1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 451 OF 2007 Premchand Mangilal Sharma (Marvadi) .... PETITIONER V E R S U S Mohanlal Mangilal Sharma (Marvadi) .... RESPONDENT Mr.R.M.Deshmukh , Advocate for appellant Mr. M.N.Navandar, Advocate for respondent 1 to 4. ............................ CORAM : S.V. GANGAPURWALA, J. DATE: 07/09/2010 ORAL ORDER : 1. The appellant is the original defendant. The respondent has filed Suit for partition and separate possession in respect of the agricultural lands and the house property. The Suit was partly decreed. In Appeal, the appellate Court has partly allowed the Appeal and it was held that the plaintiff and defendant nos. 1 to 4 each have 1/6th share in the suit agricultural land and the plaintiff and defendant no. 1 each have 7/24th share in the house property, so also the defendant nos. 2 to 4 each have 1/24th share in the house property. 2. The defendants have assailed the said Judgment before this 2 Court. 3. Mr. R.M.Deshmukh, the learned counsel for the appellant canvassed before me that when the Court below have categorically come to the conclusion that the agricultural land was the self-acquired property of deceased Mangilal as a tenant, then in such circumstances, pursuant to the bar embodied U/s 43 (1) of the Bombay Tenancy and Agricultural lands Act, 1948 ( For short, ‘ Act of 1948 ’ ), no decree for partition could have been passed. He has further contended that the deceased Mangilal had bequeathed the said property to the present appellant by way of oral will. 4. The relations between the parties are not disputed. Even the lower appellate Court has come to the conclusion that deceased Mangilal was tenant over the suit agricultural land and he had purchased the said land under the provisions of the Act of 1948. 5. Though the said finding is there, that would not affect the nature of the property. Section 43 of the Act of 1948 reads thus, : “ 43. Restriction on transfers of land purchased or sold under this Act – (1) No land purchased by a tenant under section 32, 32F, [ 32I, 32 O, [ 33 C or 43 (D) ] or sold to any person under section 32P or 64 shall be transferred by sale, gift, exchange, mortgage, lease or assignment [ *** ] without the previous sanction of the Collector, such sanction shall be given by 3 the Collector ; in such circumstances and subject to such conditions, as may be prescribed by the State Government; Provided that no [ such sanction shall be necessary where the land is to be mortgaged in favour of Government or a society registered or deemed to be registered under the Bombay Co-operative Societies Act, 1925, for raising a loan for effecting of any improvement of such land. (2) Any transfer [ *** ] of land in contravention of sub-section (1) shall be invalid ]. ”. 6. From the perusal of Section 43, it is manifest that the transfers which are prohibited, are detailed in the said provision itself. Partition is not prohibited by operation of the said Section 43. When the partition is excluded from the operation of Section 43, any interpretation regarding partition also being subject to the impediment incorporated U/s 43 of the Act of 1948 would be doing violence to the phraseology of the said provision. As such, the said argument of the learned counsel for the appellant is not countenance by law. 7. The next submission that by way of oral will the said property was bequeathed to the appellants also is not sustainable, as the law does not recognize oral will. 4 8. In light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. [ S.V. GANGAPURWALA, J. ] knp/ SA 451.2010