1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 2003 OF 1991 Shri Hareshkumar Kanhayalal Gujarathi through its General Power of Attorney holder - Govind Dayal Gujarathi, Major, At & Post Faizpur, Tq. Yawal, Dist. Jalgaon. .. PETITIONER. VERSUS 1] Eknath Chendu Mahajan 2] Jagannath Chendu Mahajan since died through his legal heirs - 3] Baliram Chendu Mahajan 4] Dayaram Chendu Mahajan All Major, All residing at & Post Kochur (kd). Taluka Raver, Dist. Jalgaon. ..RESPONDENTS ... Shri Ankush Nagargoje, Advocate petitioner. Shri A.M. Gholap, Advocate for respondent Nos. 1 to 4. CORAM :- S.V. GANGAPURWALA JJ. Judgment Reserved on : 16th July,2010. Judgment pronounced on : 30th July, 2010. JUDGMENT: 2 The present petition raises an issue regarding applicability of the concept of ‘child in the womb’ vis-a-vis the provisions of Bombay Tenancy and Agricultural Lands Act, 1948(here-in- after referred as ‘Act, 1948’). 2. The Petitioner has initiated proceedings invoking section 25 of the Act, 1948, demanding the possession of the agricultural lands by filing an application bearing tenancy case No. 10 of 1981. The Tahasildar, Raver, dismissed the said application of the petitioner vide its judgment and order dated 23/06/1983, the petitioner aggrieved by the said order, preferred tenancy appeal bearing No. 52 of 1983, before Sub Divisional Officer, Jalgaon Division, Jalgaon. The said appeal was allowed by the sub Divisional Officer, Jalgaon Division, Jalgaon, vide judgment and order dated 06/09/1986. The respondents aggrieved by the same preferred revision application No.186 of 1986 before the Maharashtra Revenue Tribunal, Bombay. The Maharashtra Revenue Tribunal vide its judgment and order dated 27/07/1990 allowed the said revision. The 3 petitioner being aggrieved by the same has approached this Court. 3. The petitioner in the tenancy application contended that he is the land lord of survey No. 8/4 admeasuring 4 Acres 20 Gunathas, situated at Borakheda (Sim), Tq. Raver and the respondents are the tenants. According to the petitioner, vide notice dated 30/01/1979, the applicant demanded the arrears of rent and determined the tenancy rights of the respondents. Yet, the respondents failed to pay the rent, therefore, applicant is entitled for possession. 4. The respondents contended that the petitioner is not the land lord on the tillers day i.e. on 01/04/1957 he was not born. The father of the respondent namely Chindu Sandu became the deemed purchaser. 5. It is not disputed that the petitioner was not born on the tillers day i.e. on 01/04/1957. According to the petitioner his date of birth is 17/10/1957. The petitioner became 4 major on 17/10/1975. 6. Shri Nagargoje, the learned counsel for the petitioner canvassed before me following propositions :- i] The petitioner was born on 17/10/1957. He was conceived on tillers day i.e. 01/04/1957, and hence on the tillers day he was deemed to be a member of the joint Hindu family or co-parcener. The partition was affected on 04/03/1958 and in view of provisions of Tenancy Act, 1948 including section 32F and its proviso, the petitioner would be land lord for all purposes. ii] The partition is proved, as the same is by registered instrument and the said partition is by metes and bounds. iii] The respondent had committed default, the notice was rightly given and the tenancy was terminated. The respondent did not pay the total amount, and as such petitioner is 5 entitled for possession. To substantiate said contention relied on the judgment of the Apex Court in case of “Dhansingh Ramkrishna chaudhuri and others V. Laxminaryan Ramkrishan & another, reported in AIR 1974 Supreme Court, 1613”. 7. The arguments of Shri Gholap, learned counsel for the respondents can be culled out as under :- i] The Bombay Tenancy and Agricultural Lands Act, 1948 does not admit the concept of child in the womb. To buttress his submission, relied on the dictum of the Apex Court in case of “Chettim vetti Ahmed and another V. Taluk Land Board and others, reported in AIR, 1979, S.C. 1573” and judgment of this Court in the case of “Laxmanrao Madhavrao V. State of Maharashtra and others, reported in AIR 1979 Bombay 276”. ii] On the tillers day the respondents 6 have become deemed purchaser and there is no person either a minor, widow, or a person under any mental or physical disability for postponement of date of purchase, as contemplated under Section 32 (f) of the Tenancy Act, 1948. iii] As per the Indian Majority Act, 1875, more particularly Section 3, a person shall be deemed to have attained his majority when he shall have completed his age of 18 years and not before, and as per Section 4 in computing the age of majority the day on which he was born is to be excluded. As such for being a minor within the meaning of Tenancy Act, 1948 a person should have been born on 01/04/1957. iv] The partition deed is not proved. The partition deed was not produced before the Tahasildar and for the first time it was produced before the appellate authority, the same was not proved. The petitioner cannot take advantage of the same. 7 v] The tenant had deposited the rent as demanded, and as such no default can be attributed to the respondents. 8. I have heard the learned counsels for the parties at length and with their assistance I have gone through the record. Before adverting to the legal submissions canvassed by the respective learned counsels for the parties, it would be appropriate to reproduce the relevant provisions of the Tenancy Act, 1948 relied by them. “Section 2 (7A) :- [7(A)“joint family” means an undivided Hindu family, and in the case of other persons a group of unit the members of which are by custom join in estate or residence:] (11) “person” includes [a joint] [* *] family; “ [Section 14 :-(1) Notwithstanding any law, agreement or usage, or the decree or order of a Court, the tenancy of any land shall not be terminated - (a) unless the tenant - (i) has failed to pay the rent for any revenue year, before the 31st day of May 8 thereof; (ii) has done any act which is destructive or permanently injurious to the land; (iii) has sub-divided, sub-let or assigned the land in contravention of section 27: (iv) has failed to cultivate it personally; or (v) has used such land for a purpose other than agriculture or allied pursuits; and (b) unless the landlord has given three months’ notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated. (2) Nothing in sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said sub- section.] “Section :- 25 [(1)] Where any tenancy of any land held by any tenant is terminated for non-payment of rent and the landlord files any proceeding to 9 eject the tenant, the Mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding within [three months] from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated: [Provided that if the Mamlatdar is satisfied that in consequence of total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due, the Mamlatdar may, for reasons to be recorded in writing, direct that the arrears of rent together with the costs of the proceedings if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period the tenant fails to pay the said arrears of rent and costs,the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted.] [(2) Noting in this Section] shall apply to any tenant whose tenancy in terminated for non-payment of rent if he has failed for any three years to 10 pay rent[and the landlord has given intimation to the tenant to that effect within a period of three months on each default.] “Section 32 :- Tenants deemed to have purchased land on tillers’ day – [(1)] On the first day of April 1957 (hereinafter referred to as” the tillers day”) every tenant shall, [subject to the other provisions of this section and the provisions of this section and the provisions of] the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if, -- (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under Section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 11 31st day of March, 1957 under section 29 for obtaining possession of the land; [or] [(iii) the landlord has not terminated this tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to [the Mamlatdar or before the 31st day of March 1957 under Section 29 for obtaining possession of the land:]” Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the [Maharashtra Revenue Tribunal] under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as “the postpone date”: [(1A) (a)------------------- (b)------------------------- [(1B) -------------------------- [(2)------------------------- (a)-------------------------- (b) ------------------------ 12 [(3) ----------------------------- (a) ------------------- (b) ------------------ [(4) --------------------- (a) ----------------- (b) ----------------- (i) ----------- (ii) -----------” “Section 32F :- (1) 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 [and for enabling the tenant to terminate the tenancy under section 31]: [Provided that where a person of such category is a member of a joint family, the provisions of this sub- section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub- section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by 13 metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area,assessment,classification and value of the land, in the same proportion as the share of that person in the entire joint family in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.] (b) where the tenant is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause(a), the right to purchase land under section 32 may be exercised,------- (i) by the minor within one year from the date on which he attains majority; (ii) by the successor-in-title of the widow within one year from the date on which her interest in the land ceases to exist; (iii) within one year from the date on which the mental or physical disability of the tenant ceases to exist: (iv) within one year from the date on which the tenant ceases to be a serving member of the armed forces : 14 [Provided that where a person of such category is member of a joint family the provisions of this sub-section shall not apply if at lease one member of the joint family is outside the categories mentioned in this sub- section unless before the 31st day of March, 1958 the share of such person in the joint family has been separated by metes a on nd bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area,assessment,classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion.] [(1A) A tenant desirous of exercising the right conferred on him under sub-section (1) shall give an intimati on on in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub-section :] [Provided that, if a tenant holding land from a landlord (who was a minor and has attained majority before the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1969 has not given intimation as required by this sub-section but being 15 in possession of the land on such commencement is desirous of exercising the right conferred upon him under sub-section (1), he may give such intimation within a period of two years from the commencement of the Act.] (2) the provisions of section 32 to 32E (both inclusive) and sections 32G to 32R (both inclusive) shall, so far as may be applicable, apply to such purchase.” “Section 3 of Indian Majority Act :- Age of majority of present domiciles in India.- Subject as aforesaid, [every minor of whose person or property, or both, a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or by declared by any court of Justice before the minor has attained the age of eighteen years, and every minor of whose property the superintendences has been or shall be assumed by any Court of Wards before the minor has attained that age] shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one 16 years and not before. Subject as aforesaid, every other person domiciled in [India] shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before.” “Section No. 4 of Indian Majority Act :- Age of Majority how computed :- In computing,the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second paragraph of section 3, at the beginning of the eighteenth anniversary of that day.” 9. The moot question involved in the present matter is whether the concept of child in the womb as is made applicable to the provisions of Hindu Succession Act can be applied for the purpose of Tenancy Act. The Apex Court in case of “ Chettiam Vettil Ahmed and another V/s. Taluk Land Board and others, reported in AIR 1979, SC, 1573” held in para Nos. 48 and 49 that :- 17 “ It has been argued by Mr. Warriyar that a child in the womb on January, 1, 1970 is a member of the family for purpose of Section 82(1) (c) of the Act and the contrary view taken by the High Court on the basis of its decision in Balakrishna Kurup V. State of Kerala, 1977 Ker LT 421 : (AIR 1977 Ker 13) is incorrect and should be set aside.” “ Clause (c) of sub-section (1) of the Act provides that in the case of a family consisting of more than five members, the ceiling area of the land shall be ten standard acres increased by one standard acre for such member in excess of five, subject to the limit prescribed by the clause. The expression ‘family’ has been defined in clause (14) of Section 2 as follows :- “’family’ means husband, wife and their unmarried minor children or such of them as exist”. And the expression ‘minor has been defined by the clause (36A) to mean ‘a person who has not attained the age of eighteen years’. So two postulates are necessary for obtaining the benefit of the increase of one standard acre for such member of the family in excess of five, namely, that the member should be 18 in existence, and it should be possible to ascertain that he had not attained the age of eighteen years on the appointed date. Both these conditions canot be said to exist in the case of a child en ventre sa mere and it will not therefore be regarded as a member of the family for purpose of Section. We are aware that a child en ventre sa mere has been regarded in some legal systems as a person ’in being’ for the purpose of acquisition of property by the child itself, particularly in regard to gifts, but Section 82 of the Act with which we are concerned does not deal with any such contingency or benefit to the unborn child. The view taken by the High Court in Balkrishana Karup case is therefore correct and as it has been rightly followed in the appeal before us, the appeal has no merit and is dismissed”. So also this Court in case of “Laxmanrao Madhavrao V/s. State of Maharashtra and others, reported in AIR 1979 Bombay 276” considering the provisions of ceiling Act in para Nos. 8 to 11 held thus :- “ Thirdly, the benefit of Section 6 is intended not for the family but for the family unit, as defined under 19 Section 2(11A) read with Explanation to Section 4(1). It reads as follows :- “A’ family unit means, - (a) a person and his spouses (or more than one spouse) and their minor sons and minor unmarried daughters; if any (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses.” “ The ‘family’ under Section 2(11) includes Hindu joint family and other group or unit, members of which are joint in the estate or possession or residence by custom or usage. In ordinary course, this definition includes any one’s parents, married sons, unmarried major daughters and several others. It consists of earning members as also minors, aged or invalid dependants. The family as such does not own any property excepting possibly in the case of Hindu joint family. Blood relationship mainly brings them together. This and the customary notions enable all of them to reside together and enjoy the property and earnings, of all or any one of them 20 jointly, though such bonds are now placed under severance strain in the wake of rapidly changing economic structure”. “ The ‘family unit, though scion of the the family of every kind, is still an artificial concept. It is expressly limited to a few, i.e., spouses and their minor children impliedly indicating legislative intent to exclude every one else coming within the sweep of wide concept of the ‘family’. Section 2(20) of the original Act, defining the words ‘member of the family’ including every conceivable dependant, is now deleted. This amendment also reveals the same legislative intent. This must necessarily exclude even the legal fiction of Hindu Law, of limited application, assuming the son to have become the member of the joint family from the date of conception, before his actual birth and acquired interest in the joint family property for the purposes of challenging the alienations and partitions effected thereafter. All this militates against the ‘family unit’ admitting by implication, any child in the womb before its actual birth, being treated as its member.” 21 “ This contention of Mr. Savant, that unborn child also is as good as minor, is devoid of any merit. The person remains a minor, till he reaches the age of 18. But age begins to run from the date of birth and nor that of conception.” Though the aforesaid judgment are under the ceiling Act the interpretation of the terms child in the womb and minor are relevant. The Apex Court and Division Bench of this Court have succinctly laid down that a child en ventre sa mere cannot be regarded as a member of joint family. The Ceiling Act is also a Social Welfare Legislation. External aid can be had for interpretation of the same terms used in present Act with which I am concerned. 10. The Tenancy Act is a Social welfare Legislation and therefor, while construing its provisions regard must be had to its avowed purpose, legislative intent and ultimate object of the Act i.e. to do social justice to the tiller of the soil. The tenancy Act is an 22 agrarian reform law whose avowed object is to confer full proprietorship on tilling tenant. 11. The Tenancy Act, 1948 is a beneficial legislation for the tenants. The tillers day i.e. 01/04/1957 is a golden day for the cultivating tenants, wherein as per Section 32 of the Tenancy Act, 1948 they became deemed purchasers from the land lords free from all encumbrances, subsisting there on the said date. A duty is cast on the Agricultural lands tribunal to fix the purchase price. The said right of the tenant is postponed only in case the landlord is minor, or widow, or a person subject to any mental or physical disability. It is only in these cases the right of the tenant to purchase the land is postponed. In all other cases, the tenant would become deemed purchaser on the tillers day. 12. Reading Section 32F in its totality, it is manifest that the person has to be in existence on the tillers day. The conjoint reading of section 2 (7-A) section 32, 32F and 23 proviso to Section 32F, would necessarily lead to inference that the concept of ‘child in the womb’ or the ‘child though not born being conceived’ is ‘alien’ to the Tenancy Act. The Tenancy Act, is a self contained code, if the concept of child in the womb is accepted and made applicable to the Tenancy Act, the same would lead to an anomalous position,it would also tantamount to legislating, the same is not permissible. 13. It is the rule, now firmly established that the intention of the legislature must be found by reading the statute as a whole. Every clause of a statute is required to be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute. To ascertain the meaning of a clause in a statute one must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself. 14. In the present statute Section 2 (7A) defines joint family which includes undivided 24 Hindu family. The concept of child in the womb has got limited application to the extent of