Case Note & Summary
The petitioner, Allauddin Bapubhai Mulla, was the owner of two agricultural lands, Gat No. 44/3B/1A and Gat No. 40/1A, situated at village Degaon, taluka North Solapur, district Solapur. On 14th January, 1980, the petitioner entered into an agreement with respondent No.1, Khanderao Ramrao Gaikwad (since deceased, represented through legal representatives). According to the petitioner, he was in need of money and respondent No.1 was a money lender but did not possess a money lending license. The petitioner contended that the agreement was in reality a money lending agreement, and after five years, the lands were to be returned to him. Thus, the agreement was essentially a mortgage by conditional sale. Respondent No.1 issued a notice to the petitioner on 17th February, 1984 under Section 32(O) of the Bombay Tenancy & Agricultural Lands Act, 1948 (the Act), expressing his intention to exercise the right to purchase the suit land. The Tahsildar suo-motu initiated proceedings under the said provision and declared respondent No.1 as the tenant, issuing a certificate to that effect. The petitioner preferred revision applications being Revision Application Nos. 8 of 1986 and 15 of 1986. The Sub Divisional Officer, Solapur Division, Solapur allowed the revisions and remanded the matters back to the Tahsildar for fresh inquiry. The Tahsildar, after remand, again held that respondent No.1 was a tenant and issued a certificate of purchase. The petitioner then filed the present writ petitions challenging the orders of the Tahsildar. The court considered the submissions of both sides. The petitioner argued that the agreement was a mortgage by conditional sale and not a sale, and therefore respondent No.1 could not claim tenancy rights. The respondents argued that the agreement was a sale and respondent No.1 was a tenant. The court examined the terms of the agreement and found that the agreement was a mortgage by conditional sale. The court held that the Tahsildar had not properly inquired into the nature of the transaction and had erroneously declared respondent No.1 as a tenant. The court set aside the impugned orders and remanded the matters to the Tahsildar for fresh inquiry, directing the Tahsildar to decide the matters afresh after giving an opportunity of hearing to both parties. The writ petitions were allowed accordingly.
Headnote
A) Tenancy Law - Mortgage by Conditional Sale - Section 32(O) of Bombay Tenancy & Agricultural Lands Act, 1948 - The court examined whether an agreement of sale executed by the petitioner in favor of respondent No.1 was in reality a mortgage by conditional sale. The petitioner contended that he was in need of money and respondent No.1, a money lender without license, entered into a money lending agreement disguised as a sale, with the understanding that after five years the lands would be returned. The court held that the agreement was a mortgage by conditional sale and not a sale, and therefore respondent No.1 could not claim tenancy rights. The court set aside the certificate of purchase issued by the Tahsildar and remanded the matter for fresh inquiry. (Paras 1-10) B) Tenancy Law - Suo-motu Proceedings - Section 32(O) of Bombay Tenancy & Agricultural Lands Act, 1948 - The court noted that the Tahsildar suo-motu initiated proceedings under Section 32(O) and declared respondent No.1 as tenant without proper inquiry into the nature of the transaction. The court held that the Tahsildar ought to have examined whether the agreement was a mortgage by conditional sale before issuing the certificate. The court directed the Tahsildar to conduct a fresh inquiry and decide the matter afresh. (Paras 5-10) C) Tenancy Law - Burden of Proof - Section 43A of Bombay Tenancy & Agricultural Lands Act, 1948 - The court observed that the burden of proving that the transaction was a sale and not a mortgage lies on the person claiming to be a tenant. In this case, respondent No.1 failed to discharge that burden. The court held that the agreement was a mortgage by conditional sale and remanded the matter for fresh consideration. (Paras 8-10)
Issue of Consideration
Whether the agreement dated 14th January, 1980 was a sale or a mortgage by conditional sale, and whether the respondent No.1 could claim tenancy rights under the Bombay Tenancy & Agricultural Lands Act, 1948.
Final Decision
The court allowed the writ petitions, set aside the impugned orders of the Tahsildar, and remanded the matters to the Tahsildar for fresh inquiry. The Tahsildar was directed to decide the matters afresh after giving an opportunity of hearing to both parties.
Law Points
- Mortgage by conditional sale
- Tenancy rights
- Bombay Tenancy & Agricultural Lands Act
- 1948
- Section 32(O)
- Section 43A
- Section 32G
- Suo-motu proceedings
- Burden of proof
- Agreement of sale
- Money lending without license
