APPA DHONDI PARRKHE Vs. SHRIKANT VITHALRAO JOSHI

JUDGEMENT

(1.) THIS petition raises an interesting and important question of law concerning legal efficacy of 'partition' for purposes of Bombay Tenancy and Agricultural Lands Act, 1948 where the lands were cultivated by the tenant on 1st April 1957 as a result whereof all the lands are allotted to the minor coparcener in the landlord's joint family so as to affect the right of the tenant to make statutory purchase of the lands in question.

(2.) THE impugned partition was purportedly effected by and between Respondent No. 1 - Shrikant Vithalrao Joshi, who was then a minor and his father Shri Vithalrao Joshi. The said impugned partition is supposed to have been effected on 28th November 1956. The Tenancy Aval Karkun, Ajara, held in the impugned proceedings for exemption of the petition lands initiated by Respondent No. 1 under Section 88C of the Act (being the proceedings referred to in later part of the order) that partition deed dated 28th November 1956 could not be recognised for the purposes of the Bombay Tenancy and Agricultural Lands Act, 1948 as the said purported partition deed did not satisfy the conditions prescribed by proviso to Section 31 of the Act. The Tenancy Aval Karkun further held that the impugned partition was not genuine as the objective of the said partition appeared to be to evade the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. In appeal preferred by Respondent No. 1, the Special Land Acquisition Officer (i.e. the Appellate Authority under the Tenancy Act) held that the impugned partition shall have to be treated as a genuine transaction as there was a clear distinction between the concept of evading the provisions of the Act and avoidance thereof. According to the above referred appellate authority, the Respondent No. 1 landlord and his father did not evade the provisions of the Act while executing the deed of partition dated 28th November 1956, but had merely 'avoided' the provisions of the said Act, which exercise was permissible to the coparceners of joint family under the law of the land.

(3.) BEFORE I deal with the relevant authorities cited at the bar, it is necessary to refer to the legislative history of the Bombay Act No. XIII of 1956, the same having been exhaustively and accurately set out in the Judgment of the Supreme Court in the case of Sri Ram Ram Narain Medhi v. State of Bombay : AIR1959SC459 . Bombay Act XIII of 1956 i.e. the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1956 received the assent of the President of India on 16th of March 1956. The Amending Act was published in the Bombay Government Gazette on March 29, 1956 and came into force throughout the State on August 1, 1956. In para 8 of the above referred judgment, N.H. Bhagwati, J., speaking for the Bench of the Supreme Court, traced the history of litigation concerning Bombay Act XIII of 1956 and observed that land -holders from Kolhapur and Sholapur districts in the State of Bombay had filed petitions in the Bombay High Court under Article 226 of the Constitution of India challenging the constitutional validity of the Bombay Act XIII of 1956 in November 1956. It must be stated in the passing that the impugned partition between Shri Vithalrao Joshi and his two years' old minor son Shrikant was effected on 28th November, 1956 i.e. on the eve of Tillers' Day.