VINODCHANDRA SAKARLAL KAPADIA v. STATE OF GUJARAT AND ORS.

A (ii) if he is not a member of a joint family, his heirs, shall be entitled to partition and sub-divide the land leased subject to the following conditions:- (a) each sharer shall hold his share as a separate tenant. B (b) the rent payable in respect of the land leased shall be apportioned among the shares, as the case may be, according to the share allotted to them. (c) the area allotted to each sharer shall not be less than the unit which the State Government may, by C general or special order, specify in this behalf having regard to the productive capacity and other circumstances relevant to the full and efficient use of the land for agriculture. (d) if such area is less than the unit referred to in clause D (c), the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds. (e) if any question arises regarding the apportionment of the rent payable by the sharers, it shall be decided by the Mamlatdar, whose decision shall be final. (2) Notwithstanding anything contained in sub-section (1), it shall be lawful for a tenant:- (a) who is a widow, minor or a person subject to any physical or mental disability, or a serving member of the armed forces, to sub-let such land held by her or him as a, tenant; or (b) Who is a member of a co-operative farming society and as such member to sub-let, assign mortgage or to create a charge on his interest in the land in favour of such society, or in consideration of a loan advanced by any person authorised under section 54 of the Bombay Agricultural Debtors Relief Act, 1947. (3) Notwithstanding anything contained in sub-section (1), it shall also be lawful for a tenant to mortgage or create a charge on his

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interest in the land in favour of the State Government in consideration of a loan advanced to him by the State Government under the Land Improvement Loans Act, 1883, the Agriculturists, Loans Act, 1884, or the Bombay Non-Agriculturists, Lands Act, 1928, or in favour of a co-operative society in consideration of a loan advanced to him by such co-operative society, and without prejudice to any other remedy open to the State Government or the co-operative society, as the case may be, in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the State Government or the co-operative society, as the case may be, to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan.”

6Copy pinpoint6. The facts leading to the filing of Appeal arising out of Special Leave Petition (Civil) No.18525 of 2009, by way of illustration, are set out in detail as under:- a) Agricultural land bearing Survey No.102 admeasuring 0.88 D hectares situated within the revenue limits of village Gabheni, Taluka Chorayasi, District Surat (‘said land’ for short) was in the cultivating possession of one Samubhai Budhiabhai as tenant. As part of agrarian reforms and in terms of the provisions of the Act conferring right of statutory purchase E upon the tiller of the land, Samubhai became Deemed Purchaser as he was cultivating the land on the tillers’ day. b) Samubhai executed a registered Will on 24.01.1991 in favour of Vinodchandra Sakarlal Kapadia, the Appellant herein purporting to bequeath the said land to the Appellant. Upon F the demise of Samubhai on 02.02.1991, vide mutation No.2141 certified on 20.06.1991, the name of the Appellant came to be recorded in the revenue records as owner of the said land. c) The Revenue Authorities however found that the Appellant was not an agriculturist and accordingly proceedings under G Section 84C of the Act were registered and notice was issued to the Appellant. All the concerned parties appeared in the proceedings and the legal heirs of deceased Samubhai submitted that they had no objection if the land was given to the Appellant in terms of the Will. After hearing the Appellant, the Additional Mamlatdar by his order dated 04.03.1996 in H

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A Tenancy Case No. 78/95 found that the disposal by way of a Will in favour of the Appellant was invalid and contrary to the principles of Section 63 of the Act and therefore declared that the said land vested in the State without any encumbrances. d) The order passed by the Additional Mamlatdar was affirmed in Tenancy Appeal No.20/1996 by Deputy Collector, Land Development, Surat, vide his order dated 15.07.1996. The matter was carried further by way of Revision Application No.TEN.B.S.94 of 1996 before Gujarat Revenue Tribunal. Relying on certain decisions rendered by the High Court, the Tribunal observed that disposal by way of a Will would not amount to transfer and as such, it would not be hit by Section 63 of the Act. The Tribunal thus allowed the Revision and quashed the orders passed by the Additional Mamlatdar and the Deputy Collector. e) The State, being aggrieved, preferred Special Civil Application D No.25058 of 2006 in the High Court which came up before a Single Judge of the High Court. Relying on the decisions of this Court in Sangappa Kalyanappa Bangi (Dead) through LRs. vs. Land Tribunal, Jamkhandi and others4 and in Jayamma vs. Maria Bai (Dead) by proposed LRs and E another5, the Single Judge referred the matter to the Division Bench of the High Court for consideration.

7Copy pinpoint7. Similar references were made in all other connected matters raising identical issues, which were dealt with by the Division Bench of the High Court in its judgment and order presently under Appeal.

8Copy pinpoint8. The Division Bench considered the scope and ambit of Sections 43 and 63 of the Act as under:- “We may, before examining the scope and ambit of Section 43 and 63 of the Tenancy Act, examine the object and purpose of the Tenancy Act. The Bombay Tenancy Act was enacted with an G avowed object of safeguarding interest of the tenants who held the land for over a number of years, on principle that the land tilled to the tillers of the soil and also to preserve agricultural lands to safeguard interest of the agriculturists. Object is also to improve 4 AIR 1998 SC 3229 = (1998) 7 SCC 294 H 5 AIR 2004 SCW 4412 = (2004) 7 SCC 459

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the economic and social conditions of peasants ensuring the full A 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 B 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 C Act is covered by Entry 18 in List II of the Seventh Schedule 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 organize 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 G Chapter V of the Tenancy Act deals with restrictions on transfers of agricultural lands, management of uncultivated lands and acquisition of estates and lands.” 8.1 While dealing with the question whether the term ‘assignment’ used in Section 43 of the Act would include ‘testamentary disposition’, H it was observed by the Division Bench:-

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A “Section 43 of the Tenancy Act, however, uses word ‘assignment’. Word ‘assignment’ has been given statutory meaning by the Apex Court while examining the scope of Section 21 of the Karnataka Land Reforms Act in Sangappa Kalyanappa Bangi4. In that case, one Sangappa Bangi made an application under Section 45 of the Karnataka Land Reforms Act, 1961 claiming occupancy B 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 pendency of the proceedings before the Tribunal. C She in turn executed another Will under which Husensab is making a claim to the land through the said Sangappa. Land Tribunal as well as Appellate Tribunal examined whether rights to tenancy could have been the subject matter of a bequest under a Will. Apex Court took the view that assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will D cannot be stated to fall outside the scope of the said provision inasmuch as such assignment disposes of or deals with the lease. Apex Court also held that when there is a disposition of rights under a Will though operates posthumously is nevertheless 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. The purpose behind Section 21 is not to allow strangers to the family of the tenant to come upon the land. The Apex Court held that 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’ in Section 21 will have to be given such meaning as to promote the object of the enactment. Above decision in Sangappa Kalyanappa Bangi 4 was later followed in G Jayamma5 case while interpreting Section 61(1) & (3), 21(1), 2(A)(12) & (17) of the Karnataka Land Reforms Act, 1961. The question arose whether the expression ‘assignment’ would take in a Will. The Court held that on a fair construction of Section 61, a transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs, having regard to the definition H

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of ‘family’ as contained in Section 2(12) and ‘joint family’ as A contained in Section 2(17) of the said Act. The Court felt that the purpose and object of the Legislature sought to be achieved by enacting Section 61 of the KLR Act is such that ‘assignment’ would include ‘assignment by a Will’.” 8.2 Similarly, while construing the provisions of Section 63 of the B Act, the Division Bench stated as under:- “Section 63 unlike Section 43 of the Act does not contain the word ‘assignment’. Contention was raised that since no such word ‘assignment’ occurs in Section 63, there is no restriction in the matter of transfer of agricultural lands to non-agriculturist through C a testamentary disposition. Before examining the contention, it may be mentioned the word ‘Will’ as such is not defined under the Bombay Tenancy Act, but Section 2(h) of the Indian Succession Act defines the word ‘Will’ to mean a legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. A Will, therefore, is dependent upon the testator’s death for its vigour and effect and is liable to be revoked or altered during his life time. Question is while he is alive, can he make an illegal declaration through a ‘Will’ so as to defeat the object and purpose of the legislation. Will not such a declaration be opposed to public policy being repugnant to the public interest. Policy of the Act is discernible from the preamble, marginal note, title and Section 43 and 63 and other related provisions and the Directive Principles of State Policy. Where the legislature deem it expedient to fetter the privilege of free alienation, the prohibition founded upon conditions of public interest, must be treated as obsolete. General rule is that property of any kind may be transferred by way of gift or Will, sale etc. unless non-transferability is barred due to existence of any law. Willian’s law relating to Will, Sixth Edition, Volume I, page 60 states that the power of disposition by Will is not at the testators caprice, but extends only to the creation of those interests, which are recognised by law. Theobold on Wills, Fourth Edition, Pg.629, says that a condition which is illegal or contrary to the policy of the law is void. Tenancy Act has not authorised parting of agricultural land to a non-agriculturist without the permission of the authorised officer, therefore, if it is permitted through a H

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A testamentary disposition, it will be defeating the very soul of the legislation, which cannot be permitted. We wonder when testator statutorily debarred from transferring the agricultural lands to a non-agriculturist during his life time, then how he can be permitted to make a declaration of his intention to transfer agricultural land to a non-agriculturist to be operative after his death. Such attempt B of testator, in our view, is clearly against the public policy and would defeat the object and purpose of the Tenancy Act. Section 30 of the Hindu Succession Act acknowledges testamentary succession as a mode of succession, but not, by defeating the purpose and object of any legislation, like Tenancy Law. The C legislative intent that an agricultural land shall not go into the hands of a non-agriculturist is manifest in Section 63 of the Bombay Tenancy Act. In a country like ours where agriculture is the main source of livelihood, the restriction imposed in Section 63, cannot be given a go-by, by a devise. Obvious purpose of Section 63, is to prevent indiscriminate conversion of agricultural lands for D non-agricultural purpose and that provision strengthens the presumption that agricultural land is not to be used as per the holders caprice or sweet-will.” 8.3 It also relied upon decision of this Court reported in State of Punjab (now Haryana) and others vs. Amar Singh and another6 E and Dayandeo Ganpat Jadhav vs. Madhav Vithal Bhaskar and others7 and then concluded:- “We are, therefore, of the considered view that if the agriculturist is permitted to dispose agricultural property through testamentary disposition to a non-agriculturist the same will defeat the very purpose and object of the Tenancy Act which cannot be permitted by a Court of law, therefore, we hold that decision rendered by the learned Single Judges referred above earlier, otherwise, are not correct enunciation of law and stand overruled. We, therefore, hold that Section 63 of the Bombay Tenancy Act also bars the transfer of agricultural land by an agriculturist to a non-agriculturist for non-agricultural purpose unless permission is obtained from the Collector or any authorised officer as provided in that Section. We are informed by the learned counsel for the petitioner that

6 (1974) 2 SCC 70 : AIR 1974 SC 994 H 7 (2005) 8 SCC 340

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large number of agricultural lands have already been transferred through testamentary disposition to non-agriculturists and are in use and if the settled position is unsettled the same will cause considerable prejudice and inconvenience to the parties. We are of the view that there are matters to be considered by the learned Single Judge depending upon facts of each case and equities can be worked out accordingly, on which, we express no opinion. We are only called upon to answer the scope of Section 43 and 63 of the Tenancy Act, which we have already answered.”

9Copy pinpoint9. In these appeals challenging the correctness of the decision of the Division Bench of the High Court, we have heard Mr. Sanjay Parikh, learned Senior Advocate and Mr. Raghavendra S. Srivatsa, learned C Advocate for the Appellants and Mr. Aniruddha P. Mayee, learned Advocate for the State.

10Copy pinpoint10. It is submitted by 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’. It is also submitted by Mr. Srivatsa that the concept of succession, whether testamentary or intestate, being part of Entry 5 of List III of Seventh Schedule to the Constitution and a concurrent subject, the Central F legislation namely Indian 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 G 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 the cases of Sangappa4 and Jayamma5 are distinguishable as the provisions of the Karnataka Land Reforms Act, 1961 had received Presidential assent, whereas, the provisions of the H Act have not received any such assent.

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A Reliance is also placed on the Judgment of this Court in Mahadeo (Dead through legal representatives) vs. Shakuntalabai8 in which similar provisions from Bombay Tenancy and Agricultural Lands Act, 1958 (as applicable to Vidarbha Region of State of Maharashtra) came up for consideration before this Court.

11Copy pinpoint11. On the other hand, Mr. Mayee, learned Advocate for the State has submitted that the basic intent behind the conferral of ownership rights upon a cultivating tenant was to see that the actual tillers and cultivators must be protected and given the ownership rights upon payment of nominal charges. The avowed objective of the Act, is to preserve agricultural lands in the hands of actual tillers, and not to let concentration of holdings in a few hands. It is further submitted that Section 63 of the Act gives indications that a transfer to a non-agriculturist is not permissible and so also any transfer which results in taking the holding of the transferee beyond ceiling limits, or if the income of the transferee was in excess of Rs. 5,000/-, would be impermissible. He submitted that these conditions disclose the legislative intent which lays down the relevant criteria on the basis of which the applications for transfer inter vivos could be considered and granted; and that any disposition by way of a testament must also be subject to similar conditions. In his submission, a testamentary disposition which violated these basic norms ought not to be allowed and, therefore, the view taken by the Division Bench is correct. E

12Copy pinpoint12. We may now consider the decisions of this Court which have dealt with issues concerning testamentary disposition of agricultural holdings- A. In Sangappa4,the facts were noted as under:- F “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 G 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 H 8 (2017) 13 SCC 756

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through the said Sangappa. Respondent 2 is the wife of the said A 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 B High Court of Karnataka in Shivanna v. Rachiah9 (CRP No. 319 of 1976 dated 29-3-1977 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 C 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 D 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.” The question that arose for consideration was dealt with by this E Court as under:- “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 F 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 G sub-divide the land 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

9 (1977) 1 Kant LJ 146 (Short notes Item 160) H

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A 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 D 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

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and imported on the land thus to the detriment of the landlord. In A 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 the conditions prescribed B 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 Shivanna9and Dhareppa v. State of Karnataka 10 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 Tribunal11.” C B. Similar issues regarding disposition by will were dealt with by this Court in Jayamma5, as follows:- “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 F 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. G

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 10 (1979) 1 Kant LJ 18 11 (1987) 2 Kant LJ 337 H

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A 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. B

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. C

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.” C. Both these decisions were in the context of prohibition against transfer or assignment under the provisions of the Karnataka Land Reforms Act, 1961. In Mahadeo8, this Court dealt with Section 57 of the Bombay Tenancy and Agricultural Lands Act, 1958 as applicable to Vidarbha Region of State Maharashtra, and observed:- “4. The High Court took the view that the provisions of Section F 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 G 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 H as may be prescribed by the State Government.

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(2) Any transfer of land in contravention of sub-section (1) A 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 B 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 12 , devolution of property by way of a will does not amount to a C 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, a will takes effect after demise of the testator and transfer in that perspective becomes incongruous. D

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 alias Kappamuthu and Others v. L.S. Mariappan and Others13 wherein this Court has held in para 21 that: (SCC p. 732) E “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.” F In coming to this conclusion, this Court referred to Beru Ram v. Shankar Dass14.” D. It must be stated here that the decisions in Sangappa4 and Jayamma5 were rendered by benches of two judges and so was G the decision in Mahadeo8. However, the decision in Mahadeo does not show that the attention of the bench was invited to the earlier decisions in Sangappa4and Jayamma5. 12 (1997) 2 SCC 387 13 (2007) 6 SCC 724 14 (1977) 8 JKLR 73 H

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A E. The decision of this Court in Sangappa4 had approved the decision of the Division Bench of the High Court of Karnataka in Timmakka11, wherein following observations were made by the Division Bench:- “13. Two decisions of the Supreme Court were also referred, B in support of his contention by the learned Counsel. In Jaspal Singh v. The Additional District Judge, Bulandshahr & Ors.15, a question arose under U.P. Act 13/1972. There was a bar against transfer of the tenant’s interest during his life time. Similarly, if a tenant sub leases the premises, he was liable to be ejected. Therefore, is was held that the scheme of the Act C did not warrant the transfer of the tenancy right, to be effective after the life time of the tenant, Thus the claim of the nephew of the tenant who claimed the right under a Will executed by the deceased tenant was rejected.

14. In Bhavarlal Labhchand Shah v. Kanaiyalal D Nathalal Intawala16 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 Dr. Anant Trimbak Sabnis v. Vasant Pratap Pandi17 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

15 (1984) 4 SCC 434 16 (1986) 1 SCC 571 17 AIR 1980 Bombay 69 H

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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.” F. On the other hand, the decision in Mahadeo8 had placed reliance on the decisions of this Court in State of West Bengal vs. Kailash Chandra Kapur12 and in S. Rathinam13. In neither of these cases any statutory prohibition or restriction on transfer or assignment was involved.

13Copy pinpoint13. The decisions in Sangappa4, Jayamma5 and Mahadeo8 had dealt with the question whether prohibition against transfer of agricultural holdings applied to testamentary disposition. While dealing with the question whether a tenant governed by Rent Act could will away his tenancy, in Bhavarlal Labhchand Shah16 the issue was considered in the light of prohibition against transfer or assignment in Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. This E Court relied upon the earlier decision of this Court in Jaspal Singh vs. Additional District Judge, Bulandshahr15 and the decision of the Division Bench of the High Court of Bombay in Dr. Anant Trimbak Sabnis17 and observed:- “9. In Jaspal Singh v. Additional District Judge, Bulandshahr15 F this Court had occasion to consider the validity of a bequest of the right of a tenant to continue to occupy the premises after the determination of the tenancy under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 under a will. Section 3(a) of the U.P. Act referred to above defined the expression “tenant” thus: G “3. In this Act, unless the context otherwise requires— (a) ‘tenant’, in relation to a building, means a person by whom its rent is payable, and on the tenant’s death— H

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A (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non-residential building, his heirs;”

10. The appellant in that case claimed the right to tenancy held by one Naubat Singh under the will of Naubat Singh. This Court held that the appellant would be a tenant within the meaning of Section 3(a) of that Act only when he was an heir but the appellant was not a son but only nephew of Naubat Singh. The said U.P. Act also contained a provision in Section 12(2) thereof which stated that in the case of non-residential building where a tenant carrying on a business in the building admitted a person who was not a member of his family as a partner or a new partner, as the case may be, the tenant should be deemed to have ceased to occupy the building. Under those circumstances this Court held at p. 1885 thus: (SCC pp. 440-41, para 10) D “From a survey of these provisions it will be clear that if a tenant parts with possession of the premises in his possession, the same would be treated as vacant.... In the case of a non- residential building, when a tenant is carrying on business in the building, admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building. If a tenant sublets the premises, he is liable to ejectment. Obviously, therefore, there are restrictions placed by the Act on the right of the tenant to transfer or sublet the tenancy rights and he can keep possession of the building or premises for himself and for the purpose of his family, for his business and for the business of his family members. He obviously cannot be allowed to transfer a tenancy right. A fortiori, the scheme of the Act does not warrant the transfer of the tenancy right to be effective after his lifetime.” G

11. In the Act under consideration in the present case also there is a provision similar to the provision contained in Section 12(2) of the U.P. Act. Section 15(1) of the Act reads thus: “15. In absence of contract to the contrary tenant not to sublet or transfer.— (1) Notwithstanding anything contained H

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in any law, (but subject to any contract to the contrary), it shall A not be lawful after the coming into operation of this Act for any tenant to sublet the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:….”

12. In Dr. Anant Trimbak Sabnis17 the High Court of Bombay B has in the light of Section 15(1) of the Act taken the view and in our opinion rightly that the words “to assign or transfer in any other manner his interest therein” in Section 15(1) of the Act had the effect of prohibiting the deposition of the tenancy right by a will in the absence of a contract to the contrary. The High Court of Bombay observed at pp. 72 and 73 thus: C

“12. Prohibition against transfer of tenancy rights by the tenants is just a corollary to the restrictions on the landlords and is aimed at protecting them, in turn, by preventing the tenants from abusing these protections by thrusting uncontemplated strangers as tenants on the landlords, willy nilly, for monetary D gain or favouring any friend or relative of theirs, and thus ensuring, that the immunity against eviction is not expanded into licence to dispose of premises as if it were their own and landlords’ rights are not invaded beyond what is strictly necessary…. E

13. Bequest of tenancy rights in this context stands on the same footing as any other transfer by sub-lease, sale, assignment, gift, volition of the tenant in inducting uncontemplated strangers in the premises and thrusting them on the landlord, being the common element of these dispositions. F It makes little difference to the invasion on the landlord’s right whether such uncontemplated stranger is so inducted by the tenant for gain or just as a favour — invasion in either case having no nexus with the object underlying these protections. It is difficult to imagine why the legislature could have intended to exclude such bequests from the sweep of the prohibited G assignments and transfers under Section 15, when bequest is pregnant with the same evils as other transfers. The words “transfer in any manner” in this context only go to signify inclusion of ‘bequest’ also therein. H

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14Copy pinpoint14. It is not without significance that legatee is not included in the definition of the word ‘tenant’. Section 5(11) of the Act defines it to mean “a person who is liable to pay the rent or on whose account the rent is payable for any premises”. Under sub-clauses (a) to (c) it is enlarged to include some others whom legislature considered it necessary to protect. Clause B (c) provides for the succession to tenancy rights on the death of the tenant. Thus, this sub-clause (c) by providing for the mode of succession, impliedly excludes successors from the purview of the width of the main clause. Secondly, it restricts the succession even by operation of law of inheritance to the persons and situations indicated therein and impliedly excluding all other heirs. In fact, all the heirs are liable to be excluded if any other member of the family was staying with the tenant at the time of his death. Thirdly and more importantly, legatee is not included either in this sub-clause or any other sub-clauses. This demonstrates legislative intent to prohibit testamentary disposition of the tenancy rights. There is no other express provision to this effect in the Rent Act. It shall have to be traced only in Section 15 thereof by interpreting the words ‘assign’ and ‘transfer’ in their generic sense. This also fortifies our interpretation of these words.”

E 13. The above reasons given by the Bombay High Court in support of its decision are perfectly justified in the context of the object and the scheme of the Act. The language of the statute also lends itself to the same construction.”

14. On the other hand, in respect of leases to which the provisions of any Rent Act did not specifically apply, the principles laid down in Bhavarlal14 were not applied by this Court. The decision of this Court in State of W.B. v. Kailash Chandra Kapur12 had observed:- “11. It was, therefore, held that in the absence of any definition the legal heirs of the tenants who succeeded by intestate succession became the tenants under the Rent Act for the purpose of continuance of tenancy rights had by the tenant even if it is after the determination of the contractual tenancy. The statutory tenancy steps in and gives protection to the legal heirs of the deceased tenant. It is true that in that case no distinction was made by this Court between testamentary succession or intestate

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succession. As far as testamentary succession is concerned, this A Court had considered that question in Bhavarlal case16. In that case, Section 5(11) of the Bombay Rent Act defines the tenant and clause (c) defines the “restricted tenancy rights” in favour of the family members of the tenant. In that context, the question arose in that case whether a tenant can bequeath a Will in favour of a stranger? Considering the ratio in Gian Devi case18 and the object of the Act, this Court had held that the tenant cannot by a Will bequeath leasehold right in favour of strangers and induct the stranger as tenant of the demised premises against the Will of the landlord and the landlord is not bound by such a bequest to recognise the legatee as a tenant. It is, thus, settled law that though leasehold interest may be bequeathed by a testamentary disposition, the landlord is not bound by it nor a stranger be trusted as tenant against the unwilling landlord.

12. In view of the above-settled legal position, the question is whether the bequest made by Mullick in favour of the respondent is valid in law and whether the Governor is bound to recognise him. It is seen that clauses (7), (8) and (12) are independent and each deals with separate situation. Clause (7) prohibits sub-lease of the demised land or the building erected thereon without prior consent in writing of the Government. Similarly, clause (8) deals with transfer of the demised premises or the building erected thereon without prior permission in writing of the Government. Thereunder, the restricted covenants have been incorporated by granting or refusing to grant permission with right of pre-emption. Similarly, clause (12) deals with the case of lessee dying after executing a Will. Thereunder, there is no such restrictive covenant contained for bequeath in favour of a stranger. The word “person” has not been expressly specified whether it relates to the heirs of the lessee. On the other hand, it postulates that if the bequest is in favour of more than one person, then such persons to whom the leasehold right has been bequeathed or the heirs of the deceased lessee, as the case may be, shall hold the said property jointly without having any right to have a partition of the same and one among them should alone be answerable to and the Government would recognise only one such person. In the light of the language

18 (1985) 2 SCC 683 H

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A used therein, it is difficult to accept the contention of Shri V.R. Reddy, that the word “person” should be construed with reference to the heirs or bequest should be considered to be a transfer. Transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. Though, as indicated earlier, B the assignment may be prohibited and the Government intended to be so, a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended, in view of the permissive language used in clause (12) of the covenants. We find no express prohibition as at present under the terms of the lease. Unless the C Government amends the rules or imposes appropriate restrictive covenants prohibiting the bequest in favour of the strangers or by enacting appropriate law, there would be no statutory power to impose such restrictions prohibiting such bequest in favour of the strangers. It is seen that the object of assignment of the government land in favour of the lessee is to provide him right to residence. If D any such transfer is made contrary to the policy, obviously, it would be defeating the public purpose. But it would be open to the Government to regulate by appropriate covenants in the lease deed or appropriate statutory orders as per law or to make a law in this behalf. But so long as that is not done and in the light of the permissive language used in clause (12) of the lease deed, it cannot be said that the bequest in favour of strangers inducting a stranger into the demised premises or the building erected thereon is not governed by the provisions of the regulation or that prior permission should be required in that behalf. However, the stranger legatee should be bound by all the covenants or any new covenants or statutory base so as to bind all the existing lessees.”

15Copy pinpoint15. Various States have enacted legislations seeking to invalidate transfers of agricultural lands made by tribals or socially disadvantaged persons to non-tribals or transferees from non-backward communities which legislations have gone to the extent of nullifying transactions entered into even before the legislations had come into effect. Validity of these legislations have been sustained by this Court. Two such cases are as follows:- A) Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1974 prohibits H

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transfer of “granted lands” which expression is defined in Section 3(b) A to mean any land granted by the Government to a person belonging to any of the Scheduled Castes or the Scheduled Tribes. Any transfer made either before or after the commencement of said Act is rendered null and void by Section 4 and the land is to be resumed and dealt with in accordance with the provisions of said Act. Dealing with the challenge, B a bench of three Judges of this Court in Manchegowda vs. State of Karnataka19 stated:- “15. Any person who acquires such granted land by transfer from the original grantee in breach of the condition relating to prohibition on such transfer must necessarily be presumed to be aware of the prohibition imposed on the transfer of such granted land. C Anybody who acquires such granted land in contravention of the prohibition relating to transfer of such granted land cannot be considered to be a bona fide purchaser for value; and every such transferee acquires to his knowledge only a voidable title to the granted land. The title acquired by such transfer is defeasible and is liable to be defeated by an appropriate action taken in this regard. If the Legislature under such circumstances seek to intervene in the interests of these weaker sections of the community and choose to substitute a speedier and cheaper method of recovery of these granted lands which were otherwise liable to be resumed through legal process, it cannot, in our opinion, be said that any vested rights of the transferees are affected. Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law. The position will, however, be somewhat different where the transferees have acquired such granted lands not in violation of any term of the grant or any law regulating such grant as also where any transferee who may have acquired a defeasible title in such granted lands by the transfer thereof in contravention of the terms of the grant or any law regulating such grant has perfected his title by prescription of time or otherwise. We shall consider 19 (1984) 3 SCC 301 H

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A such cases later on. But where the transferee acquires only a defeasible title liable to be defeated in accordance with law, avoidance of such defeasible title which still remains liable to be defeated in accordance with law at the date of commencement of the Act and recovery of possession of such granted land on the basis of the provisions contained in Section 4 and Section 5 of the B Act cannot be said to be constitutionally invalid and such a provision cannot be termed as unconscionable, unjust and arbitrary. The first two contentions raised on behalf of the petitioners are, therefore, overruled.

16Copy pinpoint16. The next contention that Sections 4 and 5 of the Act C empowering the authority to take possession of the granted lands without payment of any compensation are violative of Article 19(1)(f) of the Constitution is without any merit. Article 19(1)(f) which was in force at the relevant time provided that all citizens shall have the right “to acquire, hold and dispose of property”.

17Copy pinpoint17. Granted lands were intended for the benefit and enjoyment of the original grantees who happen to belong to the Scheduled Castes and Scheduled Tribes. At the time of the grant, a condition had been imposed for protecting the interests of the original grantees in the granted lands by restricting the transfer of the same. The E condition regarding the prohibition on transfer of such granted lands for a specified period, was imposed by virtue of the specific term in the grant itself or by reason of any law, rule or regulation governing such grant. It was undoubtedly open to the grantor at the time of granting lands to the original grantees to stipulate such a condition, the condition being a term of the grant itself, and the condition was imposed in the interests of the grantee. Except on the basis of such a condition the grantor might not have made any such grant at all. The condition imposed against the transfer for a particular period of such granted lands which were granted essentially for the benefit of the grantees cannot be said to constitute any unreasonable restriction. The granted lands were not in the nature of properties acquired and held by the grantees in the sense of acquisition, or holding of property within the meaning of Article 19(1)(f) of the Constitution. It was a case of a grant by the owner of the land to the grantee for the possession and enjoyment of the granted lands by the grantees and the prohibition H

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on transfer of such granted lands for the specified period was an essential term or condition on the basis of which the grant was made. It has to be pointed out that the prohibition on transfer was not for an indefinite period or perpetual. It was only for a particular period, the object being that the grantees should enjoy the granted lands themselves at least for the period during which the prohibition was to remain operative. Experience had shown that persons belonging to the Scheduled Castes and Scheduled Tribes to whom the lands were granted were, because of their poverty, lack of education and general backwardness, exploited by various persons who could and would take advantage of the sad plight of these poor persons for depriving them of their lands. The imposition of the condition of prohibition on transfer for a particular period could not, therefore, be considered to constitute any unreasonable restriction on the right of the grantees to dispose of the granted lands. The imposition of such a condition on prohibition in the very nature of the grant was perfectly valid and legal.” D B) Another bench of three Judges of this Court considered the challenge to the provisions of the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 in Lingappa Pochanna Appelwar vs. State of Maharashtra and another20. While rejecting the challenge this Court observed:- E “18. The impugned Act is nothing but a remedial measure in keeping with the policy of the State for rendering social and economic justice to this weaker section of the society. The taking of their lands may have been done by way of transfer under the ordinary, laws in various ways. The processes and forms of law were apparently followed. But the result has been devastating. F As a result of such unequal transactions which were grossly unconscionable and unjust, the tribals lost their lands to non-tribals and were rendered landless. It is implicit in the nature of the legislation that the law regards such transactions as unconscionable and oppressive, and directs restoration of the property to the tribal G transferor treating the transfer to be non est. It is axiomatic that a contract is liable to be set aside due to inequality of bargaining power, if someone without independent advice, enters into a contract on terms which are very unfair or transfers property for 20 (1985) 1 SCC 479 H

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A a consideration which is grossly inadequate when his bargaining power is grievously impaired by reason of his own need or circumstances, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other.” B There was a challenge on the ground of legislative competence as well, which aspect will be dealt with later.

16. A bench of three Judges of this Court placed reliance on the decisions in Manchegowda19 and Lingappa Pochanna Appelwar v. State of Maharashtra20 and found that even a voluntary surrender by a C member of a Scheduled Tribe would come within the expression “transfer” in Section 71-A of the Chhotanagpur Tenancy Act, 1908. In Pandey Oraon vs Ram Chander Sahu and Others21, this Court held:- “6. In Section 71-A in the absence of a definition of transfer and considering the situation in which exercise of jurisdiction is D contemplated, it would not be proper to confine the meaning of transfer to transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated in the provision is where possession has passed from one to another and as a physical fact the member of the Scheduled Tribe who is entitled to hold possession has lost it and a non- E member has come into possession would be covered by transfer and a situation of that type would be amenable to exercise of jurisdiction within the ambit of Section 71-A of the Act.

7. The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to F keep their property to themselves in the absence of protection. Therefore, when the legislature is extending special protection to the named category, the court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by G (sic) the scope. In fact, that exactly is what has been said by a three Judge bench of this Court in almost a similar situation in Manchegowda19 and what was said by a three Judge bench followed by a later decision of this Court in Lingappa20. To the same effect is the observation of this Court in Gamini Krishnayya

H 21 (1992) Supp 2 SCC 77

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v. Guraza Seshachalam22. The House of Lords in D (a minor) A v. Bershire County Council 23 said that broad and liberal construction should be given to give full effect to the legislative purpose. We would, therefore, in the facts and circumstances appearing in this case, hold that the authorities under the Act were justified in extending the provision of Section 71-A of the B Chotanagpur Tenancy Act to the situation which emerged and the High Court took a wrong view in limiting the concept of transfer to the statutory definition in the T.P. Act and holding that Section 71-A was not applicable in a case of this type. On this basis, it must follow that the action of the statutory authority was justified and the conclusion of the Full Bench must not be sustained. We C accordingly allow the appeal and reverse the decision of the High Court.”

17. In Amrendra Pratap Singh vs. Tej Bahadur Prajapati and Others24, a question arose whether a plea of adverse possession by a non-tribal with regard to land of a tribal situated in the scheduled area D could be entertained. While dealing with the question, following observations were made by this Court:- “14. …… Dictionaries can be taken as safe guides for finding out meanings of such words as are not defined in the statute. However, dictionaries are not the final words on interpretation. E The words take colour from the context and the setting in which they have been used. It is permissible to assign a meaning or a sense, restricted or wider than the one given in dictionaries, depending on the scheme of the legislation wherein the word has been used. The court would place such construction on the meaning of the words as would enable the legislative intent being F effectuated. Where the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society the court would not hesitate in placing an extended meaning, even a stretched one. on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. G We may refer to Principles of Statutory Interpretation by Justice G.P. Singh (8th Edn., 2001) wherein at pp. 279-280 the learned author states- 22 AIR 1965 SC 639 23 (1987) 1 All ER 20 (HL) 24 (2004) 10 SCC 65 H

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A “. . . . .in selecting one out of the various meaning of a word, regard must always be had to the context as it is a fundamental rule that ‘the meanings of words and expressions used in an Act must take their colour from the context in which they appear’. Therefore, ‘when the context makes the meaning of a word quite clear, it becomes unnecessary to search for and select a particular meaning out of the diverse meanings a word is capable of, according to lexicographers’. . .... Judge Learned Hand cautioned ‘not to make a fortress out of the dictionary’ but to pay more attention to ‘the sympathetic and imaginative discovery’ of the purpose or object of the statute as a guide to its meaning.” ………

19. State of M.P. v. Babu Lal25 is an interesting case showing how this Court dealt with an artistic device employed by a non- tribal to deprive a tribal of his land. The M.P. Land Revenue Code, D 1959 imposed restrictions on the transfer of land by members of a Scheduled Tribe. Babu Lal, a non-tribal, filed a suit for declaration against Baddiya, a Bheel, notified Scheduled Tribe, for declaration that his name be recorded in the revenue record as bhumiswami over the land of Baddiya. Baddiya did not contest the suit and the E parties filed a compromise conceding to the claim of Babu Lal. The State Government intervened and filed a petition in the High Court seeking a writ of certiorari, submitting that the entire proceedings in the suit were in contravention of sub-section (6) of Section 165 of the M.P. Land Revenue Code, 1959. The judgment of the civil court based on compromise was sought to be quashed. F The High Court dismissed the petition holding that the State could pursue the alternative remedy of filing a suit for declaration that the decree was null and void. In appeal by special leave, this Court set aside the judgment of the High Court and issued a writ of certiorari to quash the judgment and decree passed in the civil G suit. It was held: (SCC p. 436, para 5) “5. One of the principles on which certiorari is issued is where the Court acts illegally and there is error on the face of record. If the Court usurps the jurisdiction, the record is corrected by certiorari. This case is a glaring H 25 (1977) 2 SCC 435

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instance of such violation of law. The High Court was in A error in not issuing writ of certiorari.”

20. The law laid down by this Court is an authority for the proposition that the court shall step in and annul any such transaction as would have the effect of violating a provision of law, more so when it is a beneficial piece of social legislation. A B simple declaratory decree passed by a civil court which had the effect of extinguishing the title of a member of a Scheduled Tribe and vesting the same in a non-member, was construed as “transfer” within the meaning of Section 165(6) of the M.P. Land Revenue Code, 1959. Thus, we are very clear in our minds that the expression “transfer of immovable property” as defined in clause C (f) of para 2 of the 1956 Regulations has to be assigned a very wide meaning. Any transaction or dealing with immovable property which would have the effect of extinguishing title, possession or right to possess such property in a tribal and vesting the same in a non-tribal, would be included within the meaning of “transfer of immovable property”. ………

24. In Madhavrao Waman Saundalgekar v. Raghunath Venkatesh Deshpande26 Their Lordships of the Privy Council dealt with a case of watan lands and observed that it is somewhat difficult to see how a stranger to a watan can acquire a title by adverse possession for twelve years of lands, the alienation of which is, in the interests of the State, prohibited. The Privy Council’s decision was noticed in Karimullakhan v. Bhanupratapsingh27 and the High Court noted non-availability of any direct decision on the point and resorted to borrowing from analogy. It was held that title by adverse possession on inam lands, watan lands and debutter, was incapable of acquisition.

25. Reverting back to the facts of the case at hand, we find that in the land, the ultimate ownership vests in the State on the principle of eminent domain. Tribals are conferred with a right to hold land, which right is inalienable in favour of non-tribals. It is clear that the law does not permit a right in immovable property vesting in a

26 AIR 1923 PC 205 : 50 IA 255 : ILR 47 Bom 798 27 AIR 1949 Nag 265 : ILR 1948 Nag 978 H

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A tribal to be transferred in favour of or acquired by a non-tribal, unless permitted by the previous sanction of a competent authority. The definition of “transfer of immovable property” has been coined in the widest-possible terms. The definition makes a reference to all known modes of transferring right, title and interest in immovable property and to make the definition exhaustive, conspicuously employs the expression “any other dealing with such property”, which would embrace within its sweep any other mode having an impact on right, title or interest of the holder, causing it to cease in one and vest or accrue in another. The use of the word “dealing” is suggestive of the legislative intent that not only a transfer as such but any dealing with such property (though such dealing may not, in law, amount to transfer), is sought to be included within the meaning of the expression. Such “dealing” may be a voluntary act on the part of the tribal or may amount to a “dealing” because of the default or inaction of the tribal as a result of his ignorance, poverty or backwardness, which shall be presumed to have existed when the property of the tribal is taken possession of or otherwise appropriated or sought to be appropriated by a non-tribal. In other words, a default or inaction on the part of a tribal which results in deprivation or deterioration of his rights over immovable property would amount to “dealing” by him with such property, and hence E a transfer of immovable property. It is so because a tribal is considered by the legislature not to be capable of protecting his own immovable property. A provision has been made by para 3-A of the 1956 Regulations for evicting any unauthorised occupant, by way of trespass or otherwise, of any immovable property of a member of a Scheduled Tribe, the steps in regard to which may be taken by the tribal or by any person interested therein or even suo motu by the competent authority. The concept of locus standi loses its significance. The State is the custodian and trustee of the immovable property of tribals and is enjoined to see that the tribal remains in possession of such property. No period of limitation is prescribed by para 3-A. The prescription of the period of twelve years in Article 65 of the Limitation Act becomes irrelevant so far as the immovable property of a tribal is concerned. The tribal need not file a civil suit which will be governed by the law of limitation; it is enough if he or anyone on his behalf moves the State or the State itself moves into action to protect him and restores H

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his property to him. To such an action neither Article 65 of the A Limitation Act nor Section 27 thereof would be attracted.

26. In our opinion, the abovesaid shall be the position of law under the 1956 Regulations where “transfer of immovable property” has been defined and also under the 1950 Act where “transfer of holding” has not been defined. Acquisition of title in favour of a B non-tribal by invoking the doctrine of adverse possession over the immovable property belonging to a tribal, is prohibited by law and cannot be countenanced by the court.” The law laid down in Amarendra Pratap Singh24 was followed by this Court in Lincai Gamango and Others vs. Dayanidhi Jena C and Others28.

18Copy pinpoint18. Some of the other cases, where the legislative intent of prohibiting transfer was taken note of and suitably extended, are as under:- A) While dealing with the question whether prohibition against transfer in Section 42(b) of the Rajasthan Tenancy Act, 1955 would get attracted as against a juristic person such as a limited company, this Court in State of Rajasthan and Others vs. Aanjaney Organic Herbal Private Limited29 held:- “7. Heard the learned counsel on either side. The Act is a beneficial legislation which takes special care to protect the interest of the members of Scheduled Castes and Scheduled Tribes. Section 42 provides some general restrictions on sale, gift and bequest of the interest of Scheduled Castes and Scheduled Tribes, in the whole or part of their holding. The reason for such general restrictions is not only to safeguard the interest of the members of Scheduled F Castes and Scheduled Tribes, but also to see that they are not exploited by the members of non-Scheduled Castes and Scheduled Tribes. The relevant provisions of Section 42(b) are extracted below for easy reference: “42.General restrictions on sale, gift & bequest.—The sale, G gift or bequest by a khatedar tenant of his interest in the whole or part of his holding shall be void, if— (a) * * * 28 (2004) 7 SCC 437 29 (2012) 10 SCC 283 H

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A (b) such sale, gift or bequest is by a member of a Scheduled Caste in favour of a person who is not a member of the Scheduled Caste, or by a member of a Scheduled Tribe in favour of a person who is not a member of the Scheduled Tribe;” ………

B 12. The expressions “Scheduled Castes” and “Scheduled Tribes”, we find in Section 42(b) of the Act have to be read along with the constitutional provisions and, if so read, the expression “who is not a member of the Scheduled Caste or Scheduled Tribe” would mean a person other than those who have been included in the C public notification as per Articles 341 and 342 of the Constitution. The expression “person” used in Section 42(b) of the Act therefore can only be a natural person and not a juristic person, otherwise, the entire purpose of that section will be defeated. If the contention of the Company is accepted, it can purchase land from Scheduled Caste/Scheduled Tribe and then sell it to a non-Scheduled Caste D and Scheduled Tribe, a situation the legislature wanted to avoid. A thing which cannot be done directly cannot be done indirectly overreaching the statutory restriction.

13. We are, therefore, of the view that the reasoning of the High Court that the respondent being a juristic person, the sale effected E by a member of Scheduled Caste to a juristic person, which does not have a caste, is not hit by Section 42 of the Act, is untenable and gives a wrong interpretation to the abovementioned provision.” B) Similarly, in Rajasthan Housing Board vs. New Pink City Nirman Sahkari Samiti Limited and Another30, the effect of said F Section 42(b) in the context where the land was acquired from members of Scheduled Castes and Scheduled Tribes by a Society, was considered by a bench of three Judges as under:- “26. In the instant case, the transaction is ab initio void, that is, right from its inception and is not voidable at volition by virtue of G the specific language used in Section 42 of the Rajasthan Tenancy Act. There is declaration that such transaction of sale of holding “shall be void”. As the provision is declaratory, no further declaration is required to declare prohibited transaction a nullity. No right accrues to a person on the basis of such a transaction. H 30 (2015) 7 SCC 601

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The person who enters into an agreement to purchase the same, is aware of the consequences of the provision carved out in order to protect weaker sections of the Scheduled Castes and Scheduled Tribes. The right to claim compensation accrues from right, title or interest in the land. When such right, title or interest in land is inalienable to non-SC/ST, obviously the agreements entered into by the Society with the khatedars are clearly void and decrees obtained on the basis of the agreement are violative of the mandate of Section 42 of the Rajasthan Tenancy Act and are a nullity. Such a prohibited transaction opposed to public policy, cannot be enforced. Any other interpretation would be defeasive of the very intent and protection carved out under Section 42 as per the mandate of Article 46 of the Constitution, in favour of the poor castes and downtrodden persons, included in the Schedules to Articles 341 and 342 of the Constitution of India.”

19Copy pinpoint19. The prohibition against transfer of a land of a tribal to a non-tribal was extended in Shamjibhai Keshavjibhai Kansagra (Patel) D & Ors. V. Principal Secretary, Revenue Dept. (Appeals) & Ors.31 by the Division Bench of the High Court of Gujarat to testamentary disposition in favour of a non-tribal. Section 73AA of the Bombay Land Revenue Code, 1879 (as applicable to State of Gujarat) restricts “transfer of occupancy” from tribals to non-tribals, without the previous sanction of the Collector. The Division Bench considered, inter alia, the judgment which is presently under appeal and observed as under: “13. Chapter VI of the Code relates to ‘grant, use and relinquishment of unalienated land’. Under Section 68 occupants’ rights are conditional. An occupant is entitled to the use and occupation of his land for the period, if any, to which his tenure is limited or if the period is unlimited or a survey settlement has been extended to the land in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same. Under the proviso thereto, the Collector may grant permission to any person to occupy any unalienated unoccupied land for certain period. Under Section 73 occupancy is transferable and inheritable subject to Section 56 of the Act. Section 73A empowers the State Government to restrict the right of transfer. Under Section 73AA, there is restriction on transfer of occupancies of tribals to tribals 31 AIR 2011 Gujarat 55 H

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A or non-tribals notwithstanding anything contained in Section 73 except without previous sanction of the Collector as evident from the said provision, relevant portion of which is quoted hereunder: “73AA. Restriction on transfer of occupancies of tribals to tribals or non-tribals.-(1) Notwithstanding anything B contained in Section 73, an occupancy of a person belonging to any of the Schedule Tribes hereafter in this section and in Section 73AB referred to as ‘the tribal’ shall not be transferred to any person without the previous sanction of the Collector. C (2) The previous sanction of the Collector under Sub-section (1) may be given in such circumstances and subject to such conditions as may be prescribed.”

14. From the aforesaid provision, it will be evident that there is a restriction on ‘transfer of occupancy’ of land of tribals by any D mode, whether sale, gift, exchange, mortgage, lease or assignment or even under a will. … … …

19. It is true that there is a difference between a transfer of property and a bequest under will. Transfer of Property Act, 1882, E deals with transfers inter vivos, that is, by a living person who conveys the property to one or more living persons. The provisions of Transfer of Property Act are inapplicable to testamentary successions, which are governed by Indian Succession Act, 1925. Whereas a transfer is a conveyance of an existing property by one living person to another. On the other hand, a will is a legal expression of a wish and intention of a person in regard to his properties. When a person makes a will, he provides for testamentary succession. A will is revocable and comes into operation only after the death of the testator. Thus, on demise of the testator, the will cannot be treated to be a document of transfer of an existing property. By execution of a will, no right or title or interest is created in favour of anyone during the lifetime of the deceased. Right only flows after the death of testator. … … …

22. The question arises as to whether any living person can execute H a document in contravention of any law. The answer is always in

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negative. If law do not permit and there is a prohibition to do certain thing, or there is a prohibition to do certain act except in certain manner, any document or agreement or anything in contravention to such provision of law, is illegal and invalid. During the lifetime of a living person, if the person is under restriction to execute certain document and thereby has no right to transfer his occupancy or no right to transfer his interest under one or other Act, he cannot execute any document, including a will showing his wish and intention in regard to such property in contravention of such law. Therefore, a tribal even cannot wish nor can show his intention to transfer his right of occupancy to a tribal or non- tribal, there being restriction Under Section 73AA of the Bombay C Land Revenue Code. Similarly, a tenant-owner of agricultural land cannot wish nor can show his intention to transfer his right on agricultural land to a non-agriculturist by executing a will in contravention of Section 63 of the Bombay Tenancy Act, except in the manner prescribed thereunder. Any such wish and intention shown by testator during his lifetime, being in contravention of law, as noticed above, is invalid and can be ignored. … … …

24. Therefore, even if it is accepted that the transfer under the Transfer of Property Act is a conveyance of an existing property by one living person to another, and will does not involve any transfer, but if a will is executed in contravention of law, it is always open to the authority to ignore such will and may refuse to mutate the name on the basis of such will.”

20Copy pinpoint20. The common thread running through these decisions except that in Mahadeo8 is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent. As laid down in Amarendra Pratap Singh24, where the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. We must therefore examine the provisions of the Act to consider the legislative scheme. A) In terms of Section 32, on the tillers’ day every tenant satisfying the requirements spelt out in Section 32(1), and upto the ceiling H

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A limit as laid down in Section 32A, is deemed to have purchased from his landlord, free from all encumbrances, the land held by him as tenant. B) The purchase price payable by the tenant for such deemed purchase is to be determined in terms of Section 32H, according to which, in case of a permanent tenant the purchase price has to be equal to six times the rent, while in case of other tenants, the purchase price would not be less than 20 times the assessment, and not more than 200 times the assessment. C) In case the proceedings for eviction of the tenant are pending, the deemed date of purchase will stand postponed in terms of the first proviso to Section 32. D) Even if the tenant had lost the possession before the tillers’ day, in certain cases the possession can be restored to him and the benefit of statutory purchase can be enjoyed by him as stipulated in sub-sections (1A) and (1B) of Section 32. The benefit of statutory purchase is also made available to tenants in areas within the limits of Municipal Boroughs, or within the limits of Municipal Districts as contemplated by Section 32(4) of the Act. E) If the landlord is under a disability, as stated in Section 32F, the right to purchase the land can be exercised after cessation of disability. In such cases, the period within which the right to purchase could be exercised was initially a fixed period, but facility is given in Section 32F(1A) that even if the period had expired, the tenant is still deemed to have purchased the land.

F F) Even a sub-tenant of a permanent tenant is entitled to the right of deemed purchase in terms of Section 32I and all the provisions concerning deemed purchase are to apply to such sub-tenant. The shares of purchase price are then to be allocated in terms of Section 32I (3). G) If the tenancy is created after the tillers’ day, in terms of Section G 32O, as it stood before its deletion (vide Gujarat Act No.10 of 2009), a tenant could exercise the right of purchase within one year from the commencement of his tenancy. H) If the purchase has become ineffective or there was failure on the part of the tenant to exercise the right of purchase, the H

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Collector under Section 32P either suo motu, or on an application, can pass appropriate directions in terms of Section 32P(2). In such cases, the land is to be disposed of to the persons in the priority list. At the top of the priority list is the tenant himself, in case he is willing to accept the offer of sale, followed by various entities and persons including agricultural labourers, land-less persons, small holders and persons belonging to Scheduled Castes and Scheduled Tribes. I) If none of those persons in the priority list come forward to purchase the land, the land is to vest in the State Government, whereupon in terms of Section 32P(4) the purchase price can be determined, which will then be paid to the owner of the land. C

J) Where the purchase in favour of persons from the priority list in terms of Section 32 is effected, the price will be determined in terms of Section 32P(5) read with other provisions, to be paid in annual instalments not exceeding six. D K) If any land was surrendered to the landlord before the specified date and the possession of the land was taken by the landlord, in terms of Section 32P(7), the landlord will be entitled to the use and occupation of the land so long as he cultivates the land personally. In such cases, by virtue of Section 32P(8) no land as described in Section 32P(7) can be transferred by sale, mortgage, lease or assignment without the previous sanction of the Collector. L) Even in cases where the land is at the disposal of the Collector under Section 32P, by virtue of Sections 32PP, 32PPP additional opportunities are granted to the tenant to avail of the benefit of statutory purchase. Even where the tenant had failed to deposit the purchase price, in cases covered by Section 32QQ the amount will be deposited on his behalf by the State Government. M) Upon payment of the last instalment, a certificate of purchase is issued to the tenant or sub-tenant or such other person(s)/ entities in the priority list, as the case may be. The certificate of purchase is conclusive evidence of the ownership of such purchaser. N) A right was conferred upon the tenant with respect to a dwelling house under Section 17 whereunder the tenant was given the first option of purchasing the site at a value, to be determined by the tribunal. However, by virtue of the newly incorporated Section H

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A 17B, every tenant is deemed to have purchased from his landlord the site on which the dwelling house occupied by such tenant is built and the land immediately appurtenant thereto and necessary for the enjoyment of dwelling house. O) If the landlord intends to sell any land, he must apply to the tribunal in terms of Section 64 which may thereafter determine the reasonable price, and the offer has to be made in terms of Section 32P to the concerned persons. P) Section 88B had granted exemption from the provisions pertaining to statutory purchase and determination of price in respect of lands held by a University or a trust for an educational purpose, a hospital, punjarapol or Gaushala and to lands donated by any person for the purposes of rendering any services to the community. However, in terms of Section 88E, such exemption ceased to operate from the specified date, and the tenants of such lands are also deemed to have purchased the land on the specified date, and all the relevant provisions regarding statutory purchase would then apply to such land. Q) Section 32R obliges the purchaser of land to cultivate the land personally, and in case of failure, the land can be disposed of in terms of Section 84C of the Act. E

21Copy pinpoint21. The provisions considered in the preceding paragraph deal with matters pertaining to and arising out of proceedings related to statutory purchase. Sections 14 and 29 do not belong to that category. In terms of Section 14, if the land “is assigned” in contravention of Section 27, the tenancy of the tenant is liable to be terminated. Section 27 states in clear terms that “assignment of any interest” in the land by a tenant shall not be valid. The decision of this Court in Bhavarlal16 has stood the test of time which clearly states that a tenancy governed by a statute which prohibits assignment, cannot be willed away to a total stranger. The expression “assignment” in Sections 14 and 27, if understood in light of the decision of this Court in Bhavarlal16 which has consistently been followed, must include testamentary disposition. One thought may be expressed here though that by itself may not be determinative and that is, the meaning ascribed to the expression “assignment” in Section 43 cannot in any way be different. There is nothing in the provisions of the Act to suggest that the expression H

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“assignment” must carry a different meaning in Sections 14 and 27 on A the one hand, and Section 43 on the other.

22Copy pinpoint22. The provisions analysed hereinabove intend to confer the advantage of statutory purchase upon a cultivating tenant, and see that “the tiller of the land” is conferred ownership with respect to the lands cultivated by him as well as the dwelling house occupied by him. Thus, a B cultivating tenant, if his holding is otherwise not beyond the ceiling limit, would be given the right to own the land cultivated by him. In cases where no purchase could be effected either on account of inability of the tenant to pay the purchase price, or on account of other situations, more than one attempt and opportunities are afforded to him. The statute goes to the extent of obliging the State Government to deposit the purchase price on his behalf. Even in cases where the tenant is unable to exercise the right of purchase because his holding would go beyond ceiling limit, the land would not revert to the landlord, but in terms of Section 32P, it must come to the persons or entities listed in the priority list. The priority list includes persons such as agricultural labourers and landless persons. The scheme is, therefore, to effectuate distribution of agricultural lands in such a way that the persons who are disadvantaged, would be conferred the ownership. After such purchase, the law obliges the purchaser to cultivate the land personally and not to transfer it. We may at this stage notice the observations in the majority opinion authored by K. Ramaswamy, J. under the caption “Agriculture – a means of livelihood succour for social justice and base for dignity of person”, in Samatha vs. State of A.P. and Others32 where this Court, inter alia, dealt with the provisions of the Andhra Pradesh Scheduled Areas Land Transfer Regulations, 1989 including the prohibition against transfer. “9. Agriculture is the main part of the economy and source of livelihood to the rural Indians and a source and succour for social status and a base for dignity of person. Land is a tangible product and sustaining asset to the agriculturists. In Waman Rao v. Union of India33 a Constitution Bench had observed that India being a predominantly agricultural society, there is a “strong linkage between the land and the person’s status in social system”. The strip of land on which they till and live assures them equal justice and “dignity of their person by providing to them a near decent 32 (1997) 8 SCC 191 33 (1981) 2 SCC 362 : (1981) 2 SCR 1 H

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A means of livelihood”. Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity.

10. Agriculture is the only source of livelihood for Scheduled Tribes, apart from collection and sale of minor forest produce to supplement their income. Land is their most important natural and valuable asset and imperishable endowment from which the tribals derive their sustenance, social status, economic and social equality, permanent place of abode and work and living. It is a security and source of economic empowerment. Therefore, the tribes too have great emotional attachment to their lands. The land on which they live and till, assures them equality of status and dignity of person and means to economic and social justice and is a potent weapon of economic empowerment in social democracy.”

23Copy pinpoint23. If a tenant or any other person from the priority list is conferred ownership in respect of the agricultural land or when a landlord is allowed to retain the land which was surrendered by his tenant, each one of them is obliged to cultivate the land personally. In case any of them is unwilling, the land must be given to those who principally depend upon agricultural operations for their sustenance. If a person is a beneficiary of such statutory purchase and wishes to transfer his holding the law obliges that he must take prior sanction from the Collector. While granting such sanction, the authorities may essentially check whether the transferee is an agriculturist or an agricultural labour who otherwise fulfils the requirements and would carry out the obligation of cultivating the land personally; and that his holding would not go beyond the ceiling limit. Since the ownership itself was conferred as a result of the legislative scheme as discussed hereinabove, these conditions are inherent in the very conferral of ownership and, therefore, specifically incorporated in Section 43 with direct reference to the provisions named therein.

24Copy pinpoint24. A transfer inter vivos would normally be for consideration where the transferor may get value for the land but the legislation requires previous sanction of the concerned authority so that the transferee can step into the shoes of the transferor, and carry out all the obligations as a part of legislative scheme must be discharged. Thus, the screening whether a transferee is eligible or not, can be undertaken even before the actual transfer is effected. As against this, if a testamentary disposition which does not have the element of consideration is to be permitted, and

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if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. The legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose. The construction put on the expression “assignment” appearing in Section 43, therefore, has to be consistent with the legislative scheme. In the context of the entire scheme, the term “assignment” used in Section 43 of the Act must include testamentary disposition as well. By adopting such construction, in keeping with the law laid down by this Court, the statute would succeed in attaining the object sought to be achieved. On the other hand, if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance, but may also have serious impact on agricultural operations.

25Copy pinpoint25. In the circumstances the view taken by the Division Bench of the High Court in the present matter is absolutely correct and does not call for any interference. The decision is completely consistent with the law laid down by this Court in Sangappa4 and Jayamma5 and the other cases referred to hereinabove and must be accepted to be the correct exposition of law.

26Copy pinpoint26. This brings us to the last question which was raised by Mr. Srivatsa, learned counsel for some of the Appellants. In his submission, any prohibition in the State enactment inconsistent with the principles emanating from the Central legislation namely Indian Succession Act, 1925 must be held to be void. Though, no such contention was raised before the High Court, nor is it reflected in the pleadings, we proceed to consider the said submission.

27Copy pinpoint27. In Lingappa20, the challenge was also raised on the ground of legislative competence and the observations of this Court in that behalf were:- “25. The submission as regards lack of legislative competence of the State to enact the impugned Act which provides by Sections H

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A 3(1) and 4 for annulment of transfers by tribals to non-tribals effected during the period from April 1, 1957 to July 6, 1974 stems on a misconception of the nature and content of the legislative power of the State under Entry 18 in List II which reads: “18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. The contention advanced fails to take note that the impugned Act strikes at transactions relating to agricultural lands effected between members of Scheduled Tribes who admittedly belong to the weaker section of the society and persons not belonging to Scheduled Tribes. Experience in the past showed that members of the Scheduled Tribes had been exploited due to their ignorance and poverty by members belonging to the affluent and powerful sections of the society to obtain transfer of their lands by way of sale, gift, mortgage, exchange etc. for a nominal consideration or for no consideration at all rendering them practically landless. It was also realized that due to their multifarious duties the Sub-Divisional Officers and the Collectors had accorded sanction to such transfers without application of mind to the prevalent circumstances. It was further felt that the members of Scheduled Tribes had become victims of circumstances by reason of their lands being sold for realization of arrears of land revenue or otherwise under the Maharashtra Co-operative Societies Act, 1960 or any other law for the time being in force. Much of the lands had been transferred by members of Scheduled Tribes under compulsion due to their indebtedness and their lands had passed into the hands of creditors lending money at an unusually high rate of interest and were thus in a position to dominate the will of the borrowers. The Committee appointed by the State Government pointed out in its report that the provisions of the Maharashtra G Land Revenue Code, 1966 and the relevant tenancy laws had not been effective in giving protection to persons belonging to the Scheduled Tribes. It recommended inter alia that provision should be made for restoring to possession members of Scheduled Tribes the lands which had been duly transferred by them to other persons. There is always a presumption when there is a transfer between H

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a tribal and a non-tribal that it is an unequal bargain. As regards A the weak and the helpless, the law guards them with a special protective care. The Legislature therefore stepped in and reopened such transactions by directing that lands be restored to the tribal transferors free from all encumbrances on payment by them to the non-tribal transferees the amounts determined by the Collector B under sub-section (4) of Section 3. The restoration of possession by Sections 3(1) and 4 does not involve any deprivation of the property in the sense that there is unsettling of title without consideration. It makes detailed provisions setting out the conditions subject to which a transfer by a tribal of his agricultural lands to a non-tribal may be nullified and possession restored. It also provides for the legal consequences that must ensue upon restoration of such possession like repayment of the consideration that passed by such tribal transferor to the non-tribal transferee together with his liability to pay for the costs of improvements, if any, effected and the giving of an undertaking by the tribal transferor that he needs the lands for his personal cultivation. It further prescribes the mode of payment of the amount so determined. The object of the legislation is restitution of the property to the persons to whom the lands originally belonged, subject to the adjustment of equities between the parties.” This Court then went on to observe that the Act under challenge, in true nature and character, was a law relating to transfers and alienations of agricultural lands by members of Scheduled Tribes in the State to persons not belonging to Scheduled Tribes and must necessarily fall within Entry 18 in List II. This Court observed:- “26. …..The power to legislate cannot be denied to the F State on the ground that the provisions of Sections 3(1) and 4 which provide for annulment of transfers by tribals incidentally trench upon the existing law, namely, the Transfer of Property Act, 1882 or a law made by Parliament viz. the Specific Relief Act, 1963. The power of the State Legislature to make a law with G respect to transfer and alienation of agricultural land under Entry 18 in List II carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof, but also the power to make a law to reopen such transfers and alienations. Such a law was clearly within the H