ivil Appeal No 735 of 1975
From the Judgment and Order dated 2161974 of the Bombay High Court in Spl
Civil Appln
No 15 of 1971
UU Lalit and AG Ratnaparkhi for the Appellants
MS Gupta for the Respondent
68 The Judgment of the Court was delivered by SAWANT J
These proceedings arise under the Bombay Tenancy and Agricultural Lands Vidarbha Region Act 1958 hereinafter referred to as the Act
The appellant Hiraji Tolaji was admittedly a protected lessee or tenant of the agricultural land being Survey No 30 of Village Madha Taluqa Chikhali District Buldana
The land measures approxi mately 25 acres and 31 gunthas
The respondent who is men tally disabled became the landlady of the land in question in quite queer circumstances which to say the least are indefensible in law
Her father one Mr Brijlal Bansilal owned as many as 568 acres of land of which the suit lands are a part
The lands admittedly are ancestral
He effected first partition of his entire holding of lands on January 31 1949 between himself on the one hand and his wife and a minor son on the other
On December 16 1950 he effected a second partition of the very same lands between himself on the one hand and his wife and his son on the other
Again on June 29 1959 he effected a third partition of the said lands between himself on the one hand and his wife and his two minor daughters including the respondent on the other
There is further no dispute that it is in this third parti tion that the suit lands were given to the share of the respondent and the respondent became the alleged landlady wef
the date of the said partition
It appears that sometime in 1962 the respondent through her guardian namely her father Brij Lal initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default in payment of rent for three years namely 1959 60 1960 61 and 196 1 62
By his decision of April 30 1963 the Tehsildar dismissed the application holding that the respondent was not a landlady since the partitions in question were illegal
The Deputy Collector in appeal confirmed the said decision by his Order dated November 26 1963
The respondent s revision before the Maharashtra Revenue Tribunal also failed when the Tribu nal rejected it by its decision of April 29 1965
In the Writ Petition filed before the High Court under Article 227 of the Constitution against the said decision of the three authorities below the High Court by its Order dated October 4 1966 remanded the matter to the Tehsildar for investiga tion into the validity of the partition
Then started the second round of litigation
On remand the Tehsildar by his decision of March 16 1968 held that the partition effected on June 29 1959 which was the only material partition so far as the respondent was con cerned was bogus
Hence the notice of demand and therefore the proceedings for recovery of possession pursuant thereto were bad in law
69 It appears that thereafter in a different proceeding the Maharashtra Revenue Tribunal on June 25 1968 had held that the said partition was binding
It is after this decision of the Tribunal as stated earlier in an altogether different proceeding that the matter came up for hearing in appeal filed by the respondent before the Deputy Collector against the decision of the Tehsildar given on March 2 1968
The Deputy Collector therefore followed the said decision of the Revenue Tribunal and by his decision of April 16 1969 held that the partition being valid the respondent was the landlady of the suit land and therefore notice given by her terminating the tenancy on the ground of default of rent and the proceedings filed for recovery of the suit land were proper
He also held that the appellant was in arrears of rent for three years as contended by the respond ent and therefore allowed the said application for evic tion of the appellant from the suit land
Against the said decision the appellant preferred a revision before the Revenue Tribunal and the Tribunal by its decision of September 15 1970 confirmed the findings of the Deputy Collector
Aggrieved by the decision the appellant preferred a Writ Petition before the High Court under Article 227 of the Constitution and the High Court by its impugned decision of June 21 1974 dismissed the petition
Hence this appeal
Before the High Court two obvious illegalities committed by the lower authorities were highlighted on behalf of the appellant
The first illegality was that the property being admittedly ancestral Brijlal could not have effected partition of the property between himself on the one hand and his wife and his daughter on the other
In all the three partitions effected on July 31 1949 December 16 1950 and June 29 1959 wife was one of the parties to the partitions
In the third partition made on June 29 1959 besides his wife the other parties to the partition were two minor daughters
Secondly the same property is shown to have been partitioned by Brij Lal on three occasions
Admit tedly the partition of June 29 1959 is between Brij Lal on the one hand and his wife and two minor daughters including the respondent on the other
This partition was obviously contrary to the provisions of Hindu Law
Hence the respond ent in any case could not have become a landlady of the suit land because it is in this third partition of June 29 1959 that the said land is alleged to have gone to the share of the respondent
The High Court dismissed this contention with regard to the patent illegality by giving a spacious reason that the question 70 referred to the Tehsildar in its earlier remand order namely the validity or otherwise of the partition was investigated by the three authorities and that they had given a finding upholding the partition
The High Court further held that what was produced before the courts below was a family settlement and since the said family settlement created a right in favour of the respondent she should be held to have become the owner of the suit land
Unfortunate ly the High Court lost sight of the fact that the family settlement which is accepted by the Courts in lieu of parti tion is a settlement which gives share to the parties as per their legal entitlement and not a settlement which is made or purported to have been made to circumvent the law
A partition of the property can only be among the parties who have a preexisting right to the property
Under the Hindu Law a female major or minor has no share in the ancestral property
A female is given a share either in the self acquired property of the husband or the father or in the share of the husband or the father in the coparcenary property after the property is partitioned
There cannot therefore be a partition and hence a family settlement with regard to the ancestral property so long as it is joint in favour of either the wife or the daughter
Since this obvi ous illegality was ignored by the High Court it will have to be held that the High Court s decision was patently wrong
The respondent therefore never became the landlady of the land and it was Brij Lal who continued to be the landlord of the same
Hence the notice given by the respond ent and the proceedings for eviction adopted by her are misconceived
Her application for possession of the land has therefore to be dismissed 5
The second obvious illegality which was brought to the notice of the High Court was that even assuming that the partition deed of June 29 1959 was a valid document the same has to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of Section 387 of the Act
Under Section 46 of the Act a protected tenant becomes the owner of the land on and from April 1 1961
Under section 381 however a landlord is given a right to evict a tenant if he wants the land for bona fide personal cultivation
The right to adopt the proceedings for possession of the land has to be exer cised on or before March 31 1961
The condition precedent to such application however is that the landlord should have given a notice to the tenant for the purpose on or before November 151961
Under Section 382 the time to apply for possession is extended in the case of the landlord who is a minor widow or a person subject to any physical or mental disability
We are concerned in the present case with a person who is mentally disabled since the respondent is alleged 71 to be a mentally disabled person
Further the proviso to sub section 2 of Section 38 also makes it clear that where such person is a member of a joint family the time given to the landlord to terminate the tenancy is not extended if atleast one member of the joint family is outside the cate gories of the disabled persons
Such disabled person fur ther has to be the owner of the land on March 311961 6
The sum total of these provisions is that the appel lant in the present case would become the owner of the suit land on and from 1st April 1961 if the respondent did not intervene as the landlady of the suit land before that date
Admittedly the respondent is alleged to have become the landlady by virtue of the partition effected on June 29 1959
Section 387 of the Act however states as follows Nothing in this section shall confer on a tenure holder who has acquired any land by transfer or partition after the 1st day of August 1953 a right to terminate the tenancy of a tenant who is a protected lessee and whose right as such protected lessee had come into existence before such trans fer or partition
 It may be mentioned here that in some copies of the Act published by the Government Press instead of the 1st day of August 1953 the date printed is 1st day of August 1963
That is admittedly wrong
We perused the Bombay Tenancy and Agricultural Lands Vidarbha Region Amendment Act 1963
By that Amending Act all that was done was to add the words or partition after the word transfer in Section 387
No amendment was made of the date the transfer effected after which would not result in conferring title to the land
In fact the Amending Act also states that the amend ment was effected pursuant to the decision of the Full Bench of the Bombay High Court reported in 1969 Maharashtra Law Journal page 933 where the Court had taken the view that the transfer contemplated by the unamended provision of Sec tion 387 did not include transfer by partition
It had therefore become necessary to include in the transfer also transfer by partition and hence the Amending Act was enacted only for the purpose of adding the words or parti tion after the words by transfer and before such trans fer in that Section
The position that obtains under Section 387 after the Amending Act 1963 is therefore that any transfer of land effected after 1st August 1953 whether by way of parti tion or otherwise has no effect of conferring on the trans feree a right to terminate the tenancy 72 of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition
This amendment is admittedly retro spective in operation
Even assuming therefore that the partition of June 29 1959 was a valid one it did not give a right to the respondent to terminate the tenancy of the appellant who was admittedly a protected lessee prior to August 1 1953 and was on the land as such tenant on April 1 1961
The result therefore is that firstly the respondent had not become the landlady of the suit land since the share given to her in the partition was prima facie illegal and contrary to the provisions of law
Secondly assuming that the partition was valid the respondent had no right to terminate the tenancy of the appellant on any ground whatso ever
The appellant was a tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1 1961
Hence he became a statutory owner under Section 46 on and from April 1 1961
Any proceedings for evicting him on the ground that he was a tenant and therefore had fallen in arrears of rent could not have therefore been adopted in 1962
It is unfortunate that the High Court lost sight of the  said patent legal position and brushed aside the con tention in that behalf on the ground that the question involved was a question of law and fact
We are unable to see what questions of fact were necessary to investigate for the disposal ot the said question
It was a pure question of law arising out of the admitted facts on record
Hence we allow the appeal set aside the decision of the High Court and hold that the appellant had become a statutory owner of the suit land on and from April 1 1961
He was therefore not liable to be evicted at the hands of the respondent and the proceedings adopted by her were illegal and stand dismissed
The respondent will pay the costs throughout
RSS Appeal al lowed


Summary:
The appellant company was engaged in the manufacturing of airconditioning and refrigeration equipment under a proper licence
On January 21 1970 the appellant cleared from the factory cooling coils condensers and compressors and supplied the same to Ms Ravi Cold Storage Ahmedabad for putting up a cold storage and paid duty of Rs1354720 P in respect thereof
Again on January 21 1969 the appel lant cleared from the factory various parts of refrigerating and air conditioning appliances and machinery for an Ice factory plant to one Ms Gujarat Industrial Investment Corporation Ltd Ahmedabad and paid a duty of Rs 1933687P
Both the aforesaid goods were manufactured at the appellant s factory
Thereafter the appellant filed two refund applications of the said excise duty before the Assistant Collector of Customs contending that the refrig erating and air conditioning appliances which they had removed on the aforesaid dates were not excisable goods failing under Tariff Item No 29A3
The Assistant Collec tor of Customs rejected both the applications holding that the assessment was correctly made
The appellant company preferred two appeals against these orders before the Col lector of Customs and Central Excise Chandigarh who dis missed both the appeals
Thereupon the appellant filed a writ petition in the High Court
The learned single Judge who heard the petition dismissed the same holding that the goods supplied are parts of a refrigerating and air condi tioning appliances that a complete cold storage plant was not supplied to Ms Ravi Cold Storage Ahmedabad or Ms Gujarat Industrial Investment Corporation Ltd Ahmedabad and that they would fail clearly within the purview of Tariff sub item 3 of Tariff Item 29 A
An appeal preferred against this judgment was dismissed by a Division Bench in limine
Hence this appeal
Before this Court also the appellant inter alia contended that 571 though in its sweep sub item 3 may appear to cover all and every part of refrigerating and air conditioning appliances and machinery of all sorts the words and parts thereof in the heading controlled the meaning and restrict it in the context only to parts of a completed unit which as such completed unit would have come under sub items 1 and 2 of item 29 A Dismissing the appeal this Court HELD The legislative history and the notifications of the Government show that sub item 3 of item 29 A is a comprehensive provision encompassing within it all sorts of air conditioning and refrigerating appliances and machinery and the Government of India was issuing notifications of exemptions on the understanding that such parts are covered by sub item 3
The language used in sub item 3 is also wide and comprehensive in its application and could not be given a restricted meaning
Sub items 1 2 and 3 are independent of each other and mutually exclusive
The scope of sub item 3 is neither restricted nor controlled by the provisions of sub items 1 and 2
576C D Whether the manufacturer supplies the refrigerating or airconditioning appliances as a complete unit or not is not relevant for the levy of duty on the parts specified in sub item 3 of item 29 A 576F G Complete plants which are covered by items 1 and 2 cannot be considered as parts of machinery and such complete plants would not be classifiable under sub item 3 of Item 29 A 580B C Mother India Refrigeration Industries Pvt Ltd vs Supdt
of Central Excise and Ors All overruled
Blue Star Ltd vs Union of India and Anr Bom
 Joy Ice Cream Bombay vs Union of India Bom Calicut Refrigeration Co vs Collector of Customs  Central Excise Cochin and Ors
 Ker Chhibramau Cold Storage vs CEGAT  Goptal Cold Storage  Ice Factory vs Union of India and Ors and Anil Ice Factory  Anr
vs Union of India and Ors  referred to