KU. MADHURI Vs. GANGADHAR

JUDGEMENT

(1.) The question involved in this petition relates to the construction of the second proviso to section 41(2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Tenancy Act). The facts necessary to be stated for the purposes of decision of this petition are: The petitioner is the daughter of one Keshaolal and there was a partition on 5-2-1959 of the ancestral property in the hands of Keshaolal between Keshaolal and his son Rajendra and by this deed of partition the field in dispute which is survey No. 1/2 of mouza Sonkal was given to the petitioner Madhuri for meeting the expenses of her maintenance, education and marriage. Keshaolal was to act as her guardian. There is a recital in the deed of partition that Keshaolal was entitled to sell the property which was set apart in the name of the petitioner if necessary, and that after the marriage of the petitioner, if any property was left that property would revert back to Keshaolal's son and to any other sons that may be born to him after the date of partition. Admittedly, after this partition the tenant-respondent recognised the petitioner as his landlord and the petitioner had also taken proceedings under section 38 of the Tenancy Act against the respondent. These proceedings, however terminated against the petitioner on the ground that her claim for resumption was hit by the provisions of section 38(7) of the Tenancy Act. The tenant then made an application on 2-5-1963 under section 43 read with section 41 of the Tenancy Act. By this application he prayed for the purchase price of the field to be fixed and he sought an order making the purchase price payable in 12 equal instalments and that a certificate of sale should be issued in his favour. This application was made in exercise of the right of purchase given by section 41 of the Tenancy Act. The substantial defence of the petitioner to this application was that she was a minor and therefore under sub-section (2) of section 41, right to purchase under section 41 could be exercised by the tenant only after the expiry of two years from the date on which the petitioner attained majority.

(2.) The Additional Tahsildar held that the tenant was entitled to purchase the field in dispute of which he was the tenant and by an order passed on 30-1-1964 he ordered that on payment of the full purchase price as determined by him, a certificate of purchase in the prescribed form shall be issued to the tenant and thereupon he shall be deemed to be a Bhumiswami of the land. Against this order, the petitioner filed an appeal and the appellate authority held that the provisions of section 41(2) of the Tenancy Act were not attracted in the case of the petitioner and that the Additional Tahsildar was justified in holding that the tenant was entitled to purchase the field in dispute. The petitioner then filed a revision application against this order to the Revenue Tribunal. The Tribunal found that the petitioner had failed to prove what her share was in the joint family property of which partition was effected on 5-2-1959 and that she had further failed to show that the property which she had obtained as a result of that partition was given to her in proportion to her share in the entire property so far as the area, assessment, classifications and value of the land were concerned, as contemplated by the latter part of the second proviso to section 41(2). The Tribunal therefore held that the minority of the petitioner was not a bar to the right of purchase conferred on the tenant by section 41(1) of the Act. The revision application was therefore rejected. The petitioner-landlord has now filed this petition challenging the orders of the Revenue Authorities.

(3.) The learned counsel appearing on behalf of the petitioner contends that on the finding of the Revenue Authorities that the petitioner had not satisfied the requirements of the second proviso to section 41(2), the petitioner's case would be governed by the main provision in section 41(2) and therefore until after two years after she attained majority the tenant was not entitled to purchase the land in dispute. It is contended that the petitioner had a right to be maintained out of the ancestral property in the hands of the father Keshaolal, and that there was justification for setting apart some property in her name in order to meet the expenses of her maintenance, education and marriage, and therefore she was entitled to continue in possession of this property during her minority and that the tenant would be entitled to purchase the field in dispute, which belonged to her, only after she had attained majority as provided by section 41(2) of the Tenancy Act.