H.K. Chainani, C.J.
1. The petitioner and her husband had created a trust in respect of certain properties, including several agricultural lands, by executing an indenture of trust on July 30, 1941. By the trust-deed, the petitioner's husband, the petitioner, respondent No. 4 and one Jamshed Mountwalla were appointed as the trustees. The petitioner's husband died in September 1956. Jamshed Mountwalla resigned as a trustee on January 1, 1958. The present trustees, therefore, are the petitioner and respondent No. 4. Clause 2 of the trust deed provides that after the death of the petitioner's husband, the trustees shall pay or allow the petitioner to receive and recover the income of the trust estate and to receive or retain the net income for her sole use arid benefit during her lifetime without any liability to account for the same. Clause 8 of the trust deed is in the following terms:-
The First Settlor during his lifetime and after his death with the Written consent of his wife Shirinbai (if she survives the Settlor) the Trustees. shall have the power to give on lease the trust estate or any part or parts thereof for such time at such rent and on such terms and conditions as they in their absolute discretion think fit and proper.
Respondent No. 8 (hereinafter referred to as the respondent) is the tenant of one of the lands in respect of which the trust is made. Sub-section (1) of Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, provides that on the first day of April 1957 every 'tenant shall be deemed to have purchased from his landlord the land held by him as a tenant. Under Section 32F the date of purchase by a tenant is postponed in certain cases. If the landlord is a widow, the tenant cannot exercise his right to purchase the land so long as the widow's interest in the land subsists. Section 32G provides for an inquiry to be held by the Tribunal constituted under the Act for the purpose of deciding which tenants shall be deemed to have purchased the lands held by them and also for fixing the purchase price of lands. Notice was issued to the petitioner under this section and an enquiry was held by the Deputy Collector, who was constituted as the Tribunal under the Act. Respondent No. 4 appeared before the Tribunal on behalf of himself and the petitioner and contended that as the petitioner was a widow, the right of the respondent-tenant to purchase the land could not under Section 32F be exercised during her lifetime. It was urged before the Tribunal that the petitioner was the landlord and that, consequently, she was entitled to the benefit of Section 32F. These arguments were rejected by the Tribunal. In the opinion of the Tribunal, the petitioner alone was not the landlord, but the landlords were the two trustees, the petitioner and respondent No. 4. The Tribunal, therefore, held that the aid of Section 32F could not be taken in this case. The Tribunal then proceeded to fix the price of the land. Against the order made by the Tribunal the petitioner appealed to the Collector, The Additional Collector, who heard the appeal, agreed with the view taken by the Tribunal and dismissed the appeal. Thereafter the present Special Civil Application has been filed.
2. Mr. Sorabjee, who appears on behalf of the petitioner, has raised two points. He has first urged that the view taken by the Tribunal and the Additional Collector that the petitioner is not the landlord of the land is not correct. He has contended that as the petitioner is one of the trustees and us she is also entitled to receive and enjoy the income of the trust properties during her lifetime, she should be held to be the landlord. There is no force in these arguments of Mr. Sorabjee. Under Clause 8 of the trust deed, which I have quoted above, the trustees, who include the petitioner, cannot lease any property except with the consent of the petitioner. This clause as well as the other clauses of the trust deed, draw a clear distinction between the petitioner in her capacity as a trustee and the petitioner in her capacity as a beneficiary under the trust. The power to give on lease is conferred upon the trustees and not upon the petitioner. She alone cannot lease any property. Consequently, the petitioner cannot be said to be the landlord of the land held by the respondent as a tenant.
3. In para. 3 of the petition, it is stated that the petitioner has been receiving the rents of the land held by the respondent and that the receipts were also issued to the respondent by the petitioner. Mr. Sorabjee has urged that these facts show that the respondent had recognised the petitioner to be his landlord. This point was not taken either before the Tribunal or before the Additional Collector. No evidence has also been led on it. Clauses 2 and 9 of the trust deed may also have to be considered in this connection. The question is one of fact, which has not been investigated. Consequently we have not allowed Mr. Sorabjee to raise this point for the first time in this Court.
4. The second point, which Mr. Sorabjee has urged, is that as the petitioner is one of the trustees and as she is a widow, Section 32F will apply and the respondent-tenant cannot be deemed to have purchased the land on April 1, 1957. In order to decide this question, it is necessary to consider certain provisions of the Act. Sub-section (1) of Section 31 gives a right to a landlord to obtain possession of his land from his tenant, if he requires it bona fide for personal cultivation or for any non-agricultural use. For this purpose he has to make an application to the Mamlatdar. Under Sub-section (2) the last date for making such an application was March 31, 1957. Sub-section (3) is in the following terms:
Where a landlord is a minor, or a widow, or a person subject to mental or physical disability or a serving member of the armed forces then such notice may be given and an application for possession under Section 29 may be made-
(i) by the minor within one year from the date on which he attains majority;
(ii) by the successor-in-title of a widow within one year from the date on which her interest in the land ceases to exist;
(iii) within one year from the date on which mental or physical disability ceases to exist; and
(iv) within one year from the date on which a serving member of the armed forces ceases to be a serving member.
If, therefore, the landlord is a widow, an application for possession can be made even by her successor-in-title within one year from the date on which her interest in the land ceases to. exist. Sub-section (1) of Section 32 states that on the first day of April 1957 every tenant shall be deemed to have purchased from his landlord the land held by him as a tenant. This is subject to certain conditions mentioned in the sub-section, with which we are not concerned in this application. Sub-section (1) of Section 32F provides as follows:-
(1) Notwithstanding anything contained in the preceding sections,-
(a) where the landlord is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces, the tenant shall have the right to purchase such land under Section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under Section 31: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 this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the mamlatdar 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.
The effect of this section is that where the landlord is a widow, the right of the tenant to purchase the land held by him will arise after she has ceased to have interest in the land,
5. Mr. Sorabjee has contended that the benefit of Section 32F is available, even if one of the landlords is a widow or belongs to one or the other category mentioned in el. (a) of this section. The proviso to this clause, which requires the share of the person belonging to the special category to be separated by metes and bounds, applies to cases in which the person belonging to this category is a member of a joint family. The section does not require separation of interests or shares in the case of other joint landlords. This, it is argued, shows that this section would apply, even if one of the landlords belongs to one of the categories specified in Clause(a). The petitioner is one of the trustees. She is also a widow. According to Mr. Sorabjee, therefore, the right of the respondent-tenant to purchase the land is postponed under this section. We are unable to accept these arguments. The ownership of the trust properties, including the laud held by the respondent as a tenant, vests in the trustees jointly. They have no separate interest in these properties and they cannot partition them between themselves. No one ' trustee can say that he has any specified share or interest therein. The petitioner cannot, therefore, be said to be the owner of the trust properties or of any portion of them. The owners of the properties are the trustees and not the petitioner and respondent No. 4 in their individual capacities. A trustee qua trustee cannot be said to belong to one of the categories mentioned in Clause (a) of Sub-section (1) of Section 32F. In fact, we do not think that this clause was intended to apply to persons like trustees. Moreover, if we were to accept the arguments advanced by Mr. Sorabjee, the position of the tenant will be very uncertain. His right to purchase the land can then always be defeated by so arranging that at least one trustee belongs to one of the categories mentioned in Clause (a). We do not think that this could have been intended by the Legislature.
6. In our opinion, therefore, the petitioner cannot claim the benefit of Section 32F merely because she is one of the trustees.
7. The view taken by the Tribunal and the Additional Collector is correct. Rule discharged. Respondent No. 3 should get his costs from the petitioner. No order as to costs of respondent No. 4.