Chanaram vs Pyari Bahu

Shivdayal, J.—This is a reference by Mr. Justice Tare, The question is: What in the nature of the estate Inherited by a female Pucca tenant under the provisions of the Madhya Bharat Land Revenue and Tenancy Act No. 66 of 1950?

Facts material for this reference are that Chanaram and Raghunath were members of the same family descending from a common ancestor. Raghunath was a tenant in an agricultural holding situated within, the territories of the former Gwalior State. On Raghunath's death Mst. Pyari Bahoo succeeded him. She adopted one Sitaram, son of the second Respondent Mulu. In a previous suit it was held that the adoption (dated 19- 1-1949) was not valid. Subsequently, on August 6, 1958 Pyari Bahu by (sic) deed of sale transferred certain lands in favour of Sitaram and Mulu. This suit was filed challenging the alienation made by Pyari Bahu for want of legal necessity and claiming an injunction to restrain Pyari Bahu from committing acts of waste.

Raghunath died on a date not precisely known but definitely before January 19, 1949. Quanoon Mal Gwalior State, Samvat 1983 was then (sic). According to Section 253, Pyari Bahu ceded(sic) to the holding but her interest(sic) life or until she remarried. This state(sic)nued up to October 1, 1951.

On October 2, 1951, the Madhya Bharat Zamindari Abolition Act. No. 13 of 1951 came into force. On that date, by virtue of Section 41 of the Act, Pyari Bahu became a tenant of the M. B. Govt, and all provisions of Part II of Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, Act No. 66 of 1950, (hereinafter called the Tenancy Act) became applicable.

Section 41 of the Madhya Bharat Zamindari Abolition Act enacts that when the property rights in any village are vested in the State u/s 3 of this Act, every Pucca Morusi, Mamooli Morusi, Gair Morusi tenant of such village who was in possession of any holding, shall, from the date of vesting, be deemed to be a tenant of the Government and all provisions of Part II of Madhya Bharat Tenancy Act shall apply to such village and similar provisions of Quanoon Mal Gwalior State, Samvat 1983 and all other laws shall cease to apply. Thus there is no doubt that Pyari Bahu became a Pucca tenant by virtue of the above provision and within the meaning of Section 54(7) of the Tenancy Act. It runs thus:

A Pucca tenant means a tenant who has been, or whose predecessor in interest had been, lawfully recorded in respect of his holding as a......... Mamooli Morusi, Gair Morusi and (sic) Morusi when this Act comes into force or who may in future be duly recognised as such by a competent authority.

Under the tenancy Act every Pucca tenant has the right of voluntary sale of his holding subject to the conditions laid down in Sections 70 and 72. There is no distinction between a male tenant and a female tenant so far as the right of voluntary transfer is concerned, a female Pucca tenant could sell her holding if the conditions were satisfied and after obtaining the necessary permission.

The Plaintiff's contention is that a female Pucca tenant who falls within the purview of Section 83 of the Tenancy Act is merely the holder of a "limited estate". This conception is the basis of the contention that Pyari Bahu was not entitled to sell the holding except for legal necessity of benefit of the estate, and in the absence of such necessity the transfer which she effected was not binding on the Plaintiff. After giving a considered thought to this question we find that there is no substance in it. We proceed to give our reason for this view.

Section 83 of the Tenancy Act no doubt provides that on the death of remarriage of a Pucca tenant "who has inherited an interest in any holding as a widow......". Her rights in the holding "shall devolve upon the nearest surviving heir, such heir being ascertained in accordance with the provisions of Section 82, of the last male Pucca tenant". The wording of the section first reminded us the well known concept of a "widow's estate" and its incidents known to the Hindu Law. Under the Hindu law as was administered before the enactment of the Hindu Succession Act, 1956 when the widow succeeded to her husband's estate she got only a limited estate, with the two main incidents (1) that she could not alienate such property except for legal necessity or for benefit of the estate and (2) on her death the estate reverted to the heirs of the last full owner. Section 83 merely embodies the second incident of that concept but not the first. It seems to us that although the idea of reversion of the property to the nearest surviving heir of the last male Pucca tenant was borrowed from or is at least analogous to that peculiar concept of Hindu Law, there is nothing in Section 83 to impose any restrictions on the right of sale by such female Pucca tenant other than those which are applicable to every Pucca tenant under Sections 70 and 72 of the Tenancy Act. We are bound to presume that the framers of the law were well aware of those incidents. The omission to impose any restriction on the right of alienation must be presumed to be studious. Why the Legislature omitted one and provided only the other is a matter of its wisdom and the Court would not go into it. Apparently it was a progressive step in the law-making.

A statute must be given to as the legislature intended, for words of the statute speak the intention of legislature. It must be taken that the Legislature intended what it has actually expressed. A Court is not justified In stretching the language for filling up supposed gaps or omission by adding anything or by omitting anything. It is not permissible to give a forced interpretation to the language of the statute on ground of equity, inconvenience or hardship. It is not the province of Courts to scan the policy or wisdom of the Legislature. See the observations of his Lordship S. R. Das, C. J. in Y. V. Sriniwas Murthy v. State of Mysore, AIR, 1959 SC 894. It must, therefore, be held on a plain reading of the section that a female Pucca tenant does not suffer from any additional disability in respect of alienation of her holding.

It is argued that such a disability must be deemed to be necessarily implied in the provisions contained in Section 83, otherwise such female Pucca tenant can circumvent the law of succession and render it nugatory by voluntary transfers under Sections 70 and 72. The argument appears to be attractive at first but on a little reflection it becomes transparent that even by necessary implication no restriction on alienation can be read either in Section 83 nor can it be engrafted on Section 70 or 72. If we accept that argument, in the absence of any provision to that effect, such female Pucca tenant would not be entitled to transfer the holding even when there is legal necessity or for benefit of the estate. In order to get over that hard and absurd position, we shall have to add further that she can transfer her interest for legal necessity or benefit of the estate. Then only it will be in line with that concept of the Hindu law which held the field for a long, long time. This means that by a process of interpretation we will be adding two things in Section 83 or in section 70: (1) a restrictive provision and (2) an enabling provision. We are of the opinion that this cannot be done under the garb of interpretation as it will only be "making" a law, which is beyond our province. It must always be borne in mind that the first and primary rule off construction is that the intention of the legislature must be found in the words used by the Legislature itself. If the words used are capable of one construction only, then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and Policy of the Act per Kanai Lal Sur Vs. Paramnidhi Sadhukhan, . In Sri Ram Ram Narain Medhi Vs. The State of Bombay, , their Lordships have laid down:

If the language of the enactment is clear and unambiguous, it would not be legitimate for the Courts to add any words thereto and evolve there from some sense which may be said to carry out the supposed intention of the Legislature. The intention of the Legislature is to be gathered only from the words used by it and no such liberties can be taken by the Courts for effectuating a supposed intention of the Legislature.

On comparing the provisions of Section 82 with those contained in Sections 83 it does appear that the Legislature wanted to make some distinction between male heirs and certain female heirs succeeding u/s 82, yet, in the absence of any restrictive words, either in Section 70 or in Section 83, a female Pucca tenant stands on the same footing as a male Pucca tenant so far as the right of alienation is concerned. The result will be that if such female Pucca tenant as falls within section 83, dies or remarries, only such property would devolve on the nearest heir of the last male holder which she leaves on her death or remarriage.

Having regard to the above discussion, it must be held that Section 83 comes into play only on the death of such female Pucca tenant. That section has nothing to do with the right of alienation. The answer to the question under reference will then be this.

A female Pucca tenant named in Section 83 of the M. B. Tenancy Act is under no disability in respect of right to transfer her holding. She may transfer the rights in the holding subject to the restrictions contained in Section 70 of the Madhya Bharat Tenancy Act. On her death or remarriage, her rights in the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 82) of the last male Pucca tenant, if she has not already transferred the holding.

K.L. Pandey, J.

I agree and would like to add a few words. It was not expressly provided in Section 83 of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007, that the right of the females therein specified, who inherited the interest of a Pakka tenant, was further restricted. Such further limitation should not be inferred merely from the fact that, in the section, the interest would, after the death of the female-holder, pass by inheritance to certain persons therein specified. It is well to remember that the section applied to Hindu and non-Hindu alike. Therefore, it would not be right to import the idea of a Hindu widow's estate into the section. Indeed even amongst Hindus, Sections 14 and 15 of the Hindu Succession Act, 1956, now make a somewhat similar provision. The view that Section 83 ibid should be thus construed has also been taken by Newaskar J. in Hiralal v. Radhabai, S. A. No. 69 of 1955 dated 31st December 1958 and by Dixit J. (as he then was) in Kedarmal v. Jasrathsingh, 1960 JLJ SN 71. For all these reasons, the question referred to us should be answered in the manner proposed by my learned brother.

By the Court Opinion

A female Pucca tenant named in Section 83 of the Madhya Bharat Tenancy Act is under no disability in respect of right to transfer her holding. She may transfer the rights in the holding subject to the restrictions contained in Section 70 of the Madhya Bharat Tenancy Act. On her death or remarriage, her rights in the holding shall devolve upon the nearest surviving heir (such heir being ascertained in accordance with the provisions of Section 82) of the last male Pucca tenant, if she has not already transferred the holding.