ABDUL SAKUR DADAMIYA Vs. MARUTI BALI KOKATE

JUDGEMENT

(1.) IN these three cases the Bombay Revenue Tribunal has taken the view that for the purposes of the proviso to Sub -section (I) of Section 38E of the Hyderabad Tenancy and Agricultural Lands Act, the holding of a deceased Muslim will after his death be treated as one unit, unless it is divided by metes and bounds and the shares of his heirs in it separated. The correctness of this view is being challenged before us.

(2.) IN the first two cases, the lands in dispute belonged to Dadamiya, the father of the two petitioners, and his brother Abdul Gafoor. Dadamiya died some time in 1947, leaving behind the petitioners and another son, six daughters and two wives. The first opponents in the two petitions are the tenants of these lands. They were provisionally declared to have become the owners of the lands after the issue of a notification by the State Government under Sub -section (1) of Section 38E of the Act. The petitioners objected to these declarations. They contended that after the death of their father, they and his other heirs held the lands as tenants -in -common, that each of them was the owner of only his share in the lands, that this was less than two family holdings, and that, consequently, the tenants could not be declared to be the owners of the lands. These arguments were not accepted by the Revenue Tribunal. The Revenue Tribunal followed the decision of a Special Bench of the Revenue Tribunal in another case, in which it had been held that where the lands left by a deceased Mahomedan had not been divided by metes and bounds by his heirs, all the lands should be treated as one unit for the purposes of the proviso to Sub -section (1) of Section 38E.

(3.) IT has been contended before us that the view taken by the Revenue Tribunal is not correct, that under Mahomedan law the heirs of a deceased Muslim do not form a joint family, that each one of them is the owner of only his particular share, that they cannot, therefore, be said to be the owners of the whole holding and that, consequently, the share of each heir should be considered separately for deciding whether the tenant is entitled to purchase the lands, Sub -section (1) of Section 38E states that notwithstanding any law for the time . being in force or any custom, usage, decree, contract or grant to the contrary, the Government may, by notification in the Official Gazette, declare in respect of any area and from such date as may be specified therein that ownership of all lands held by protected tenants which they are entitled to purchase from their landholders in such area shall stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands. The first proviso to this sub -section states that the transfer under this sub -section shall he subject to the condition that the extent of the land remaining with the landholder after the purchase of the land by the protected tenant, shall not be less than twice the area of a family holding. Under these provisions, therefore, a tenant becomes the owner of the land, which he is entitled to purchase under the provisions of the Act, subject to the condition that the land left with his landholder is not less than twice the area of a family holding. Sub -section (1) of Section 38 lays down what lands a tenant is entitled to purchase from his landholder. This sub -section provides that a protected tenant shall be entitled to purchase the landholder's interest in the land held by the former as a protected tenant or, as the case may be, ordinary tenant. The proviso to this sub -section states that where such tenant is an ordinary tenant and the landholder is a minor, a widow, a person serving in the armed forces, or a person subject to any physical or mental disability, such tenant shall be entitled to purchase the landholder's interest after the expiry of two years from the date specified in this proviso, The Explanation to this sub -section states that where land is held by a tenant under two or more joint landholders, the proviso to Sub -section (1) shall not apply if at least one joint holder is outside the categories specified in the said proviso. This Explanation, therefore, deals with the case of joint holders, that is, where the land is held by more than one person and where one of the holders belongs to one of the categories mentioned in the proviso. The Legislature, therefore, also contemplated cases in which the land is held by more than one person. In such cases also the section will apply and the tenant is entitled to purchase the interest of all the joint holders, because they together are his landholders. Even if one of the joint holders is a widow or belongs to one of the other categories mentioned in the proviso, the tenant will be entitled to purchase the shares of all of them in the land, if at least one joint holder is outside the categories specified in the said proviso.