Daji Krishnaji Desai Tambulkar Vs.
Ganesh Vishnu Kulkarni & Ors  INSC 152 (12 April 1961)
DAYAL, RAGHUBAR SUBBARAO, K.
CITATION: 1961 AIR 1564 1962 SCR (1) 905
Khoti Land--Transfer Prior to 1946 without
consent of Khol-- Rights of purchaser--Bombay Tenancy Act, 1939 (Bom. 29 of
1939), s. 31--khoti Settlement Act, 1880 (Bom. 1 of 1880), ss. 3, 9.
The land in suit was Khoti land land s. 9 of
the Khoti Settlement Act, 1880, prior to its amendment prohibited the.
transfer of the occupancy right without the
consent of the Khot. Section 31 of the Bombay Tenancy Act, 1939, which came
into force from April 1946, amended s. 9 of the Khoti Settlement Act by which
no consent of the Khot was necessary for transferring the occupancy rights in
the land. In 1892, R sold his occupancy right without the consent of tile Khot
to L, the predecessor-in-interest of respondent No. 1. In 1945, R's successor
again sold the same occupancy right to the appellant also without the consent
of the Khot. The appellant's case was that the sale deed in 1892 in favour of
the predecessor-in-interest of respondent No. 1 was void as the transfer of the
occupancy right was made without consent of the Khot; whereas respondent No. 1
contended that R by the sale deed in 1892 had already lost his right to the
property in suit and therefore R's successors had no title to pass in 1945 in
favour of the appellant.
Held, that the occupancy right in a Khoti
land could not be transferred without consent of the Khot prior to April 1946,
when the Bombay Tenancy Act, 1939, came into force- 114 906 Held, further, that
in the present case as both the sales of 1892 and 1945 were without the consent
of the Khot, it was not necessary to determine whether such a transfer was void
or voidable, If void, the plaintiff had no title. If voidable, the first sale
in 1892, validly conveyed title to respondent No 1's predecessor-in-interest,
and consequently no title passed to the plaintiff under the sale deed in 1945,
as the transferor had no title.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 90 of 1956.
Appeal by special leave from the judgment and
decree dated August 5, 1953, of the Bombay High Court in Appeal from the
Appellate Decree No. 915 of 1951.
M. S. K. Sastri, for the appellant.
A. G. Ratnaparkhi, for respondent No. 1.
1961. April 12. The Judgment of the Court was
delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is against the
judgment and decree of the High Court of Bombay, dismissing the suit of the
The plaintiff sued for a declaration that the
property in suit which is situate at Mouje Digvale, a village held by khots in
the district of Ratnagiri, was owned by him, was under his management and that
the defendants had no right or interest therein. He claimed title to the
property on the basis of the sale of occupancy rights under the sale deed
executed in his favour by Sitabai on February 10, 1945.
Sitabai was the widow of Vishram Anna
Shirsat, who succeeded Ram Raghu Shirsat, the occupancy tenant of the land in
Ram Raghu Shirsat sold the occupancy rights
in the land in suit to Laxman Chandba Raut by a deed dated March 8, 1892.
By a compromise in a civil suit between the
heirs of Laxman Chandba Raut and Tanu Daulat Gavade Sakaram, the heir of Laxman
Raut got 3/5ths share and Tanu Daulat got 2/5ths share in these occupancy
rights. Dattatraya Bhikaji Khot Kulkarni, a paternal uncle of respondent no. 1,
the shares of these persons by 907 the sale
deeds dated December 14,1903, and February 13, 1904. On Kulkarni's death,
respondent no. 1 became the owner of the property. Respondents nos. 2 to 4 are
the tenants of respondent no. 1.
The land in suit is khoti land as defined in
el. (10) of s. 3 of the Khoti Settlement Act, 1880 (Bom. Act 1 of 1880),
hereinafter called the Act. It is not disputed that Ram Raghu Shirsat was the
occupancy tenant of the land in suit and that he could not transfer his tenancy
right without the consent of the khot, which, according to cl. (2) of s. 3,
includes a mortgagee lawfully in possession of khotki and all co-sharers in a
khotki. It is also admitted that the transferors of the afore-mentioned sale
deeds of 1892 in favour of the predecesror-in-interest of respondent no. 1, or
of the sale deed of 1945 in favour of the appellant, did not obtain the consent
of the khot before executing the deed of transfer.
The plaintiff alleged that the sale deed in
favour of respondent no. 1 was void and that therefore he had title to the suit
land on the basis of the sale deed in his favour.
Respondent no. 1 contended that Ram Raghu
Shirsat lost his rights in the property in suit after he had executed the sale
deed on March 8, 1892, and that, therefore the plaintiff obtained no title on
the basis of the sale deed in his favour.
The trial Court held the sale deed of 1892 to
be good sale deed and binding on the plaintiff and dismissed the suit.
On appeal, the Assistant Judge reversed the
decree and decreed the suit holding that a transfer of the occupancy rights in
the suit lands by Ram Raghu Sirsat in favour of Laxman Raut was void and that
the plaintiff obtained good title under the sale deed in his favour in view of
the amendment of s. 9 of the Act by s. 31 of the Bombay Tenancy Act, 1939 (Act
XXIX of 1939), by which no consent of the khot was ,necessary for executing the
sale deed in 1945.
Respondent no. 1 preferred a second appeal to
the High Court which set aside the decree of the Assistant Judge and restoring
the decree of the trial Court, dismissed the suit.
It held that the sale deed in favour- 908 of
the plaintiff too would be hit by the provisions of s.9 of the Act. It further
held that the provisions of s.9 indicate that there was no absolute prohibition
against a transfer of the occupancy right. A transfer by an occupancy tenant
without the consent of the khot cannot be held to be void for all purposes and
it would be invalid only in so far as it would be contrary to the right of the
khot and not otherwise. It therefore held the transfer in favour of the
respondent no. 1's predecessor-in-interest in 1892 not to be void. It is the
correctness of this order that is challenged in this appeal.
This appeal has no force. Section 31 of the
Bombay Tenancy Act, 1939, made amendments to S. 9 of ado. the Act and the
section after amendment reads:
"The rights of khots and privileged
occupants shall be heritable and transferable".
'Privileged occupant' included a permanent
tenant under cl. (5) of s. 3 of the Act. The Bombay Tenancy Act received assent
of the Governor of Bombay on April 2, 1940, but it came into force in April
1946 when the Government issued the necessary notification in exercise of the
powers conferred under subs. (3) of s. 1 of that Act. It is clear therefore that
s. 9, as it stood on February 10, 1945, when Sitabai executed the sale deed in
favour of the appellant, made the rights of permanent tenants nontransferable
without the consent of the khot, and that therefore the sale in favour of the
appellant was as much hit adversely by the provisions of s. 9 of the Act as the
sale of the land in suit in favour of the predecessor-in-interest of respondent
no. 1. It is therefore not necessary to determine the question whether the sale
was absolutely void or voidable as held by the Court below, as neither of the
two sales has been challenged by the khot whose consent for the transfer was
The plaintiff has no title whether a transfer
by a permanent tenant without the consent of the khot be void or voidable.
If such a transfer is void, the sale in
favour of the appellant did not convey any title to him. If such a sale was
merely voidable at the instance of the khot, the first sale in favour of the
909 respondent no. 1's predecessor-in-interest was not avoided by the khot, and
therefore validly conveyed title to him.
Consequently no title passed to the plaintiff
under the sale deed in his favour as his transferor had no title. In either
case the plaintiff fails to prove his title to the land in suit. The dismissal
of his suit is therefore correct.
We accordingly dismiss this appeal with