The court ruled that tenancy rights cannot be transferred by Will within ten years from acquisition under the MTAL Act, ensuring protection against alienation to non-legal heirs.

JUDGMENT :

Amit Borkar, J.

Civil Application (St.) No.21067 of 2016:

1. Having regard to the nature of the dispute, it becomes necessary to determine the status of the parties by applying Order XXII Rule 5 of the Code of Civil Procedure, 1908. The Court is required to decide who succeeds respondent No.1 Parvatibai, in whose favour the Maharashtra Revenue Tribunal delivered its judgment holding that she was the wife of tenant Mahadeo. The Tribunal further held that Mahadeo was in possession of the disputed land as a tenant.

2. The facts relevant for deciding the present civil application may be stated thus. In proceedings arising under Section 32 -G of the Maharashtra Tenancy and Agricultural Lands Act, 1948, the Tribunal, by judgment and order dated 21 September 2017, set aside the order passed by the Tahsildar and Agricultural Lands Tribunal, Mumbai, as well as the appellate authority, which had accepted the petitioners’ predecessor in title as a tenant on 1 April 1957. However, by its judgment dated 21 September 2012, the Tribunal declared Mahadeo, the predecessor in title of Parvatibai, to be the tenant as on 1 April 1957 and accordingly directed issuance of a certificate under -G of the said Act in favour of Parvatibai.

3. The petitioners, claiming to be heirs of Sahdeo, instituted the present writ petition challenging the judgment and order passed by the Maharashtra Revenue Tribunal. During pendency of the writ petition, Parvatibai, respondent No.1, expired on 11 March 2016. The petitioners therefore filed the present civil application seeking to bring themselves on record as legal representatives of Parvatibai. According to the petitioners, Parvatibai had inherited the property of her husband Mahadeo. They contend that succession is governed by Section 15 of the Hindu Succession Act, 1956 and that in the absence of heirs mentioned in clause (1) of , namely son, daughter and husband, the heirs specified in clause (2) would take precedence over the personal heirs of Parvatibai.

4. The petitioners further contend that the contesting respondent claims to be the son of Parvatibai’s brother and asserts rights on the basis of a registered Will allegedly executed by Parvatibai in the year 2000. According to the petitioners, Section 43 of the Maharashtra Tenancy and Agricultural Lands Act prohibits transfer of ownership in favour of third parties except legal representatives. They submit that a transfer by Will is also hit by the bar under . In support of this contention, reliance is placed on the judgment of the Supreme Court in Vinodchandra Sakarlal Kapadia v. State of Gujarat and others , reported in (2020) 18 SCC 144.

5. On the other hand, learned Advocate for the contesting respondent, who claims rights both under the registered Will and as legal representative of Parvatibai, submitted that the restriction under Section 43 of the Act operates only for a period of ten years. He contended that since the said period has expired, the bar under would not apply. He further submitted that the contesting respondent, being the son of Parvatibai’s brother, is entitled to priority over the heirs of the husband, in view of the judgment of the Supreme Court in Khushi Ram and others v. Nawal Singh and others, Civil Appeal No.5167 of 2010 decided on 22 February 2021. He also submitted that the claim of the petitioners as heirs of the husband is itself disputed and therefore the contesting respondent ought to be brought on record as the heir and legal representative of original respondent No.1.

6. I have heard the learne