1. This petition was originally heard by single Judge, i.e. Dharmadhikar, J. He found that to a certain extent inconsistent views have been expressed regarding the exact meaning and interpretation of S. 43-1E of the Bombay Tenancy and Agricultural Lands Act, 1948. In view of this, the matter was placed before the Chief Justice for referring it to the division Bench and it is in this was that we are deciding the present writ petition.
2. Survey No. 870/s admeasuring 15 acres and 22 gunthas situate at Ashta, Taluka Walwa, is the property in dispute. The present respondent 1 claimed that he is a serving member of the armed forces and that this property had fallen to his share. the property was in the possession of the present petitioner and respondents 2 to 5. In the original proceeding that has given rise to this writ petition, the present respondent I was the applicant and the present petitioners and respondents 2 to 5 were the respondents. In this background, it will be convenient to refer the parties by their names and not as petitioners-respondents or appellants-respondents.
3. As mentioned above, the present respondent 1 (hereinafter referred to as Heramb) is serving as a member of the armed forces. Initially, the land was in the possession of three tenantsviz., Tatoba, Rajaram and Lalsaheb, who were the respondents or opponents before the Deputy Collector. Tatoba is dead. His legal representatives have been brought on record. It would be convenient to refer these persons as tenants.
4. Anant, the father of Heramb, originally owned this land and it appears that since the time when he was alive, the land was in the possession of the tenants. Anant died in 1953, i.e. before the Hindu Succession Act came into force, leaving behind him his widow and two sons viz., Heramb and Prabhakar. The widow died in 1967 as a member of the joint family without claiming any share in the property that was left by Anant. After her death, i.e. on 28-9-1967, Heramb and Prabhakar effected a partition of the property that was left by Anant. In that partition, S. No. 870/2 was allotted to Heramb. Chap. III-AA was introduced in the Tenancy Act by the amending Act of 1964. By this chapter, special provisions have been made in favour of the members of the armed forces so as to enable them to terminate the tenancy of their tenants and to seek possession of the lands. Section 43-1A defines the landlord to mean a serving member of the armed forces. It also includes such a member who has ceased to be in the armed forces. However, that aspect is not relevant for deciding this matter. Section 43-1B permits such a landlord to terminate the tenancy and to apply for possession of the land. Under-sub-sec. (1)(b), it is provided that if the landlord is a member of the joint family, he can claim the benefits under Chap. III-AA only with respect to his share in the land. It is further provided that the share so separated by metes and bounds by the members of the family should be an equal share permissible under law ans an allotment of larger share.
5. Heramb filed Tenancy Case No. 2 of 1977 before the Leave Reserve Deputy Collector, Sangli, for obtaining possession of the land after ter maintaining the tenancy of these tenants. The said Officer on 31-1-1977 passed an order in favour of Heramb. One of the tenants was Tatoba. His three heirs and the second tenant Lalsaheb filed revision application before the Additional Commissioner against the above decision. That revision was dismissed. In substance, it was held that heramb was entitled to claim possession of the land in view of Chap. III AA of the Tenancy Act. it is these orders that are being challenged before us.
6. Two points have been urged before us by Shri Bhonsale for the petitioner. Section 43-1E reads as follows :-
'Nothing in this Chapter shall apply in relation to land, which before the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1964 is purchased by any tenant under the provisions of Chap. III.'
It is under this Chap. III that the Legislature has made provision of the deemed purchase of the land by the tenant on the tillers' day. i.e. 1-4-1957. It was contended by Shri Bhonsale that the effect of various provisions of Chapter III is that from 1-4-1957. It was contended by Shri Bhonsale that the effect of various provisions of Chapter III is that from 1-4-1957 the tenants became purchasers of the property. Of course, he added that such purchase is liable to become ineffective under certain contingencies. It is material to note that Chap. III contemplates an inquiry for the purpose of carrying out the provisions for 'deemed purchase'. Section 32G(3) lays down that the purchase would become ineffective if the tenant, during inquiry, remains absent or makes a statement that he is not willing to purchase the land. Similarly, section 32M provides that the purchase would become ineffective if the tenant-purchaser fails to pay the purchase price either in lump sum or by installments. Under S. 32P, such land, the purchase of which has become ineffective, has to be disposed of by the Tribunal in the prescribed manner and by prescribed priorities. The first priority is in favour of the landlord.
7. What is urged by Shri Bhonsale is that the provisions of S. 43-1E should be interpreted to mean that except the two contingencies covered by Ss. 32G(3) and 32M the tenant shall be deemed to have purchased the land on 1-4-1957 and consequently the landlord belonging to the armed forces would not be able to get possession of the land under Chapter III-AA. He laid much stress on the scheme of Chap. III and contended that that Chapter initially made a provision for the compulsory purchase in favour of the tenants and that provisions have been made which would render such purchase ineffective under certain contingencies. He, therefore urged that in every case where the purchase has not become ineffective, the provisions of S. 43-1E would apply and that a finding will have to be recorded that the tenant has purchased the land under the provisions of Chap. III.
8. As against this, Shri Abhyankar for Heramb argued that the interpretation sought to be put by Shri Bhonsale should not be accepted for the simple reason that such an interpretation would make the provision of Chap. III-AA practically nugatory and that those provisions will be of no use to any landlord though he belongs to the armed forces. There appears to be much substance in the submission of Shri Abhyankar. The very purpose of introducing Chap. III-AA by the amending Act of 1964 is to give additional benefits to those landlords who are the members of the armed forces. All these provisions would be set at naught if we accept the contention of Shri Bhonsale that under Chap. III a tenant would be the purchaser in every case except where the purchase has become ineffective under S. 32G (3) or S. 32F. It is material to note that wherever the purchase has become ineffective under these two provisions, it is the landlord who had a first preference to get possession of the land. This right has been conferred on the landlord under S. 32P. What is important is that under that section the landlord, whether he is a member of the armed forces or not, is entitled to have his first preference. It would thus mean that the provisions of Chap III AA could not be implemented to the benefit of the landlord belonging to the armed forces if we record a finding that prior to the introduction of Chap. III-AA on the statute book the tenant should be held to have become the owner except under the two contingencies covered by Ss. 32G(3) and 32F. In our opinion, the interpretation sought to be put by Shri Bhonsale on S. 43-E would take away all the benefits which the Legislature intended to confer on the landlords who have been serving as members of the armed forces. It is material to note that S. 43-1E uses the would 'purchase by the tenant'. It appears that the Legislature has purposefully chosen not to use the words deemed to have been purchased by the tenant' under Chap. III. The words 'purchased by the tenant'. It appears that the Legislature has purposefully chosen not to use the words deemed to have been purchased by the tenant' under Chap. III. The words 'purchased by the tenant' will have to be interpreted in such a manner that the intention of the Legislature to give additional benefits to the landlords belonging to the armed forces is implemented. This is permissible if there is no violence to the language used by the Legislature and the meaning of the phrase 'purchased by the tenant' can be properly understood as not to cover 'deemed to have been purchased by the tenant'.
9. Our attention has been drawn to the two decisions of the learned single Judges of the High Court given in earlier matters. For example, in Special Civil Application No. 1492 of 1968, Wagle, J. has observed that the tenants who had become deemed purchasers prior to the amending Act of 1964 will be protected from the operation of Chap. III-AA. Similar view is expressed by Shah. J. in Special Civil Application No. 2598 of 1970. As against this, Vaidya, J. in Special Civil Application No. 1121 of 1969 has observed that there is much substance in the contention that the words 'deemed to be the purchaser' should not be equaled with the words 'is purchased'. Of course, Vaidya, J. has not specifically decided this point.
10. In our opinion, the view taken by Wagle, J. and Shah, J. does not appear to be in consonance with the scheme of Chap. III AA and the purpose for which that Chapter has been brought on the statute book. It would thus be clear that the provisions of S. 43-1E would come into operation only if there has been, so to say, a completed purchase of the land by the tenant under the provisions of Chap. III. It will not be possible to introduce, while interpreting that section, the theory of 'deemed purchase' and its ineffectiveness under certain circumstances. What is material is that the vested rights flowing form the purchase of the land by the tenant under Chap. III should not be disturbed. If the rights of the tenant as a purchaser have not been crystallized, the landlord belonging to the armed forces can claim benefit of the provisions of Chap. III AA. It will not, therefore, be possible for Shri Bhonsale to contend that on the theory of 'deemed purchase', the landlord belonging to the armed forces would not be able to claim back possession of the property. As already observed, such an interpretation would make the provisions of the entire Chap. III AA nugatory and without any meaning.
11. Another contention of Shri Bhonsale is that Heramb would not be able to claim back possession as there is no compliance with the requirements of S. 43-1B(1) and (2), His argument is two-fold. Chapter III-AA was added or inserted by the amending Act, 1964. Shri Bhonsale submitted that the share of Heramb in the land on the date of this amendment would be relevant. This contention is not well founded, inasmuch as S. 43-1B(1)(b) itself makes it clear that the tenant belonging to the armed forces should have separated by metes and bounds and that separation must be on equitable basis. Thus, what is important is not the date of the amendment but the date on which the landlord belonging to the armed forces decides to claim possession under Chap. III-AA. Even otherwise, the position would not be anyway favorable in view of the facts of the present case. In 1964 the widow and two sons of Anant were the members of the family. Under the Hindu Women's Right to Property Act, the widow Women's Right to Property Act, the widow of Anant had a right to claim in the property the same share which her husband had. However, it is well settled that so long as the widow did not claim such share, the family would continue to be joint and that after the death of the widow, her share in the family property goes by survivorship. There is nothing to suggest that Anant's widow had claimed partition and separate possession of her share in Anant's property during her lifetime. Thus, she died as a member of the joint Hindu family and on her death the property would go by survivorship to Heramb and his brother. The sister of these two brothers, though alive in 1967, could not have any share.
12. It was faintly suggested that the partition between Heramb and his brother was inequitable. The argument is that Heramb got about one acre of the land more as compared to the land that was allotted to Prabhakar. In our opinion, whether the allotment of the shares is made in the same proportion as the shares of the co-owners has not to be determined on the basis of this mathematical calculation. A grant of share with an additional one acre for the land to one brother cannot be interpreted to mean that he was given land more than his are. In fact, the other brother could not have been given that one acre of the land as it would have created a fragment, Such creation of fragment is not permissible under law.
13. The net result, therefore, is that there order for restoration of the land in question in favour of Heramb is quite legal and proper. Consequently, the rule is discharged. Interim orders, if any, passed in these proceedings stand vacated.
14. Rule discharged.