JUDGMENT
1. It appears that the name of petitioner No. 1 is deleted vide Court’s order dated 9th September, 1996. The petitioner No. 2 is the wife of petitioner No. 3, Baba Khomane, who was the statutory purchaser of land bearing Gat No. 32 situate at Village Malad, Tal. Baramati, Dist. Pune. Baba Khomane became old. He also became blind and deaf. It became impossible for him to cultivate the land with his own hand. He, therefore, made an application, locally called Vardi, to the Talathi for entering the name of his wife Janabai in the records of right. The Talathi granted that application vide mutation entry No. 252.
2. On 29th June, 1976 the landlord i.e. the respondents herein made an application to the Tahsildar, Baramati that Baba Khomane has violated the provisions of Section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, for short “the Tenancy Act”, by transferring the suit land which he purchased under the provisions of the Tenancy Act, in favour of his wife and therefore sought an eviction of the petitioner Janabai and Baba Khomane both.
3. The Tahsildar by his order dated 30th August, 1984 dismissed the respondents application on the basis of Janabai’s evidence that her husband has made an application since he is old, blind and deaf. She deposed that her husband cannot cultivate the suit land and therefore had made the application for mutation of the land in her name.
4. The landlord carried the matter in appeal to the Sub-Divisional Officer. The Sub-Divisional Officer concurred with the Tahsildar and held that there is no violation of Section 43 of the Tenancy Act.
5. Both these Authorities have, however, used the word – transfer, for describing the effect of the entry of Janabai’s name in the records of right.
6. Dissatisfied, the landlord preferred a revision before the Maharashtra Revenue Tribunal. That Tribunal construed Section 43 of the Act and came to the conclusion that the act of making an application for entering the wife’s name by her disabled husband amounts to an assignment and directed the Tahsildar to dispose of the land under Section 84-C of the Tenancy Act. Section 43 of the Tenancy Act reads as follows :–
“43. Restriction on transfer of land purchased or sold under this Act. –(1) No land purchased by a tenant, under Sections 32, 32F, 321, 320, 33-C or 43-II or sold to any person under Section 32-P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector, such sanction shall be given by the Collector in such circumstances, and subject to such conditions, as may be prescribed by the State Government:
Provided that, no such sanction shall be necessary where the land is to be mortgaged in favour of Government or a Society registered or deemed to be registered under the Bombay Co-operative Societies Act, 1925, for raising a loan for effecting any improvement of such land. (2) Any transfer of land in contravention of Sub-section (1) shall be invalid.”
7. It is obvious that this provision is intended to prevent the transfer of land purchased by the tenant under the provisions of the Tenancy Act without the previous sanction of the Collector. There is no doubt that the section must be complied with, if applicable. The only question that arises is whether the making of an application for mutation in the records of right by a husband in favour of his wife or, to put it broadly, by a member of family in favour of another amounts to a transfer.
8. A plain reading of Section 43 of the Tenancy Act shows that the legislature prohibited the transfer of land without the previous sanction of the Collector. It enumerates the modes of transfer which are prohibited i.e. by sale, gift, exchange, mortgage, lease or assignment. Earlier a partition was one of the modes of transfer enumerated by the legislature. This has since been deleted by Maharashtra Act 5 of 1982. It is clear that the section prohibits transfer by any of the mode enumerated therein. Therefore, what falls for consideration is whether such an application, as was made by Janabai, fits the description of any of the modes of transfer enumerated by the legislature. Even according to the
Maharashtra Revenue Tribunal and the learned Counsel for the respondents, such an application would not amount to a sale, gift, exchange, mortgage or lease. This question therefore narrows down to whether it amounts to an assignment.
9. At the outset, it must be noticed that the learned Tribunal has clearly misdirected itself in observing that because the term ‘assignment’ appears after the word transfer, it has a different meaning from the term ‘transfer’ used in the same section. The Tribunal obviously has lost sight of the fact that assignment is one of the modes of transfer. While every assignment would be a transfer, every transfer would not amount to an assignment under this section.
10. Mr. Kumbhakoni, learned Counsel for the petitioner relied on the decision of the Supreme Court in the case of Commissioner of Gift Tax, Madras v. N.S. Getty Chettiar, . Although in a different context the Supreme Court observed that the words “disposition”, “conveyance”, “assignment”, “settlement”, “delivery” and “payment” are used as some of the modes of transfer of property. The Supreme Court has observed as follows :–
“We have to understand the meaning of those words in the context in which they are used. Words in a section of a statute are not to be interpreted by having those words in one hand and the dictionary in the other. In spelling out the meaning of the words in a section, one must take into consideration the setting in which those terms are used and the purpose that they are intended to serve.”
Further, the Supreme Court observed that “assignment” means the transfer of the claim, right or property to another.
11. It is clear that the word “assignment” means a transfer and what is essentially prohibited by Section 43 is transfer of property.
12. What must therefore, be considered is whether the application effecting mutation entry in favour of his wife was an assignment. It must, therefore, be seen as to what happens in law when a mutation takes place in the revenue records in respect of the property. In Balwant Singh and Anr. v. Daulat Singh and Ors., , the Supreme Court observed that the widow had not divested herself of the title by virtue of a mutation entry in favour of the others. That the mutation entries could not be treated as a gift and as having conveyed title. The Supreme Court approved its earlier decision in Sawarni v. Inder Kaur, , where it had observed as follows :–
“7. ….Mutation of a property in the revenue record does not create or
extinguish title nor has it any presumptive value on title. It only enables
the person in whose favour mutation is ordered to pay the land revenue
in question. The learned Additional District Judge was wholly in error in
coming to a conclusion that mutation in favour of Inder Kaur conveys
title in her favour erroneous conclusion has vitiated the entire judgment.”
Their Lordships reiterated that position in law. It may also be noticed that
there is a decision of this Court to the same effect where the learned single Judge
of this Court in the case of Abasaheb Bali Gharge and Anr. v. Balaji
Ramhari Gharge, 1996(1) Mh.LJ., 209, has observed that it is settled law that
entries in record of rights are made only for the fiscal purpose of recovering
revenue. That such entries would not amount to transfer of title of holder of property in favour of person in whose name the entries are made.
13. It is, therefore, clear that when such an application is made and granted, it does not result in a transfer of ownership from the person making such an application to the person in whose favour such an application is made, whether by way of assignment or otherwise.
14. Mr. Shah, learned Counsel for the respondents strongly urged that this would enable a tenant who had purchased land under the provisions of the Tenancy Act to defeat the provisions of this Act by simply making an application for mutation in the name of third person. Much would depend on the contents of the application. However, restricting oneself to the facts of the case, it is clear that an application by the husband in favour of his wife for entering her name in the record of rights would not in any case amount to a transfer, by way of assignment or otherwise. This is further supported by Section 2, Sub-section (6) of the Tenancy Act which defines the phrase “to cultivate personally”. It reads as follows :–
(6) “to cultivate personally” means to cultivate land on one’s own
account –
(i) by one's own labour, or (ii) by the labour of any member of one's family, or (iii) under the personal supervision of oneself or any member of one's family, by hired labour or by servants on wages payable in case or kind but not in crop share, being land, the entire area of which - (a) is situate within the limits of a single village, or (b) is so situated that no piece of land is separated from another by a distance of more than five miles, or (c) forms one compact block: Provided that the restrictions contained in Clauses (a), (b) and (c) shall not apply to any land, - (i) which does not exceed twice the ceiling area. (ii) upto twice the ceiling area, if such land exceeds twice the ceiling area."
The meaning of this phrase : to cultivate personally, is important in the sense that the right to purchase the land is conferred by Section 4 of the Act from an owner only, if such land is not cultivated personally by him. Therefore, where land is cultivated by the labour or any member of one’s family or under the personal supervision of oneself or any member of one’s family, by hired labour or by servants on wages. Clearly, therefore, it is still understood by law as being cultivated personally. An application for entering the name of the person of any of the categories referred to above, i.e. a member of the family or hired labour or servants or a constituted attorney for the purposes of cultivation would not amount to a transfer of land.
15. What is prohibited by Section 43 is a transfer of ownership. In other words, a transfer of title from one person to another. Therefore, where no title is
transferred or conveyed from one to another in the sense that the title to the property vests in the transferee, it would not amount to a transfer within the meaning of Section 43 and no sanction of the Collector would therefore be necessary. A transfer must involve the transfer of all those bundle of right which constitutes ownership and can be said to have taken place whether it result in extinguishing such rights in the transferor and vesting of such right in the transfer of property. Unless that takes place, the act cannot amount to a transfer of property.
16. In the result, I find that the Maharashtra Revenue Tribunal has committed a serious error of law in holding that the petitioner’s husband has transferred the land in violation of Section 43 in her favour. The Maharashtra Revenue Tribunal was, therefore, not right in directing disposal of the suit land under Section 43 of the Tenancy Act,
17. Hence, the Judgment and Order dated 28th April, 1989 passed by the Maharashtra Revenue Tribunal, Pune, in Revision Application No. MRT.P/XI/3 of 1986 against the order dated 9th September, 1986 passed by the Sub-Divisional officer, Baramati in Tenancy Appeal No. 55 of 1984 is hereby set aside. The petition is allowed accordingly. Rule made absolute in terms aforesaid.
In the circumstances of the case, there shall be no order as to costs.
P. A. to give ordinary copy pf this order to the parties concerned.