VITHAL DATTATRAYA KULKARNI & ORS. versus SHAMRAO TUKARAM POWER & ORS.

Citation: [1979] 3 S.C.R. 572 · Decided: 21-03-1979 · Supreme Court of India · Bench: R.S. SARKARIA · Disposal: Appeal(s) allowed

Judgment (excerpt)

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572 
VITHAL DATTATRAYA KULKARNI & ORS. 
v. 
SHAMRAO TUKARAM POWER & ORS. 
March 21, 1979 
(R. S. SARKARIA, P. S. KAILASAM AND 0. CHINNAPPA REDDY, JJ.J 
Bombay Tenancy and Agricultural Lands Act, 
1948-S. 40-Scope of-
Whether heirs of a protected tenant who died before the commencement of 
the 1956 Am·endn1ent Act are entitl:ed to recover possession from the landlord. 
Section 3 of the Bombay Tenancy Act, 1939 classified a tenant as a pro .. 
tected tenant in respect of any land if he 'had held such land continuously for 
a period of six years immediately preceding 1st January, 1938 to 1st January,_ 
1945 and had cultivated such land personally during that period. Tenancy 
held by a protected tenant could be 
terminated only in the 
circumstances 
stated in s. 5 as for example, failure to pay arrears of rent subletting and so· 
on. Section 7 provided that the landlord could recover possession of the· 
land from the protected tenant on the ground that he bonafide required such 
and for the purpose of cultivating it personally or for a non·agricultu.ral 
purpose. 
If after taking possession of the land he ceased to use it for that 
purpose at any time within 12 years from the date on which he took posses~ 
sion the landlord was required to restore possession of the land under s. 7(2) 
to the protected tenant. The Act also defined that a protected tenant shall 
include his heirs by an explanation to this section. 
The 1939 Act was repealed and replaced by the Bombay Tenancy and· 
Agricultural Lands Act, 1948. This Act also empowered the 
landlord to 
terminate the tenancy of a protected te:ant by giving the tenant one year's. 
notice in writing if he bonafide required the land for any of the purposes 
mentioned in the Act and the grounds on which a tenancy could be tern1i 4 
nated were also enumerated in the Act. A provision similar to s. 7(i) of 
the 
1939 
Act 
was 
contained 
in s. 34(i) 
of 
this 
Act. 
The 
1948 
Act 
did 
not 
contain 
prov1s1ons 
corresponding 
to 
Explanation 
(ii) 
to s. 7 of the 1939 Act declaring that a tenant shall include his 
heirs. Section 40 provided that if a protected tenant died the landlord shall 
offer to continue the tenancy on the same terms on which such tenant was. 
holding it at the tin1e of his death, to the heir or heirs of the deceru.ed 
tenant. The Explanation to s. 40 declared that a heir meant the lineal de5 .. 
cendant of a tenant or his adopted son and failing both, his widow. 
The 1948 Act 
underwent substantial changes 
in 1956. Section 40 as 
amended in 1956 provided that on the d~ath of the tenant the landlord shall 
' 
• 
be deemed to have continued the tenancy on the same terms and conditions 
"-..., 
on which such tenant was holding it at the time of his death to such heir 
or heirs of the deceased tenant as may be willing to continue· the tenancy. 
The land in dispute belonging to the appellants was held by the respon-
dent's father who was a protected tenant within the meaning of that term· 
in the 1939 Act. 
In June, 1950 the appellants recovered possession of thee 
..
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y. D. KULKARNI V. S. T. POWER 
573 
land allenging that they needed it for their personal cultivation. In 1951 the 
potected tenant died. In 1962 the landlords sold a part of the land, where-
upon the respondents who were the heirs of the late protected tenant filed 
a petition alleging that the landlords had ceased to cultivate the land personally 
within 12 years from the date of dispossession of the protected tenant and, 
therefore, they were entitled to recover possession of the land. While the 
Aval Karkun and the Deputy Collector held in favour of the heirs of the 
tenant, the Revenue Tribunal allowing the revision application of the 
land-
lords dismissed the application of the tenant/respondents. 
The High Court 
in a petition under Art. 
226 of the Constituton reversed the order of the 
Revenue Tribunal. 
In appeal to this Court it was contended on behalf of the appellants that 
the right of a protected tenant whose tenancy had been determined and \\'ho 
had been dispossessed of the land under s. 39 of the Bombay Tenancy and 
Agricultural Lands Act was a right which was personal to the tenant him-
self and, which could not for that reason be exercised by the tenant's heirs. 
Allowing the appeal. 
HELD : The contrast betvveen s. 40 before and after its amendment in 
19 56 was that while after the amendment, the heirs of the tenant were auto-
matically d

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