1. This judgment will also govern Special Civil Application No. 36 of 1958.
2. A common point of law arises in both these petitions and that is whether the word 'transfer' as used in Sub-section (9) of Section 9 of the Berar Regulation of Agricultural Leases Act, 1951, includes 'partition'. Sub-section (1) of Section 9 provides that a landholder can terminate the lease of a protected lessee by giving him a notice in writing and by following the procedure laid down in Section 8 of the Act.
3. In Special Civil Application No. 24 of 1958, the petitioners who are mother and son effected a partition of Section No. 2/4 of mauza Kalamna, district Yeotmal. Petitioner No. 1 wanted to cultivate the land herself and, therefore, a notice under Section 9(1) of the Act was served by her on respondent No. 1 terminating his lease. Respondent No. 1 thereupon made an application under Section 9(3) challenging the ~bona fides of the notice. His application was dismissed. The Bombay Revenue Tribunal, however, allowed his application by its order dated September 19, 1957, in Revenue Appeal No. 210/51B of 1955. The petitioners have, therefore, come up to this Court under Article 226 of the Constitution and raised several points one of which is, as already stated, whether the word 'transfer' occurring in Sub-section (9) includes 'partition'.
4. In Special Civil Application No. 36 of 1958, the facts are as follows: Petitioner No. 1 Janardan along with his brother, father and some other persons formed a joint Hindu family. By a registered partition deed executed on October 11, 1953, the family property was partitioned at which Section Nos. 77/1 and 79 situate at mauza Anjanwati, taluq Chandur, district Amraoti, were allotted to his share in addition to some other property. Respondent No. 1 was a protected lessee of these fields. Petitioner No. 1 wanted to bring under cultivation those fields and, therefore, he gave a notice to respondent No. 1 under Section 9(1) of the Act terminating his lease. Thereupon, respondent No. 1, made an application under Section 9(3) challenging the bona fides of the notice. His application was rejected on July 17, 1954. It was, however, granted by the Bombay Revenue Tribunal on the ground that petitioner No. 1 had acquired the fields by transfer subsequent to August 1, 1953, by a partition and that he was, therefore, not entitled to terminate the lease.
5. It may be mentioned that during the course of the proceedings, but after the order was passed against respondent No. 1 dismissing his application under Section 9(3), petitioner No. 1 transferred Section No. 77/1 to petitioner No. 2 and for this reason he is also joined as a party to this petition.
6. The question then is whether the word 'transfer' used in Sub-section (9) of Section 9 includes 'partition'.
7. In Manjurabai v. Pralhad  N.L.J. 100 it was held by the Bombay Revenue Tribunal that a partition among members of a joint Hindu family by metes and bounds is a transfer within the meaning of Section 9(9) of the Berar Regulation of Agricultural Leases Act. In support of this view, the Bombay Revenue Tribunal relied upon a decision of this Court in Soniram Raghusheth Wani v. Dwarkabai Shridharshet Wani  Bom. 679 : 53 Bom. L.R. 325. In that case Bhagwati and Chainani JJ. held that a partition by metes and bounds effected between some branches of a joint Hindu family before the Bombay Hindu Women's Rights to Property (Extension to Agricultural Land) Act Bombay Act XVII of 1942 was passed, is a transfer within the meaning of that term as used in the proviso to Section 2 of the Bombay Act XVII of 1942 and is, therefore, saved in so far as the agricultural lands are concerned by the terms of that proviso. In the course of the judgment the learned Judges have observed (p. 683):.There is no definition of 'transfer' to be had in either the Hindu Women's Right to Property Act, 1937, or the Hindu Women's Right to Property (Amendment) Act, 1938, or the Bombay Hindu Women's Right to Property (Extension to Agricultural Land) Act, 1942. This being a transfer of immovable property, even though it may be agricultural land, the definition of 'transfer' which applies is to be found in Section 5 of the Transfer of Property Act. In Section 5 of that Act transfer of property is denned to mean an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons. Even though in Section 5 of that Act the definition of 'transfer of property' is qualified by using the expression 'in the following sections', we may safely take it to be the definition of 'transfer of property' for the purposes of determining what is a transfer within the meaning of the term as used in the proviso to Section 2 of Bombay Act XVII of 1942.
8. The learned Judges then referred to two decisions of this Court in Waman Ramkrishna v. Ganpat Mahadeo ILR (1935) 60 Bom. 34 : 37 Bom. L.R. 925 and Jivram Jagjivandas v. Kantilal (1949) 52 Bom. L.R. 104 which lay down that a partition amounts to a transfer of property for the purposes of Section 53 of the Transfer of Property Act. They also referred to the decision of Mookerjee J. in Atrabannessa Bibi v. Safatullah Mia ILR (1915) 43 Cal. 504 and ultimately came to the conclusion already stated. In the instant case, what we have to decide is not whether a 'partition' is a 'transfer' within the meaning of Section 53 of the Transfer of Property Act or within the meaning of the Bombay Act XVII of 1942, but whether the word 'transfer' as used in Sub-section (9) of Section 9 of the Berar Regulation of Agricultural Leases Act, 1951, includes a partition.
9. The Transfer of Property Act does not deal with partition as such. It only deals with certain categories of transfers of property viz. sales, mortgages, leases, exchanges and gifts, and the Act provides for the various modes in which such transfers of property can be made. Whether a partition of immovable property is a transfer of property within the definition contained in Section 5 of the Act came to be considered in the various High Courts and the result of those decisions has been summarised as under by Sir Dinshah Mulla at p. 49 of his commentary on the Transfer of Property Act (1949 edn.):
A partition has been said to be a surrender of apportion of a joint right in exchange for a similar right of a co-sharer. From this analogy it has been concluded in some cases that a partition amounts to a transfer of property. In some other cases, however, it has been held that a partition is not an exchange and is not a transfer of property.
10. The definition of 'transfer' contained in Section 5 of the Transfer of Property Act is quite clearly for the purpose of the Transfer of Property Act only and that Act does not at all deal with the question of partition. Thus, it would not necessarily follow that in whichever Act the word 'transfer' occurs it should include 'partition'. While we are greatly impressed by the reasoning of Mookerjee J. and his conclusion that 'partition' is not a 'transfer', we do not want to base our decision upon this view for the simple reason that a Division Bench of this Court has taken a different view in Soniram's case. Incidentally, we may point out that Soniram's case makes no reference to another decision reported in the same volume in which Soniram's case is reported. That decision is at page 148 Kisansing Mohansing v. Vishnu Balkrisna  Bom. 148 : 52 Bom. L.R. 867. The head note of that decision brings out the point decided sufficiently fully and we would quote it:
A transaction by which a father makes a division of his self-acquired property between his sons will be regarded as a transaction by which he, in the first instance, effects a severance of status between his sons; in the second instance, he naturally throws into the hotchpot his self-acquired property, and then divides between his sons whether equally or unequally in accordance with his pleasure. Such a transaction cannot possibly be regarded as one of the five transactions mentioned in the Transfer of Property Act which requires registration, namely sale, mortgage, exchange, lease for more than one year or a gift.
We mention the fact that no reference to this decision was made by Bhagwati J. who delivered the judgment in Soniram's case only for the purpose of showing that a different view has been taken by this Court on the question as to whether a partition can always be regarded as a transfer. We would have referred the present case to a larger Bench but for the fact that there is no decision binding on us which interprets the word 'transfer' occurring in Sub-section (9) of Section 9 of the Berer Regulation of Agricultural Leases Act, 1951, in the way in which it has been interpreted by the Bombay Revenue Tribunal.
11. A perusal of Sections 7 and 8 of the Act indicates that it was not the intention of the Legislature to use the word 'transfer' in this Act so as to include within it a transaction of partition. Sub-section (1) of Section 7 places restrictions on the lessee's powers of making transfers. It lays down that no lessee shall be entitled to transfer by way of sale, gift, mortgage, sub-lease or otherwise, his right in the land or in any portion thereof and that every such sale, gift, mortgage, sub-lease, or other transfer shall be voidable at the option of the landholder. If the Legislature wanted to include a 'partition' within the ambit of the 'transfer' prohibited by Sub-section (1) nothing was easier for it than to say so. We would not be justified in holding that 'partition' would fall within the residuary expression 'other transfer', because by using that expression the Legislature has invoked the 'ejusdem generis rule' and a partition cannot be regarded as a transaction which is of the same kind as any of the other transactions specified in the sub-section.
12. Indeed, it would appear that the Legislature while enacting this law had kept in mind the distinction between a transfer as is ordinarily understood and a partition. Section 8(1)(c) provides that a landholder can terminate a lease on the ground that the lessee has partitioned the leasehold right. Section 8(1)(f) provides that a landholder can terminate a lease on the ground that the lessee has transferred his interest under the lease in contravention of Section 7. Now, there was no need to enact Section 8(1)(c) if the 'transfer' referred to in Section 7 included a 'partition'. This circumstance would be sufficient to show that the Legislature did not regard the word 'transfer' as contemplated by this Act, to include 'partition'.
13. We are aware that the Full1 Bench of the Bombay Revenue Tribunal has observed that the Berar Regulation of Agricultural Leases Act is for the protection of agricultural tenants in the general interest of the public to ensure efficient agriculture and having regard to the policy and object of the Act, Section 9(9) of the Act, interpreted as applying to a partition, did not impose an unreasonable restriction on a class of certain landholders. We may point out that it is not the object of the Act to prevent a landholder from carrying on agricultural operations himself but its object is to ensure improvement in agriculture and increase production. For this purpose a curb is placed by the Act on absentee landlordism. Now, Section 9 permits a landholder to serve a notice on his tenants where the area under his personal cultivation is below 50 acres. Such termination is only for the purpose of enabling the landholder to cultivate personally such of his land as is in the possession of a lessee. Since that is so, allowing him to cultivate his land personally cannot be said to defeat the object of the Act; but, on the other hand, such a course could be said to promote the object underlying the Act and that is to secure efficiency in agriculture. We are, therefore, not impressed by the reasoning given by the Revenue Tribunal. For all these reasons we hold that the view taken by the Bombay Revenue Tribunal on the question is erroneous. We, accordingly, set aside its order in both the cases.
14. Certain other questions were also raised in the appeal out of which Special Civil Application No. 24 of 1958 arises and, therefore, the matter has to go back to the Bombay Revenue Tribunal for deciding those points.
15. As regards the other petition, no other question was raised before the Bombay Revenue Tribunal and, therefore, there is no need to send the case back to the Bombay Revenue Tribunal.
16. Costs in Special Civil Application No. 24 of 1958 will abide the ultimate event, while those in Special Civil Application No. 36 of 1958 will be borne by respondent No. 1.