M.N. Chandurkar, J.
1. This petition is filed by the heirs, that is, the sons and widow of the original landlord who had made an application under section 88-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the 'Tenancy Act'). After repeated reasons, the application was finally dealt with by the Additional Tahsildar who held that the income of the original applicant-landlord was more than Rs. 1500/- and therefore, the application under section 88-C of the Tenancy Act was liable to be rejected. Now admittedly when this order came to be passed on 25th September, 1975. The original landlord had died on 17th February, 1974. It appears, however, that the application came to be decided on the basis of evidence with regard to the income of the original landlord. The present petitioners had filed an appeal against that order, which was decided by the Sub-Divisional Officer. During the pendency of the appeal before the Sub-Divisional Officer, a decree had come to be passed in respect of two Survey Nos. 62-A and 62 having a total area of 8 acres, 17 gunthas, as a result of which these fields, which were originally in possession of the landlord, were handed over to the original owner. When this fact was sought to be canvassed before the Sub-Divisional Officer, he took the view that the income of the landlord in the year 1959 was required to be considered. Consequently he confirmed the order of the Additional Tahsildar and dismissed the appeal. This order is now challenged by the present petitioners.
2. Mr. Perulekar appearing on behalf of the legal representatives of the original landlord has contended that consequent to the death of the landlord his heirs are entitled to continue the proceedings under section 88-C of the Tenancy Act and they must, therefore, be given an opportunity to prosecute the application. On the other hand, Mr. Karandikar appearing on behalf of the tenant has contended that the status of a certificated landlord under section 88-C of the Tenancy Act is a personal status and the original landlord having died, the proceedings must abate, with the result that the tenant must be deemed to have become the owner of the field on 1st April, 1957 and reliance has been placed by the learned Counsel on Full Bench decision of this Court in Anna Maloonda Patil v. Vasant Raghunath Kulkarni, 64 Bom.L.R. 591.
3. Now, though there are decisions to the effect that a proceeding stated under section 33-B of the Tenancy Act by a certificated landlord can be prosecuted by his heirs and that the application under section 33-B does not abate on the death of the original landlord, the question as to whether an application under section 88-C of the Tenancy Act can also be similarly prosecuted by the heirs of the deceased landlord does not seem to have come up for consideration before this Court on any earlier occasion. It is, therefore necessary to consider the question on the words of section 88-C and the object with which that section was brought on the statute book.
4. Under section 88-C(1) it is provided that save as otherwise provided by section 33-A, 33-B and 33-C, nothing in section 32-B to 32-B (both inclusive) shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person including the rent of such land does not exceed Rs. 1500/-. This provision does not apply to any person who holds such land as a permanent tenant or who has leased such land on permanent tenancy to any other person. Now, it is well-known that section 32 to 32-B deal with the statutory purchase of land by tenants because under section 32 it is provided that the tenants are deemed to have purchased land on the tillers' day. The applicability of section 32 to 32-B is thus excluded in the case of lands which were leased by a person whose total land does not exceed an economic holding and whose total amount income does not exceed Rs. 1500/-. Section 88-C is thus a provision which operates in the case of small landholders and, as is now well-known, it was intended to give them a benefit of resumption of lands and exclude their lands from the provisions relating to statutory transfer of ownership in case these small landlords satisfied the conditions prescribed in section 88-C(1).
5. In order to obtain the certificate, however, the landlord had to apply to the mamlatdar within the prescribed period and the relevant date was 30th September, 1961. The question which the mamlatdar was required to decide under sub-section (3) of section 88-C was whether the land leased by such person is exempt under sub-section (1) from the provisions of section 32 to 32-B. It has to be notice that the terminology used in the section indicated that what was exempted from the operation of the provisions relating to statutory transfer of ownership was the 'land' though the conditions required to be satisfied were in respect of the landlord. The application, however, was in respect of an exemption certificate in respect of the land and once the certificate under section 88-C was granted, the result was that subject to the provisions of sections 33-A 33-B and 33-C of the Tenancy Act, the land was exempted from the operation of the provisions relating to statutory transfer of ownership. In the Tenancy Act, specific provisions were made which were to operate only in respect of the landlords who had obtained certificate under section 88-C and relating to purchase by the tenants who cultivated land in respect of which the certificate under section 88-C(1) was obtained. The provision relating to the statutory purchase of land in respect of which landlord has obtained a certificate under section 88-C is contained in section 33-C. That provision shows that in such a case the land is deemed to have been purchased by the tenant on 1st day of April, 1962 if the land is cultivated by the tenant personally and the landlord has not given notice of termination in accordance with sub-section (3) of section 33-B or if the landlord has given such notice, he has not made an application under section 33-B read with section 29 for possession. Now, when you go to section 33-B it will be noticed that the notice is required to be given primarily before the 1st day of January, 1962, which presupposes that the application under section 88-C(1) has been disposed of prior to that date, but if the application under section 88-C is pending on that day, then within three months of his receiving such certificate. The scheme of the Tenancy Act, therefore, appears to be that an application under section 88-C(1) has to be made prior to 30th September 1961 and if it has not been disposed of by granting a certificate to the landlord by the 1st day of January, 1962 or even on 1st of April, 1962, then the notice would be given within three months of the receipt of the certificate. Therefore, once an application under section 88-C(1) has been made, the question as to whether the tenant has become a statutory owner or not and if so on what date cannot be decided unless the application is finally decided. If the application is decided in favour of the landlord, the transfer of ownership will be regulated or controlled by the provisions of sections 33-B and 33-C. If the application fails and the landlord is held not to be a certificated landlord, then the provisions of sections 32 to 32-B, which were intended to be excluded in the case of such land would not stand excluded and the normal provisions with regard to the transfer of ownership will apply.
6. Now admittedly, there is no express provision in the Act which provides for abatement of an application made under section 88-C(1). If section 88-C(1) was intended to take out certain lands from the operation of the provisions of sections 32 to 32-B and if this provision was intended for the benefit of small landlords, unless there is clear indication or provision in the Act that such an application was to abate on the death of the landlord, the object of the legislature in enacting section 88-C will stand defeated if it is held that merely because the original landlord has died, the application must abate. The right granted under section 88-C is to a landlord who had a small holding . It is well-known that normally in the village the heirs of a small landlord, who inherit the holding from their father or the husband, as the case may be, are also small landlords and the benefits of the provision of section 88-C(1) should, therefore, be available to them in the absence of any indication to the contrary in the Act. As already pointed out, the provisions of section 33-B have been construed by this Court and it has been held that the heirs of the landlord who has obtained a certificates are entitled to prosecute the application under section 33-B because they are also normally small landlords, and such rights are heritable. On principle, I do not see what difference it makes whether the proceeding is one after the grant of the certificate or the proceedings are prior to the grant of the certificate. The proceedings under section 88-C(1) and under section 33-B are a part of a scheme. The provisions of section 33-B are intended to work out the rights which are given to the small landlords under section 88-C(1). If a landlord who has obtained certificate under section 88-C(1) dies, then the application filed by him can be continued by his heirs or if no application is filed by him, an application under section 33-B can be filed for the first time by the heirs. On principle, I see no difficulty why the application originally filed by the small landlord should not be allowed to the continued by his heirs under section 88-C(1). The question, however, will be whether the enquiry regarding the satisfaction of the conditions for grant of the certificate must be with reference to the original landlord or his heirs, who have been brought on record.
7. In Hariba Keshav v. Smt. Motibai, 76 Bom.L.R. 595, a Division Bench of this Court has taken the view that where a certificated landlord, who has made an application for possession of land under section 33-B of the Bombay Tenancy Act, 1948, dies during the pendency of the proceedings and his legal heir is brought on record, such legal heir must establish his bona fide requirement as on the date he comes on the record for the purpose of recovering possession of land from the tenant and the holding of the heir on the date when he is brought on record needs to be considered for the purpose of equalisation of the holding of the tenant and the legal heir of the landlord.
8. In Paravatibai Ramchandra v. Mahadu, 59 Bom.L.R. 383, a Division Bench of this Court has considered at length the scheme of the provisions of section 88-C of the Tenancy Act and has observed as follows :---
'The object of section 88-C was to give some limited protection to small holders with limited incomes. Where a small holder of limited income dies, his successor-in-interest in the majority of cases is also a small holder of equally limited income. He may, for instance, leave behind a widow or a minor son. It cannot be assured in the absence of adequate reason that the legislature did not intend to grant to the successor-in-interest the same limited protection which it granted to a small holder with limited income.'
These observation of the Division Bench thus show that the limited protection intended to granted by the provisions of section 88-C(1) was not restricted only to the small landlord but also to his successors-in-interest. It is no doubt true that these observations were made in the context of the question as to whether the application under section 33-B of the Tenancy Act made by the certificated landlord can be continued by his legal representatives. But that, however, in my view, does not make any difference if the subject of section 88-C(1) of the Tenancy Act in kept in view.
9. The observations in Paravatibai's case reproduced above have been quoted with approval by another Division Bench of this Court in Hariba Keshav v. Smt. Motibai, 76 Bom.L.R. 595 (cited supra) and before quoting the observations reproduced above, the Division Bench has observed as follows :---
'The question as to whether the heirs of the original landlord who dies before getting a certificate can make an application for obtaining an exemption certificate under section 88-C as also the question as to whether the heirs or the successor-in-interest of a certificated landlord can make an application for possession under section 33-B are now fairly well settled.'
Thus even the Division Bench in Hariba Keshav's case seems to have taken the view that not only can an application filed by a certificated landlord under section 33-B of the Tenancy Act be prosecuted by his successors-in-interest, but even the application for a certificate can also be prosecuted by the successors-in-interest subject, of course, to the contention that the successors-in-interest, who have been brought on record, will have to prove that they satisfy the requirements of the relevant provisions.
10. Now, sub-sections (1) and (2) of section 88-C were brought on the statute book by Act 38 of 1957 which came into force on 28th September, 1957. It is important to note that the date prescribed for making of the application for certificate of exemption was 30th September, 1961. Therefore, any person, who was a landlord on 30th September, 1961, could have made an application for exemption under section 88-C(1), Now, one of the conditions which is required to be satisfied before an order for possession can be obtained in favour of a certificated landlord is the one contained in section 33-B(5) of the Tenancy Act, which provides as follows :---
'The land leased stands in the Record of Rights (or in any record or similar revenue record) on the 1st day of January, 1952 and thereafter until the commencement date in the name of the landlord himself, or of any of his ancestors (but not of any person from whom title is derived by assignment or Court sale or otherwise) or if the landlord is a member of a joint family, in the name of a member of such family.'
The commencement date referred to in Clause (c) is 9th February, 1961, If the provisions of sub-sections (1) and (2) of section 88-C are read with section 33-B(5)(c), it is obvious that the intention of the legislature was to make provision for such small landlords in whose name the land stood from 1st of January, 1952 to 9th February, 1961 or it stood in the name of any of the ancestors of the landlord or if the landlord was member of joint family, the land stood in the name of a member of joint family. Therefore, even if the original landlord had died after 1st April, 1957, which is known as the tillers day, if his heirs could satisfy the requirements of section 88-C, there was no bar under section 88-C for them to apply prior to 30th September, 1961. In order to get possession if they had obtained the certificate they were no doubt required to satisfy the requirement of section 33-B(5). What is, however, important is that in the case of a landlord, who had died after 1st April, 1957, a right was given to his heirs or successors-in-interest to apply for exemption certificate under section 88-C(1). There is no reason why merely on the fact that the original landlord who had applied had died during the pendency of the proceedings, the heirs could be deprived of asking for the certificate under section 88-C(1). As already pointed out, such a construction alone would carry out the intention of the legislature of giving an additional relief to field all landlord.
11. The decision of the Full Bench in Anna Maloonda Patil's case (cited supra) on which reliance is placed by the learned Counsel for the tenants does not appear to be of such assistance. The Full Bench in that case has merely laid down the law with regard to the material dates where title of land had passed to the tenant before the disposal of application under section 88-C and where such application was decided before the tenant is deemed to have purchased the land. The Full Bench had held that for the purpose of section 88-C of the Tenancy Act, in cases in which the tenant is deemed to have purchased the land held by him as a tenant before the application made by the landlord under section 88-C is decided, the date on which the landlord would satisfy the requirements of section 88-C order to be eligible to obtain a certificate under this section is the date on which the tenant is deemed to have purchased the land. In other cases in which the application section 88-C is decided, before the tenant can be deemed to have purchased the land held by him, the material date by reference to which it should be decided whether the landlord is entitled to certificate under section 88-C will be the date on which the landlord had made an application under section 88-C according to the Full Bench.
12. Now, we are dealing in the instant case with the rights of the successors-in-interest. So far as the successors-in-interest are concerned, it could not have been the intention of section 88-C(1) to grant them a certificate of exemption on the basis of the income of the original landlord. As a matter of fact in a given case, it may be that the income of the successors-in-interest is much more than that of original landlord, in which case obviously the provisions of section 88-C(1) could not be invoked by him. The Full Bench decision, therefore, does not come into the picture in a case like the present one where all that the successors-in-interest are doing to prosecute the application and the successors-in-interest will, therefore, have to establish that they are entitled to the certificate. But that can only be with reference to the date on which they have been brought on record on the analogy of the two Division Bench decisions in which it has been held that the successors-in-interest will have to satisfy the requirements of section 33-B with reference to the date on which he has been brought on record. None of the authorities below seems to have applied its mind to the question as to whether the successors-in-interest are small landlords and satisfy the requirements of section 88-C(1). The application has been decided on the basis of the income of the original landlord, which is obviously contrary to law and not permissible. It is no doubt true that the application of the landlord has now been pending for almost 22 years, but another remand to the Tahsildar appears to be inevitable having regard to the fact that the original landlord died in 1974. If the correct position of low could have been given effect to by the Tahsildar when he passed his order dated 25th September, 1975, this remand would have been obviated. However, as the matter stands today, the only effective order that can be made is to set aside the two impugned orders of the Tahsildar and the Sub-Divisional Officer and to remand the matter back to the Tahsildar for a proper decision according to law after recording the necessary evidence. In the circumstances of the case, there will be no order as to costs.