1998 Supreme(Guj) 484

Gujarat High Court
Judgename :R.BALIA
PRAVINBHAI BHAILALBHAI GOR - Appellant
Versus
RAJIVKUMAR GUPTA, collector,vadodara - Respondent
S.C.A. 1123 of 1998
Decided On : 09/01/1998

Headnote:Bombay Tenancy Act - Secs. 43 & 63 - Transmission of property to a person as a successor of the deceased tenant - Provision of Sec. 43 or Sec. 63 are attracts - Held, neither Sec. 43 nor Sec. 63 attracts in transmission of property by a will.

       Section 43 provides that no land or any interest therein shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector. Sub- sec. (2) of Sec. 43 declares any transfer or partition or any agreement of transfer of any land or any interest therein in contravention of Sub-sec. (1) to be invalid.

       [Para 4]

       Likewise Sec. 63 restricts sale, gift, exchange or lease of any land or interest therein or mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee or any agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein shall not be valid in favour a person who is not an agriculturist except with the permission of the Collector or an officer authorised by the State Government in this behalf. Perusal of both the provisions, clearly go to show that it refers to only to transaction or transfer or agreement to transfer of land or any interest therein which are inter vivos and not to vesting of such rights in any one as a result of transmission or as a result of succession on death of holder. The provision do not affect the operation of law of inheritance. Learned counsel for the parties are in agreement that Tenancy Act does not provides any separate rule of inheritance to the estate of the deceased tenant, other wise then the personal law governing the estate of the deceased. The deceased, in the present case, was a Hindu and his estate would be governed by the Hindu Succession Act as he died on 18.10.1987. Section 4 of the Hindu Succession Act gives the overriding effect to the provision of the Hindu Succession Act in the matter of succession. In Clause (b) Sub-sec. (1) of Sec. 4 it is declared that any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act. In Sub-sec. (2) it saves the operation of laws relating to prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings. As the present case does not relate to prevention of fragmentation of agricultural holdings or fixation of ceilings and there is no special provision under the tenancy laws providing to devolution of tenancy rights of deceased tenant, the provisions of the Hindu Succession Act would govern. Section 30 of the Hindu Succession Act acknowledges testamentary succession as a mode of succession on death of a Hindu male or female including that of undivided interest in coparcenary property of a male Hindu. Thus, testamentary succession is a permissible mode of succession in case of a death of a tenant who is Hindu. A will is not an instrument of transfer of property by Sale, gift, exchange or mortgage or lease or assignment nor it is an agreement. It needs two living persons to make an agreement. It is the unilateral declaration of a person fixing his own line of succession to his estate on his demise. The will speaks as on the death of the testator and the succession takes place in accordance with the directions in the will. It is devolution of interest of deceased by succession in the nominated persons and not transfer of interest of a person in any of the modes of transfer prescribed, which all relate to transfer inter vivos. The will is not a document of transfer by way of sale, gift, exchange, mortgage, lease or assignment. It is instrument changing the course of devolution of interest by way of inheritance which even otherwise would have taken where the holder had died without a will, by way of intestate succession. The inheritance in the case of intestate succession would have been as declared in the Act. Neither Sec. 43 nor Sec. 63 envisage prior permission of any authority for executing a will that would take effect after the death of a person which he has right to vary, cancel or modify anytime before his death, as many times as the testator desires.

       [Para 5]