Tenancy Rights Cannot Be Bequeathed By Will: Himachal Pradesh High Court Declares Mutation Based On Tenant’s Will Void

“Succession To Tenancy Is Governed Exclusively By Statute — A Tenant Cannot Bypass Section 45 By Executing A Will”, In an important ruling on tenancy succession under the Himachal Pradesh Tenancy and Land Reforms Act, 1972, the Himachal Pradesh High Court held that tenancy rights cannot be transferred or bequeathed through a Will, as succession to tenancy is governed exclusively by the statutory scheme under Section 45 of the Act.

Justice Rakesh Kainthla dismissed a Regular Second Appeal and upholding the decision of the First Appellate Court which had declared a mutation sanctioned on the basis of a Will executed by a tenant as illegal and void.

The Court observed:

“A tenant is precluded from transferring tenancy rights by way of a Will because the succession to tenancy is governed exclusively by the statutory scheme under Section 45 of the Act.”

Background Of The Case

The dispute concerned agricultural land measuring 4–10 bighas situated in Village Bharoga, District Chamba, where Panchi was recorded as a tenant in the revenue records.

The plaintiffs, claiming to be heirs of Panchi, filed a civil suit seeking declaration that Mutation No. 185 dated 14.05.2002, sanctioned on the basis of a Will dated 27.11.1984 allegedly executed by Panchi in favour of the defendant, was illegal.

According to the plaintiffs:

“Tenancy rights cannot be bequeathed under the H.P. Tenancy and Land Reforms Act and must devolve according to statutory succession.”

The plaintiffs asserted that Panchi died issueless in 1992 leaving behind his widow Nimo, who later died in 2001, after which the plaintiffs were entered as successors in the revenue records. However, the defendant obtained mutation on the basis of the alleged Will.

The defendant argued that Panchi had become the owner after commencement of the Tenancy Act and therefore had the right to execute the Will.

Trial Court Upheld The Will — Appellate Court Reversed The Decision

The Trial Court dismissed the suit, holding that:

“Panchi had become the owner after the commencement of the H.P. Tenancy and Land Reforms Act and therefore was competent to execute the Will.”

However, the First Appellate Court reversed this finding, relying on Jamabandi records for 1977–78, which showed that Ishru, widow of Devi Dayal, was recorded as owner while Panchi remained a non-occupancy tenant.

The appellate court held that under Section 104(8) of the Act, a tenant under a widow landowner does not acquire proprietary rights during her lifetime.

Consequently, the Will was held ineffective and the plaintiffs were declared entitled to succeed to the tenancy.

“Tenant Under Widow Does Not Acquire Ownership During Her Lifetime”

Affirming the appellate court’s reasoning, the High Court examined Section 104(8) of the H.P. Tenancy and Land Reforms Act, which protects certain categories of landowners including widows.

The Court noted:

“A tenant under a widow landowner would not acquire proprietary rights because the conferment provisions under Section 104(1) to (6) stand excluded during her lifetime.”

Since the revenue record clearly showed Ishru, widow of Devi Dayal, as owner, the Court concluded that Panchi never became the owner of the land.

The Court therefore held:

“Panchi continued to be a tenant and never acquired ownership rights over the suit land.”

“Tenancy Rights Cannot Be Bequeathed By Will”

The Court then addressed the central issue — whether a tenant could transfer tenancy rights through a Will.

Referring to earlier precedents of the High Court, the Bench reiterated that Section 45 of the Act provides an exclusive statutory scheme governing succession to tenancy rights.

The Court explained:

“The rule of succession laid down under Section 45 is absolute and exclusive and cannot be modified by the will of the parties.”

The judgment further clarified that permitting a tenant to transfer tenancy rights by Will would defeat the legislative intent:

“If tenants were allowed to bequeath tenancy rights by Will, they could bypass the statutory scheme of succession and deprive the persons who are legally entitled to succeed.”

Accordingly, the Court held that the Will executed by Panchi could not confer any tenancy rights upon the defendant.

Civil Court Jurisdiction Not Barred In Disputes Between Rival Successors

The defendant also argued that the suit was not maintainable before a civil court because disputes relating to tenancy must be decided by revenue authorities under the Tenancy Act.

Rejecting this contention, the Court clarified that the statutory bar applies only where the dispute arises between landlord and tenant or during proceedings under the Act.

Where two parties claim succession to tenancy rights, the civil court retains jurisdiction.

The Court held:

“When the dispute is between persons claiming to be successors of the tenant, such a matter is not exclusively cognizable by the Revenue Court and the jurisdiction of the Civil Court is not barred.”

Additional Evidence Rejected Due To Absence Of Pleadings

During the appeal, the defendant sought to introduce additional evidence under Order XLI Rule 27 CPC to prove that the widow landowner had died earlier and therefore the tenant had become owner.

The Court rejected the request, emphasizing that additional evidence cannot be allowed when the foundational plea was never raised in the pleadings.

The Court observed:

“Evidence cannot be permitted to introduce a completely new plea which was never pleaded before the Trial Court.”

The Court also held that the Pariwar Register relied upon to prove the date of death had little evidentiary value, noting:

“The Pariwar register is not a statutory register under the Registration of Births and Deaths Act and cannot be treated as the best evidence for proving date of death.”

The Himachal Pradesh High Court dismissed the appeal and upheld the First Appellate Court’s judgment declaring the mutation based on the tenant’s Will illegal.

The Court ruled that tenancy rights under the H.P. Tenancy and Land Reforms Act cannot be bequeathed by Will, as succession to tenancy is governed exclusively by Section 45 of the Act. Since the tenant never acquired proprietary rights and remained a tenant under a widow landowner, the Will executed by him had no legal effect.

The plaintiffs were therefore held entitled to succeed to the tenancy rights in accordance with statutory succession.

Date of Decision: 10 March 2026