Case: Jijabai Vithalrao Gajre Vs. Pathankhan & Ors

Vaidialingam, J.1. This appeal, by special leave, is directed against the judgment and order dated July 13, 1966 of the High Court of Bombay (Nagpur Bench) in Special Civil Application No. 499 of 1965 filed under Article 227 of the Constitution by the first respondent herein (to be referred as the tenant).2. The appellant (to be referred as the landlord) was the daughter of one Champatrao. She had obtained from her father under a gift deed dated September 15, 1944 the suit field survey No. 56 of an extent of 27 acres 37 gunthas. As owner of the lands she served a notice dated March 31, 1962 on the tenant informing him of her intention to terminate his tenancy of the lands on the ground that she required the lands bona fide for her personal cultivation. On March 30, 1963 she filed an application before the Naib Tahsildar, Darwha under Section 36 read with Section 39 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act. Bombay Act No. XCIX of 1958 (hereinafter referred to as the Act) for termination of tenancy of the tenant and for directing him to surrender possession of the entire lands comprised in field survey No. 56. Later on she amended her application and prayed in the alternative that if for any reason she was found not entitled to get possession of the entire lands, she may be allowed to recover half of the lands in the possession of the tenant and that in respect of that half, in the eastern portion 13 acres and 38 gunthas may be allotted to her.3. The tenant resisted the claim of the landlord on various grounds. He pleaded that the father and mother of the landlord had fallen out very long ago and that the landlord was a minor, was being looked after and protected by her mother Smt. Chandrabhagabai and the mother was managing the suit properties on behalf of her minor daughter. In the course of such management the suit properties were being leased in his favour from time to time beginning from 1951-52 and as such he has been in possession as tenant from April, 1951. Though the original leases granted by the mother were oral, for the year 1956-57 he had executed a kabuliyat in favour of the landlord represented by her mother as guardian. Inasmuch as he had been the tenant of the properties under a lease created prior to April 1, 1957, he had acquired the status of a protected lessee even before the coming into force of the Act. He further pleaded that as the landlord had not filed the application within one year of the coming into force of the Act, her claim was barred by limitation and the application under Section 39 was not maintainable. He had also raised a controversy regarding her date of birth as well as the validity of the notice dated March 31, l962, issued by the landlord.4. The Naib Tahsildar held that the application filed by the landlord under Section 36 read with Section 39 was maintainable and that the notice issued by her on March 31, 1962 was valid. He further found that the landlord was born on July 6, 1944 and attained majority on July 6, 1962. On an interpretation of Section 39, the Naib Tahsildar found that the landlord was entitled to file the application within one year after her attaining majority and in this case the application has been filed within that time. He further found that there were oral leases granted by the mother of the landlord in favour of the tenant from 1951 onwards and that the tenant had also executed a lease deed in favour of the landlord represented by her mother on February 12, 1956 for the year 1956-57 and that he has been in possession of the lands as tenant even during the period l958-59. But the Naib Tahsildar held that as the father of the appellant was alive and was in law her natural guardian, the lease executed by the tenant on February 12, 1956 was not legal and valid as the mother was not entitled to represent her minor daughter. But as the tenant was in occupation of the lands during the year 1958-59, he must be treated as a deemed tenant under Section 6 of the Act. On this reasoning he held that the lease in favour of the tenant can be taken as a lease after April 1, 1957 and hence the landlord was entitled to get relief under Section 39 of the Act. In view of his further finding that the landlord had no other land and no other source of income and as the suit lands were less than the family holding, she was entitled to get possession of the entire lands from the tenant. Accordingly he granted the relief asked for by the landlord in full. The findings of the Naib Tahsildar enumerated above were confirmed by the Sub-Divisional Officer, Darwha in the appeal filed by the tenant. The Maharashtra Revenue Tribunal, whose revisional jurisdiction was invoked by the tenant also substantially confirmed the finding of the two subordinate authorities.5. All these three orders were challenged by the tenant before the High Court in the writ petition under Article 227 of the Constitution. The High Court, in its order under appeal, has accepted the findings of facts regarding the date of birth of the landlord; the date of her attaining majority as well as the legal validity of the notice issued by her on March 31, 1962. The High Court also accepted the finding recorded by the Revenue Tribunal that the father and mother had fallen out and were living separate and that the father was not looking after the interests of his minor daughter and that, on the other hand, the landlord was living under the care and protection of her mother Smt. Chandrabhagabai, who was also managing the suit properties on her behalf. The High Court also found that the tenant has been in possession of the lands on the basis of the lease granted in his favour by the mother from 1951 onwards. But the High Court differed from the views expressed by the Revenue Tribunal on two important aspects, namely, (i) legal validity of the lease granted by the mother of the landlord in favour of the tenant and (ii) the maintainability of the application filed by the land lord under Section 39 of the Act Regarding validity of the lease granted by the mother, the High Court held that even if the oral leases from 1951 onwards are eliminated, there has been a written lease executed by the tenant on February 12, 1956 in favour of the landlord represented by her mother for the year 1956-57. As the father was not taking any interest in his minor daughters affairs and as the mother was looking after her minor daughters interest and managing the suit properties, the mother must be considered, in the circumstances, to be the natural guardian of the landlord and as natural guardian she was entitled to lease the properties and hence the written lease granted by her on February 12, 1956 was legal and valid, and therefore the lease in favour of the tenant is one created prior to April 1, 1957 and hence Section 39 was not attracted.6. The High Court on a construction of Section 39 of the Act held that as the Act had come into force on January 28, 1961, the application should have been filed within one year, namely, on or before January 28, 1962. The landlord was not entitled to file the application as she has done in the present case within one year of her attaining majority as Section 39 does not give any such extended period for minors. Hence the High Court held that application filed on March 30, 1963 was barred by limitation. Notwithstanding the finding that the application under Section 39 was not maintainable the High Court held that the landlords application could be treated as one filed under Section 36 read with Section 38 and as the application had been filed within the period referred to in Section 38, she could be granted the relief under the latter section. In this view the High Court held that though the landlord was not entitled to possession of the entire field as claimed by her, she is nevertheless entitled to resume for personal cultivation one third of the family holding, or half of the land leased by her, whichever is more. In this view the High Court remanded the proceedings to the Naib Tahsildar for passing necessary orders treating the application filed by the appellant as one under Section 36 read with Section 38.7. Mr. G. L. Sanghi, learned counsel for the appellant raised three contentions: (i) the High Court in exercise jurisdiction under Article 227 of the Constitution has functioned in this case as a Court of Appeal and interfered with the concurrent findings of facts recorded by the three revenue tribunals and such exercise of jurisdiction is not warranted by the decisions of this Court : (ii) the High Courts view that the lease executed by the mother on behalf of the appellant on February 12, 1956, as guardian of the appellant is valid in law, is erroneous: (iii) the High Courts view that the application filed by the appellant before the Naib Tahsildar on March 30, 1963 is barred by limitation and as such the application under Section 39 is not maintainable, is again erroneous.8. On the other hand, Mr. Danial A. Latifi, learned counsel appearing for the tenant respondent has urged that the High Court has not exceeded its jurisdiction under Article 227, but has strictly limited its inquiry to find out whether the subordinate tribunals have functioned within the limits of their jurisdiction. All the findings of facts recorded by those tribunals have been accepted by the High Court. The High Court has only differed on the question of interpretation to be placed on the material sections so as to find out whether the revenue tribunals had jurisdiction to entertain the application of the appel1ant under Section 36 read with Section 39 of the Act. The learned counsel also pointed out that on the findings recorded by the revenue tribunals about the father not taking any interest in the affairs of the minor daughter, the High Court has come to a different conclusion of law that the mother, under the circumstances, was the natural guardian of her minor daughter and was competent to enter into lease transactions on behalf of the appellant. If it was found that the lease transaction entered into with the tenant by the mother of the appellant was valid, the nature of the reliefs to be granted to the appellant under the Act will radically differ. The counsel further urged that the construction placed upon Section 39 of the Act by the High Court is also correct.9. Mr. Sanghi in support of his contention has drawn our attention to the principles laid down in Nagendra Nath Bora v. Commr. of Hills Division and Appeals, Assam, 1958 SCR 1240 = (AIR 1958 SC 398 ) and in Rambhau v. Shankar Singh, Civil Appeal No. 35 of 1966, D/- 17-3-1966 (SC).It is no doubt true that this Court has held in those decisions that the powers of the High Court under Article 227 are not greater than the powers under Article 226 of the Constitution. It has been further laid down that the power of interference under Article 227 was limited to seeing that the tribunals function within the limits of their authority and that the High Courts cannot sit in appeal against the order of a tribunal in a petition under Article 227. In our opinion, the High Court in this case cannot be considered to have exceeded its jurisdiction under Article 227 of the Constitution. We have already stated that all findings on material facts have been accepted by the High Court. It is only on two material aspects which affect the jurisdiction of the revenue tribunals to grant the necessary relief under the Act that the High Court differed. Those were: (i) the power of the mother on the facts found by the tribunals to grant the lease on behalf of her minor daughter and its legal effect; and (ii) the maintainability of the application of the appellant under Section 39 of the Act. Therefore, we cannot accept the contention of Mr. Sanghi that any error has been committed by the High Court in considering these aspects in proceedings under Article 227.10. The nature of the relief that could be granted to the appellant under the Act depends upon the question whether the tenancy in this case has been created "not earlier than the first day of April, 1957". There is no controversy that the appellant was not owning lands exceeding a family holding. If the tenancy in favour of the tenant in this case is one created "not earlier than the first day of April, 1957". and if the other conditions mentioned in Section 39 are satisfied, the relief could be granted to the appellant under that section. We have already referred to the facts that the appellants application was under Section 36 read with Section 39. In order to find out whether the lease in this case is one created "not earlier than the first day of April, 1957", it is really necessary to inquire about the legal effect of the lease executed by the mother as guardian of the appellant on February 12, 1956, for the year 1956-57. If that lease is valid and binding on the appellant, the result will be that Section 39 will not be attracted. Therefore, we will first consider the question as to the legal effect of the lease granted by the mother, which is the subject of the second contention raised by Mr. Sanghi. Mr. Sanghi urged that on the findings of all revenue tribunals and accepted by the High Court, Champatrao, the father of the appellant was admittedly alive. If so, the father is the natural guardian of the appellant under the Hindu Law. Though the appellant may have been staying under the protection of her mother Smt. Chandrabhagabai the mother had no authority in law to execute the lease deed so as to tried the appellant. The counsel further urged that even if it be held that the mother was competent to enter into lease transactions on behalf of her minor daughter, there is no evidence led by the tenant that the lease is beneficial or advantageous to the interest of the minor. Under those circumstances the counsel urged, the lease is void and has to be ignored, and if so this is not a case of tenancy created "not earlier than the first day of April, 1957" and hence Section 39 fully applies to the facts of this case.11. We are not impressed with this contention of Mr. Sanghi. Mr. Sanghi referred us to certain decisions where the powers of a guardian of a minor have been considered. But in the view that we take that the contention of Mr. Sanghi in this regard is not acceptable to us, no useful purpose will he served by reference to those decisions. We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing of the Hindu Minority and Guardianship Act, 1956, (Act 32, of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under Section 6 the natural guardians of a Hindu minor in respect of the minors person as well as the minors property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.12. It has also been found by the High Court and all the revenue tribunals that the mother was protecting the appellant and looking after her interest and was also managing the suit lands by leasing them to the tenant. There is no evidence to establish that the transaction of lease is in any way an imprudent one or not in the interest of the minor appellant It has also been found that the lease in favour of the tenant has begun from 1951. Though the lease for some years was oral, for the year 1956-57 a written lease deed was executed on February, 12, 1956 by the tenant in favour of the appellant represented by her mother as guardian. If so, it follows, as held by the High Court, that the tenancy had been created even prior to the first day of April, 1957". Though the revenue tribunals also found that the tenant was in possession of the properties as lessee from l951 onwards, they declined to recognise his rights, on the view that those leases were not binding on the appellant. That view, as we have already pointed out, is erroneous. Therefore, it follows that the contention of Mr. Sanghi that the High Courts view about the validity and legality of the lease executed by the mother on February 12, 1956 is not correct, cannot be accepted.13. In view of the above ending that the lease executed on February 12, 1956 is valid and binding on the appellant, it follows that this is not a case of a tenancy created by the landlord "not earlier than the first day of April, 1957" which is one of the essential ingredients for the maintainability of the application under Section 39. Therefore, the third contention of Mr. Sanghi that the construction placed upon Section 39 by the High Court and holding that the application of the appellant is barred by limitation is not correct, does not arise for consideration. The applicability of Section 39 would have arisen for consideration only if it had been found that the lease by the mother is not valid and by virtue of occupation of the land in 1958-59 the tenant is to be considered as a deemed tenant under Section 6.14. We may, however, indicate that the High Court has held that Section 39 will not apply on the bound that the lease in this case is prior to April 1, 1957, and the application filed by the appellant on March 30, 1963 was barred by limitation. So far as the view of the High Court that the lease in this case is one created prior to April 1, 1957 is concerned, we have already accepted that finding. Regarding the application being barred by limitation, the view of the High Court briefly is as follows: The Act in the Vidarbha region came into force on January 23, 1961. Under Section 39, sub-section (1), the application by the landlord should be filed within one year from the date of the Act coming into force, i e., on or before January 28, 1962. Sections 38 and 39-A while providing a period for making the application had also enabled a minor to file an application within one year of his or her attaining majority. Similar provisions are not to be found in Section 39 (1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occurring in Section 39 (1) referred to the enabling provisions in favour of the minor contained in sub-section (2) of Section 38. At any rate as one of the ingredients for attracting Section 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such Section 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on Section 39 (1) regarding other aspects.15. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that Section 39 is inapplicable. However, the High Court, even after holding that Section 39 does not apply, has shown consideration to the appellant when it has treated her application as one under Section 36 read with Section 38. Applying Section 38, the appellant would not be entitled to the possession of the entire field. As per clause (a) proviso (i) of sub-sec. (4) of Section 38, she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her, whichever is more. It is seen that the High Court was informed that the family holding in this case consists of 32 acres and on that basis the High Court held that half of the land leased would be more and as such the appellant would be entitled to get possession of half of the area leased, namely, half of 27 acres and 37 gunthas. It is for the purpose of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the High Court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar Those directions given by the High Court, in our view, are perfectly correct and justified.

Decision:
0[ds]11. We are not impressed with this contention of Mr. Sanghi. Mr. Sanghi referred us to certain decisions where the powers of a guardian of a minor have been considered. But in the view that we take that the contention of Mr. Sanghi in this regard is not acceptable to us, no useful purpose will he served by reference to those decisions. We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing ofthe Hindu Minority and Guardianship Act, 1956, (Act 32, of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under Section 6 the natural guardians of a Hindu minor in respect of the minors person as well as the minors property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.We may, however, indicate that the High Court has held that Section 39 will not apply on the bound that the lease in this case is prior to April 1, 1957, and the application filed by the appellant on March 30, 1963 was barred by limitation. So far as the view of the High Court that the lease in this case is one created prior to April 1, 1957 is concerned, we have already accepted that finding. Regarding the application being barred by limitation, the view of the High Court briefly is as follows: The Act in the Vidarbha region came into force on January 23, 1961. Under Section 39, sub-section (1), the application by the landlord should be filed within one year from the date of the Act coming into force, i e., on or before January 28, 1962. Sections 38 and 39-A while providing a period for making the application had also enabled a minor to file an application within one year of his or her attaining majority. Similar provisions are not to be found in Section 39 (1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occurring in Section 39 (1) referred to the enabling provisions in favour of the minor contained in sub-section (2) of Section 38. At any rate as one of the ingredients for attracting Section 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such Section 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on Section 39 (1) regarding other aspects.15. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that Section 39 is inapplicable. However, the High Court, even after holding that Section 39 does not apply, has shown consideration to the appellant when it has treated her application as one under Section 36 read with Section 38. Applying Section 38, the appellant would not be entitled to the possession of the entire field. As per clause (a) proviso (i) of sub-sec. (4) of Section 38, she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her, whichever is more. It is seen that the High Court was informed that the family holding in this case consists of 32 acres and on that basis the High Court held that half of the land leased would be more and as such the appellant would be entitled to get possession of half of the area leased, namely, half of 27 acres and 37 gunthas. It is for the purpose of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the High Court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar Those directions given by the High Court, in our view, are perfectly correct and justified.