HIRAJI TOLAJI BAGWANversusSHAKUNTALA

A                        HIRAJI TOLAJI BAGWAN
                                   v.
                             SHAKUNTALA

                             JANUARY 16, 1990.
B
                 [K.N. SAIKIA AND P.B. SAWANT, JJ.]

          Bombay Tenancy and Agricultural Lands (Vidarbha Region)                --,-
    Act, 1958: Sections 38 and 46-Transfer of land after 1st August, 1953
    by partition-Whether confers on transferee a right to terminate
    tenancy.
c
          The appellant was a protected lessee or tenant of the agricultural
    land in dispute, under the Bombay Tenancy and Agricultural Lands
    (Vidarbha Region) Act, 1958. The respondent became the landlady of
    the land on June 29, 1959 when her father effected a partition of his
    ancestral lands between himself, on the one hand, and his wife and his
D   two minor daughters, including the respondent, on the other. This was
    the third partition effected by the respondent's father, who had earlier
    also twice partitioned the same lands.

           Sometime in 1962, the respondent initiated proceedings against
    the appellant for recovery of possession of the suit land on the ground of
E   default. The Tehsildar dismisse•l the application holding that the
    respondent was not a landlady since the partition in question was
    illegal. The Deputy Collector in appeal confirmed this decision, and the
    Maharashtra Revenue Tribunal rejected the respondent's revision.

          In the Writ Petition filed before the High Court under Article 227
F   of the Constitution against the above decision of the three authorities
    below, the High Court remanded the matter to the Tehsildar for investi-
    gation into the validity of the partition. On remand, the Tehsildar held
    that the partition effected on June 29, 1959 was bogus.

          Thereafter, in a different proceeding the Maharashtra Revenue
G   Tribunal had held that the said partition was binding. Therefore, in the
    appeal against the decision of the Tehsildar, the Deputy Collector fol-
    lowing the said decision of the Revenue Tribunal, held the partition
    valid and allowed the respondent's application for eviction. The
    Revenue Tribunal, in revision, confirmed this order of the Deputy
    Collector.


                                       66
                             H.T. BAGWAN v. SHAKUNTLA                           67

             The appellant preferred a writ petition before the High Court. It        A
       was, inter alia, contended before the High Court that: (I) the partition was
       contrary to the provisions of Hindu Law; and (2)even assuming that the
       partition deed of June 29, 1959 was a valid document, the same had to
       be ignored since it could not confer the title of ownership on the respon-
       dent transferee in view of the provisions of section 38(7) of the Bombay
       Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The                B
       High Court however dismissed the petition holding that what was pro-
       duced before the courts below was a family settlement.

             Allowing the appeal, this Court,

             HELD: (1) A partition •of the property can only be among the             C
       parties who have a pre-existing right to the property. (jnder the Hindu
       Law, a female, major or minor has no share in the ancestral property.
       A female is given a share either in the self-acquired property of the
       husband or the father, or in the share of the husband or the father in the
}_     coparcenary property after the property is partitioned. There cannot,
       therefore, be a partition and hence a family settlement with regard to         D
       the ancestral property so long as it is joint, in favour of either the wife
       or the daughter. [70C-D]

             (2) The position that obtain under section 38(7) after the Amend-
~- .   ing Act of 1963, is that any transfer of land effected after Isl August
        1953 whether by way of partition or otherwise, has no effect of confer-       E
       ring on the transferee a right to terminate the tenancy of the tenant who
       was a protected lessee and whose right as such protected lessee had
       come into existence before such transfer or partition. This amendment
       is admittedly retrospective in operation. [71G-H; 72A]
             (3) The appellant was tenant since prior to 1st August 1953 and
       had also continued to be such tenant till April 1, 1961. Hence he became       F
       a statutory owner under section 46 of the Act on and from April 1, 1961.
       Any proceedings for evicting him on the ground that he was a tenant
       and, therefore, had fallen in arrears of rent could not have, therefore,
       been adopted in 1962. [72C-D]
             CIVIL APPELLATE JURISDICTION: Civil Appeal No. 735                       G
       of 1975.
            From the Judgment and Order dated 21.6.1974 of the Bombay
       High Court in Spl. CivilAppln. No. 15 of 1971.
             U. U. Lalit and A.G. Ratnaparkhi for the Appellants.
                                                                                      H
             M.S. Gupta for the Respondent.
      68                     SUPREME COURT REPORTS            [1990] 1 S.C.R.
           The Judgment of the Court was delivered by
A
            SAWANT, J. These proceedings arise under the Bombay
      Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958
      (hereinafter referred to as the Act). The appellant Hiraji Tolaji was
      admittedly a protected lessee or tenant of the agricultural land being
      Survey No. 30 of Village Madha, Taluqa Chikhali District Buldana.
B     The land measures approximately 25 acres and 31 gunthas. The
      respondent who is mentally disabled became the landlady of the land
      in question in quite queer circumstances which to say the least are
      indefensible in law. Her father, one Mr. Bri jlal Bansilal owned as
      many as 568 acres of land of which the suit lands are a part. The lands
      admittedly are ancestral. He effected first partition of his entire hold-
      ing of lands on January 31, 1949 between himself on the one hand and his
c     wife and a minor son on the other. On December 16, 1950, he effected
      a second partition of the very same lands between himself on the one
      hand and his wife and his son on the other. Again on June 29, 1959 he
      effected a third partition of the said lands between himself on the one
      hand and his wife and his two minor daughters including the respon-
D     dent on the other. There is further no dispute that it is in this third
      partition that the suit lands were given to the share of the respondent
      and the respondent became the alleged landlady w.e.f. the date of the
      said partition.
          2. It appears that sometime in 1962, the respondent through her
    guardian, namely her father Brij Lal initiated proceedings against the
E appellant for recovery of possession of the suit land on the ground of
    default in pa1 ment of rent for three years, namely 1959-60, 1960-61
    and 1961-62. By his decision of April 30, 1963 the Tehsildar dismissed
    the application holding that the respondent was not a landlady since
    the partitions in question were illegal. The Deputy Collector in appeal
    confirmed the said decision by his Order dated November 26, 1963.
F The respondent's revision before the Maharashtra Revenue Tribunal
    also failed when the Tribunal rejected it by its decision of April 29,
    1965. In the Writ Petition filed before the High Court under Article
                                                                                  '
    227 of the Constitution against the said decision of the three
    authorities below, the High Court by its Order dated October 4, 1966
    remanded the matter to the Tehsildar for investigation into the validity
G , of the partition.
            3. Then started the second round of litigation. On remand, the
      Tehsildar by his decision of March 16, 1968 held that the partition         .,
                                                                                  I.
      effected on June 29, 1959 (which was the only material partition so far
      as the respondent was concerned) was bogus. Hence !he notice of
I-{   demand and therefore the proceedings for recovery of possession
      pursuant thereto, were bad in Jaw.
                  H.T. BAGWAN v. SHAKUNTLA [SAWANT, J.]                     69

           It appears that thereafter in a different proceeding the
                                                                                  A
    Maharashtra Revenue Tribunal on June 25, 1968 had held that the said
    partition was binding. It is after this decision of the Tribunal as stated
    earlier.in an altogether different proceeding, that the matter came up
    for hearing in appeal filed by the respondent before the Deputy Col-
    lector, against the decision of the Tehsildar given on March 2, 1968.
    The Deputy Collector, therefore, followed the said decision of the            B
    Revenue Tribunal, and by his decision of Aprir16, 1969 held that the
    partition being valid, the respondent was the landlady of the suit land
    and, therefore, notice given by her, terminating the tenancy on the
    ground of default of rent and the proceedings filed for recovery of the
    suit land, were proper. He also held that the appellant was in arrears
    of rent for three years as contended by the respondent and, therefore,
    allowed the said application for eviction of the appellanf from the suit      c
    land.                                                       '

         Against the said decision, the appellant preferred a revision be-
    fore the Revenue Tribunal and the Tribunal by its decision of
    September 15, 1970 confirmed the findings of the Deputy Collector.            D

          Aggrieved by the decision, the appellant preferred a Writ Peti-
    tion before the High Court under Article 227 of the Constitution, and
    the High Court by its impugned decision of June 21, 1974 dismissed the
    petition. Hence this appeal.
                                                                                  E'
            4. Before the High Court, two obvious illegalities committed by
    the lower authorities were highlighted on behalf of the appellant. The
    first illegality was that the property being admittedly ancestral, Brijlal
    could not have effected partition of the property between himself on
    the one hand and his wife and his daughter on the other. In all the
    three partitions effected on July 31, 1949, December 16, 1950 and June        F
\   29, i959, wife was one of the parties to the partitions. In the third
    partition made on June 29, 1959 besides his wife, the other parties to
    the partition were two minor daughters. Secondly, the same property
    is shown to have been partitioned by Brij Lal on three occasions.
    Admittedly, the partition of June 29, 1959 is between Brij Lal on the
    one hand and his wife and two minor daughters including the respon-           G
    dent on the other. This partition was obviously contrary to the provi-
    sions of Hindu Law. I-Ience the respondent in any case could not have
    become a landlady of the suit land because it is in this third partition of
    June 29, 1959 that the said land is alleged to have gone to the share of
    the respondent. The High Court dismissed this contention with regard
    to the patent illegality by giving a spacious reason that the question        H
    70                    SUPREME COURT REPORTS              [1990] 1 S.C.R.

    referred to the Tehsildar in its earlier remand order, namely the vali-
A
    dity or otherwise of the partition, was investigated by the three
    authorities and that they had given a finding upholding the partition
    The High Court further held that what was produced before the courts
    below was a family settlement and since the said family settlement
    creared a right in favour of the respondent she should be held to have
B   become the owner of the suit land. Unfortµnately, the High Court l9st
    sight of the fact that the family settlement which is accepted by the
    Courts in lieu of partition, is a settlement which gives share to the
    parties as per their legal entitlement .and not a settlement which is
    made or purported to have been made to circumvent the law. A parti-
                                                                                 ··-i
                                                                                     I
    tion of the property can only be among the parties who have a pre-
    existing right to the property. Under the Hindu Law, a female, major
c   or minor has no share in the ancestral property. A female is given a
    share either in the self-acquired property of the husband or the father,
    or in the share of the husband or the father in the coparcenary pro-
    perty after the property is partitioned. There cannot, therefore, be a
    partition and hence a family settlement with regard to the ancestral
D   property so long as it is joint, in favour of either the wife or the
    daught~r. Since this obvious illegality was ignored by the High Court,
    it will have to be held that the High Court's decision was patently
    wrong. The respondent, therefore, never became the landlady of the
    land and it was Brij Lal who continued to be the landlord of the same.
    Hence the notice given by the respondent and the proceedings for
    eviction adopted by her are misconceived. Her application for posses-
                                                                                 ·{
E
    sion of the land has, therefore, to be dismissed.

          5. The seond obvious illegality which was brought to the notice
    of the High Court was that even assuming that the partition deed of

F
    June 29, 1959 was a valid document, the same has to be ignored since it
    could not confer the title of ownership on the respondent transferee in      )~
    view of the provisions of Section 38(7) of the Act. Under Section 46 of      I
    the Act, a protected tenant becomes the owner of the land on and from
    April i, i96 i. Under section 38( 1), however, a landlord is given a right
    to evict a tenant if he wants the land for bona fide personal cultivation.
    The right to adopt the proceedings for possession of the land has to be
0   exercised on or before March 31, 1961. The condition precedent to
    such application, however, is that the landlord should have given a
    notice to the tenant, for the purpose, on or before November 15, 1961.
    Under Section 38(2), the time to apply for possession is extended in
    the case of the landlord who is a minor, widow or a person subject to
    any physical or mental disability. We are concerned in the present case
H   with a person who is mentally disabled, since the respondent is alleged
               H.T. BAGWAN v. SHAKUNTLA [SAWANT, J.]                   71
                                                             -
to be a mentally disabled person. Further the proviso to sub-section
                                                                            A
(2) of Section 38 also makes it clear that where such person is a
member of a joint family, the time given to the landlord to terminate
the tenancy is not extended if atleast one member of the joint family is
outside the categories of the disabled persons. Such disabled person,
further, has to be the ownerof the land on March 31, 196 L
                                                                            B
      6. The sum total of these provisions is that the appellant in the
present case would become the owner of the suit land on and from Ist
April, 196.1 if the respondent did not intervene as the landlady of the
suit land before that date. Admittedly, the respondent is alleged to
have become the landlady by virtue of the partition effected on June
29, 1959. Section 38(7) of the Act, however, states as follows:
                                                                            c
            .. Nothing in this section shall confer on a tenure-holder
            who has acquired any land by transfer or partition after the
            Ist day of August 1953 a right to terminate the tenancy of a
            tenant who is a protected lessee and whose right as such
            protected lessee had come into existence before such trans-     D
            fer or partition."

It rnay be n1entioned here that in some copies of the Act published by
the Government Press, instead of the Ist day of August 1953, the date
primed is Ist day of August 1963. That is admittedly wrong. We
perused the Bombay Tenancy and Agricultural Lands (Vidarbha                 E
Region) (Amendment) Act 1963. By that AmendinK Act, aiLthat was
done was to add the words "or partition" after the word "transfer" in
Section 38(7). No amendment was made of the date the transfer
effected after which would not result in conferring title to the land. In
fact, the Amending Act also states that the amendment was effected
pursuant to the decision of the Full Bench of the Bombay High Court         F
reported in 1969 Maharashtra Law Journal page 933 where the Court
had taken the view that the "transfer" contemplated by the
unamended provision of Section 38(7) did not include transfer by
partition. It had, therefore, become necessary to include in the "trans-
fer .. also transfer by partition and, hence, the Amending Act was
enacted only for the purpose of adding the words "or partition" after       G
the words .. by transfer" and "before such transfer" in that Section.

      7. The position that obtains under Section 38(7) after the
Amending Act 1963 is, therefore, that any transfer of land effected
after Ist August 1953 whether by way of partition or otherwise, has no
effect of conferring on the transferee a right to terminate the tenancy     H
    72                     SUPREME COURT REPORTS             [1990) 1 S.C.R.

A   of the tenant who was a protected lessee and whose right as such
    protected Jessee had come into existence before such transfer or parti-
    tion. This amendment is admittedly retrospective in operation. Even
    assuming, therefore, that the partition of June 29, 1959 was a valid
    one, it did not give a right to the respondent to terminate the tenancy
    of the appellant who was admittedly a protected lessee prior to August
B
    1, 1953 and was on the land as such tenant on April 1, 1961.

          8. The result therefore is that firstly, the respondent had not
    become the landlady of the suit land since the share given to her in the
    partition was prima facie illegal and contrary to the provisions of law.
    Secondly, assuming that the partition was valid, the respondent had no
c   right to terminate the tenancy of the appellant on any ground what-
    soever. The appellant was a tenant since prior to !st August 1953 and
    had also continued to be such tc:nant till April 1, 1961. Hence he
    became a statutory owner under Section 46 on and from April 1, 1961.
    Any proceedings for evicting him on the ground that he was a tenant
    and, therefore, had fallen ill' arrears of rent could not have, therefore,
D   been adopted in 1962. It is unfortunate that the High Court lost sight
    of the said patent legal position and brushed aside the contention in
    that behalf on the .ground that the question involved was a question of
    law and fact. We are unable to see what questions of fact were neces-
    sary to investigate for the disposal] ot the said question. It was a pure
    question of law arising out of the admitted facts on record.
E
           9. Hence we allow the appeal, set aside the decision of the High
    Court and hold that the appellant had become a statutory owner of the
    suit land on and from April 1, 1961. He was, therefore, not liable to be
    evicted at the hands of the respondent and the proceedings adopted by
    her were illegal and stand dismissed. The respondent will pay the costs
F   throughout.

    R.S.S.                                                  Appeal allowed.