SHRIKRISHNA NIMAJI Vs. NAMDEO BAPUJI

JUDGEMENT

(1.) The question referred to the Full Bench is: Whether Manabai v. Ramchandra, 1958 Nag LJ 453 was correctly decided? In that case, it was held that the word "transfer" as used in Subsection (9) of Section 9 of the Berar Regulation of Agricultural Leases Act, 1951 (No. XXIV of 1951) does not include partition. The case, in which this reference has been made, has, however, to be decided by reference to the provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (No. XCIX of 1958), hereinafter referred to as the Tenancy Act. With the consent of the advocates for the parties, we have, therefore, decided to alter the question, which is to be considered by us, as follows: "Whether partition is a transfer within the meaning of Sub-section (7) of Section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958?"

(2.) The word "transfer" is not defined in the Tenancy Act. Clause (34) of Section 2 of the Tenancy Act states that unless the context otherwise requires, the words and expressions used in this Act but not defined shall have the meanings assigned to them in the Madhya Pradesh Land Revenue Code and the Transfer of Property Act, 1882, as the case may be. The word "transfer" is also not defined in the Madhya Pradesh Land Revenue Code, 1954. It will, therefore, have the meaning given to it in the Transfer of Property Act, unless the context otherwise requires.

(3.) The judicial opinion on the question whether partition is a transfer is not uniform. This Court has, however, held in a series of cases that partition is a transfer within the meaning of the term as defined in Section 5 of the Transfer of Property Act; see Waman v. Ganpat, 37 Bom LR 925 : (AIR 1936 Bom 10); Jivram Jagjivandas v. Kantilal, 52 Bom LR 104 : (AIR 1950 Born 247)"; Soniram Raghushet v. Dwarkabai, 53 Bom LR 325 : (AIR 1951 Bom 94) and Dayabhai v. State of Bombay, 62 Bom LR 348. Some doubt on these decisions was thrown in 1958 Nag LJ 453, but as will be clear from the judgment in this case, it was decided in the light of the provisions of the Berar Regulation of Agricultural Leases Act. Several cases under the Bombay Tenancy Act have also been decided on the basis that partition is not a transfer within the meaning of this Act.