RADHABAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE short question that arises for decision in this reference is whether the interpretation of the amended Sub-section (7) of Section 38 of the Bombay Tenancy and Agricultural Lands Act, 1958 (XCIX of 1958) (hereinafter referred to as the new Tenancy Act), in the decision of this Court in Salubal v. Chandu, 1966 Mah LJ 289 = (AIR 1966 Bom. 194) is correct, and if not, what is the correct interpretation.

(2.) THE circumstances under which the reference came to be made are as follows: One Mohanlal was a landholder of survey No. 74/3, area 9. 17 acres, In village Uttar Wadhona in Yeotmal District. Mohanlal had a wife Radhabai and a son Lakhanlal who was born on 29-4-1937. Mohanlal died on 15-4-1938 and on that date Lakhanlal was a minor. Lakhanlal attained majority on 29-4-1958, the age of majority in his case being twenty-one years because a guardian had been appointed. After he attained majority, the property belonging to the joint family came to be partitioned between Radhabai and Lakhanlal. This was on 22-6-1959 and the field survey No. 74/3 came to the share of Radhabai. Thus, Radhabai became the landholder. She required the field for her bona fide personal cultivation and she gave a notice under Section 38 (1) of the new Tenancy Act to the respondent No. 5 Uttamchand Uderaj Marwadi who was the tenant. After the notice, she applied under Section 38 for possession on the ground that she required the field for her bona fide personal cultivation. On the date on which the Naib Tahsildar decided the application the position in law and upon the authorities was as follows: In Manjurabai v. Pralhad, 1958 Nag LJ 100 a Full Bench of the Revenue Tribunal at Nagpur had on 11-12-1957 held under Section 9 (9) of the Berar Regulation of Agricultural Leases Act that a partition is a transfer. On 24-6-1958 however a Division Bench of the High Court (to which one of us Ketval J. was a party) held in Manabai v. Ramchandra, 1958 Nag LJ 453 under the same provision of law that the word "transfer" as used in Section 9 (9) does not include a partition. It expressly reversed the decision in Manjurabai's case, 1958 Nag LJ 100 (Rev. ). These cases were as stated above decided under the provisions of the Berar Regulation of Agricultural Leases Act. Before the Naib Tahsildar's decision however the Bombay Tenancy and Agricultural Lands Act (Vidarbha Region) Act 1958 (Act XCIX of 1958) came into force on 30-12-1958. Section 132 thereof repealed the Berar Agricultural Leases Act. Two further decisions must thereafter be noted. On 11-12-1959 a Division Bench of the High Court held in Dayabhai v. State of Bombay, 1960 Nag LJ 416 under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 that the word "transfer" not being defined in that Act, must be given the same meaning as in Section 5 of the Transfer of Property Act and under the Transfer of Property Act it had been held in a number of cases that "transfer" includes a partition and that therefore it must be held that under the Prevention of Fragmentation and Consolidation of Holdings Act 1947 also a partition of an agricultural holding amounts to a "transfer" within the meaning of Section 27 (b) of that Act. On 23-8-1961 a Division Bench of Maharashtra Revenue Tribunal held in Rambhau v. Bhaskar, 1961 Nag LJ 493 under Section 9 (9) of the Berar Regulation of Agricultural Leases Act that a partition amounts to a transfer. This decision was obviously wrong in view of the previous decision of a Division Bench of this Court in Manabai's case, 1958 Nag LJ 453, The Maharashtra Revenue Tribunal was bound to follow the decision of the High Court.

(3.) THIS was the position in law and upon the authorities when the present matter came up for decision before Mr. D. N. Kharche the Naib Tahsildar. He had of course to decide the case under the provisions of Section 38 of the new Tenancy Act (99 of 1958) and could have taken the view that he was uninhibited by the previous decisions because they were decisions under the Berar Regulation of Agricultural Leases Act or the Transfer of Property Act. He did not do that. He resorted to the simple expedient of ignoring all decisions and simply saying that the tenant was recorded as a tenant in 1953-54 whereas the partition took place only on 22-6-1959 and therefore the landlady could apply under Section 38 (3) (d) of the Tenancy Act. The order is otherwise so cryptic and ill-written that it is difficult to understand what this Naib Tahsildar intended to say.