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Shrikrishna Nimaji and ors. Vs. Namdeo Bapuji and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. Nos. 319, 377 and 383 of 1961
Judge
Reported inAIR1963Bom163; (1963)65BOMLR251; 1963MhLJ289
ActsTenancy Law; Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 - Sections 2, 2(34), 36, 38(7), 41, 46, 49-A, 57, 91 119-B, 122 and 130; Madhya Pradesh Land Revenue Code, 1954; Berar Regulation of Agricultural leases Act, 1951 - Sections 9(9); Transfer of Property Act, 1882 - Sections 5
AppellantShrikrishna Nimaji and ors.
RespondentNamdeo Bapuji and anr.
Appellant AdvocateS.V. Natu, ;S.T. Didolkar, Advs. and ;J.N. and M.N. Chandurkar
Respondent AdvocateC.S. Dharmadhikari and ;N.R. Raoot, Advs.;S.N. Kherdekar, ;A.V. Khare, ;B.A. Wazalwar, ;C.S. Dharmadhikari and ;V.M. Kulkarni, Advs.
Excerpt:
.....region and kutch area) act (bom. xcix of 1958), sections 38(7) & (2), 2(34), 119b, 57 - transfer of property act (iv of 1882), section 4--partition whether transfer within section 38(7) of bom. act xcix of 1958.;partition is not a transfer within the meaning of section 38(7) of the bombay tenancy and agricultural lands (vidarbha region and kutch area) act, 1958.;manabai hari v. ramchandra (1958) 60 bom. l.r. 1431 : s.c. [1958] n.l.j. 453, waman v. ganpat (1935) 37 bom. l.r. 925, jivram jagjivandas v. kantilal (1949) 52 bom. l.r. 104, soniram raghushet v. dwarkabai (1950) 53 bom. l.r. 325, dayabhai v. state of bombay (1959) 62 bom. l.r. 348 and musammat girja bai v. sadashiv dhundiraj (1916) l.r. 43 i.a. 151 : s.c. 18 bom. l.r. 621 referred to. - - we do not think that it is..........38 states that nothing in this section shall confer on a tenure-holder, who has acquired any land by transfer after the 1st day of august, 1953, a right to terminate the tenancy of a tenant, who is a protected lessee and whose right as such protected lessee had come into existence before the transfer. this sub-section, therefore, applies to a tenure-holder, who has acquired the land held by a protected lessee by transfer after the 1st day of august, 1953. the first question, which arises for determination, is whether a person, who obtains a land as his share on partition, can be said to acquire the land by transfer.6. mr. dharmadhikari, who appears on behalf of the respondent no. 1, has relied upon the following observations in 62 bom lr 348:'whatever be the process which may be.....
Judgment:

Chainani, C.J.

1. The question referred to the Full Bench is: Whether Manabai v. Ramchandra, 1958 NLJ 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, : AIR1950Bom247 '; Soniram Raghushet v. Dwarkabai, : AIR1951Bom94 and Dayabhai v. State of Bombay, 62 Bom LR 348. Some doubt on these decisions was thrown in 1958 NLJ 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.

4. It has been urged by Mr. Natu and Mr. Khare that the view taken in the above cases should be reconsidered. We do not think that it is necessary to do so or to decide whether partition is a transfer within the meaning of the Transfer of Property Act, because the various provisions of the Tenancy Act, to which I will presently refer, clearly indicate that partition is not a transfer within the meaning of Sub-section (7) of Section 38 of that Act. Sub-section (1) of Section 38 states, inter alia that a landlord may, after giving to the tenant a notice in writing at any time on or before the 15th day of February 1961, and making an application for possession under Section 36 on or before the 31st day of March 1961, terminate the tenancy of the land held by a tenant other than an occupancy tenant, if he bona fide requires the land for cultivating it personally. There is a proviso to this sub-section, with which we are not concerned. Sub-section (2) of this section provides as follows:

'(2) Where the landlord is of the following category, namely: -

(a) a minor,

(b) a widow.

(c) a serving member of the armed forces, or

(d) a person subject to any physical or mental disability, then, if he has not given a notice and made an application as required by Sub-section (1), such notice may be given and such application may be made--

(A) by the landlord within one year from the date on which --

(i) in the case of category (a) he attains majority;

(ii) in the case of category (c) he ceases to serve in such force;

(iii) in the case of category (d) he ceases to be subject to such physical or mental disability; and

'(B) in the case of a widow by the successor in title within one year from the date on which the widow's interest in the land ceases to exist:

Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in that sub-section unless the share of such person in the joint family has been separated by metes and bounds before the prescribed date and the Tashildar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property and not in a larger proportion:

* * *'

This sub-section extends the time for terminating the tenancy and making an application for possession in the case of the persons, who belong to the categories mentioned in Clauses (a) to (d). This is subject to the conditions mentioned in the proviso, one of which is that if such person is a member of a joint family, his share in the joint family property has been separated by metes and bounds before the prescribed date. The Act came into force on 26th December 1958, and in order to enable persons falling within the special categories to get the benefit of this sub-section, 30th June, 1959, was fixed as the prescribed date. They were, therefore, given about six months' time to get their shares separated by metes and bounds. If such a person's share was so separated before 30th June, 1959, ho can terminate the tenancy and apply for possession after this date, during the period specified in Clauses (A) and (B) of the sub-section.

5. Sub-section (7) of Section 38 states that nothing in this section shall confer on a tenure-holder, who has acquired any land by transfer after the 1st day of August, 1953, a right to terminate the tenancy of a tenant, who is a protected lessee and whose right as such protected lessee had come into existence before the transfer. This sub-section, therefore, applies to a tenure-holder, who has acquired the land held by a protected lessee by transfer after the 1st day of August, 1953. The first question, which arises for determination, is whether a person, who obtains a land as his share on partition, can be said to acquire the land by transfer.

6. Mr. Dharmadhikari, who appears on behalf of the respondent No. 1, has relied upon the following observations in 62 Bom LR 348:

'Whatever be the process which may be said to bring about this result of the co-owner or co-sharer to whom the property is allotted by the partition getting the property for his sole use, theresult is that the person who gets the property on partition is constituted the sole owner of that property and he acquires in that particular property not only his own share, right, title and interest therein which he erstwhile enjoyed but also the share, right, title and interest of the other co-owners or co-sharers in that property.'

Mr. Dharmadhikari has, therefore, argued that as the person, to whom a land is allotted on partition, acquires by the process of partition the interest of other co-parceners in that land, he can be said to have acquired that land on partition. This argument is not correct, for, as observed by the Privy Council in Girja Bai v. Sadashiv Dhundiraj, 43 Ind App 151 at p. 161 : AIR 1916 PC 104, partition does not give him a title or create a title in him, it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. At page 159 (of Ind App) : (at p. 107 of AIR), their Lordships have quoted Sarkar's translation of a passage in Viromitrodaya by Mitra Misra, which is as follows :

'For partition is made of that in which proprietary right hag already arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares.'

Partition does not, therefore, give the person, to whom a land is allotted, any new title or create a title in him to that land. He was already the owner of the land along with other co-parceners and partition only enables him to acquire exclusive title to that land. As, therefore, in the words of the Privy Council, partition only enables him to obtain in a definite and specific form the land, which was his own, it cannot be said that he has acquired that land. By the process of partition, he no doubt acquires the interest of other co-sharers in that land, but the words in the sub-section are 'acquired any land'. It does not contain the words 'or any interest therein', such as are used in Section 119-B. The language used in Sub-section (7) of Section 38 of the Tenancy Act, therefore, itself indicates that this sub-section does not apply in cases, in which a person becomes the sole owner of the land as a result of partition.

7. Another difficulty in holding partition to be a transfer is that in that case there would be a conflict between Sub-section (2) and Sub-section (7) of Section 38. Under Sub-section (7), a tenure-holder, who has acquired any land by transfer after the 1st day of August, 1953, has no right to terminate the tenancy of the tenant, who is a protected lessee and whose right as such protected lessee had come into existence before the transfer. This sub-section applies to protected tenants only, while sub-sections (1) and (2) apply to all tenants including protected tenants. As pointed out above, sub-section (2) gives a right to a person, who belongs to one of the categories referred to in this sub-section, to terminate the tenancy of his tenant, even if he is a protected tenant, after 30th June, 1959, if his share in the family property has been separated by metes and bounds before this date. He would be able to exercise this right, even if the partition has taken place after 1st August, 1953, but before 30th June, 1959. This right will not be available to him at least in respect of protected tenants, if partition has taken place after 1st August, 1953, and is regarded as a transfer. If it had been the intention of the Legislature to treat partition as a transfer, the date specified in the proviso to Sub-section (2) would have been the same as is mentioned in Sub-section (7), viz., 1st August, 1953. The usual rule of interpretation is to read the different provisions of an Act in such a manner as to avoid a conflict between them. If, therefore, Sub-sections (2) and (7) are to be reconciled, as they should be, the word 'transfer' as used in Sub-section (7) cannot be held to include a partition.

8. Our attention has also been invited to two other sections. Sections 57 and 119-B, in which a distinction has been drawn between 'transfer' and 'partition'. Sub-section (1) of Section 57 states that no land purchased by a tenant under Section 41 or 46 or 49-A or 130 or sold to any person under Section 91 or 122 shall be transferred by sale, gift, exchange, mortgage, lease or assignment or partitioned without the previous sanction of the Collector. Sub-section (2) states that any transfer or partition of land in contravention of sub-section (1) shall be invalid. Section 119-B states that where any transfer of land or of any interest therein, whether by sale, gift, exchange, mortgage, lease or otherwise, or partition of land is invalid under any of the provisions of this Act, the acquisition of such land under such transfer or partition shall also be invalid. In these two sections, therefore, partition is not regarded as a transfer. This circumstance also shows that the Legislature did not intend that partition should be regarded as a transfer for the purposes of the Tenancy Act.

9. It has been urged that in the view, which we are inclined to take, we will be defeating the object of the Act, which is to protect the tenants and to give them fixity of tenure. It is, however, necessary to remember that while the Act imposes several restrictions on landlords, it also contains provisions enabling the landlords to obtain possession of their lands on certain grounds, subject to the conditions specified in the Act. The object of the Act cannot, therefore, be said to have been frustrated, if the restrictions on the landlords are not extended beyond those, which are imposed by the Act.

10. In our opinion, therefore, partition is nota transfer within the meaning of Sub-section (7)of Section 38 of the Tenancy Act. The reply tothe question as formulated by us above will,therefore, be in the negative.

11. Answered in the negative.


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