1. Appellant is defendant 2, Respondent 1 is the plaintiff, and Respondent 2 is the 3rd defendant who died during the pendency of the second appeal. His Legal representatives have not been impleaded. Defendant 1 died during the pendency of the appeal in the lower appellate court and the application for impleaded his legal representatives was dismissed by the lower appellate court. The suit was filed for declaration of the plaintiff's title to the suit property. R. S. No. 22, situate in Yetinahalli village, Ranibennur Taluk, measuring 16 acres 15 guntas, and for an injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff and in the alternative, for possession of any portion of the same which may be found to be in possession of any defendant or defendants.
2. The property belongs to one Dharamchand Rupaji Marwadi. The father of the plaintiff was the protected tenant of this land and he died in about the year 1954. Subbappa's father was one Basappa. Defendants 1 and 2 are the brothers of Subbappa. Defendant 3 was impleaded since he colluded with defendants 1 and 2 in obstructing the plaintiff. According to the case of the plaintiff. Subbappa was cultivating the suit land for 15 or 20 years prior to his death and that after his death the plaintiff has been cultivating the entire suit property as protected tenant since the year 1955-56. It is the case of the plaintiff that he and his brother Bbeemappa are the lineal male descendants of Subbappa who were entitled to remain in possession of the property under Section 48 of the Bombay Tenancy and Agricultural Lands Act, 1948. The defendants are alleged to be the divided uncles of the plaintiff and they have no right or interest in the suit property, but they interfered with his possession and enjoyment of the suit properly. Only the second defendant filed the written statement and the other defendants adopted the same. According to the case of the defendants, Subbappa was the Manager of the joint family consisting of himself and the defendants, since he was the eldest brother; that it was their father Basappa who had taken the property on lease from the Marwadi over 30 years ago; that after the death of their father, Subbappa, since he was the Manager of the joint family, got his name entered in the Record of Rights and that Subbappa died when the family was joint. It is their case that till Subbappa's death, the property was being enjoyed as a joint family property. They contend that they have also inherited the rights in the suit property. They further contend that after the death of Subbappa, there was a division of the family properties including the suit property, that the suit (and was divided into three portions, that the easternmost portion measuring 5 acres fell to the share of the plaintiff, middle 5 acres fell to the share of the 1st defendant and the remaining 6 acres 15 guntas in the western portion fell to the share of the 2nd defendant. According to their allegation, the Panchas divided the property as stated above and since then they have been enjoying the property accordingly. They also alleged that there is a Tippani dated 15-6-1956 evidencing this partition and that the parties have been enjoying these shares since 1957-58. They denied that they obstructed the plaintiff in the cultivation of his portion of the suit land.
3. The trial court held that the defendants failed to prove the alleged partition and that they further failed to prove that they had acquired tenancy rights in respect of the shares claimed by them in the suit property. It further held that the defendants were not in possession of the portions of the suit land as contended by them and accordingly decreed the suit declaring that the plaintiff is the protected tenant of the suit property and directing the defendants not to interfere with his possession and enjoyment of the same. Defendants 1 and 2 went up in appeal to the Court of the Civil Judge, Haveri. During the pendency of the appeal in the lower appellate court, defendant 1 died and his legal representatives have not been brought on record as stated above.
4. It is contended by Mr. Hulugur, appearing for the plaintiff-respondent that the whole appeal abated in the lower appellate court and that consequently, this second appeal has to fail. He has relied on the decisions in AIR 1973 SC 204, (Babu Sukhram Singh v. R. D. Singh), 1973 (1) Mys LJ 294 = (AIR 1973 Mys 322); (Ramappa Mallappa v. Shripatrao) as well as the decision in : 2SCR1064 (Dwarak Prasad v. Harikant Prasad). His contention is that there is a joint decree against defendants 1 and 2 and since the legal representatives of defendant 1 have not been brought on record in the lower appellate Court, the appeal in the lower appellate court abated as against defendant 1 and consequently, the whole appeal must be deemed to have abated. But the allegations made in the plaint are to the effect that defendants 1 and 2 obstructed the plaintiff. It is not clear whether they acted jointly in concert or not. According to the plaint allegations, defendants 1 and 2 are divided uncles of the plaintiff. In the absence of a specific allegation that defendants 1 and 2 acted jointly in obstructing the plaintiff, it cannot be said that there is a joint decree against defendants 1 and 2. Hence, the principles stated in those decisions are not applicable. It cannot, therefore, be said that the whole appeal abated in the lower appellate court.
5. Both the lower courts have come to the conclusion that the defendants have failed to establish the partition relied on by them. Though the document Ext. D-l which has a reference to the Panchas was produced and since the D. Ws. admitted that the decision of the Panchas was reduced to writing, the defendants were expected to produce the said document embodying the decision of the Panchas. But since they failed to produce the same, the lower appellate court drew an adverse inference against the defendants and held that the partition alleged by the defendants has not been established. But Mr. Gunjal appearing for the appellant urged that the finding of the lower appellate court is not binding on this court since the admissions made by the plaintiff in the statement made by him before the Revenue authorities have not been considered by the lower appellate Court. He relied on the statements of the plaintiff in Exhibits D-3, D-2 and D-4. Ext. D-3 (a) shows that the plaintiff admitted in his statement before the Tehsildar, in the suit filed by the Marwadi for recovery of rent for the year 1957-58, that since three years he and defendants 1 and 2 have divided the suit property and are taking their respective shares of the crop. In Ext. D-2 dated 19-9-1958, which is an R. T. S. proceeding relating to the entry in the Record of Rights, theplaintiff admitted that defendants 1 and 2 cultivated the suit land according to the decision of the Panchas. In Ext. D-4 dated 23-7-1958, in answer to the claim for payment of rent by the landlord, the plaintiff made a statement that he and defendants 1 and 2 have cultivated the suit land and that all the three are liable to pay the rent. In the course of his evidence he admitted that defendants 1 and 2 as well as Subbappa were cultivating the suit land during the life time of Subbappa. These admissions are certainly material pieces of evidence and their non-consideration makes the finding of the lower appellate court with regard to partition not binding in second appeal. In view of these admissions of the plaintiff himself it has to be held that the partition alleged to have taken place has been established. According to Ext. 13, the statement of objections filed by the defendants, the date of partition is 4-3-1956. They state in the said document that a deed of partition came into existence on 5-10-1956 embodying the terms of the partition which had taken place on 4-3-1956, but that document has not been produced.
6. Both the lower courts have held that under Sections 27 and 40 of the Bombay Tenancy And Agricultural Lands Act, 1948 as it stood before its amendment by Act XIII of 1956, the sons of Subbappa alone became entitled to be recognised as the protected tenants of Subbappa and that defendants 1 and 2 are not entitled to any rights therein. It is the contention of Mr. Gunjal that in view of the admission of the plaintiff that during the lifetime of Subbappa, Subbappa as well as defendants 1 and 2 were cultivating the suit land and in view of the fact that plaintiff was a party to the partition after the death of Subbappa on 4-3-1956, Subbappa must be deemed to have been in possession and enjoyment of the suit property for and on behalf of the joint family of himself and his brothers, defendants 1 and 2. His contention is that the right of tenancy of Subbappa as a protected tenant in respect of the suit land was not personal to Subbappa, but was enjoyed by him as a member of the joint Hindu family of himself and his brothers, defendants 1 and 2, and on behalf of the said family.
7.The relevant portions of Sec. 27 of the Bombay Tenancy and Agricultural Lands Act, 1948 before its amendment by Act xiii of 1956 read as follows:-
27.(1) No sub-division or sub-letting of the landor assignment of
SUB-DIVISION,SUBLETTING AND ASSIGNMENT PROHIBITED. anyinterest held by a tenant shall be vaild. Such sub-division, sub-letting or assignmentshall make the tenancy liable to tormination:
Provided nothing in this sub-section shall prejudicially affect the rights of a permanent tenant or any tenant the duration of whose tenancy is presumed to be co-extensive with the duration of the tenure of the landlord under Section 83 of the Bombay Land Revenue Code, 1879 :
Provided further that if the tenant dies, leaving sons or sons of predeceased sons more than one in number it shall be lawful for such sons and sons of predeceased sons (hereinafter called 'sharers'), notwithstanding anything contained in Section 40, to partition and sub-divide the land leased subject to the following conditions:--
(a) Each sharer shall hold his share as a separate tenant.
(b) The rent payable in respect of the land leased shall be apportioned among sharers, as the case may be, according to the share allotted to them.
(c) The area allotted to each sharer shall not be less than the unit which the State Government may, by general or special order, specify in this behalf having regard to the production capacity and other circumstances relevant to the full and efficient use of the land for agriculture.
(d) If any question arises regarding the apportionment of the rent payable by the sharers it shall be decided by the Mamlatdar whose decision shall be final.'
Section 40 before amendment read as follows:--
'40. If a protectedCONTINUATION OF TENANCY ON THE DEATH OF A PROTECTED TENANT.
tenantdies, the landlord shall offer to continue the tenancy on the same terms and conditionson which such tenant was holding it at the time of his death to the heir orheirs of the deceased tenant:
Provided that the offer required to be made by the landlord under this section shall be made in writing :
Provided further that if any heirs of the deceased tenant do not agree to continue the tenancy on the same terms and conditions on which the deceased protected tenant was holding the land, the Collector may select an heir or heirs who is or are willing to continue the tenancy on the same terms and conditions. The decision of the Collector shall be final.
Explanation-- For the purposes of this section, an heir means the lineal male descendants of a tenant or his adopted son and failing both his widow who has not remarried.'
Section 40 imposes a restriction on the landlord and he is obliged to offer to continue the tenancy on the same terms and conditions to the lineal descendants in case a tenant dies or to his adopted son and failing both to his widow who has not remarried. Section 27 provides that no sub-division of any interest held by a tenant shall be Validand that such sub-division shall make the tenancy liable to termination except in the cases provided therein. The first proviso to that section states that the sub-section shall not prejudicially affect the rights of a permanent tenant. The second proviso which is relevant for the purposes of this case states that if the tenant dies, leaving sons or sons of predeceased sons more than one in number it shall be lawful for such sons and sons of predeceased sons to partition and sub-divide the land leased irrespective of the provisions of Section 40. It also provides that each such son or grandson shall hold his share as a separate tenant and that the rents payable shall be apportioned according to the share allotted to them. The partition effected by the plaintiff and defendants 1 and 2 in this case of 4-3-1956 being prior to the amendment Act XIII of 1956, which came into force on 1-8-1956, will be invalid under the terms of Section 27 since the second proviso does not provide for sub-division allotting a share to the brothers of the deceased tenant. But it is the contention of Mr. Gunjal that Sections 27 and 40 are not applicable to a case where the deceased tenant was holding the land not in his individual capacity but as a member of a joint Hindu family and for and on behalf of the said family. He has relied on Section 4 of the Act. The relevant part of it reads as follows:--
'4. A person lawfully
PERSONS TO BE
cultivating any landbelonging to an-other person shall be deemed to be a tenant if such land isnot cultivated personally by the owner and if such person is not -
(a) a member of the owner'sfamily, or
(b) a servant on wagespayable in cash or kind but not in crop share or a hired labourer cultivatingthe land under the personal supervision of the owner or any member of theowner's family, or
(c) a mortgagee in possession.'
According to his contention, the word 'person' has been defined under Section 2 (11) as including an undivided Hindu family. He has also relied on the definition of the word 'tenant' under Section 2 (18) wherein the word has been defined to mean an agriculturist who holds land on lease and includes a person who is deemed to be a tenant under the provisions of this Act. The phrase 'protected tenant' has been defined to mean a person who is recognised to be a protected tenant under Section 31 and under Section 2, Clause (14), The word 'agriculturist' has been defined to mean a person who cultivates land personally under Section 2 (2). The words 'to cultivate' are defined to mean to carry on any agricultural operation under Section 2 (5). Under Section 2 (6) the words 'to cultivatepersonally' is defined to mean to cultivate land on one's own account (i) by one's own labour, (ii) by the labour of any member of one's family, or (iii) by servants on wages payable in cash or kind but not in crop share under the personal supervision of oneself or any member of one's family. Explanation II to the said definition reads:
'In the case of an undivided Hindu family, the land shall be deemed to have been cultivated personally, if it is cultivated by any member of such family.'
Relying on this definition it is contended by Mr. Gunjal that a person lawfully cultivating any land referred to in Section 4 of the Act brings within its fold an undivided Hindu family also. His contention therefore is that the Act has contemplated the case of a person being a protected tenant not in his individual capacity but as a member of an undivided Hindu family enjoying the rights of tenancy for and on behalf of the said family. His further contention is that there was no need for adding the second explanation in Section 2 (6) unless it was the intention of the Legislature to include cases in which an undivided Hindu family is itself regarded as being entitled to the rights of a tenant. Otherwise, according to them, the words in Sub-clause (ii) of the said provision 'by the labour of any member of one's family' would also cover the case of a member of an undivided Hindu family. But it is pointed out by Mr. Hulgur that the phrase 'one's family' would ordinarily include members of a family consisting of a person's wife and children only and that in order to make it clear that even in cases where the cultivation is by any member of the undivided Hindu family, and the tenant is a member of such family, had to be specifically provided for. I think Mr. Hulgur is right in putting that interpretation. The mere Fact that Explanation II has been embodied in Section 2 (6) does not necessarily lead to the conclusion that it was under the contemplation of the Legislature to provide for cases where the tenant was in possession and enjoyment of the property leased in his capacity as representing the joint undivided family to which he belonged. There is another reason why the word 'person' in Section 4 of the Act cannot refer to a joint undivided Hindu family. Section 4 states that a person lawfully cultivating any land belonging to another person shall be deemed to be a tenant, if such a person is not a member of the owner's family. It will be difficult to substitute the phrase 'undivided Hindu family' for the word 'person' in Section 4. It is not possible to contemplate an undivided Hindu family being considered as a member of the owner's family.
8. It is not disputed that Subbappa was the protected tenant of the suit land. On his death, therefore, under the second proviso to Section 27, the suit property could be partitioned only among the lineal descendants of Subbappa. Hence, the partition between the plaintiff and defendants I and 2 which is alleged to have taken place is invalid. Hence, even though Mr. Gunjal is right in contending that defendants must be held to have proved the alleged partition of 4-3-1956, it does not help the defendants' case any further. The provisions of Section 27 make it clear that the intention of the Legislature was that on the death of a tenant it is only his lineal descendants who must succeed to his tenancy rights in the leased property. If the contention of Mr. Gunjal that the right of the deceased tenant must be regarded as the leasehold right which belongs to the entire undivided Hindu family of the tenant, then such a conception would be contrary to the specific provisions of Sections 27 and 40 of the Act, as they stood prior to the amendment. Since defendants 1 and 2 cannot claim any right in the leasehold property subsequent to the death of the protected tenant Subbappa under the provisions of Sections 27 and 40, and since the partition which took place on 4-3-1956 is invalid under Section 27, the lower courts were right in holding that defendants 1 and 2 have no right to the lease-hold property or any portion thereof.
9. It was next contended by Mr. Gunjal that the amendment Act XIII of 1956 which came into force from 1-8-1956 provides for a case where at the time of death the tenant is a member of a joint family and that thereunder the surviving members of the said family are entitled to partition and subdivide the land But this amendment came into effect subsequent to the alleged partition. The words 'if the tenant dies' according to Mr. Gunjal mean that the right conferred under Section 27 as amended also enures to the benefit of the surviving members of a joint Hindu family even in cases where the tenant dies prior to the date of the amendment. In the present case, the sons of Subbappa, namely, the plaintiff and his brothers had a vested right in the suit property conferred on them under Section 27 of the Act on the date the amendment came into force. In order to take away the vested right there must be express terms to that effect in the statute. And in the absence of the same, it cannot be deemed that the Legislature intended to take away the vested rights. The provisions of Section 27 as amended do not expressly state that they have retrospective effect. Hence, this contention also has to be rejected.
10. Since the partition itself is invalid under Section 27 of the Act, the plaintiff is not precluded from claiming back the shares alleged to have been allotted to defendants 1 and 2. Defendants 1 and 2 do not get any valid title under the said partition. It is not their case that they have acquired title by adverse possession. Hence, the fact that there was a partition does not preclude the claim of the plaintiff to the entire suit property.
11. This second appeal therefore fails and is dismissed. No costs.
12. Appeal dismissed.