CHANDRAKANT MADHAVRAV DHAIBAR Vs. PATEL PARSHOTTAMDAS SHAMALBHAI

JUDGEMENT

(1.) The appellants are father and son, the second appellant being a son of the 1st appellant. They own some lands in Baroda in Gujarat State. It is said that those lands were owned by a Hindu joint family consisting of the 1st appellant and his four sons. The suit lands formed part of the lands owned by that family. The suit lands were in possession of the respondents as tenants. Under Sec. 32 (1) of the Bombay Tenancy and Agricultural Lands Act, 1948 (which will hereinafter be referred to as the Act) , the suit lands were deemed to have been purchased by the tenants on April 1, 1957. It is said that the father and the sons divided their lands in Baroda on March 12, 1958 and 1/5th share of those lands was given to the second appellant. The suit lands formed part of the lands allotted to the second appellant. At the time of the partition the second appellant was a minor. When the Mamlatdar took steps to fix the value of the suit lands for the purpose of fixing compensation due to the landlord, the second appellant objected to the same on the ground that the suit lands cannot be deemed to have been purchased by the respondents in view of Sec. 32F (1) (a) of the Act. The Mamlatdar rejected that contention but in appeal the District Deputy Collector reversed the decision of the Mamlatdar accepting the contention of the appellants that the suit lands came within the scope of Section 32F (1) (a) . He remanded the case to the Mamlatdar to find out whether the share given to the appellant was a proper share. On a further appeal to the tribunal, the order of the District Deputy Collector was reversed and the decision of the Mamlatdar restored. Thereafter the appellants moved the High Court of Gujarat under Art. 226 of the Constitution but the same was dismissed. Hence this appeal by special leave.

(2.) Section 32F (1) (a) of the Act reads:

(3.) The Mamlatdar came to the conclusion that the partition alleged did not come within the scope of Sec. 32F (1) (a) of the Act as it was only a partial partition in view of the fact that the members had not divided the house that they had at Baroda as well as their lands in Kadu in Poona District. The appellate authority opined that a partial partition also comes within the scope of Section 32F (1) (a) and hence it set aside the order of the Mamlatdar and remanded the case back to him for determining whether the second appellant had been given a proper share in the family properties which question the Mamlatdar did not go into earlier in view of his conclusion that a partial partition does not come within the scope of Sec. 32F (1) (a) . In the further appeal the tribunal agreeing with the Mamlatdar opined that in order to have the benefit of Sec.32F (1) (a) , the entire family properties must have been partitioned. The same view commended itself to the High Court.