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Bai Ganga Wd/O. Khoda Chhagan and ors. Vs. Bai Kamla Daughter of Mangaldas Someshwar ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1974)15GLR345
AppellantBai Ganga Wd/O. Khoda Chhagan and ors.
RespondentBai Kamla Daughter of Mangaldas Someshwar ors.
Cases ReferredDahyabhai Desaibhai v. Gujarat Revenue Tribunal
Excerpt:
- - if ultimately the proceedings instituted by them on or before 31 st march 1957, failed their lands came to be vested in their tenants on the dates of the final orders in those proceedings. if that prima facie view is to hold good in the case of a disabled landlord other than a widow, his disabled heir or successor will be entitled to the benefit of section 32 f read with section 31(3) if he dies during the period of his disability. that is the scheme of sub-section (1) and (2) of section 31. after a landlord has made use of the opportunity and failed or after he has failed to make use of that opportunity the right to purchase the land accrues to the tenant. it is after this opportunity has been exhausted and if the landlord has failed to his attempt to recover possession of the.....s.h. sheth, j.1. khodabhai chhaganbhai the father of petitioners nos. 2 to 8 and husband of petitioner no. 1 was the' tenant in respect of s. nos. 178/2, 179 and 180 of village tarsali in padra taluka of baroda district. s. no. 178/2 has been admeasuring 7 gunthas, s. no. 179 has been admeasuring 2 acres and 34 gunthas and s. no. 180 has been admeasuring 34 gunthas. they belonged to one bai jadav widow of somabhai punjabhai. since bai jadav was a widow statutory purchase of these lands under section 32 of the bombay tenancy and agricultural lands act, 1948 (hereinafter referred to as the tenancy act for the sake of brevity) was postponed. bai jadav died on 14th february 1961. she had one son mangaldas who had predeceased her. she was survived by three daughters who are the respondents.....
Judgment:

S.H. Sheth, J.

1. Khodabhai Chhaganbhai the father of petitioners Nos. 2 to 8 and husband of petitioner No. 1 was the' tenant in respect of S. Nos. 178/2, 179 and 180 of village Tarsali in Padra Taluka of Baroda district. S. No. 178/2 has been admeasuring 7 Gunthas, S. No. 179 has been admeasuring 2 acres and 34 Gunthas and S. No. 180 has been admeasuring 34 Gunthas. They belonged to one Bai Jadav widow of Somabhai Punjabhai. Since Bai Jadav was a widow statutory purchase of these lands under Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Tenancy Act for the sake of brevity) was postponed. Bai Jadav died on 14th February 1961. She had one son Mangaldas who had predeceased her. She was survived by three daughters who are the respondents Nos. 1,2 and 3 to this petition. On 6th August 1956, Bai Jadav executed a will by which she bequeathed these lands upon respondent No. 4 Ashokkumar who is the son of one of her daughters-Savita, respondent No. 2. Khodabhai the tenant died on 13th November 1956. During the life time of Bai Jadav, Khodabhai could not exercise his right of statutory purchase of these lands under the Tenancy Act on account of the special protection granted to the widows. Under the relevant provisions of the Tenancy Act to which we are shortly referring, he could not exercise that right of his until the expiry of one year from the date of death of Bai Jadav, that is to say, until 14th February 1962. Between 14th February 1962 and 13th November 1965 when Khodabhai died he voluntarily did not exercise that right of his. On 29th July 1967 the petitioners as the heirs and legal representatives of Khodabhai applied to the Mamlatdar and Agricultural Lands Tribunal to fix the purchase price of these lands with the object of effecting in their favour a statutory purchase thereof. The Mamlatdar found that, by virtue of the will which Bai Jadav had made in favour of the respondent No. 4, the latter had become the owner of these lands. Since the respondent No. 4 was a minor on 14th February 1961 when Bai Jadav died and since the Tenancy Act granted the minors certain special privileges and protection, the statutory purchase of these lands would be further postponed until the expiry of one year from the date on which Ashokkumar respondent No. 4 would attain majority, that is to say until 24-6-1970. 24th June 1969 was the date on which respondent No. 4 attained majority. He also held that respondents Nos. 1, 2 and 3-three daughters of Bai Jadav-were not necessary parties to the proceedings. In view of these findings of his he ordered the postponement of the statutory purchase until 24th June 1970.

2. Against that order of the Mamlatdar the petitioners appealed to the Deputy Collector who after hearing the parties dismissed the appeal on 1st June 1971. The petitioners challenged that order in a Revision Application which they filed before the Gujarat Revenue Tribunal. By its order dated 191 h July 1972, the Revenue Tribunal dismissed the Revision Application. It is under these circumstances that this petition under Article 227 of the Constitution has been filed challenging the aforesaid orders made against the petitioners.

3. Before we proceed to examine the contentions raised by Mr. Shah who appears for the petitioners, it may be noted that on 15th November 1966, succession certificate was granted by the Civil Court to respondent. No. 4 in respect of the will of Bai Jadav. Under it he is the sole legatee. On 25th November 1969, respondent No. 4 filed against the petitioners an application before the Mamlatdar under Section 14 read with Section 29 of the Tenancy Act for recovering possession of these lands. That application is now pending at a revisional stage before the Gujarat Revenue Tribunal. In January 1970 respondent No. 4 filed against the petitioners another application under Section 31 read with Section 29 of the Tenancy Act for recovering possession of these lands which is also pending. On 21st August 1969 the petitioners made another application to the Mamlatdar for fixing the purchase price of these lands. This petition came up for hearing before Mr. Justice A.D. Desai who referred it to the larger Bench because an important question of construction of Section 32 F and Section 31 of the Tenancy Act is involved.

4. Mr. Shah has raised before us the following contention:

Whether on the death of Bai Jadav a landlady under disability on account of her widowhood statutory sale of these lands was further postponed because her heir and successor was a minor- a landlord under disability-until the expiry of one year after he attained majority.

5. Mr. Shah has contended before us that the scheme of the Act contemplates minors, widows and landlords under mental or physical disability as on 1st April 1957 and not such subsequent landlords. Section 32 F contemplates a special class of landlords consisting of minors, widows and persons suffering from any mental or physical disability. They are referred to in this judgment as disabled landlords. For them special provision has been made in the Tenancy Act. In order to examine the contention raised by Mr. Shah, it is necessary for us to turn to Section 32 F. The principal part of Clause (a) of Sub-section (1) of Section 32 F provides as under:

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, 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

The proviso to Clause (a) is not relevant for the purpose of the present case. The expression 'landlord' is defined by the Act. Before we proceed to examine the definition, it is necessary to see the scheme relating to the statutory purchase of lands by the tenants. Section 31 provides that 'notwithstanding anything contained in Sections 14 and 30 but subject to Sections 31A to 31D (both inclusive) a landlord (not being a landlord within the meaning of Chapter III-A), may after giving notice and making an application for possession as provided in Sub-section (2), terminate the tenancy of any land (except a permanent tenancy) if the landlord bonafide requires the land for any of the following purposes:

(a) for cultivating personally or

(b) for any non-agricultural purpose.

Sub-section (2) required a landlord, if he wanted to recover possession of his land, to serve on his tenant a notice contemplated by Sub-section (1) on or before 31st December 1956 and to make an application for possession to the Mamlatdar on or before 31st March 1957. Sub-sections (1) and (2) make it quite clear that all the landlords had a right to terminate the tenancies of their tenants before 31st December 1956 and to make against-them applications for possession of lands if they required their lands for personal cultivation or for non-agricultural purpose. After 31st March 1957, the landlords came to be divided into two classes: (1) disabled landlords and (2) other landlords. So far as the other landlords were concerned those who had not applied on or before 31st March 1957 against their tenants for recovering possession of their lands, lost their lands and their lands came to be vested, subject to the provisions of Section 32 and other allied sections, in their tenants. Those landlords who had already applied for possession on or before 31 st March 1957, had a right to continue the proceedings until the final order was made in that behalf by the Mamlatdar or by the Collector in appeal or by the Gujarat Revenue Tribunal in revision. If ultimately the proceedings instituted by them on or before 31 st March 1957, failed their lands came to be vested in their tenants on the dates of the final orders in those proceedings. Such a date has been described in Section 32 as the postponed date. In so far as the disabled landlords are concerned, provision has been made in Sub-section (3) of Section 31. In the case of a minor he has got a right to make an application for possession within one year from the date on which he attains majority. In the case of a widow the successor-in-title has got a right to make an application for possession within one year from the date on which her interest in the land ceases to exist. In the case of a landlord suffering from any mental or physical disability he has a right to make an application for possession under Section 29 within one year from the cessation of his mental or physical disability. It is therefore clear that so far as the owners of agricultural lands were concerned, they were in the first instance divided into two classes as stated above-disabled landlords and other landlords. Other landlords were sub-divided in two classes-(a) those who did not institute any proceedings under Section 29 before 31st March 1957, and (b) those who instituted proceedings under Section 29 before 31st March 1957. The lands of those landlords who had not instituted any proceedings under Section 29 before 31st March 1957 and who were not disabled landlords vested on 1st April 1957 in their tenants subject to the other provisions of the Tenancy Act. Such landlords came to be divested of their lands with effect from that date. The landlords other than the disabled landlords who instituted proceedings under Section 29 against their tenants on or before 31st March 1957 have been treated differently by Section 32 inasmuch as they would be divested of their lands on the postponed date if they ultimately lost the proceedings. So far as the disabled landlords are concerned the postponed date on which their tenants would effect the statutory purchase of their lands is an uncertain date in the sense that it depends upon the happening of a certain event at an uncertain time in a case of each one of them.

6. In the instant case Bai Jadav was a widow on 1st April 1957. Therefore the right of her tenant to purchase these lands was postponed under Section 32F (1)(a) until the expiry of one year from the date on which the interest of Bai Jadav in these lands ceased to exist as contemplated by Sub-section (3) of Section 31. Mr. Shah has argued before us that Bai Jadav died on 14th January 1961. Therefore the petitioners' right to statutory purchase of these lands was postponed only until 14th February 1962. According to him therefore after 14th February 1962 they were entitled to purchase these lands under the provisions of the Tenancy Act. Mr. Majmudar on the other hand has contended before us that the respondent No. 4-a minor, succeeded to the estate of Bai Jadav, a widow under the latter's will as soon as the latter died. Therefore according to him though the interest of Bai Jadav widow ceased to exist on 14th February 1962, the petitioners could not purchase these lands within one year from that date because the respondent No. 4 the minor legatee of Bai Jadav was entitled to the benefit of Clause (i) of Sub-section (3) of Section 31 read with Clause (a) of Sub-section (1) of Section 32F. Therefore according to him the right to make statutory purchase of these lands would accrue to the petitioners only on the expiry of one year from the date of the attainment of majority by the respondent No. 4. The respondent No. 4 became major on 14th June 1969. Therefore if the respondent No. 4 did not institute any proceeding for recovery of possession of these lands against the petitioners the right to make statutory purchase of these lands would accrue to the petitioners only on 24th June 1970. In other words Mr. Shah contends that within the meaning of Sub-section (1) of Section 32-F read with Sub-section (3) of Section 31, a disabled landlord is one who was suffering from statutory disability as on 1st April 1957. According to Mr. Majmudar a disabled successor of a disabled landlord would also be included within the meaning of the disabled landlord.

7. Now Sub-section (1) of Section 32 F opens with the expression 'notwithstanding anything contained in the preceding section,

(a) where the landlord is a minor or a widow or a person subject to any mental or physical disability....

It is therefore necessary for us first to see the definition of the expression 'landlord.' Sub-section (18) of Section 2 of the Tenancy Act defines 'tenant' in the following terms:

Tenant' means a person who holds land on lease and includes--... and the word 'landlord' shall be construed accordingly.

8. The first question which arises is whether the definition of the expression 'tenant' includes his successor in interest. The answer to this question is in the affirmative for two reasons. The leasehold rights in immoveable property are heritable under the law of the land. Therefore a tenant who is a lessee in respect of the agricultural land passes on his death his right, title and interest in the agricultural land to his heirs and legal representatives. In other words upon the heirs and legal representatives of a tenant devolve the right, title and interest of the tenant on the latter's death.

9. Section 40 of the Tenancy Act has expressly enacted this principle. It provides thus:

(1) Where a tenant (other than a permanent tenant) dies the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy.

(2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land.

The expression 'tenancy' used in Section 40 means relationship of landlord and tenant as defined by Sub-section (17) of Section 2. The principle which has been enacted in Section 40 is substantially the same as in the case of law of inheritance. It is therefore clear that a tenant not only means a person who entered into possession of the land under is from his landlord but it also means, after his death, his heirs am representatives. Now Sub-section (18) of Section 2 requires us to construe the expression 'landlord' accordingly.

10. If the expression 'tenant' connotes a successor in interest of the tenant also the expression 'landlord' must also connote his successor in interest. To say that 'tenant' includes his successor in interest but that 'landlord' does not include his successor in interest is not to construe the expression 'landlord' accordingly but to construe it differently, It cannot be done. Sub-section (1) of Section 32 F does not expressly say that the landlord contemplated by it is as on 1st April 1957. It uses the expression 'landlord' simpliciter and the statute requires us to construe it in homogeneity with the definition of the expression 'tenant.' Nothing prevented the Legislature from using the expression 'a landlord as on the tillers day' or 'a landlord as on 1st April 1957' instead of using the expression 'a landlord'.

11. If therefore we have to construe the expression 'landlord' in the light of the definition of that expression given in Section 2(18), the view stated above would be our prima facie view. If that prima facie view is to hold good in the case of a disabled landlord other than a widow, his disabled heir or successor will be entitled to the benefit of Section 32 F read with Section 31(3) if he dies during the period of his disability. In case of a widow if at the time of her death she was survived by a disabled heir and successor, he would be entitled to the benefit of Section 32 F read with Section 31(3). However Section 2 which defines several statutory expressions including the expressions 'tenant' and 'landlord' opens with the following words:

In this Act unless there is anything repugnant in the subject 01 context....

It is necessary therefore for us to determine whether there is any internal evidence to support the construction which we are adopting or whether there is anything repugnant to it in the context or subject. Now the landlords are broadly speaking divisible in two parts-(1) disabled landlords and (2) other landlords. So far as the landlords other than the disabled landlords are concerned, the statute gives them one opportunity to terminate the tenancy of the tenants and to recover possession of their lands before they vest in the tenants. That is the scheme of Sub-section (1) and (2) of Section 31. After a landlord has made use of the opportunity and failed or after he has failed to make use of that opportunity the right to purchase the land accrues to the tenant. This is the clear effect of the combined reading of Sub-sections (1) and (2) of Section 31 and Section 32F. In other words the right of the landlord to terminate his tenant's tenancy and to recover possession of the land from him on the ground stated in Section 31 and the right of the tenant to purchase the land under the statute co-exist. If that is the scheme for the landlords other than the disabled landlords, we think that the Legislature has provided for such a scheme for disabled landlords also. A look at Sub-section (1) of Section 32 F read with Sub-section (3) of Section 31 makes it quite clear that a disabled landlord other than a widow has one opportunity to terminate the tenancy of his tenant and to recover possession of the land from him within one year from the cessation of his disability. In case of a widow such a right is available to her successor is title Within one year from the cessation of her interest. It is after this opportunity has been exhausted and if the landlord has failed to his attempt to recover possession of the land from his tenant be if he has failed to avail himself of that opportunity within the prescribed period of time the corresponding right to purchase the land accrues to his tenant; Converse' the right to purchase the land does not accrue to the tenant of a disabled landlord except at the end of one year of the cessation of his disability except in case of a widow and if he has failed to avail himself of the opportunity given to him or if he has failed after having availed of that opportunity to recover possession of land from his tenant. In case of a widow the right to purchase the land accrues to her tenant after one year of the cessation of her interest in the land if her successor in title has failed during that period of time to avail himself of the opportunity to terminate the tenant's tenancy and recover possession or if having availed himself of that opportunity he has failed in his attempt to do so. It is therefore clear that both in case of a landlord other than a disabled landlord and the disabled landlord, the landlord's right to terminate the tenancy and recover possession of the land from his tenant in accordance with the provisions of Section 31 co-exists with the right of the tenant to purchase the land from his landlord.

12. Now if a disabled landlord other than a widow dies while he is under a disability and if he is succeeded by another disabled landlord the succeeding disabled landlord ought to have under the force of the aforesaid logic the right to terminate the tenancy of the tenant within one year from the cessation of his disability and to recover possession of the land. If a disabled landlord does not include, as it has been contended by Mr. Shah, a succeeding disabled landlord he will have no opportunity to terminate the tenancy of the tenant and recover possession of the land. The tenant in such a case will be able to purchase the land within the prescribed period of time after the death of the first disabled landlord or landlady. If one opportunity to the landlord to terminate the tenancy of his tenant arid to recover possession of the land from him and the right of the tenant to purchase the land are co-related as we think they are (vide Section 31 and 32F) then that co-relationship would be broken if a disabled landlord dies under disability and is succeeded by another disabled landlord. In our opinion therefore unless a landlord-disabled or otherwise, has one statutory opportunity to terminate the tenancy of his tenant and to recover possession of his land the corresponding right to purchase the land does not accrue to the tenant. In terms of the provisions of the statute the conclusions which we have arrived at are as follows (1). The landlords other than the disabled landlords had one statutory opportunity on or before 31st March 1957 to terminate their tenants' tenancies and to recover possession of their lands from them and the tenants got the statutory right to purchase the lands either on 1st April 1957 or on the postponed date in those cases where proceedings for recovery of possession of the lands had been pending on 1st April 1957 between such landlords and their tenants. (2) In case of disabled landlord as on 1st April 1957 they would have such a right, except in case of widows, upon cessation of their disability, In case of widows their successors-in-title would have such a statutory opportunity upon their death, physical or civil.

(3) In both cases the right to purchase the land accrued to the tenants if the landlords failed to avail themselves of the said statutory opportunity or if they failed in their attempt after having availed themselves of the statutory opportunity.

13. Let us extend this principle further. If a disabled landlord other than a widow dies under disability and is succeeded by a disabled landlord, the successor must have in terms of the aforesaid logic the right to terminate the tenancy of the tenant and to recover possession of the land upon the cessation of his disability. If he fails to make good that right of his or if he fails to avail himself of it, the right to purchase the land accrues to the tenant. If a widow dies and is succeeded by a disabled landlord-may be another widow or any other disabled landlord-her successor must have a right to terminate the tenancy and recover possession of the land from the tenant upon cessation of the disability. The right to purchase the land accrues to the tenant only thereafter. It is quite true that in an extreme case there may be a chain of disabled landlords and the right to purchase the land does not accrue to the tenant in any foreseeable future. Such a situation may arise where the landlord who was a widow on 1st April 1959 was succeeded by a widow and the second widow was on her death succeeded by a third widow and so on. If such a situation develops the postponed date for statutory purchase by the tenant would be far too removed. It is not possible to help such a situation if it arises because we cannot place a different construction upon Section 32F (1) and Section 31(3) for the purpose of helping a conceivable tenant out of his difficulty arising in a very rare case where a chain of widows succeed one another. To think that there will be a chain of widows succeeding one another is in our opinion a very unreal situation. It is very rare and exceptional. It need not be taken into account for the purpose of diluting the principle of co-existence between the landlord's right to terminate his tenant's tenancy and to recover possession of the land and the tenant's right to purchase the land. We are therefore of the opinion that in case of a disabled landlord unless one statutory opportunity has been available to the landlord to terminate his tenant's tenancy and to recover possession of his land from him the right to purchase the land does not accrue to the tenant.

14. This problem can be viewed also from a different angle. It is indisputable that a landlord has a right to terminate the tenancy of his tenant as long as the relationship of landlord and tenant subsists between them. In case of landlords other than disabled landlords that relationship was finally snapped with effect from 1st April 1957 or with effect from the postponed date in those cases where the proceedings under Section 31(1) and (2) read with Section 29 had been pending between the landlord and the tenant. In case of disabled landlords other than widows the relationship of landlord and tenant would continue until the expiry of year from the cessation of disability and it would be finally snapped thereafter unless the proceedings under Section 31(3) read with Section 29 had been pending between them and their tenants. In the latter class of cases the relationship is bound to be snapped on some future date which would coincide with the date of final decision in those proceedings. The right to purchase the land would accrue to the tenant in such a case with the final rejection of the proceedings. In case of widows the relationship of landlord and tenant would continue between her and her tenant during her life time and for one more year after her death. As long as this relationship of landlord and tenant continues the right to make statutory purchase cannot accrue to the tenant. It is therefore clear that as long as the relationship of landlord and tenant subsists the landlord has a right to terminate the tenancy and to recover possession of the land from the tenant and that the tenant gets the right to purchase the land thereafter in case the landlord fails. Therefore if a disabled landlord is succeeded by another disabled landlord the relationship of landlord and tenant will continue until the expiry of one year after the cessation of the disability of the successor of the disabled landlord. In such a case the statutory right to purchase the land does not accrue to the tenant until that point of time. The construction which we are placing upon Section 32 F read with Section 31 carries into effect the legislative intention of conferring upon the tenant statutory right to purchase the land in respect of which he is the tenant after giving his landlord one opportunity to terminate his tenancy and to recover possession of the land from him and after the relationship of landlord and tenant has ceased to exist or has been snapped. On the first principles also, there cannot be statutory purchase of land by the tenant as long as the relationship of landlord and tenant subsists. We are emboldened to adopt this construction because the concept of a disabled landlord other than a widow acting through a guardian and of the widow acting herself is unknown to the Tenancy Act.

15. Mr. Shah has posed before us a question for the purpose of testing the soundness of the construction which we have adopted. What would have happened, asks Mr. Shah, on 1st April 1957 if the land was owned by a landlord other than a disabled landlord but if he was succeeded by a disabled landlord? In the light of the principles which we have enunciated it is easy to answer the question posed by him. On 1st April 1957 since the land was owned by the landlord other than a disabled landlord the relationship of landlord and tenant was snapped between him and his tenant. There is nothing in the Tenancy Act which revives the snapped bonds. To illustrate this principle it can be unhesitatingly said that if a minor succeeds a major he has no special right or protection for these purposes under the provisions of the Tenancy Act. If we accept the construction canvassed by Mr. Shah and hold that a disabled landlord contemplated by Sub-section (1) of Section 32 F read with Sub-sections (1) and (2) of Section 31 was one as on 1st April 1957 and none else, it would be disastrous for tenants also. Clause (b) of Sub-section (1) of Section 32 F supports this proposition. It contemplates amongst others that a minor tenant will exercise his right to purchase the land under Section 32 within one year from the date on which he attains majority. If such a minor tenant dies during his minority and is succeeded by another minor then the first minor having never attained majority, the right to purchase land shall never be exercised because the succeeding minor is, as contended by Mr. Shah, not covered by the expression 'minor'. In such a case the entire scheme of statutory purchase will fail. A similar situation will obtain in case of disabled landlords including widow who are succeeded by other disabled landlords. If a physically or mentally handicapped landlord dies under such a disability and if he is succeeded by a minor or another physically or mentally handicapped landlord or by a widow since there was no removal of the handicap of the first landlord, his successor would have no right to purchase the land. That is the net effect of the construction canvassed by Mr. Shah. We are not able to accept the argument that a second widow can act herself and make statutory purchase because if a second succeeding widow can do it, we see no reason why the first widow cannot do it. If a widow is succeeded by a minor the right of the minor to purchase the land upon attaining the majority would be lost if the construction canvassed by Mr. Shah is accepted.

16. From the aforesaid discussion we are of the opinion that the philosophy which under lies the Tenancy Act in this behalf is that the landlord acting himself must have one effective chance to terminate the tenancy of his tenant and that thereafter his tenant should have a right to purchase the land. These two rights co-exist. Secondly as long as relationship of landlord and tenant subsists the landlord has one statutory opportunity to terminate the tenancy.

17. Applying these principles to the facts of the instant case we find that the lands in question were on 1st April 1957 owned by Bai Jadav, a widow. She died and has been succeeded by respondent No. 4 who was a minor. He cannot act until he attains majority and has one opportunity to terminate the tenancy of the petitioners and to institute proceedings for recovering possession of the lands. Till he exercises that right the petitioners do not get the right to purchase the lands in question. The applications made by the petitioners during the minority of the respondent No. 4 to fix the purchase price of the lands in question were therefore not maintainable.

18. Mr. Shah has raised before us a number of arguments in support of his contention. The first argument which he has raised is based upon the language of Clause (a) of Sub-section (1) of Section 32F which inter alia provides as follows:

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.

He has then invited our attention to Clause (ii) of Sub-section (3) of Section 31 and argued that a widow has not been given the right to terminate the tenancy and make an application for possession under Section 29. According to him it is the successor in title of the widow who has been given such a right. According to him therefore the widow contemplated by Section 32F (1) is different from the widow contemplated by Section 31(3)(ii). What Section 31(3)(ii) contemplates is the right of the successor in title of a widow to terminate the tenancy and to make an application for possession and it is to that right of the successor-in-title of a widow that the tenant's right to purchase the land is tagged. It does not in our opinion mean that the successor-in-title has greater right than a widow has. During the life time of a widow the relationship of landlord and tenant continues to remain in force. She can therefore always terminate the tenancy on any of the grounds specified in the Tenancy Act. If she does so no right accrues to the tenant to purchase the land because as stated by us above the tenant's right to purchase the land belonging to a widow who is the landlord is tagged to the right of her successor-in-title to terminate the tenancy and to make an application for possession.

19. Mr. Shah has also tried to argue without any substance that on 1st April 1957 the right of a widow to terminate the tenancy came to an end and that it revived when her successor -in-title came into picture. We are unable to accept this argument for two reasons. Firstly there is nothing in the Tenancy Act which produces such an inter regaum. Secondly if the relationship of landlord and tenant continues between the widow and her tenant, the widow can always terminate the tenancy. However, that termination produces no favourable consequence for the tenant because his right to purchase the land has not been tagged by the Tenancy Act to such a termination.

20. Next argument which Mr. Shah has raised is that Section 32-F(1) read with Section 31(3) confers a personal right upon the landlords under statutory disability on 1st April 1957 and that therefore no extension of that right has been contemplated to disabled landlords who succeed disabled landlords. We are unable to uphold this argument in the light of the aforesaid reasons. Me has next tried to argue that if a successor of a disabled landlord is given the benefit of Section 32-F read with Section 31(3) it would frustrate the scheme of the Act in that behalf because there would be a chain of transfers from one disabled landlord to another disabled landlord. In view of the conditions which Section 31 prescribes for terminating the tenancy we do not think that the apprehension expressed by Mr. Shah is well-founded. Section 31 prescribes two grounds on one or both of which the tenancy of a tenant can be terminated. One ground is personal cultivation. Another ground is nonagricultural purpose. So far as personal cultivation is concerned, Section 31A (d) provides that a landlord can terminate the tenancy on that ground if the land leased has been standing in the record of rights or in any public record or similar revenue record on the 1st day of January 1952 and thereafter during the period between the said date and the appointed day in the name of the landlord himself or in the name of any of his ancestors, but not in the name of any other predecessor-in-title from whom title is derived, whether by assignment or Court sale or otherwise. It is therefore clear that for personal cultivation a landlord terminate the tenancy of his tenant and make an application for possession if the land is standing either in his name or in the name of his ancestors on 1st January 1952 and thereafter. Proceeding further Mr. Shah has argued that the respondent No. 4 is a testamentary legatee of Bai Jadav and that therefore Bai Jadav does not answer the description of his ancestor. That is not the question which has arisen for our consideration in this petition. He has however cited the unreported decision of this Court in Special Civil Application No. 1112 of 1968 decided by Mr. Justice A.D. Deasi and Mr. Justice S.N. Patel on 3rd March 1972 (Maheshchandra Navinchandra v. Madhubhai Parshotam) wherein it have been held that in case of testamentary succession from an ancestor to his descendant the relationship between such a testator and such a legatee is not one of ancestor and descendant but that of a testator and legatee falling under the expression 'any other predecessor-in-title from whom title is derived' used in Section 31 A(d). This part of Section 31A prescribes a condition precedent to the exercise by the landlord of his right to terminate the tenancy of his tenant. It is expressed in the following terms:

The land leased stands in the record of rights or in any public record or any similar revenue record on the 1 st day of January 1952 and thereafter during the period between the said date and the appointed day in the name of the landlord himself or of any of his ancestors, but not of any other predecessor-in-title from whom title is derived, whether 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' (emphasis ours).

The expression 'any other predecessor-in-title'' (emphasis ours) used in juxtaposition with the expression 'ancestors' suggests that the predecessors-in-title, constituting the genus have been divided into two species: (1) ancestors and (2) other predecessors-in-title. Therefore, an ancestor cannot be '-any other predecessor-in-title' (emphasis ours) and 'any other predecessor-in-title' (emphasis ours) cannot be an ancestor. The Legislature appears to be making a distinction between devolution from or succession to an ancestor and transfer by a transferor. The distinction does not appear to have been founded upon testamentary or intestate succession as the learned Judges appear to have thought in the aforesaid decision. If their view is correct, an ancestor will cease to be an ancestor merely because he has made a will, assumed the character of a testator and his son is a beneficiary under the will and becomes a legatee. The word 'other' will lose all its significance if an ancestor who is the testator is brought under 'any other predecessor-in-title' 'and mixed up with it merely because he has made a will and regulated the succession to his estate thereby. 'Any other predecessor-in-title' 'must mean any predecessor-in-title other than an ancestor. It is not capable of any other meaning. An ancestor remains an ancestor irrespective of whether the succession to his estate, when it opens, is as on intestacy or regulated by a testamentary instrument. There is no qualification attached to the expression 'ancestor' There is therefore no reason why its connotation should be confined to ancestors other than testator-ancestors. Ancestors as a class have been distinguished from other predecessors-in-title. They have been so distinguished for the purpose of excluding transferors from the class of ancestors. There does not seem to be any other purpose. If an ancestor means an ancestor other than a testator-ancestor, it will lead to a very anomalous situation. A son who inherits his father's land as on intestacy will be entitled to the benefit of Section 31A but another son, similarly situate in all other respects, shall not be entitled to such a benefit merely because he inherits his father's land under a testamentary instrument. The test of testamentary succession introduced for construing Section 31A (d) does not appear to be a correct test. The principle laid down in the aforesaid decision, therefore appears to be open to doubt. We, however, express no final opinion thereon because this question is not necessary to be decided for the purpose of this case. If it was necessary for us to decide it, we would have considered whether the question should be referred to a Full Bench. Under these circumstances the provisions of Section 31A (d) ought to repel the apprehension which Mr. Shah experiences.

21. Mr. Shah has cited before us the decision of the Supreme Court in Patel Chunibhai Dajibha v. Narayanrao Khanderao : [1965]2SCR328 . On the strength of this decision he has argued that the Tenancy Act contemplates only one postponed date and no more and that such a postponed date has relation to disability of the landlord as on 1st April 1957. That was not a case of a disabled landlord and the rights which accrued to him under Section 32 F (1) read with Section 31(3). In that case the landlord who was not a disabled landlord gave within time notice to his tenant terminating his tenancy and on March 24, 1957 made an application under Section 29 read with Section 31 for evicting his tenant. On July 10, 1957 he made another application against his tenant under Section 29 read with Section 14 for the same relief. The Supreme Court held that the second application for possession, made after 1st April 1957, was not maintainable and ought to have been rejected even though the first application made prior to 1st April 1957 had been pending because Section 32 barred all such applications after 1st April 1957. It is in that context that the Supreme Court observed that there was only one postponed date contemplated by the Tenancy Act. The facts of the case render the principle laid down by the Supreme Court in that case inapplicable to the instant case. In this connection, it is necessary to remember what Earl of Halsbury L.C. said in Quinn v. Leathern (1901) Appeal cases 495 (at page 505)..every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found (here are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.

22. Mr. Shah has next argued that the scope of the exception which Section 32F read with Section 31(3) carves out should not be expanded by placing the construction which we are placing. We are not expanding the scope of the exception as contended by Mr. Shah but we are taking it to its logical limits. To do otherwise is to narrow down the scope of the exception and to produce disastrous consequences for tenants for whose benefit the Tenancy Act has been enacted. The next argument which Mr. Shah has raised is that the Tenancy Act is a beneficial Legislation and should be construed in favour of the tenants for whose benefit it has been enacted. That submission made by Mr. Shah is correct but it cannot prevent us from discovering the true and logical meaning of the expressions used in the Tenancy Act.

23. Mr. Shah has cited before us a number of unreported decisions. There is no decision which directly deals with the aspect which has been canvassed before us. Ail the decisions which he has cited are in cases which arose under Section 88C of the Tenancy Act. The scheme of Section 88C is quite different from the scheme of Section 32F read with Section 31. Section 88C enunciates the tests which cannot be applied to cases under Section 31(3). The test of economic holding which it enunciates applies to the land in respect of which exemption certificate is sought. The test which it enunciates next relates to the income of the person who applies for such an exemption certificate. The test of income is such a personal and individual test that its satisfaction must in its very nature be confined to the person who has applied for the exemption certificate. If therefore a landlord applies for an exemption certificate and satisfies inter alia the test laid down by Section 88C in respect of his income and dies before or after obtaining the certificate, the proceedings cannot be carried on or the certificate cannot be availed of as the case may be by the successor because he mayor may not satisfy the purely personal test of income which his ancestor satisfied. Therefore in cases under Section 88C the landlord contemplated is the landlord who makes an application thereunder and not his successor. Next Section 88C can be availed of by all landlords who satisfy the test laid down by it and has not been enacted only for the benefit of disabled landlords whose cases are dealt with by Section 31(3). Therefore whereas Section 88C provides for small holders as we would like to call them, Section 31(1)(a) provides for an altogether different class of landlords, namely disabled landlords. A disabled landlord may or may not be in a position to satisfy both or any one of the tests laid down by Section 88C. Similarly a small holder contemplated by Section 88C may or may not be a disabled landlord. The two classes of landlords with which Sections 88C and 31(1 )(a) deal are altogether different and are likely to be over-lapping and cross-cutting. The grant of an exemption certificate under Section 88C to a landlord other than a disabled landlord will divest his tenant of the title to the land which accrued to him initially on 1-4-1957. In case of Section 31(3) read with Section 32F(1) there is no vesting of title to the land in the tenant until the happening of a contingency contemplated thereby. Whereas in an application for possession made under Section 29 read with Sections 31, 31A and 31B, possession of half the area of the land can be awarded to the landlord subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 possession of the entire land can be recovered in certain cases by a certified landlord who has obtained an exemption certificate under Section 88C.

24. So far as widows are concerned Section 88-C confers its benefits only upon those who inter alia satisfy the income test and not upon all. Those widows who satisfy the income test laid down by Section 88-C will be able in certain cases to get possession of the entire land subject the other provisions of the Tenancy Act. Other widows cannot get possession of the entire land. At the most they can get possession of half the land as a result of the proceedings under Section 29 read with Sections 31 31A and 3IB subject to the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Next under Section 88-C, the right which has been given U a certified landlord to obtain possession of his land from his tenant is limited by time. If he fails to obtain possession after acting within time prescribed in that behalf or fails to take steps to obtain possession within the prescribed time, the tenant becomes entitled to purchase the land. Under Section 32F(1) read with Section 31(3) the benefit which has been granted to a disabled landlord continues for an indefinite period of time in as much as it continues until the happening of a specified event in case of each one of three classes of disabled landlords. However there is no fixed point of time when the event will happen except in the case of a minor where it can be said with exactitude and precision as to when he will attain majority if he lives until that age. Next under Section 88-C read with Section 32-T small holders can obtain possession of their lands only for bonafide personal cultivation. Under Section 29 read with Section 31 possession can be obtained not only for bonafide personal cultivation but also for non-agricultural purpose. An argument which has been advanced by Mr. Shah is that the provisions relating to the statutory purchase do not come into force in case of a widow (vide Section 32-F read with Section 31(3)). Why is the application of Section 32-F excluded in case of a widow under Section 88-C. The argument urged by Mr. Shah is very easy to answer. The widow contemplated by Section 88-C is any widow as on 1st. April 1957 or any subsequent widow. She must be a small holder as contemplated by Section 88-C. Section 32-F read with Section 31(3) does not contemplate widows who succeed landlords other than disabled landlords after 1-4-1957. Sub-section (5)(a) of Section 32-T protects a tenant whose tenancy was terminated by his landlord under Section 31 or under any other law then in force prior to the commencement of the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1960, on the ground that the latter required it for personal cultivation or for non-agricultural use and if the latter had taken possession. It is clear therefore that if a landlord has exercised his right under Section 31 prior to the commencement of the Gujarat Act. No. XVI of 1960, he is not be entitled to exercise his right again under Section 32-T read with Section 88-C even if he is a small holder. We have set out the aforesaid reasons in order to show that the scheme of Section 88-C read with Section 32-T is quite different from the scheme of Section 32-F read with Section 31(3). It is difficult under these circumstances to deduce any applicable principle for the purpose of this case from the decisions recorded in cases under Section 88-C.

25. In Madhaji Lakhiram v. Mashrubhai Mahadevbhai Rabari and Ors. 3 Gujarat Law Reporter 438, a Full Bench of this Court was considering a case under Section 88-C. The first principle which has been laid down in that decision is that Sub-section (1) of Section 88-C exempts lands to which it applies from the provisions of Section 32 and the landlord is brought into picture only in sad far as it is necessary to fix the land which earns the exemption. It has been laid down that the ownership of the demised land vests on the tillers' day in a tenant who fulfills the conditions mentioned in Sub-section (1) of Section 32. Therefore a landlord who wants to claim exemption under Section 88-C in respect of his land must satisfy those conditions as on the tiller's day. Since the scheme of Section 88-C is different from the scheme of Section 32-F read with Section 31, the principle laid down therein cannot be applied to the instant case. Therefore merely because Section 88-C is applicable to that class of landlords who satisfied on the tillers' day the conditions laid down therein, we cannot hold that Section 32F read with Section 31 applies to disabled landlords as on tillers' day only. This decision therefore does not help Mr. Shah in making good his contention.

26. The next decision which he has relied upon is in Special Civil Application No. 1393 of 1967 with Special Civil Application No. 1921 of 1970 decided by, Mr. Justice Divan and Mr. Justice B.K. Mehta on 20th September 1972. (Mangalbhai Fulabhai v. Parsottam XIV G.L.R. 792 The question which arose in that case was whether the heirs of a certified landlord to whom the exemption certificate was granted under Section 88C of the Tenancy Act could file or continue the proceedings under Section 32T for the purpose of obtaining the possession of the land from the tenant. The Division Bench has considered in extenso the scheme of Section 88C read with Section 32 T and recorded the conclusion that the expression 'certified landlord' does not include his successor in interest. We are not concerned in this case with that aspect of the case. We may however incidentally note that while recording the distinction between the scheme of Section 32 F read with Sections 31(3) and the scheme of Section 88C read with Section 32 T, we have arrived at the same conclusion at which the Division Bench has arrived in that case. However Mr. Shah has tried to rely upon the following observation made in that decision.

As we have pointed out above the successor in interest of minors or persons suffering from mental or physical disability are not contemplated either under Section 32T (4) or under Section 31(3).

It is reference to Section 31(3) to which Mr. Shah has clung in support of his contention. Reference to Section 31(3) is obiter dictum because the Division Bench in that case was not considering the scheme of Section 31(3) nor was it necessary for them to consider it for the purpose of deciding that case. In view of the fact it is an obiter dictum it is not binding upon us. Otherwise also that observation does not have any persuasive value because whereas Section 88 C contemplates the satisfaction of a purely personal and individual test by a person who applies for exemption certificate thereunder, Section 31(3) does not require satisfaction of any such test. The personal and individual test laid down by Section 88 C must necessarily exclude his successor. There is no such compelling factor which emerges out of Sub-section (3) of Section 31 for us to arrive at the same conclusion.

27. The next decision is in Special Civil Application No. 1966 decided by Mr. Justice Diwan and Mr. Justice M.U. Shah on 8-2-1971. Dahbia wd/o. Chhotalal v. Babarbhai Harmanbhai. It was also a case under Section 88C. In that case the land belonged to one Chhotalal Dawarkadas who terminated his tenant's tenancy on 25th March 1957 that is to say before 31-3-1957 and applied before the latter date for possession of land for bona fide personal cultivation. On 26-3-1958 he made an application under Section 88 C for an exemption certificate on the good that big total anal income was below Rs. 1500/- and that the land in question did not exceed an economic holding. During the pendency of the aforesaid proceedings Chhotalal died on 7-4-1958. Under his will his widow Dahiba succeeded to his estate and continued the proceedings instituted by Chhotalal. On 7-2-1958 the application for possession was rejected. On 22-5-1959, the application for exemption certificate was also rejected. On 13th December 1960 Section 88 C was amended by the Gujarat Act No. XVI of 1960. Dahiba made another application under Section 88C as amended for an exemption certificate. It was dismissed by the Mamlatdar, thereafter by the Prant Officer in appeal and finally by the Gujarat Revenue Tribunal in revision on the ground that Dahiba was not a widow on 1st April 1957 when the right accrued to the tenant to purchase the land in question. The matter was brought to this High Court in the aforesaid writ petition. The question which arose was whether the widow who would be competent to make an application under Section 88 C should be a widow as on 1-4-1957 or at the most on 1-8-1957. This Court considered several decisions bearing on this aspect and held that the of statutory purchase by the tenant of a land which belongs to a disabled landlord is the date at the end of one year after the cessation (if the disability. It has also held that the widow who was not a widow on 1st April 1957 could apply for an exemption certificate under Section 88C if she satisfied the conditions laid down there in. This decision based on the provisions of Section 88 C really does not have any application to the instant case. If it helps any one it helps the landlord in the instant case in as much as it lays down that under Section 88C a widow who was not a widow on 1st April 1957, could apply for an exemption certificate under ice. 88-C.

28. The next decision is in Special Civil Application No. 561 of 1967 with Special Civil Application No. 562 of 1967 decided by Mr. Justice Diwan on 6th September 1970 (Bai Hiralaxmi v. G.R. Tribunal.) In that case landlord Khubhchand was a disabled landlord on 1st April 1957 and remained disabled until he died on 13th January 1967. Prior to 1st April 1957, he ad partitioned his properties out of which some had gone to his widowed daughter Hira Laxmi. It was an oral partition. It has been held hat since the partition was oral, it conveyed no title to Hira Laxmi in respect of Khubchand's immoveable properties. He had also made a will by which he had bequeathed upon Hira Laxmi some of his immoveable properties. It took effect on his death- 13th January 1967. Now the question which arose in that case was as follows. Statutory sale of Khubchand's agricultural land was postponed at least until Khubchand's death on account of the fact that he was a disabled landlord. Was it further postponed because Hiralaxmi upon whom Khubchand's said property devolved was a widow on 13th January 1967 when Khubchand died and when she became its owner by testamentary devolution? Mr. Justice Diwan has not answered this question. It is one of the four questions which he framed and directed the Agricultural Lands Tribunal to answer on merits upon remand of the case to it. This decision therefore is of no assistance whatsoever. Reliance however has been placed by Mr. Shah on an observation made by Mr. Justice Divan while deciding whether a widow contemplated by the Tenancy Act, is a widow who has limited estate in the property or whether it is any widow-whether full owner or limited owner. In that context the learned Judge has stated that in case of a widow as on 1st April 1957, provisions of Section 32F of the Tenancy Act come into force. But does it necessarily mean that they do not come into force in case of other widows? This is exactly the question which he has not decided and which he has left open for decision by the Agricultural Lands Tribunal on remand of the case.

29. The next decision is in Special Civil Application No. 927 of 1966 decided by my learned brother on 12-1-1968 (Rasu Asman v. Bai Jiba). It was also a case under Section 88C. Therein, on 1st April 1957, Andarba, a widow was the landlord of the land in question. She died on 28th March 1959. She was succeeded by her daughter Jiba- a widow- who applied for an exemption certificate under Section 88C. It was contended on behalf of the tenant that since she was not the widow-landlord on 1st April 1957, she had no right to apply for an exemption certificate under Section 88C. My learned brother rejected that contention and held that she was entitled to apply for an exemption certificate under Section 88C because the widow contemplated by sec, 88C read with Section 32F was not necessarily a widow as on 1st April 1957. Even a subsequent widow-landlord who succeeds a widow-landlord as on 1st April 1957 could apply for an exemption certificate under Section 88C. If this decision helps any one, it helps the landlord in the instant case, and to that extent, supports the view which we are taking.

30. Chanchalben widow of Dahyabhai Desaibhai v. Gujarat Revenue Tribunal 12 Gujarat Law Reporter, 428, has also been referred to. This decision has been over-ruled by a Division Bench of this Court in Special Civil Application No. 1098 of 1966 decided on 8-2-197 L to which we have referred earlier. Therefore no detailed consideration of this decision is necessary for the purpose of this case.

31. In light of the reasons stated by us, we are of the opinion that the respondent No. 4 who is a minor is entitled to the benefit of Section 32 F (1) read with Section 31(3). Therefore the application made by the petitioners for fixing the purchase price is not maintainable.

32. For the reasons stated in this judgment we confirm the order made by the Gujarat Revenue Tribunal and discharge the Rule with no order as to costs. Interim stay granted herein is discharged. Record and proceedings of the case are directed to be sent back forthwith.

33. Civil Revision Application No. 253 of 1971 arises out of Small Cause suit No. 465 of 1970 filed by the landlords against the tenant for recovery of Rs. 1270/- due on account of arrears of rent in respect of the lands in question. The learned advocates appearing for the parties have prayed that we should set aside the judgment of the Trial Court and pass consent decree in place of the decree passed by the Trial Court. We, therefore, by consent set aside the judgment of the Trial Court and substitute the following consent decree in place of the decree of the Trial Court:

The defendants to the suit shall pay to the plaintiffs a sum of Rs. 655/- with future interest at 6 per cent per annum from the date of the decree of this Court.

This consent decree is passed without prejudice to the contentions raised by both the parties in the proceedings instituted under Section 14 read with Section 29 of the Tenancy Act and now pending before the Gujarat Revenue Tribunal in revision.

There shall be no order as to costs both in the suit as well as in this Revision Application. Rule is made absolute to the aforesaid extent.


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