ARWINDLAL BHUKANDAS SHAH Vs. KHANDU JAINA PATIL

JUDGEMENT

(1.) THE petitioner in these four applications had made applications to the Mamlatdar for obtaining possession of the lands from his tenants, who are the first opponents in applications Nos. 104, 105 and 106 and first and second opponents in application No. 107. The petitioner was a member of a joint Hindu family, which owned about 420 acres. On December 20, 1956, a partition is said to have been effected. In that partition about 12 acres and 19 gunthas of land are said to have fallen to the share of the petitioner. The lands, which fell to his share, include the lands of which the opponents are the tenants. In the applications made to the Mamlatdar, the Mamlatdar ultimately passed orders directing that possession of half of the lands should be handed over to the petitioner. These orders were confirmed by the Deputy Collector. They were set aside by the Revenue Tribunal, which has remanded the matters to the Mamlatdar for fresh inquiry. The orders of remand are being challenged before us.

(2.) THE Revenue Tribunal has in its judgment observed: - By creating partition, it may be that a landlord may create an artificial necessity, which cannot be held to be a real or genuine necessity. If, therefore, a partition is made without such necessity, it will have to be presumed that it was made to oust the tenant and that there was no bona fide requirement. Partitions which are made with such object would also affect the question of the income of the lands being the principal source of income for the maintenance of the applicant. If, therefore, a partition is not bona fide and fails to prove the condition of the requirement for personal cultivation, the income of such lands cannot be said to be the income which would be the source of maintenance for the applicant landlord. .. .The burden lay on him to prove that the partition which has been effected does not affect the condition of bona fide requirement for personal cultivation. The Revenue Tribunal, therefore, appears to have been of the view that in order that there may be a valid partition, there must be compelling circumstances, which make it necessary for the members of the family to separate from one another. This view is not correct. It is not necessary in law that any necessity for making a partition should exist. Since questions regarding partitions have arisen in many cases, both in applications made under Section 29 and under Section 88C of the Tenancy Act, we consider it necessary to state what the correct position in law is. In Hindu law partition means severance of joint status. It consists in denning the shares of the coparceners in the joint property and actual division of the property by metes and bounds is not necessary. Once the shares are defined, the partition is complete. The property ceases to be joint immediately the shares are defined and thenceforth the parties hold the properties as tenants -in -common, see Mulla's Hindu Law, 1959 ed. pp. 492 -493. Every member of an undivided Hindu family has an indefeasible right to demand a partition of his own share and he may assert his right at any time he chooses. Partition does not give him a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form. It is not necessary that any necessity should exist or that there should be any circumstances which compel him to ask for separation. He may ask for separation for any reason lie deems proper. But whatever be the reasons, on account of which he wants severance, his right to obtain and possess the share, to which he is entitled, cannot be denied. The other members of the family must submit to it, whether they like it or not..neither the co -sharers can question it, nor can the Court examine his conscience to find out whether his reasons for separation were well founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others. Girja Bai v. Sadashiv Dhundiraj (1916) L.R. 43 IndAp 151 . 18 Bom. L.R. 621. The motive or the reasons, on account of which partition is effected, have, therefore, no bearing on its validity.

(3.) THE Tenancy Act does not take away or restrict the right given by law to members of an undivided Hindu family to effect a partition. Sub -section (2) of Section 31 specifies March 31, 1957, as the last date, before which a landlord, who wants possession of his land either for personal cultivation or for any non -agricultural purpose, must make an application to the Mamlatdar. Sub -section (3) extends this date in cases in which the landlord is a minor, a widow or a person subject to mental or physical disability, or a serving member of the armed forces. The proviso to this sub -section states that this sub -section shall not apply, if a person of such category is a member of a joint family, unless the share of such person in the joint family has been separated by metes and bounds before March 31, 1958, and unless such person has got his proper share and not a larger one in the entire joint family property. Similar provisions have been made in the proviso to Clause (a) in sub Section (1) of Section 32F and in the proviso in Sub -section (4) of Section 33A recently added to the Act. By these provisions the Legislature has, therefore, conferred benefits on persons, falling in the above categories, in whose cases partition had been made before March 31, 1958. It is, therefore, clear that the Legislature intended that partition should have its ordinary legal effect even for purposes of the Tenancy Act.