(HONOURABLE THE CHIEF JUSTICE MR. K.S.RADHAKRISHNAN)

We are called upon to decide as to whether Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short `the Bombay Tenancy Act') debars an agriculturist from parting with his agricultural land to a non-agriculturist through a Will , so also, whether Section 43 (1) of the Tenancy Act restricts transfer of any land or interest purchased by the tenant under Section 17B, 32, 32F, 32I, 32O, 32U, 33(1) or 88E or sold to any person under Section 32P or 64 of the Tenancy Act through the execution of a Will by way of testamentary disposition.

Learned Single Judges of this Court have taken a consistent view that such transfer of property through testamentary disposition would not violate Section 43 or 63 of the Tenancy Act. Justice J.B.Mehta in the case of Manharlal Ratanlal @ Radmansinh Chausinh v. Taiyabali Jaji Mohmed & others (1967-68 (Vol.5) GLT 199) while interpreting Section 43(1) of the Tenancy Act took the view that the expression `transfer' which is used in Section 43(1) of the Tenancy Act must be interpreted in light of the Transfer of Property Act viz. the transfer by way of act of parties. Learned Judge took the view that, if the Legislature wanted to include a transfer by operation of law as to include succession, insolvency, inheritance, etc. or sales by public auction, specific provision would have been made to that effect. Learned Judge held all the specific categories which are mentioned are all of transfers by act of parties, bequest by Will cannot be included in the scope of the terms `gift' or `assignment'. Justice Rajesh Balia in Ghanshyambhai Nabheram v. State of Gujarat and others (1999 (2) GLR 1061) while interpreting Section 63 of the Tenancy Act took a view that just like, a non-agriculturist be not deprived of his inheritance, a legatee under a Will, can also be a non-agriculturist, hence, there is no bar in succeeding the property through a testamentary disposition. Learned Judge held that Revenue Laws dealing with agricultural lands have not made the land uninheritable and they also do not disqualify a non-agriculturist from inheritance nor a number of persons are disentitled from succeeding to estate of an agriculturist as body of successors, which may result in well defined share of the estate of deceased vesting in them individually. Justice Rajesh Balia again in Pravinbhai Bhailalbhai Gor v. Rajivkumar Gupta, Collector, Vadodara ( 1999(1) GLR 440 ) while interpreting Section 43 and 63 of the Tenancy Act took the view that both 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 anyone as a result of transmission or as a result of succession on death of holder and the provisions do not affect the operation of law of inheritance. Appeal filed against the above judgment was, however, dismissed in State of Gujarat v. P.B.Gor [ 2000(3) GLR 2168 ]. Justice K.A.Puj also took identical view in Gasfulbhai Mohmadbhai Bilakhia v. State of Gujarat (2005(1) GLR 575) and Gopiraj Dedraj Agrawal (Gopiram Tudraj Agrawal) v. State of Gujarat (2004 (1) GLR 237). Learned Judge also made reference to the Circular dated 13.02.1989 issued by the State Government and took a view that that Section 43 as well as 63 of the Tenancy Act would not debar transfer of property by testamentary disposition. Justice R.K.Abichandani also took the same view in Babubhai Mervanbhai Patel v. State of Gujarat, 2005 (1) GLH (UJ) 3. Learned Single Judge Justice Jayant Patel expressed some doubts about the views expressed in the above-referred judgments and felt that the matter requires reconsideration in light of the decisions rendered by the Apex Court in Sangappa Kalyanappa Bangi (dead) through LR (AIR 1998 SC 3229) and Jayamma v. Maria Bai and another [(2004) 7 SCC 459 ] and hence, these matters have been placed before us.

W