IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION SECOND APPEAL NO.309 OF 1987. SECOND APPEAL NO.309 OF 1987. SECOND APPEAL NO.309 OF 1987. Dada Yashwant Patil since deceased by his heirs and legal representatives Rangrao Dada Patil & Ors. ...Appellants. Versus Narayan Ganpati Patil since deceased by his heirs and legal representatives Jaywant Narayan Patil & Ors. ...Respondents --- Shri V.S.Gokhale for the appellants. Shri Pratap Patil for the Respondent Nos.1(i) and 1(ii). --- CORAM: ABHAY S.OKA, J. CORAM: ABHAY S.OKA, J. CORAM: ABHAY S.OKA, J. DATE : 07th January, 2008. DATE : 07th January, 2008. DATE : 07th January, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. I have heard learned advocates appearing for the parties. The appellants in this second appeal are the legal representatives of the original first defendant. The respondent Nos.1 to 3 herein are the original plaintiffs. 2. With a view to appreciate the submissions made by the learned counsel appearing for the parties, it will be necessary to refer to the facts of the case in brief. For the sake of convenience, the parties to the ... 2 ... appeal are hereinafter referred to with reference to their status in the trial Court. According to the case of the plaintiffs, one Dada was owner of the suit property. Dada had two sons by name Parshuram and Ganpati. Parshuram died in the year 1973 without leaving any legal representatives. Ganpati died in 1970 and the plaintiffs are the legal representatives of the deceased Ganpati. According to the case of the plaintiffs, the first defendant managed to get executed a Sale Deed of the suit property on 18th March, 1970 from deceased Parshuram. It is contended that it was not for the benefit of the joint family. It was contended that the transfer made by the Sale Deed was hit by the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947. It is alleged by the plaintiffs that the first defendant mortgaged the suit property in favour of the second defendant (fourth respondent) herein as a security for loan granted by the second defendant. According to the plaintiffs the second defendant had full knowledge of the right of the plaintiffs. The suit was filed for possession of the suit property. 3. The trial Court decreed the suit. The trial Court held that the suit property was owned by the joint family of deceased Parshuram and Ganapati. The learned ... 3 ... trial Judge held that the transaction was hit by the provisions of the said Act of 1947. The trial Court held that the transaction was void under section 8 and section 9(1) of the said Act of 1947. The trial Court decreed the suit by directing that the plaintiff shall take possession of the suit from the first defendant through the Collector, Sangli after making payment of fine, if any, by the orders of the Collector under section 9 of the said Act of 1947. 4. The present appellant (first defendant) preferred an appeal in District Court. The appeal was dismissed. While dismissing the appeal, the learned District Judge held that at the time of alienation, deceased Parshuram had one half share in the suit property and therefore, the alienation would be valid to the extent of the said one half share. The learned District Judge observed that if the transaction was valid, a decree for possession could have been passed in favour of the plaintiffs with liberty to the first defendant to file a suit for general partition. The Appellate Court held that as there was no dispute between the parties that suit land was a fragment, the sale transaction made by the Parshuram was void in view of section 9 of the said Act of 1947. The Appellate Court held that the first defendant will not be saved ... 4 ... either by section 31AA or section 31AB as this was not a case of contravention of section 31 of the said Act of 1947. 5. The second appeal was admitted on 20th July, 1987 by observing that provision of section 31AB of the said Act of 1947 has been overlooked which gives rise to a substantial question of law. 6. The learned advocate for appellant has invited my attention to the findings recorded by the courts below and in particular the Appellate Court. He invited my attention to the document at Exhibit 61 which is a mutation entry No.29251 which records that in view of the circular issued by the Divisional Commissioner, Pune, the suit transaction was held to be valid by virtue of section 31AB of the said Act of 1947. He submitted that the document at Exhibit 61 is an evidence on the fact that the competent authority under the said Act of 1947 has validated transaction and therefore in view of section 36A of the said Act of 1947, the Civil Court had no jurisdiction to decide the question whether the transaction was valid or invalid. He, therefore, submitted that the courts below have committed a clear error. ... 5 ... 7. I have carefully considered the submissions. In paragraph No.13 of the judgment of the Appellate Court it is observed that there is no dispute between the parties that the suit land was a fragment. The Appellate Court observed that this was specifically admitted by the son of the first defendant. It was found that an entry was made in 7/12 extract in respect of the suit property that it was declared as a fragment. 8. Section 7 of the said Act of 1947 reads thus: "7. (1) No person shall transfer any fragment in respect of which a notice has been given under sub-section (2) of section 6 [except the owner of] a contiguous survey number or recognised sub-division of a survey number: [Provided that the holder of such fragment may mortgage or transfer it to the State Government or a land mortgage bank or any other co-operative society as security for any loan advanced to him by the State Government or such bank or society, as the case may be.]. (2) Notwithstanding anything contained in ... 6 ... [any law for the time being in force or in any instrument or agreement], no such fragment shall be leased to any person other than a person cultivating any land which is contiguous to the fragment". 9. Section 9(1) provides that any transfer or partition of any land contrary to the provisions of the Act shall be void. The finding of the Appellate Court is that the transfer effected by deceased Parshuram by the Sale Deed was in violation of section 7(1) of the said Act of 1947 as by the said transaction there was a transfer of a fragment. The finding of the Appellate Court is that in view of the contravention of section 7 of the said Act of 1947, the sale transaction in favour of the first defendant becomes void. 10. It will be necessary to refer to section 31AB of the said Act of 1947. The said section reads thus: "31AB. (1) No transfer or sub-division of any land in contravention of section 31 as it stood immediately before the date of commencement of the Bombay Prevention of Fragmentation and Consolidation of Holdings (Amendment) Act, 1977, made on or after the ... 7 ... 15th day of November 1965 and before the date of such commencement shall be deemed to be void or ever to have become void merely on the ground that such transfer or sub-division is effected in contravention of the provisions of that section as it stood before such commencement and shall be deemed to be valid if such transfer or sub-division is in accordance with the provisions of section 31 as substituted by the said Act". 11. The said section validates the transfer or sub-division of any land made in contravention of section 31 of the said Act of 1947. Section 31 imposes restriction on alienation of holdings allotted under the said Act of 1947 or any part thereof. In the present case, there is no transfer of holding allotted under the said Act of 1947 and infact transfer is of a fragment. Section 31AB saves only such transfers which are made in violation of section 31 of the said Act of 1947 and the said section will not save a transaction which is void in view of section a of the said Act of 1947 on the ground that there is a transfer of fragment in violation of section 7 of the said Act of 1947. Thus, the legal position is very clear. Section 31AB will not validate the said transaction in favour of the first ... 8 ... defendant-appellant which is void under section 9 of the said Act of 1947. 12. As section 31AB has no application, obviously the bar created by section 36A of the said Act of 1947 will not be attracted. As pointed out earlier it is an admitted position that suit property was a fragment and it is borne out from the record that the same was transferred in violation of sub section 1 of section 7 as admittedly the appellant-first defendant is not the owner of a contiguous survey number or a recognised sub-division of a survey number. Hence, there is no merit in the appeal and the same is accordingly dismissed. There will be not order as to costs. JUDGE JUDGE JUDGE