Every tenancy, whether contractual or statutory, is ordinarily heritable, and that heritability is an incident of tenancy.

Headnote:
TENANCY - HERITABILITY - BOMBAY TENANCY AND AGRICULTURAL LANDS ACT, 1948 - SECTION 88B - STATUTORY TENANCY - INCIDENTS OF TENANCY - INHERITABILITY - SECTION 40 - EXCLUSION - SECTION 30 - APPLICABILITY - SECTION 14 - EXCLUSION - SECTION 4B - APPLICABILITY - SECTION 111 - APPLICABILITY - TRANSFER OF PROPERTY ACT, 1882 - SECTION 106 - APPLICABILITY - SECTION 111 - APPLICABILITY.
Fact of the Case:

The plaintiff, one of the sisters of the defendants, filed a suit for possession of her share in the agricultural lands belonging to a Public Trust, which were covered by section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948. The lands were held to have been tenanted by the plaintiff's mother, Bhagirathibai, who was a statutory tenant. The trial court and the first appellate court decreed the plaintiff's suit, but the High Court allowed the defendant's second appeal to the extent of the lands in dispute, holding that tenancy rights in the lands of the Public Trusts covered by section 88B of the Act were not heritable.
Finding of the Court:

The High Court, in a Letters Patent Appeal, held that tenancy rights in the agricultural lands belonging to the Public Trust, covered by section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948, were heritable. The court relied on the Supreme Court's decision in Damadilal and others v. Parashram and others, which held that every tenancy, whether contractual or statutory, is ordinarily heritable, and that heritability is an incident of tenancy. The court also held that the exclusion of section 40 of the Act, which deals with inheritance, from its operation to the lands of the Public Trusts did not indicate a legislative intent to the contrary, as section 40 was merely restrictive of the right of inheritance to a few out of the many heirs.
Issues: 1. Whether tenancy rights in the agricultural lands belonging to the Public Trust, covered by section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948, were heritable. 2. Whether the exclusion of section 40 of the Act, which deals with inheritance, from its operation to the lands of the Public Trusts indicated a legislative intent to the contrary.
Ratio Decidendi: 1. Tenancy rights in the agricultural lands belonging to the Public Trust, covered by section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948, were heritable. 2. The exclusion of section 40 of the Act, which deals with inheritance, from its operation to the lands of the Public Trusts did not indicate a legislative intent to the contrary, as section 40 was merely restrictive of the right of inheritance to a few out of the many heirs.
Final Decision: The High Court allowed the plaintiff's appeal and restored the judgment of the trial court and the first appellate court, which had decreed the plaintiff's suit for possession of her share in the agricultural lands.

JUDGMENT - Deshphande V.S., J.: - This Letters Patent Appeal, against a judgment of a learned single Judge of this Court in Second Appeal, on a certificate by him raises a question of some importance, namely whether tenancy rights of a statutory tenant in the agricultural lands belonging to the Public Trust, covered by section 88B of the Bombay Tenancy and Agricultural Lands Act. (hereinafter referred to as Act) and heritable or not.

2. The appellant-the original plaintiff and defendants Nos. 2 to 4 are

sisters. Defendant No.1 is the son of the defendent No.2. Plaintiffs mother

Bhagirathibai died on 31st May 1958. The plaintiff filed this suit for possession of her share, as an heir, in the properties left by her mother including the agricultural lands detailed at Serial Nos. B, C and D in part(1) of the plaint. The lands belong to a Public Trust and the deceased Bhagirathibai was the tenant thereof. The lands are held to have been covered by section 88B of the Act. The plaintiffs suit was decreed by the trial Court as well as the first Appellate Court. Apte J. however, allowed defendant No. 1s Second Appeal to the extent of the lands in paras B to D of the plaint on the limited ground that tenancy rights in the lands of the Public Trusts covered by section 88B of the Act were not heritable. The correctness of this view is assailed in this appeal.

3. That lands belong to Devastan and the Devastan is registered as a

Public Trust and is covered by section 88B of the Act is not in dispute. All

the Courts have proceeded on the basis that Bhagirathibai was a statutory

otenant of the lands in dispute. It has been consistently held by this Court

that statutory tenant holds only a personal right to remain in possession or the property, during his life time as long as he complies with other terms of tenancy, and that he does not hold any estate or heritable or transferrable interest therein. This is because it is the statute that prevents his eviction notwithstanding the termination of his contractual tenancy. Judgments of this Court in(The State of Bombay v. Virendra Motabhoy Munim)1 52 Bom.L R 627. and(Eruch J. Bapa50la v. B. D. Mirchandani)2 55 Bom..L R 582, dealing with the tenancies in the house property and in(Bai Jamna v. Bai Dzani)3 3. 61Bom.. L R 419. dealing with the tenancy of agricultural lands are illustrative of this view. Judgment of the Supreme Court in the case of(Anand ,vivas Private Limited v. Anardji Kalyanjis Pedhi and others)4 A.I.R. 1965 S.C. 414, arising out Rent Act further confirmed same view. Statutory tenant in this case was held incompetent to sublet. In the case of(J. C. Chatterjee others v. Shri Sri Kishan tandan and another)5 A.I.R. 1972 S.C. 2526, statutory tenancy was held not to be

heritable on the same basis.

4. Under section 40 of the Act however, certain heirs are deemed to

have continued to be tenets after the tenants death, while section 27 of the Act preventing sub-division of the leased lands, permits it if it becomes necessary for partition between heirs of the tenants. The trial Judge and the first Appellate Court relied on these provisions and upheld plaintiffs claim for partition as the heir. Apte J. however, found that section 40, the substantive source of inheritance was expressly excluded from its operation, to the lands of the Public Trusts and in the absence of substantive right of inheritance, mere permissibility of partition contemplated under section 27 of the Act could not be of any avail

5. Mr. Samant, the learned Advocate for the plaintiffs, however, drew

Our attention to a passage from Mullas Transfer of Property Act at page 645, 6th edition and to a recent judgment of the Supreme Court in the case of(Damadilal and others v. Parashram and others)6 A.I.R. 1976 S.C. 2229. He contends that if heritability is the ordinary incident of any tenancy, and not the creature of the excluded section 40, the same cannot be excluded from the statutory tenancies unless, the Act is found to contain any pr

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