SONIRAM RAGHUSHET Vs. DWARKABAI SHRIDHARSHET

JUDGEMENT

(1.) HIS Lordship set out the facts and rejected the first contention of the defts. The judgment then proceeded; ] The next contention urged by him was that in any event the partition in regard to the agricultural lands was saved by the proviso to S. 2, Bombay Act XVII [17] of 1942. We have already adverted to the circumstances under which the Bombay Act XVII [17] of 1942 came to be passed. The Hindu Women's Eight to Property Act, 1937, and the Hindu Women's Right to Property (Amendment) Act, 1938, purported to give better rights to women to property in general. But the F. G. held that the said Acts did not operate to give them better rights in respect of agricultural lands. Several transactions had already taken place in the Province of Bombay on the basis that women had acquired better rights under the said Acts in the case of agricultural lands as well as other kinds of properties and these transactions were invalidated by reason of the judgment of the P. G. Necessity, therefore, arose to validate those transactions as well as to give women in future those better rights. For that purpose as well as for other purposes it was deemed expedient to extend the said Act to agricultural lands with retrospective effect but with certain savings. Therefore the Bombay Legislature passed Bombay Act XVII [17] of 1942. The preamble to that Act showed that the main purpose of the Act was to validate the transactions which had been effected on the basis that women had acquired better rights in respect of agricultural lands also, and that was really the background of the passing of the Act. It was with that end in view that under Section 2 of the Act the term "property" so far as the Province of Bombay was concerned, was declared to include and was deemed always to have included agricultural lands. The result of the substantive enactment, therefore, was that all the transactions that had already taken place in the Province of Bombay on the basis that women had acquired better rights in respect of agricultural lands also were thereby validated with retrospective effect. The Legislature then had to consider the situation which would arise by reason of certain persons having been in possession of property having been entitled thereto under the law as it was laid down by the F. C. judgment or those persons having made transfers of such property before Bombay Act XVII [17] of 1942 was enacted. As a corollary to the F. C. judgment such possession would be unlawful or without any vestige of title and the transfers also would be void, the transferor having no right, title and interest in the property 90 transferred by him. This possession and these transfers had got to be saved from the operation of Section 2 of the Act and the proviso was, therefore, enacted that :

(2.) RELYING upon this proviso to a. 2 of the Act it was urged- by Mr. V. S. Desai for the applts. that prior to 13-10-1942, when Bombay Act XVII [171 of 1942 came into operation a partition had already been effected between the three branches of the family on 18-9-1942, that that partition was a transfer within the meaning of the proviso to S. 2 of the Act and was therefore saved so far as agricultural lands were concerned. It lies, therefore, to be determined whether the partition thus effected comes within tha description of a transfer within the meaning of the proviso to S. 2 of the Act. There is no definition of "transfer" to be had in either the Hindu Women's Eight to Property Act, 1987, or the Hindu Women's Eight to Property (Amendment) Act, 1938, or the Bombay Hindu Women's Eight to Property (Extension to Agricultural Land) Act, 1942. This being a transfer of immoveable property, even though it may be agricultural land, the definition of "transfer" which applies is to be found in Section 5, T. P. Act. In Section 5 of that Act transfer of property is denned to mean an act by which a living person couveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons. Even though in Section 5 of that Act the definition of "transfer of property" is qualified by using the expression "in the following sections," we may safely take it to be the definition of "transfer of property" for the purposes of determining what is a transfer within the meaning of the term as used in the proviso to Section 2 of Bombay Act XVII [17] of 1942.

(3.) THE T. P. Act does not deal with partition as such. It only deals with certain categories of transfers of property, viz. , sales, mtges. , leases, exchanges and gifts, and the Act provides for the various modes in which such transfers of property can be made. Whether a partition of immoveable property is a transfer of property within the definition contained in S. 6 of the Act came to be considered in various H. Cs. and the result of those decisions has been summarised as under by Sir Dinshah Mulla at p. 49 of his commentary on the T. P. Act: