SERENABAI MUNCHERSHAW DAVIERWALLA Vs. M.B. PANSE

JUDGEMENT

(1.) THE petitioner and her husband had created a trust in respect of certain properties, including several agricultural lands, by executing an indenture of trust on July 30, 1941. By the trust -deed, the petitioner's husband, the petitioner, respondent No. 4 and one Jamshed Mountwalla were appointed as the trustees. The petitioner's husband died in September 1956. Jamshed Mountwalla resigned as a trustee on January 1, 1958. The present trustees, therefore, are the petitioner and respondent No. 4. Clause 2 of the trust deed provides that after the death of the petitioner's husband, the trustees shall pay or allow the petitioner to receive and recover the income of the trust estate and to receive or retain the net income for her sole use arid benefit during her lifetime without any liability to account for the same. Clause 8 of the trust deed is in the following terms: -

(2.) MR . Sorabjee, who appears on behalf of the petitioner, has raised two points. He has first urged that the view taken by the Tribunal and the Additional Collector that the petitioner is not the landlord of the land is not correct. He has contended that as the petitioner is one of the trustees and us she is also entitled to receive and enjoy the income of the trust properties during her lifetime, she should be held to be the landlord. There is no force in these arguments of Mr. Sorabjee. Under Clause 8 of the trust deed, which I have quoted above, the trustees, who include the petitioner, cannot lease any property except with the consent of the petitioner. This clause as well as the other clauses of the trust deed, draw a clear distinction between the petitioner in her capacity as a trustee and the petitioner in her capacity as a beneficiary under the trust. The power to give on lease is conferred upon the trustees and not upon the petitioner. She alone cannot lease any property. Consequently, the petitioner cannot be said to be the landlord of the land held by the respondent as a tenant.

(3.) THE second point, which Mr. Sorabjee has urged, is that as the petitioner is one of the trustees and as she is a widow, Section 32F will apply and the respondent -tenant cannot be deemed to have purchased the land on April 1, 1957. In order to decide this question, it is necessary to consider certain provisions of the Act. Sub -section (1) of Section 31 gives a right to a landlord to obtain possession of his land from his tenant, if he requires it bona fide for personal cultivation or for any non -agricultural use. For this purpose he has to make an application to the Mamlatdar. Under Sub -section (2) the last date for making such an application was March 31, 1957. Sub -section (3) is in the following terms: