1954 Supreme(Pat) 64

PATNA HIGH COURT
Imam, S.K.Das, V.Ramaswami, Narayan and B.P.Jamuar JJ.
Bhagwat Sharma
Versus
Baijnath Sharma
Letter Patent Appeal No. 14 of 1951 ;
Decided On : APRIL 28, 1954

Headnote:

The main question in this appeal is what is the true scope and effect of Sec.182, Bihar Tenancy Act; and if under the provisions of that section read with Sec.26A of the said Act, Musammat Chaurabati had the right to transfer her interest in the homestead land? The Court held that the homestead land taken apart from his raiyati holding is devoid of all incidents except under local custom or usage, and, as such, there may be no right to transfer under Sec.26A of the Act of such a land; but along with the raiyati holding itself the incidents whereof continue to regulate the incidents of the homestead land, I see no reason why such a homestead land cannot be transferred. There the raiyat is not transferring merely his homestead which loses its incidents as soon as it is sought to be severed from the raiyati holding to which it is linked by virtue of the common incidents which regulate the two. So long therefore, as this link of common incidents continues to operate upon the homestead land as the raiyati holding of the tenant, and the two are transferred together the incident of the right to transfer, in my opinion, still operates with equal efficiency upon the homestead land as well. In the present case, the finding is that both the raiyati lands and the homestead have been transferred, I see no reason to hold that the right of transfer which could be validly exercised in respect of the raiyati holding with the incidents of which the homestead land continues to be regulated could not be validly exercised in respect of the homestead. This distinction, therefore, in my opinion, is essential, and the decision of the Pull Bench does not in any manner conflict with the view which I am adopting in regard to the validity of the transfer of the homestead land in the present case.

Fact of the Case:

Musammat Chaurabati conveyed the plot, along with her raiyati lands, about 1.46 acres in area appertaining to holding No. 66 in village Siloutha and about 1.08 acres of holding No. 25 of village Tevai, to the defendant second party, Jagrup Mawar. Musammat Chaurabati died sometime in 1941. The case of the plaintiffs was that they took possession of the plot on the death of Musammat Chaurabati, in spite of the sale deed executed by her on 11-7-1939. Then, on 27-6-1946, Bhagwat Sharma, one of the plaintiffs, took settlement of the plot from the landlord, Banaili Raj, under a registered Kabuliat of that date. The house standing on the plot having become dilapidated by that time, the plaintiffs repaired the house and began to grow vegetables on the rest of the land and amalgamated it with survey plot No. 1051.

Finding of the Court:

The Court held that the homestead land taken apart from his raiyati holding is devoid of all incidents except under local custom or usage, and, as such, there may be no right to transfer under Sec.26A of the Act of such a land; but along with the raiyati holding itself the incidents whereof continue to regulate the incidents of the homestead land, I see no reason why such a homestead land cannot be transferred. There the raiyat is not transferring merely his homestead which loses its incidents as soon as it is sought to be severed from the raiyati holding to which it is linked by virtue of the common incidents which regulate the two. So long therefore, as this link of common incidents continues to operate upon the homestead land as the raiyati holding of the tenant, and the two are transferred together the incident of the right to transfer, in my opinion, still operates with equal efficiency upon the homestead land as well.

Issues: 1. What is the true scope and effect of Sec.182, Bihar Tenancy Act; and if under the provisions of that section read with Sec.26A of the said Act, Musammat Chaurabati had the right to transfer her interest in the homestead land? 2. Whether a raiyat can take advantage of Sec.122, Bihar Tenancy Act, if his homestead land and his raiyati land -- though held by him simultaneously -- are situated in two different villages or whether they both must be situated in the same village.

Ratio Decidendi: The homestead land taken apart from his raiyati holding is devoid of all incidents except under local custom or usage, and, as such, there may be no right to transfer under Sec.26A of the Act of such a land; but along with the raiyati holding itself the incidents whereof continue to regulate the incidents of the homestead land, I see no reason why such a homestead land cannot be transferred. There the raiyat is not transferring merely his homestead which loses its incidents as soon as it is sought to be severed from the raiyati holding to which it is linked by virtue of the common incidents which regulate the two. So long therefore, as this link of common incidents continues to operate upon the homestead land as the raiyati holding of the tenant, and the two are transferred together the incident of the right to transfer, in my opinion, still operates with equal efficiency upon the homestead land as well.

Final Decision: Appeal allowed and suit decreed with costs throughout. Plaintiffs title to the land in suit should be declared, and they should be allowed to recover possession of the same.