RATANLAL SITARAM Vs. RUKHMABAI

JUDGEMENT

(1.) The dispute involved in this writ petition relates to field survey number 5, admeasuring 36 acres 19 gunthax of Mouza Marathwadki, taluq Kelapur' district Yeotmal. The field originally belonged to one Giglabai wife of Laduram Agarwal, who died on 3-2-1951. Before her death, she executed a will dated 5th August 1948 and gave a limited estate in respect of the field to Smt. Parwatibai wife of her son Bajranglaf, who died sometime in 1918 or 1919. In the will it was further stated that on the death of Parwatibai the field will become an absolute property of the petitioners before this Court, It appears from the record that one Sambha, the predecessor-in-title of the respondents-tenants, took the aforesaid field on lease from Parwatibai in the agricultural year 1952-53. After her death, according to the petitioners, by virtue of the will executed by Giglabai, the petitioners became the owners of the field property. According to the petitioners, as they required the suit field for their bona fide cultivation, after serving a notice under Section 38 (2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, referred to hereinafter as the Vidarbha Tenancy Act, terminating the tenancy of original tenant Sambha, they filed an application under Section 36 read with Section 38 of the Vidarbha Tenancy Act claiming restoration of possession on the ground that they required it for their bona fide personal cultivation.

(2.) Sambha, the tenant, opposed the application and contended that Parvatibai was not a limited owner as after the commencement of the Hindu Succession Act, 1956 she became an absolute owner of the property. He denied the service of the notice and further contended that the field was not required by the petitioners for their bona fide personal cultivation.

(3.) It appears from the record that both the parties adduced evidence before the Tenancy Naib Tahsildar and the Tenancy Naib Tahsildar after appreciating the evidence on record found that the two cloth shops which were being run by the father of the petitioners were petty cloth shops. He further found that they were neither the members of joint family, nor the said shops were ancestral properties of the petitioners, and therefore, merely because they are working in the said shop, it could not be said that they have any pecuniary interest therein. The Tenancy Naib Tahsildar further found that the income from the disputed field was the principal source of income of the petitioners and they required the suit field for bona fide personal cultivation,