1. This is an application In revision by the defendant No. 1 from an order passed by the Civil Judge, Senior Division, Daryapur, under which he has framed seven issues and ordered that the issue No. 3 regarding the proof of legal necessity should be decided first and thereafter the fourth issue regarding the defendants proving that they had been tenants of the land be referred to the tenancy Court.
2. The plaintiffs have filed a suit for partition and possession of their share of the suit property. Plaintiffs' case is that defendant No. 3, their father, had entered into a transaction apparently of a lease and that as a result of this transaction defendants Nos. 1 and 2, who are brothers, are in possession of the land. According to the plaintiffs this transaction which their father had with the other defendants is without legal necessity. They further plead that this transaction which appears apparently of a lease is, in fact, a loan transaction and not a lease deed at all
3. The defendants contested the claim of the plaintiffs and have stated that they have been tenants of the suit land since the year 1956. The learned Civil Judge, during the course of the suit proceedings, framed several issues. They are as follows:--
'1. Do plaintiffs prove that the transaction was one of loan?
2. Do they prove other objections (to the transaction) which are enumerated in para 2 of the plaint?
3. Do defendants 1 and 2 prove legal necessity?
4. Do defendants prove that they have been tenants of the land?
5. To what share, if any, the plaintiffs are entitled to?
6. Are they entitled to the possession of the same?
7. What order?'
The learned Civil Judge after framing the issues passed an order that issue No. 3 shall be decided first and then issue No. 4 shall be referred to the tenancy Court. Against this order of the trial Court, the original defendant No. 1 has come here in revision.
4. The learned advocate for the applicant contends here that the trial Court ought to have sent the issue regarding the tenancy at once to the tenancy Court instead of waiting for and deciding the issue regarding the legal necessity; it is contended by him that the plaintiffs' say is that the transaction which their father had with the defendants was a loan transaction; that on the other hand the contention of the defendants is that it is a lease transaction. Therefore, according to him, the matter of lease has to be first decided and, incidentally, according to him, while deciding the issue of lease, the tenancy Court ought also to decide whether it is a loan transaction or whether it is not a loan transaction. It is further argued by him that the finding on the issue of legal necessity will ultimately depend upon the nature of the transaction. It is argued by him that if it is a loan transaction, then the legal necessity has to be shown in a particular way and if it is a lease transaction, the legal necessity has to be shown in a different way. It is, therefore, urged by him that the Civil Court has erroneously decided to try the legal necessity issue first and thereafter to refer the tenancy issue to the tenancy Court. He relies upon 1963 Mah LJ 10, Savalaram v. Mukund. That was a case in which the lands belonged to a Hindu joint family consisting of three sons and their father. The sons issued a public notice that no person should enter into any transaction with their father as he was not the manager and was a person of a weak mind. It appears that later the father leased two of the family lands and therefore the sons filed a suit against the father and the lessee for partition alleging that the lessee had taken the lease taking advantage of the weak mind of the father who was not the manager and that the lease was not for legal necessity and binding on them. The Civil Court referred to the Mamlatdar the question whether the lessee was the tenant of the land. The Mamlatdar and the Deputy Collector held that he was a tenant. But in revision, these orders were set aside by the Maharashtra Revenue Tribunal holding that the tenancy Court had no jurisdiction to decide whether the lease was not for legal necessity or for the benefit of the family and the reference was not competent. The High Court was thereafter moved under Articles 227 of the Constitution and it was held by this Court that the Revenue Tribunal was right in its view that the question whether the lease granted by the father was binding on the sons can only be decided by the Civil Court. The view of the revenue Court that reference was not competent however was not correct. Having regard to the fact that the petitioner had contended that he was the tenant of the entire lands and that this claim had been denied by the sons, the Civil Court was bound to make a reference to the Mamlatdar. It was observed that the proper course in the circumstances would have been for the Mamlatdar to stay the proceedings and to ask the Civil Court to decide whether the father of the plaintiffs could lease the lands on behalf of the joint family and whether the transaction of lease was not binding on the sons for the reasons stated by them in their plaint, The reply to the question referred to the Mamlatdar by the Civil Court should be that the petitioner is a tenant of the lands, but that his right to be a tenant of the entire lands is subject to the decision of the Civil Court on the question whether the transaction of lease is not binding on the sons for any of the reasons given by them in their plaint. If the Civil Court does not accept the plaintiffs' contentions and conies to the conclusion that the plaintiffs are also bound by the transaction of lease, the petitioner will be a tenant of the entire lands. If, on the other hand, the Civil Court holds that the transaction is not binding on the sons, the petitioner will be a tenant of the father's undivided interest in the lands. It is in this way that the learned advocate for the applicant says that unless the tenancy issue is decided, the question of legal necessity cannot be decided. I do not think this note in any way lays down any set proposition as to when the tenancy issue has to be referred to the tenancy Court and when not.
5. The learned advocate for the applicant also refers to a case of Brijlal v. Shamdhan, in Note No. 96 in 1964 Mah LJ 47. That was also a case in which an issue as to whether the transaction was bogus and nominal or whether it was a transaction of lease, had to be considered. It was contended for the plaintiffs that the question of determination of the issue regarding the tenancy would arise only if the defendants succeeded in proving that the sale deed was nominal and bogus and that the Civil Court had no jurisdiction to refer the issue regarding the lease to the revenue authority till the issue regarding the nominal and bogus nature of the sale deed was decided. Mr Justice Tambe, who was hearing this revision application, has observed that the two issues represent the rival claims of the parties as regards the relationship between them; that what the court had to decide was: What the relationship between the parties was? that the relationship claimed by one of the parties was that of a tenant and that, that being the issue, it could only be decided by the revenue authorities. Therefore, this case also does not lay down any set proposition as to the stage at which the tenancy issue is or is not to be sent to the tenancy Court.
6. In so far as the facts and circumstances of our case are concerned, I do not think it is necessary that the tenancy issue should be decided first and thereafter the issue of legal necessity. After all, what is the legal necessity? In Dr. Mulla's Hindu Law is mentioned what is 'legal necessity' in paragraph 243. Within the meaning of legal necessity, the payment of Government revenue and of debts which are payable out of the family properties, maintenance of coparceners and of the members of their families, the marriage expenses of male coparceners and the daughters of the coparceners, the performance of necessary funeral or family ceremonies, the costs of necessary litigation including the costs of defending the head of the joint family or any other member against a serious criminal charge, payment of debts incurred for family business or other necessary purpose etc. are included. Therefore, the point before the Court would be as to what exactly was the legal necessity when that transaction was entered into and whether any of these necessities was there when the father of the plaintiffs had entered into the suit transaction. Whether the transaction was a lease or whether it was a loan would not, in my opinion, matter much if the legal necessity as contemplated by the Hindu Law was existing at the time of the transaction. The binding nature of that transaction would be decided only when the parties show the existence or the absence of the legal necessity at the time of the transaction. Therefore, it would be convenient to decide the issue of the existence of legal necessity first and then proceed to consider the issue of tenancy. In my view, therefore, the learned trial Court was quite right in deciding that the question of legal necessity has to be decided first and thereafter the question regarding the lease has to be referred to the tenancy Court.
7. But the learned advocate for the applicant says that under Section 125 of the Bombay Tenancy and Agricultural Lands Act, if any suit instituted in the Civil Court, involves any issue regarding the tenancy, then the Civil Court has no other alternative but to stay the suit and refer such issue to the tenancy Court. It is, however, difficult for me to accept this contention for the obvious reason that there may be several issues framed by the Civil Court and there may be in a given case quite a few issues which have to be decided before an issue of tenancy has to be referred. The Civil Court has naturally to cut short the period of litigation and, therefore, if certain issue could decide certain facts and if those facts are established, then it may not be necessary also to refer the issue of tenancy to the tenancy Court. Therefore, the Civil Court has always to look into the facts and circumstances of the case and then decide at what stage the issue regarding the tenancy has to be referred to the Mamlatdar or the revenue tribunal. There cannot certainly be any hard end fast rule to direct the Civil Court to send these issues of tenancy at a particular stage of the suit proceedings.
8. For the aforesaid reasons, therefore, this application will have to be dismissed. The application is dismissed with costs.
9. Application dismissed.