Case Note & Summary
The appeal arose from a suit filed by Daji Krishnaji Desai Tambulkar, the plaintiff-appellant, seeking a declaration that the suit property at Mouje Digvale in Ratnagiri district, a village held by khots, was owned by him, was under his management, and that the defendants had no right or interest therein. The plaintiff claimed title on the basis of a 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 original occupancy tenant of the land. Ram Raghu Shirsat had sold the occupancy rights to Laxman Chandba Raut by a deed dated March 8, 1892. Through a compromise and subsequent sale deeds dated December 14, 1903 and February 13, 1904, Dattatraya Bhikaji Khot Kulkarni, paternal uncle of respondent no.1, purchased the shares; after his death respondent no.1 became owner of the property. Respondents nos. 2 to 4 were tenants of respondent no.1. The land in suit was khoti land as defined in clause (10) of Section 3 of the Khoti Settlement Act, 1880. It was undisputed that Ram Raghu Shirsat was the occupancy tenant and that he could not transfer his tenancy right without the consent of the khot. It was also admitted that neither the 1892 sale in favour of respondent no.1's predecessor nor the 1945 sale in favour of the appellant had obtained the khot's consent. The plaintiff alleged that the 1892 sale deed was void on account of absence of consent, and therefore he had title under the 1945 sale. Respondent no.1 contended that Ram Raghu Shirsat lost his rights after executing the 1892 sale deed, and so the plaintiff obtained no title under the 1945 sale. The trial court dismissed the suit, holding the 1892 sale deed good and binding. On appeal, the Assistant Judge reversed the decree and decreed the suit, holding the 1892 transfer void and that the plaintiff got good title under the 1945 sale in view of the amendment of Section 9 by Section 31 of the Bombay Tenancy Act, 1939. Respondent no.1 preferred a second appeal to the High Court, which set aside the Assistant Judge's decree, restored the trial court's decree, and dismissed the suit, holding that the 1945 sale was also hit by Section 9 and that the 1892 transfer was not void. The Supreme Court noted that Section 31 of the Bombay Tenancy Act, 1939 amended Section 9 of the Khoti Settlement Act to state that the rights of khots and privileged occupants shall be heritable and transferable, but the Bombay Tenancy Act, 1939 received assent on April 2, 1940 and came into force only in April 1946 by notification. Therefore, Section 9 as it stood on February 10, 1945 made the rights of permanent tenants non-transferable without the consent of the khot. Both the 1945 sale in favour of the appellant and the 1892 sale in favour of respondent no.1's predecessor-in-interest were thus hit by the provisions of Section 9. The court held it unnecessary to determine whether the transfer without consent was absolutely void or merely voidable at the instance of the khot. If void, the sale in favour of the appellant did not convey any title. If merely voidable, the first sale in 1892 was not avoided by the khot and therefore validly conveyed title to respondent no.1's predecessor-in-interest, leaving the 1945 transferor with no title to convey. In either case the plaintiff failed to prove his title. The Supreme Court accordingly dismissed the appeal with costs, affirming the High Court's dismissal of the suit.
Headnote
A) Property Law - Khoti Land Tenure - Transferability of Occupancy Rights - Khoti Settlement Act, 1880, Sections 3, 9 and Bombay Tenancy Act, 1939, Section 31 - Section 9 as it stood prior to April 1946 prohibited transfer of a permanent tenant's occupancy rights without consent of the khot; Bombay Tenancy Act, 1939 amended Section 9 to make rights heritable and transferable, but only effective from April 1946. Both sale deeds of 1892 and 1945 executed without khot's consent were therefore hit by Section 9. Held that the 1945 sale did not confer valid title on the appellant. (Paras 1-3) B) Property Law - Void vs Voidable Transfer - Effect on Subsequent Sale - Khoti Settlement Act, 1880, Section 9 - The court held it unnecessary to decide whether transfer without consent was void or voidable; if void, plaintiff got no title; if voidable at khot's instance and not avoided, the first sale of 1892 validly conveyed title to respondent's predecessor, leaving transferor with no title to convey in 1945. Held that in either case plaintiff failed to prove title and appeal dismissed. (Paras 1-3)
Issue of Consideration
Whether transfers of occupancy rights in khoti land made without khot's consent prior to April 1946 were void or voidable and whether the 1945 sale deed in favour of the appellant conferred valid title when an earlier 1892 sale without consent had already been made to the respondent's predecessor.
Final Decision
Appeal dismissed with costs; High Court judgment dismissing suit affirmed. Plaintiff failed to prove title because both sales of 1892 and 1945 lacked khot's consent, and whether the transfer was void or voidable, the plaintiff acquired no title.
Law Points
- Prior to April 1946
- Section 9 of Khoti Settlement Act
- 1880 prohibited transfer of occupancy rights in khoti land without khot's consent
- Section 31 of Bombay Tenancy Act
- 1939 amended Section 9 but came into force only in April 1946
- a sale without required consent does not confer title if void
- if voidable at khot's instance and not avoided the first valid sale leaves transferor with no title to convey
- court need not decide void or voidable if outcome same
