Case Note & Summary
The case involves a second appeal by the original defendant, Sakharam Shrawan Bhise, against the judgment of the lower appellate court which confirmed the trial court's decree in favour of the plaintiff, Ramesh Dhannu Rathod. The plaintiff had filed a suit for declaration of ownership and possession based on a Will dated 18th February 2006 executed by Tukaram Hari Rathod, who was the original allottee of the suit property, being Field Survey No.2/1/A admeasuring 1 hectare 21 Are. The property was Class-II occupancy land allotted to Tukaram under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961. The defendant claimed possession under a lease deed executed by Tukaram in favour of his wife. The trial court and first appellate court decreed the suit in favour of the plaintiff, holding that the Will was valid. The defendant appealed to the High Court, raising the substantial question of law whether the Will was hit by Section 29(3)(a) of the Maharashtra Land Revenue Code, 1966, which prohibits transfer of Class-II occupancy land without prior permission of the competent authority. The High Court allowed the appeal, holding that a Will is a transfer and since no prior permission was obtained, the Will was void and could not confer any title on the plaintiff. The suit was dismissed.
Headnote
A) Land Law - Transfer of Occupancy Class-II Land - Section 29(3)(a) of Maharashtra Land Revenue Code, 1966 - Will as Transfer - The suit property being Class-II occupancy land allotted to Tukaram Rathod, execution of Will without prior permission of competent authority is prohibited under Section 29(3)(a) of the Code. The Court held that a Will is a transfer and without prior permission, the Will is void and cannot confer title. (Paras 1-6)
Issue of Consideration
Whether execution of Will in favour of the plaintiff is hit by provisions of Section 29(3)(a) of the Maharashtra Land Revenue Code, 1966?
Final Decision
The second appeal is allowed. The judgments and decrees of the trial court and first appellate court are set aside. The suit filed by the respondent/plaintiff stands dismissed. No order as to costs.
Law Points
- Section 29(3)(a) of Maharashtra Land Revenue Code
- 1966 prohibits transfer of Class-II occupancy land without prior permission of competent authority
- Will is a transfer
- Will executed without such permission is void
Case Details
2017 LawText (BOM) (09) 243
Second Appeal No.177 of 2017
V. N. Patre for appellant, Amol S. Deshpande for respondent
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Nature of Litigation
Second appeal against concurrent decrees in a suit for declaration of ownership and possession based on a Will.
Remedy Sought
Appellant (original defendant) sought dismissal of the suit on the ground that the Will was void under Section 29(3)(a) of the Maharashtra Land Revenue Code, 1966.
Filing Reason
The suit property was Class-II occupancy land allotted to Tukaram Rathod; the Will executed by Tukaram in favour of the plaintiff was without prior permission of the competent authority, thus hit by Section 29(3)(a) of the Code.
Previous Decisions
Trial court decreed the suit in favour of the plaintiff; first appellate court confirmed the decree.
Issues
Whether the Will executed by Tukaram Rathod in favour of the plaintiff is hit by Section 29(3)(a) of the Maharashtra Land Revenue Code, 1966?
Submissions/Arguments
Appellant argued that the suit land being Class-II occupancy land could not be transferred without prior permission of the competent authority under Section 29(3)(a) of the Code, and the Will being a transfer without such permission is void.
Respondent argued that the Will was valid and the courts below correctly decreed the suit.
Ratio Decidendi
A Will is a transfer of property. Under Section 29(3)(a) of the Maharashtra Land Revenue Code, 1966, Class-II occupancy land cannot be transferred without prior permission of the competent authority. Since no such permission was obtained, the Will is void and cannot confer any title on the plaintiff.
Judgment Excerpts
The suit property being Class-II occupancy land that was allotted to Tukaram Rathod, whether execution of Will in favour of the plaintiff is hit by provisions of Section 29 (3) (a) of the Maharashtra Land Revenue Code, 1966?
In view of provisions of Section 29 (3) (a) of the Maharashtra Land Revenue Code, 1966, as the suit land was occupancy Class-II land, it could not have been transferred without obtaining prior permission of the competent authority.
A Will is a transfer and without prior permission, the Will is void and cannot confer title.
Procedural History
The plaintiff filed a suit for declaration of ownership and possession based on a Will. The trial court decreed the suit. The defendant appealed to the first appellate court, which confirmed the decree. The defendant then filed a second appeal in the High Court, which was admitted on the substantial question of law regarding Section 29(3)(a) of the Maharashtra Land Revenue Code, 1966.
Acts & Sections
- Maharashtra Land Revenue Code, 1966: Section 29(3)(a)
- Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961:
