SC holds testamentary disposition of agricultural land to a non-agriculturist through a “Will” is void: Bombay Tenancy and Agricultural Lands, Act

The SC on June 15, 2020 {VINODCHANDRA SAKARLAL KAPADIA vs STATE OF GUJARAT AND ORS.} held that the common thread running through the earlier decisions is to construe the prohibition against transfer appearing in various statutes in keeping with the legislative intent. It was held that where the object of the legislation is to prevent a mischief and to confer protection on the weaker sections of the society, the court would not hesitate in placing an extended meaning, even a stretched one, on the word, if in doing so the statute would succeed in attaining the object sought to be achieved. 

It was also held by the Bench, comprising of Justice Uday Umesh Lalit, Justice Indu Malhotra & Justice A.S. Bopanna, that if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. It was held that the legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose. It was held that the construction put on the expression “assignment” appearing in Section 43, therefore, has to be consistent with the legislative scheme.

In present case, the question arose before the SC was whether Section 63 of the Bombay Tenancy and Agricultural Lands, Act, 1948 (for short ‘the 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 Act restricts transfer of any land or interest purchased by the tenant under Sections 17B, 32, 32F. 321. 320, 32U, 33(1) or 88E or sold to any person under Section 32P or 64 of the Act through the execution of a Will by way of testamentary disposition.

The SC held that if the provisions referred to in Section 43 of the Act and allied provisions are considered in light of the settled principles, it emerges that the primary concern of those provisions is to see that the legislative scheme of granting protection to persons from disadvantaged categories and conferring the right of purchase upon them, and thereby ensure direct relationship of a tiller with the land. It was held that the provisions, though lay down a norm which may not be fully consistent with the principles of Indian Succession Act, are principally designed to attain and sub-serve the purpose of protecting the holdings in the hands of disadvantaged categories. It was held that the prohibition against transfers of holding without the previous sanction of the concerned authorities, is to be seen in that light as furthering the cause of legislation. It was also held that even if by the process of construction, the expression “assignment” is construed to include testamentary disposition, in keeping with the settled principles, the incidental encroachment cannot render the said provisions invalid. It was held that in pith and substance, the legislation and the concerned provisions are completely within the competence of the State Legislature and by placing the construction upon the expression “assignment” to include testamentary disposition, no transgression will ensue. 

The Supreme Court also observed that the decision of the Court in Mahadeo (Dead through legal representatives) vs. Shakuntalabai (2017) 13 SCC 756, which had failed to notice the earlier decisions and which is inconsistent with the earlier decisions, must be held to be incorrectly decided.

Accordingly, all these appeals were dismissed by the SC.