Whether tenancy under land laws is heritable?
With specific reference to
(I) Punjab Tenancy Act, 1887
(II) Punjab Security Of Land Tenures Act, 1953
(III) Land Reforms Act, 1972
(IV) Haryana Ceiling On Landholdings Act, 1972
Mr. Anish Setia,
Punjab and Haryana High Court, Chandigarh
The Land Laws relate mainly to the relationship of landlord and tenant and their rights in the agricultural land.
The definition of tenant as described by The Punjab Tenancy Act, 1887 in Section 4 (5) and 4 (7) are reproduced hereunder :-
“4 In this Act, unless there is something repugnant in the subject or context-
(1) to (4) xx xx xx
(5) "tenant" means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person; but it does not include-
(a) an inferior landowner, or
(b) a mortgagee of the rights of a landowner, or
(c) a person to whom' a %holding has been transferred or an estate or holding has been let in farm, under the Punjab Land-revenue Act, 1887 (XVII of 1887), for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or
(d) a person who takes from the [Government] a lease of unoccupied land for the purpose of sub-letting it.”
(6) xx xx xx xx
(7) “tenant” and “landlord” include the predecessors and successors-in-interest of a tenant and landlord, respectively:
Section 5 of the 1887 defines the Right of Occupancy. Section 5 of the 1887 Act is being reproduced hereunder :-
“5. Tenants having right of occupancy : (1) A tenant
(i) Who at the commencement of this Act has, for more than two generations in the male line of decent through a grandfather or granduncle and for a period of not less than twenty years, been occupying land paying no rent therefor beyond the amount of the land-revenue thereof and the rates and cesses for time being chargeable thereon, or
(b) who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or them by any voluntary act, has since he ceased to be landowner continuously occupied the Iand, or
(c) who, in a village or estate m which he settled along with, or was settled by, the founder thereof as a cultivator therein, occupied land on the twenty-first day of October, 1868, and has continuously occupied the land since that date, or
(d) who being Jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or, having been such Jagirdar, occupied the land while he was Jagirdar, occupied the land while he was Jagirdar and has continuously occupied it for not less than twenty years.
has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to the das specified in clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of the founder.
(2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefor beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he has fulfilled the conditions of Clause (a) of sub-Section (1).
(3) The words in that clause denoting natural relationship denotes also relationship by adoption, including therein the custody appointment of any heir and relationship, by the usage of a religious community.”
Now, it is necessary to reproduce the definition of tenant given under (i) The Punjab Security of Land Tenures Act, 1953, (ii) The Punjab Land Reforms Act, 1972 and (iii) The Haryana Ceiling on Landholdings Act, 1972, as under :-
(i) The Punjab Security of Land Tenures Act, 1953
2. Definitions – In this Act, unless the context otherwise requires :-
(1) to (5) xxx xxx xxx
(6) “Tenant” has the meaning assigned to it in the ‘Punjab Tenancy Act, 1887 (Act XVI of 1887), and includes a sub-tenant, and self-cultivating lessee, but shall not include a present holder, as defined in Section 2 of the Resettlement Act.
(7) to (11) xxx xxx xxx”
(ii) The Punjab Land Reforms Act, 1972 :
“3. Definitions – In this Act, unless the context otherwise requires –
(1)to (15) xxx xxx xxx
(16) “tenant” has the meaning assigned to it in the Punjab Tenancy Act, 1887 (Act XVI of 1887) and includes a sub-tenant, and self-cultivating lessee, but shall not include a present holder as defined in Clause (f) of Section 2 of The East Punjab Displaced Persons (Land Resettlement) Act, 1949.
(17) xxx xxx xxx.”
(iii) The Haryana Ceiling on Landholdings Act, 1972 :
“3. Definitions – In this Act, unless the context otherwise requires --
(a) to (r) xxx xxx xxx
(s) “tenant” means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person, and includes –
(a) the predecessors and successors-in-interest of the tenant, and
but does not include a person who is such a relation of the landowner as may be prescribed.”
(t) xxx xxx xxx”
At this point, we are to see the provisions of Section 8 of The Punjab Security of Land Tenures Act, 1953 and also the provisions of Section 59 of The Punjab Tenancy Act, 1887:-
“59. Succession to right of occupancy – (1) When a tenant having a right of occupancy in any land dies, the right shall devolve :-
(a) on his male lineal descendants, if any, in the male line of descent; and
(b) failing such descendants, on his widow if any until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom; and
(c) failing such descendants and widow, or widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom.
(d) failing such descendants and widow, or widowed mother or, if the deceased tenant left a widow or widowed mother then when her interest terminates under clause (b) or (c) of this sub-section, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives.
Provided with respect to clause 3(d) of this sub-section, that the common ancestor occupied the land
(2) As among descendants and collateral relatives claiming under sub-Section (1) the right shall, subject to the provisions of that sub-section devolve as if it were land left by the deceased in the village in which the land subject to the right is situate.
(3) When the widow of a deceased tenant succeeds to a right of occupancy she shall not transfer the right by sale, gift or mortgage or by sub-lease for a term exceeding one year.
(4) If the deceased tenant has left no such persons as are mentioned in sub-section (1) on whom hiss right of occupancy may devolve under that sub-Section, the right shall be extinguished.”
From the definition stated above, succession of tenancy is provided for an occupancy tenant under Section 59 of The Punjab Tenancy Act, 1887, but no provision has been made for succession of a Gair Marusi Tenant, i.e. ‘tenant at will’ and the litigant used to get the support of Section 8 of the Punjab Security of Land Tenures Act, 1953 or from Section 59 of The Punjab Tenancy Act, 1887 for their right to succession of their tenancy. As The Hindu Succession Act, 1956, before its amendment was not applicable as per Section 4 of the Hindu Succession Act, 1956, which reads as under :-
“Unamended Section 4 of The Hindu Succession Act, 1956 :
4. Overriding effect of Act :
(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.”
However, Section 4 of The Hindu Succession Act, 1956, stood amended it the year 2005 and became application on 9th of September 2005, by amending The Hindu Succession Act, 1956. Sub-Section (2) of Section 4 stood deleted and consequently, the succession to tenancy of land will be governed by The Hindu Succession Act, 1956.
Earlier, on the death of a tenant-at-will/Gair Marusi Tenant, continuation of tenancy will not be affected by :
(a) The death of the landlord, or
(b) The death of the tenant except when the tenant leaves no male lineal descendant or mother or widow.
(c) Any change therein under the same landowner and for the purposes of Sections 17 and 18 of the Act, such tenancy shall be the last area so held.
but, that is not succession but would be only holding the tenancy rights in favour of the
persons stated in this Section. Any other member of the family, except the one stated in Section 8 would be entitled to continue the tenancy of the deceased and there was no provision in
either of the Act stated above for the succession of the tenancy of the tenant.
Admittedly, save and except Section 59 of the Punjab Tenancy Act, 1887, there is no other provision in either of the Act governing succession to the tenancy rights of a tenant-at- will. In the absence of such a provision in the relevant Tenancy Laws, as in force at the relevant time, succession to the tenancy right at will, will be governed by the general law of succession, viz., Hindu Succession Act, 1956, under Section 8 after the amendment of Section 4 of the Hindu Succession Act.
Now, therefore, after the amendment of Section 4(2) of the Hindu Succession Act, the tenancy will be inherited by all the members of the family, as provided under the Hindu Succession Act, 1956 (as amended up-to-date).
ANISH SETIA, ADVOCATE