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PETITIONER: VITHAL DATTATRAYA KULKARNI & ORS.

       Vs.

RESPONDENT: SHAMRAO TUKARAM POWER & ORS.

DATE OF JUDGMENT21/03/1979

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SARKARIA, RANJIT SINGH KAILASAM, P.S.

CITATION:  1979 AIR 1121            1979 SCR  (3) 572  1979 SCC  (3) 212

ACT:      Bombay Tenancy  and Agricultural Lands Act, 1948-S. 40- Scope of-Whether heirs of a protected tenant who died before the commencement  of the  1956 Amendment Act are entitled to recover possession from the landlord.

HEADNOTE:      Section 3  of the Bombay Tenancy Act, 1939 classified a tenant as  a protected  tenant in  respect of any land if he had held  such land  continuously for  a period of six years immediately preceding 1st January, 1938 to 1st January, 1945 and had  cultivated such land personally during that period. Tenancy held  by a protected tenant could be terminated only in the  circumstances stated in s. 5 as for example, failure to pay  arrears of  rent subletting  and so  on.  Section  7 provided that  the landlord  could recover possession of the land from  the  protected  tenant  on  the  ground  that  he bonafide required such and for the purpose of cultivating it personally or  for  a  non-agricultural  purpose.  If  after taking possession  of the  land he ceased to use it for that purpose at  any time  within 12 years from the date on which he took  possession the  landlord was  required  to  restore possession of  the land  under  s.  7(2)  to  the  protected tenant. The  Act also  defined that a protected tenant shall include his heirs by an explanation to this section.      The 1939  Act was  repealed and  replaced by the Bombay Tenancy and  Agricultural Lands  Act, 1948.  This  Act  also empowered  the  landlord  to  terminate  the  tenancy  of  a protected tenant  by giving  the tenant one year’s notice in writing if  he bonafide  required the  land for  any of  the purposes mentioned  in the  Act and  the grounds  on which a tenancy could be terminated were also enumerated in the Act. A provision similar to s. 7(i) of the 1939 Act was contained in s.34(i)  of this  Act.  The  1948  Act  did  not  contain provisions corresponding  to Explanation (ii) to s. 7 of the 1939 Act  declaring that  a tenant  shall include his heirs. Section 40  provided that  if a  protected tenant  died  the landlord shall  offer to  continue the  tenancy on  the same terms on which such tenant was holding it at the time of his death, to  the heir  or heirs  of the  deceased tenant.  The Explanation to  s. 40  declared that a heir meant the lineal

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descendant of  a tenant or his adopted son and failing both, his widow.      The 1948  Act underwent  substantial changes  in  1956. Section 40  as amended in 1956 provided that on the death of the tenant  the landlord  shall be  deemed to have continued the tenancy  on the  same terms and conditions on which such tenant was  holding it at the time of his death to such heir or heirs  of the  deceased  tenant  as  may  be  willing  to continue the tenancy.      The land  in dispute  belonging to  the appellants  was held by  the respondent’s  father who was a protected tenant within the  meaning of  that term  in the 1939 Act. In June, 1950 the appellants recovered possession of the 573 land allenging  that  they  needed  it  for  their  personal cultivation. In  1951 the  potected tenant died. In 1962 the landlords sold a part of the land, whereupon the respondents who were  the heirs  of the  late protected  tenant filed  a petition alleging that the landlords had ceased to cultivate the land  personaily  within  12  years  from  the  date  of dispossession of  the protected  tenant and, therefore, they were entitled  to recover  possession of the land. While the Aval Karkun  and the  Deputy Collector held in favour of the heirs of  the tenant,  the  Revenue  Tribunal  allowing  the revision  application   of  the   landlords  dismissed   the application of  the tenant/respondents.  The High Court in a petition under  Art. 226  of the  Constituton  reversed  the order of the Revenue Tribunal.      In appeal  to this  Court it was contended on behalf of the appellants  that the  right of  a protected tenant whose tenancy had been determined and who had been dispossessed of the land  under s. 39 of the Bombay Tenancy and Agricultural Lands Act  was a  right which  was personal  to  the  tenant himself and, which could not for that reason be exercised by the tenant’s heirs.      Allowing the appeal. ^      HELD: The  contrast between  s. 40 before and after its amendment in  1956 was  that while  after the amendment, the heirs of  the tenant were automatically deemed to succeed to the tenancy  there was  no  such  deeming  before  the  1956 amendment. The landlord was merely required to make an offer and it  was not  stipulated what  would happen if he did not make the  offer. Where  the landlord had obtained possession of the  land for cultivating it personally there could be no question of  making an  offer to  continue the  tenancy. The 1948 Act before its amendment in 1956 contained no provision corresponding to  Explanation (ii)  to s. 7 of the 1939 Act. Therefore under  the provisions  of 1948  Act  as  it  stood before the  1956 amendment  the right of a tenant to recover possession of  the land  from the  landlord who had obtained possession of such land on the ground that he required it to cultivate it personally was not a heritable right. [581 B-E]      Explanation (ii)  to s.  7 of  the 1939  Act  expressly provided that  for the  purpose of  that  section  a  tenant included his  heirs. The  position under  the 1948 Act after its amendment  in 1956  as could  be seen from ss. 4B and 40 was that the tenancy under the Act was heritable. When it is found that  the tenancy was heritable the right given to the tenant may  be exercised by the heirs of the tenant also. In the instant  case death  of the protected tenant occurred in 1951 i.e. before the 1956 Act came into force. His heirs had therefore no right to recover possession from the landlords. [579 G-H, 581 B]      Vasant Hariba  Londhe v.  Jagannath Ramchandra Kulkarni

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71 B.L.R.  12; Bai  Jamna v.  Bai Dhani,  61 Bom.  L.R. 419; Thakorelal v.  Gujarat Revenue  Tribunal, A.I.R.  1964  Guj. 183; Damadilal  & Ors. v. Pareshram & Ors., AIR 1976 SC 2229

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1296 of 1969.      Appeal by  Special Leave  from the  Judgment and  order dated 11-11-1968  of the  Bombay High Court in Special Civil Application No. 1080/65. 574      M. C.  Bhandare, B.  Datta and  K. K. Manchanda for the Appellant.      A. N. Karkhanis for the Respondent.      The Judgement of the Court was delivered by      CHINNAPPA REDDY,  J.-In respect  of an  extent  of  ten acres and  23 guntas  of land  in Survey  No. 215 of Village Nathare, Haranax,  one Tukaram  Patla Power  was a protected tenant under the provisions of the Bombay Tenancy Act, 1939, as  amended  by  Act  26  of  1946.  The  landlords,  Vithal Kulkarni, Vasudeo  Kulkarni and  Krishnaji Kulkarni  gave  a notice to  Tukaram on  8th March, 1948 under Section 7(1) of the Bombay  Tenancy Act,  1939, alleging  that they required the land  for their personal cultivation. In December, 1948, the Bombay  Tenancy Act,  1939 was  repealed and replaced by the Bombay  Tenancy and Agricultural Lands Act (57 of 1948). There after,  on 25th  April, 1949,  the  Kulkarni  brothers filed Tenancy  Case No. 102 of 1949, before the Aval Karkun, to  recover   possession  of  the  land  from  Tukaram.  The application was dismissed by the Aval Karkun on 29th August, 1949, but  in Tenancy  Appeal No.  20 of  1950 filed  by the landlords, the  Collector of  South Satara,  Sangli, by  his order dated  9th May,  1950, directed that possession of the land should be given to the Kulkarni brothers. The landlords accordingly recovered  possession of  the land on 18th June, 1950. Tukaram  died on  31st August,  1951. On  18th  April, 1961, Vasudeo  Kulkarni executed  a deed of conditional sale in favour  of Sopan  Power in respect of a joint 1/9th share in the  land. It was recited in the deed that possession was delivered to  Sopan but  that was disputed. However, on 27th June, 1962,  Sopan executed a deed of reconveyance in favour of Vasudeo  Kulkarni. On  16th April,  1962, Vithal Kulkarni executed a deed of sale in respect of his 1/3rd share in the land in  favour of Bapu Bhau More and Vilas Ganpati More. On 7th July, 1962, Tukaram’s heirs filed Tenancy Case No. 87 of 1962 against the Kulkarni brothers and their alienees, under Section  37  and  Section  39  of  the  Bombay  Tenancy  and Agricultural Lands  Act  alleging  that  the  landlords  had ceased to cultivate the lands personally within twelve years from the  date of dispossession of the tenant (Tukaram) and, therefore, they  were entitled  to recover possession of the land. The  Aval Karkun  made an order in favour of Tukaram’s heirs on 26th November, 1963. The order was confirmed by the Special Deputy  Collector on  31st March 1964. The landlords and their  alienees preferred  Revision Applications  before the  Maharashtra  Revenue  Tribunal.  The  Revenue  Tribunal allowed the Revision Applications on 27th October, 1964, and dismissed the  application of  Tukaram’s heirs  filed  under Sections 37 and 39 of the Bombay 575 Tenancy and  Agricultural Lands Act. Tukaram’s heirs invoked the jurisdiction  of the High Court under Article 226 of the

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Constitution. The High Court of Bombay by its judgment dated 11th November,  1968 allowed  the Writ Petition, quashed the order of  the Tribunal  and restored  the order  of the Aval Karkun as  affirmed by  the Special  Deputy  Collector.  The three Kulkarni  brothers, Bapu  Bhau More and Vilas Ganapati More, have preferred this appeal by special leave.      Shri M. C. Bhandare, learned Counsel for the appellants argued that  the right  of a  protected tenant whose tenancy had been  determined and  who had  been dispossessed  of the land under Section 39 of the Bombay Tenancy and Agricultural Lands Act  was a  right which  was personal  to  the  tenant himself and, which could not for that reason be exercised by the tenant’s heirs. He argued that whatever may be the right of the  heirs of  a protected tenant dying subsequent to the Amending Act  of 1956,  the heirs  of a protected tenant who died before the commencement of the 1956 Amending Act had no right to  recover possession  from the  landlords. He  urged that there  was a  substantial difference between Section 40 of the Bombay Tenancy and Agricultural Lands Act as it stood before and  after the  1956 amendment. He submitted that the decision of  the Full  Bench of  the High Court of Bombay in Vasant Hariba  Londhe v.  Jagannath Ramchandra Kulkarni, (1) applied to  cases where  the tenant  died after the Amending Act of 1956 and not before. Some other contentions were also raised to which it is unnecessary to refer.      Shri  A.   N.  Karkhanis,   learned  Counsel   for  the respondents, who  presented  the  case  of  the  respondents exteremely well, drew our attention to the provisions of the Bombay Tenancy  Act and  the Bombay Tenancy and Agricultural Lands Act  before and  after it  was  amended  in  1956.  He submitted that a comprehensive view of the provisions of the Act showed  that the right given to the protected tenant was heritable and, therefore, the heirs of Tukaram were entitled to exercise  the right  given to the tenant under Section 37 of the Act. He submitted that the position was not different even under Section 40 of the Bombay Tenancy and Agricultural Lands Act  as it  stood before  the 1956  amendment. He also advanced some  other  minor  contentions  which  we  do  not consider necessary to mention here.      The  Bombay  Tenancy  Act,  1939  preceded  the  Bombay Tenancy &  Agricultural Lands  Act, 1948. Chapter III of the Bombay Tenancy  Act, 1939  (Section 13A to Section 26) dealt with tenants  generally, while Chapter II (Sections 3 to 13) of the  Act dealt  with a special class of tenants described in the Act as protected tenants. Section 3 576 classified a  tenant as a protected tenant in respect of any land if  he had  held such land continuously for a period of six years  immediately preceding  1st January  1938  to  1st January, 1945 and had cultivated such land personally during the aforesaid  period. Section  3A was  introduced by way of amendment in 1946 and it provided that every tenant shall be deemed to  be a protected tenant for the purpose of the Act, on the expiry of one year from the date of coming into force of the  amending Act.  Section 5  enumerated the  rights and liabilities of  a protected  tenant  and  it  was  expressly provided that the tenancy of land held by a protected tenant shall not  be terminated unless the tenant failed to pay the arrears of  rent  for  a  specified  period  or  before  the specified date  or had done any Act which was destructive or partly injurious  to the  land or had sub-divided or sub-let the land  or failed  to cultivate personally or had used the land for  a purpose  other than  agricultural. Section  7(1) invested the  landlord with  a special  right  to  determine protected tenancy  by giving the protected tenant one year’s

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notice in  writing on  the ground  that he bonafide required the land  for the purpose of cultivating the land personally or for a nonagricultural purpose. Section 7(2) provided that if after taking possession of the land after the termination of the tenancy the landlord failed to use it for the purpose for which  he had  obtained possession  within one year from the date on which he took possession or ceased to use it for that purpose  at any  time within twelve years from the date on which  he took  possession, the  landlord  shall  restore possession of  the land  to the  tenant  whose  tenancy  was terminated by  him unless  the tenant had refused in writing to accept  the tenancy  on the  same terms and conditions as before or  that the tenant, on an offer being made to him in writing, had  failed to accept the offer within three months of the receipt thereof. Explanation II to Section 7 provided "For the purposes of this Section a tenant shall include his heir as  specified in sub-section (3) of Section 9". Section 9(3)  specified  that  the  lineal  male  descendants  of  a protected tenant  or his  adopted son, or, in absence of any lineal male descendant or an adopted son, his widow shall be deemed to  be his  heirs for  the purposes  of this section. Section 9(1)  provided that  if a protected tenant died, the landlord should  continue the  tenancy on the same terms and conditions on  which the  protected tenant was holding it at the time  of his  death to such one of his heirs who, within four months  of the  death of  such tenant,  gave notice  in writing to  the landlord that he is willing to hold the land on such terms and conditions.      The Bombay Tenancy Act, 1939, was repealed and replaced by the  Bombay Tenancy  and Agricultural  Lands  Act,  1948. Chapter II 577 of the  Act (Section  3 to  Section 30)  contained  ’General provisions regarding  Tenancies’ while  Chapter III (Section 31 to  Section 43)  dealt  with  ’Protected  tenants,  their special rights and privileges’. ’Tenant’ was defined to mean an Agriculturist who held the land on lease and to include a person who was deemed to be a tenant under the provisions of the Act.  ’Protected tenant’ was defined to mean a protected tenant under  Section 31  of the  Act. Section  5 prescribed that no  tenancy of  any land  shall be for a period of less than ten  years and  further provided that at the end of the said period  and thereafter  at the  end of  ten  years,  in succession, the  tenancy shall, subject to the provisions of sub-section (2)  and (3),  be deemed  to be  renewed  for  a further  period   of  ten   years  on  the  same  terms  and conditions, notwithstanding  any agreement  to the contrary. Section 5(3)  provided that  a  tenancy  was  liable  to  be terminated on  any of  the grounds  mentioned in Section 14. Section 5(2) further empowered the landlord to terminate the tenancy by giving the tenant one year’s notice in writing if he bonafide  required the  land  for  any  of  the  purposes specified in  Section 34(1).  Section 14  enumerated certain general grounds  which entitled  a landlord to terminate the tenancy, such  as non  payment of rent within the prescribed period, doing of an act which was destructive or permanently injurious to the land, division of the land in contravention of Section  27, sub-letting, failure to cultivate personally and use  of land  for  a  purpose  other  than  agriculture. Section 31  declared as  protected tenants  persons who were deemed to  be protected tenants under Sections 3, 3A or 4 of the  Bombay  Tenancy  Act,  1939.  Section  32  clothed  the protected  tenant  with  the  right  to  purchase  from  the landlord the land held by him as a protected tenant. Section 34(1) gave  to the landlord a special right to terminate the

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tenancy of  a protected  tenant by  giving  him  one  year’s notice in  writing that he required the land for cultivating personally or  for any  non agricultural  use  for  his  own purpose.  Section   34(1)  of   the   Bombay   Tenancy   and Agricultural Lands  Act, 1948,  corresponded to section 7(1) of the  Bombay Tenancy Act, 1939. Section 37 of the 1948 Act provided that  if after  taking possession of the land after terminating the  tenancy under  Section 34(1),  the landlord failed to  use it  for the purpose for which he had obtained possession within  one year  from the  date on which he took possession or  ceased to use it for that purpose at any time within  twelve   years  from  the  date  on  which  he  took possession the  landlord shall  restore  possession  to  the tenant  whose  tenancy  was  terminated  by  him  unless  he obtained from  the tenant  his refusal  in writing to accept the tenancy  on the  same terms and conditions or the tenant had failed  to accept  the offer  made by  him in writing to give  possession   of  the   land  on  the  same  terms  and conditions. Section 578 37(1) of  the 1948  Act corresponded  to Section 7(2) of the 1939 Act.  One noticeable  feature in  the 1948 Act was that there was  no provision  corresponding to  Explanation II to Section 7  of the  1939 Act  which  declared  that  for  the purposes of  Section 7  a tenant  shall include  his heir as specified  in   Section  9(3)   of  that  Act.  This  was  a significant omission. Section 39 of the 1948 Act enabled the tenant to  make an  application where the landlord failed to comply  with  the  provisions  of  Section  37.  Section  40 provided that  if a protected tenant died the landlord shall offer to  continue the  tenancy on  the same  terms on which such tenant  was holding  it at the time of his death to the heir or  heirs of  the deceased  tenant. The  Explanation to Section 40 declared that for the purposes of the Section, an heir meant  the lineal  male descendants  of a tenant or his adopted son  and failing  both, his widow. Section 40 of the 1948 Act  replaced Section  9 of  the 1939 Act though not in the same terms.      The 1948  Act underwent  some substantial amendments in 1956. ’Tenant’  under the Amended Act was defined to include a protected  tenant  and  the  provisions  relating  to  the special rights  and  privileges  of  the  protected  tenants contained in  Chapter III  of the  Act were  extended to all tenants. Instead  of providing as Section 5 of the unamended Act did,  that no tenancy shall be for a period of less than ten years,  and for  renewal of  the tenancy  for  ten  year periods there  after, Section 4B of the amended Act provided that no  tenancy of  any land  shall be terminated merely on the ground  that the  period fixed by the agreement or usage had expired.  Section  31  of  the  1948  Act  as  it  stood originally was  repealed and  replaced by  a new  Section 31 which substantially  enacted the provisions of Section 34 of the Act  as it  stood before the amendment. What was Section 37 of  the Act  before amendment  continued to be Section 37 after the  amendment. Section  40 was  amended  and  it  was declared that  on the  death of a tenant, the landlord shall be deemed  to have  continued the  tenancy on the same terms and conditions  on which  such tenant  was holding it at the time of  his death  to such  heir or  heirs of  the deceased tenant as  may be  willing to  continue the tenancy. In this appeal we  are concerned  with Section 40 as it stood before it was  amended in  1956. In  order to  understand the  real controversy between  the parties  it is necessary to extract here Section  40 both  as it stood before and after the 1956 amendment. Before  the 1956  amendment  Section  40  was  as

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follows:           "If a  protected tenant  dies, the  landlord shall      offer to  continue the  tenancy on  the same  terms and      conditions on 579      which such  tenant was  holding it  at the  time of his      death to the heir or heirs of the deceased tenant:           Provided that the offer required to be made by the      land-lord under this section shall be made in writing:           Provided further that if any heirs of the deceased      tenant do not agree to continue the tenancy on the same      terms and  conditions on  which the  deceased protected      tenant was  holding the  land, the Collector may select      an heir  or heirs who is or are willing to continue the      tenancy on  the same terms and conditions. The decision      of the Collector shall be final.           Explanation:-For the  purposes of this section, an      heir means  the lineal  male descendants of a tenant or      his adopted  son and failing both his widow who has not      remarried".      Section 40  as it  stood after the 1956 amendment is as follows:           "(1)  Where  a  tenant  (other  than  a  permanent      tenant) dies,  the landlord  shall be  deemed  to  have      continued the  tenancy on the same terms and conditions      on which  such tenant was holding it at the time of his      death, to  such heir or heirs of the deceased tenant as      may be willing to continue the tenancy.           (2) Where  the tenancy is inherited by heirs other      than the widow of the deceased tenant, such widow shall      have a  charge for  maintenance on  the profits of such      land".      The question  for consideration is whether the heirs of a tenant whose tenancy was terminated by the landlord on the ground  that   he  required   the  land   for  his  personal cultivation were  entitled to  exercise the  right which the tenant would  have, if  alive, to  obtain possession  of the land if  the landlord  ceased to  cultivate the  land at any time within  twelve years  after he  obtained possession, in other words,  whether the  right of  the tenant  to have the possession of  the land  restored  on  the  failure  of  the landlord to cultivate the land personally at any time during the twelve  years subsequent to his obtaining possession was a heritable  right. The  position was clear under the Bombay Tenancy Act,  1939. Explanation  II to Section 7 of that Act expressly provided  that for  the purposes  of the Section a tenant included his heirs, as specified in Section 9(3). The position under  the Bombay  Tenancy and  Agricultural  Lands Act, 1948, after it was amended in 1956 is also quite clear. Section 4B  and Section  40 show  that the tenancy under the Act is  heritable. As  already mentioned,  while Section  4B provides for  the continuation of the tenancy even after the expiry of  the period  fixed  by  the  agreement  or  usage, Section 40 580 expressly provides  for the  continuation of  the tenancy on the death  of the  tenant, the  heirs of the tenant stepping into the  position of  the tenant. Once it is found that the tenancy is  heritable it follows that the right given to the tenant under  Section 37(1) may be exercised by the heirs of the tenant also. A Full Bench of the High Court of Bombay in Vasant Hariba  Londhe v.  Jagannath Ramchandra  Kul-karni(1) came to the same conclusion, Kotwal, C.J. observed:           "Section 40(1)  provides that where a tenant other      than a  permanent tenant  dies, the  landlord shall  be

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    deemed to  have continued the tenancy on the same terms      and conditions  on which  such tenant was holding it at      the time  of his  death, to  such heir  or heirs of the      deceased tenant  as may  be  willing  to  continue  the      tenancy. It will be noticed that prior to the amendment      of the  Tenancy Act by the Bombay Act XIII of 1956 this      section was  worded thus  "If a  protected tenant dies,      the landlord shall offer to continue the tenancy on the      same terms  and conditions  on which  such  tenant  was      holding it  at the  time of  his death  to the  heir or      heirs of the deceased tenant..." The expression used in      the old  S.40 was  "offer to  continue the tenancy" and      there was  no indication  whatever as  to what  was  to      happen if  the offer  was not made but by the amendment      made by  the Amending  Act XIII of 1956, sub-s. (1) was      wholly re-cast  and now  there is  no question  of  the      landlord merely  making  an  offer  to  the  tenant  to      continue the  tenancy on the same terms and conditions,      but on  the other  hand, the section provides that "the      landlord shall  be deemed to have continued the tenancy      on the  same  terms  and  conditions".  The  amendment,      therefore, meets  precisely the  argument that  is here      advanced that  the heir  succeeding  to  the  erstwhile      tenant does  not continue as a tenant on the same terms      and conditions.  Besides, the  new section introduced a      fiction by  the  use  of  the  words  "deemed  to  have      continued the tenancy" and therefore, whatever may have      been the  position prior  to the  amendment, s.40 as it      now  stands   after  the  Amending  Act  XIII  of  1956      automatically confers on the heir a tenancy on the same      terms and conditions as were applicable to the deceased      tenant". The learned  Chief Justice then referred to the decisions in Bai Jamna  v. Bai Dhani(2) and Thakorelal v. Gujarat Revenue Tribunal(3) and 581 distinguished the  two cases  on the ground that on the date on which  the death  of the tenant took place in those cases Section 40  as amended  in 1956  had not  come  into  force, whereas, in  the case  before the  Full Bench the tenant had died after  Section 40  was amended in 1956. In the case now before us,  however, the  death of  the  tenant  took  place before the  Bombay Tenancy  and Agricultural  Lands Act  was amended in 1956. We have already extracted Section 40 before and after  it was amended in 1956. The contrast is apparent. While under  the amended  Section 40 the heirs of the tenant were automatically  deemed to  succeed to  the tenancy there was  no  such  "deeming"  before  the  1956  amendment.  The landlord was merely required to make an offer and it was not stipulated what  would happen  if he did not make the offer. Where the landlord had obtained possession of the land under Section 34  for cultivating the land personally, there could be no  question of  making an  offer to continue the tenancy since such  an offer would be an exercise in futility. There was also  the significant  circumstance that  the  1948  Act (before it  was amended  in  1956)  contained  no  provision corresponding to  Explanation II  to Section  7 of  the 1939 Act. The  only reasonable  conclusion,  therefore,  is  that under the  provisions of the Bombay Tenancy and Agricultural Lands Act,  1948, as it stood before it was amended in 1956, the right  of a  tenant to recover possession of land from a landlord who  had obtained  possession of  such land  on the ground that  he required  it to  cultivate it personally was not a heritable right.      Shri Karkhanis,  learned Counsel  for  the  respondents

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relied on  the decision of this Court in Damadilal & Ors. v. Parashram & Ors. (1) and argued that a statutory tenancy was heritable like a contractual tenancy. This Court did not lay down the  wide proposition  that every statutory tenancy was heritable but  the Court  did quite definitely lay down that it would  be wrong  to import  the notions  of  English  law relating to  "statutory tenancy"  and on  that basis to hold that it  was not  transferable or heritable. It was observed by A. C. Gupta, J., as follows:           "We find  it difficult  to appreciate  how in this      country we can proceed on the basis that a tenant whose      contractual tenancy has determined but who is protected      against eviction  by  the  statute,  has  no  right  of      property  but  only  a  personal  right  to  remain  in      occupation, without  ascertaining what  his rights  are      under the  statute. The  concept of  a statutory tenant      having no  estate or  property in the premises which he      occupies is  derived from the provisions of the English      Rent 582      Acts. But  it is  not clear  how it can be assumed that      the position  is the  same in  this country without any      reference to  the provisions  of the  relevant statute.      Tenancy has its origin in contract. There is no dispute      that a  contractual tenant has an estate or property in      the subject-matter  of the tenancy, and heritability is      an incident  of the  tenancy.  It  cannot  be  assumed,      however, that with the determination of the tenancy the      estate must  necessarily disappear  and the statute can      only preserve  his status of irremovability and not the      estate he  had in the premises in his occupation. It is      not possible  to claim  that the "sanctity" of contract      cannot be  touched  by  legislation.  It  is  therefore      necessary to  examine  the  provisions  of  the  Madhya      Pradesh Accommodation  Control Act,  1961 to  find  out      whether  the   respondents’  predecessors  in  interest      retained a  heritable interest in the disputed premises      even after the termination of their tenancy." The learned  Judge thereafter  referred to the definition of tenant  in   the  Madhya  Pradesh  Act  and  held  that  the definition made  a person continuing in possession after the determination of  his tenancy  a tenant,  unless a decree or order for  eviction had  been made against him, thus putting him at  par with  a person  whose contractual  tenancy still subsisted. It  was  observed  that  the  incidents  of  such tenancy and  the contractual  tenancy had  to be the same in the  absence   of  a  contrary  intention  conveyed  by  any provision of  the Act.  It was  further observed that the so called statutory  tenant had, under Section 14 of the Madhya Pradesh  Act,  the  right  to  sublet  in  common  with  the contractual tenant  and, therefore,  he must be said to have an interest in the premises occupied by him.      Thus the  question  whether  a  tenancy  other  than  a contractual tenancy  has any  or  all  the  incidents  of  a contractual tenancy  has to be decided with reference to the provisions of  the particular  statute. Though  Section 5 of the Bombay  Tenancy and  Agricultural Lands  Act as it stood before it  was amended  in 1956,  did indicate  by providing that notwithstanding  any  agreement  to  the  contrary  the minimum period  of a  tenancy shall  be ten  years renewable thereafter for  successive periods  of ten  years, that  the tenancy was  heritable, the indication was definitely to the contrary when  it came to the right of a protected tenant to have the land restored to him on the failure of the landlord to cultivate  the land  personally. Our conclusion regarding

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the non-heritability  of this  right  rests  solely  on  our understanding of  Section  40  of  the  Bombay  Tenancy  and Agricultural Lands Act as it 583 stood before  it was  amended in  1956, in  relation to  the right under  Section 37. Nothing that we have said should be understood as indicating that any other right of a tenant or this very right after the 1956 amendment is not heritable.      Shri  Karkhanis   argued  that  having  regard  to  the position that obtained both under the Bombay Tenancy Act and under the  Bombay Tenancy  and Agricultural  Lands Act after the 1956  amendment, we should so interpret Section 40 as to make the  right under Section 37 heritable. We are unable to do so  in view  of the  language of Section 40 before it was amended in  1956. In  the result  we allow  the appeal,  set aside the  judgment  of  the  High  Court  and  restore  the decision  of   the  Maharashtra  Revenue  Tribunal.  In  the circumstances of  the case  there will be no order regarding costs. N.V.K.                                       Appeal allowed. 584