessor-in-interest of respondent no. 1.  It  is therefore  not necessary to determine the  question  whether the  sale  was absolutely void or voidable as  held  by  the Court below, as neither of the two sales has been challenged by  the khot whose consent for the transfer  was  necessary. The plaintiff has no title whether a transfer by a permanent tenant without the consent of the khot be void or  voidable. If  such  a  transfer is void, the sale  in  favour  of  the appellant  did not convey any title to him.  If such a  sale was  merely voidable at the instance of the khot, the  first sale in favour of the 909 respondent  no. 1’s predecessor-in-interest was not  avoided by  the khot, and therefore validly conveyed title  to  him. Consequently no title passed to the plaintiff under the sale deed  in  his  favour as his transferor had  no  title.   In either  case the plaintiff fails to prove his title  to  the land  in  suit.   The dismissal of  his  suit  is  therefore correct. We accordingly dismiss this appeal with costs.                              Appeal dismissed.