( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 618 OF 1991 Smt. Hafizabi w/o Kasam Patel, R/o Mamarabad, Taluka and District Jalgaon. PETITIONER VERSUS Sitaram Khushal Patil, Since deceased, by L.Rs. 1. Laxman Sitaram Patil, R/o Mamarabad, Dist. Jalgaon. 2. Shantabai w/o Sitaram Patil, R/o Mamarabad, Dist. Jalgaon. 3. Smt. Pramilabai w/o Tulshiram Patil, R/o Amalde, Taluka Bhadgaon, Dist. Jalgaon. 4. Smt. Nirmalabai w/o Gulab Patil, Avhadi Mohadi, Post Ranadi, R/o Amalner, Dist. Jalgaon. 5. Smt. Mangalabai w/o Bandu Bhalerao, R/o Khamgaon, District Thana. RESPONDENTS ..... Mr. P.R. Patil, advocate for the petitioner. Mr. R.P. Phatke, advocate for respondents No. 1 to 5. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 7th January, 2010] [DATE OF JUDGEMENT PRONOUNCED : 22nd January, 2010] ( 2 ) JUDGEMENT : 1. This petition arises out of orders rendered by the Tenancy Tribunals and Maharashtra Revenue Tribunal (M.R.T.) whereby petitioner’s claim for restoration of agricultural land bearing Gat No. 201, situated at village Mamarabad (District Jalgaon) under section 32-P of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT&AL Act”) was rejected. 2. Sardarbi w/o Gulzar Patel was original owner of the land in question. Admittedly, deceased Sitaram, predecessor-in-title of the respondents, was tenant in possession since much prior to 1st April, 1957. The land was a revenue Patel inam land. The inam was abolished under provisions of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962. Indisputably, on 27th May, 1972, the land was regranted in favour of said Sardarbi, who was mother of the petitioner. The landlady (Sardarbi) died on 09-02-1987. 3. Briefly stated, the petitioner’s case before ( 3 ) the Tenancy Tribunal was that the tenanted land was gifted to her on 7th July, 1983 by Sardarbi, the erstwhile landlady and her mother, in accordance with the provisions of the Mahomedan Law. Her name was mutated vide Mutation Entry No. 775 in the village record as owner of the land. The tenant did not give her any notice under section 35-F of the BT&AL Act. Nor such notice was issued at any time to Sardarbi. Therefore, the tenant’s right to purchase the land in question had become ineffective. The original tenant i.e. Laxman Sitaram Patil was, therefore, not entitled to continue his possession. Consequently, she sought restoration of possession. 4. The Tahsildar (Agricultural Lands Tribunal), Jalgaon in Tenancy Case bearing No. 8/1986 rejected her application. The petitioner preferred an appeal (TNC/Appeal No. 14/1988) which also came to be dismissed vide order dated 12th June, 1989 rendered by the Sub Divisional Officer, Jalgaon. The Maharashtra Revenue Tribunal confirmed the findings and orders of both the Tribunals and as such, the petitioner has preferred this ( 4 ) writ petition. 5. Heard learned counsel. 6. Crucial question involved in this petition is as follows : “Whether the legal rights of the tenant became nugatory on account of his failure to give notice under section 32-F to the petitioner within the statutory period and as such, his right to purchase the land in question had become ineffective, or that the right to purchase was available to him on 10-12-1988 when he actually gave notice of his intended purchase ?” 7. The petitioner is natural daughter of deceased Sardarbi who claims to have entered into her shoes on account of alleged gift-deed. The gift-deed is unregistered document. The averment made in the application is that the gift was made in accordance with ( 5 ) the provisions of the Mahomedan law. There is absolutely nothing on record to show that immediately after the so called gift dated 7th July, 1983, the petitioner had issued any notice to the tenant about attornment of the tenancy rights. The tenant was not informed that the legal disability of the widowed landlady, which had put the legal claim of the tenant to purchase the land in dormant position, was removed due to the change of ownership. 8. Mr. Patil submits that even oral gift is valid under provisions of the Mahomedan Law. There cannot be any duality of opinion that `hiba’ can be effected even without executing any document of gift. The policy of the Mahomedan Law appears to be to provide for simple method of transfer in respect of the property. It is well settled that `hiba’ signifies the donation of a thing from which the donee may derive the benefit. The transaction of the gift need not be reduced into writing. 9. Clinching question is whether the tenanted land ( 6 ) could be gifted in favour of the petitioner without encumbrances and without the charge of the rights created on account of tenancy. It is also necessary to examine whether the transfer of the tenanted land was legal and valid. The petitioner could not claim status of landlady on account of the gift unless it can be positively inferred that transaction was legal and valid and, therefore, the tenant was under legal obligation to exercise his right within period of one year after such kind of change of ownership. The contention of Mr. Patil is that the transfer of the tenanted land could be effected by deceased Sardarbi without any permission and that when the name of the petitioner was mutated in the revenue record on 2nd August, 1983, the due intimation of the transfer was given to the tenant. He would submit that the rights of the tenant had become ineffective. He submits that a notice was already given to the tenant on 03-12-1983 regarding the ownership claim and claim of the petitioner for restoration of land. I find it difficult to countenance the argument of Mr. Patil. There is no tangible evidence to show that due notice was served on the tenant regarding attorment of the ( 7 ) tenancy rights. Nor it was proved that such notice was duly served on the tenant. There appears only a xerox copy of such notice filed on record of the Tribunal without proof about due service thereof. 10. At this juncture, it may be noticed that section 8 of the Maharashtra Revenue Patels (Abolition of Office) Act, 1962 would make it amply clear that the deeming effect has been given to the revival of lease. Section 8 reads as follows : “8. If any watan land has been lawfully leased and such lease is subsisting on the appointed day, the provisions of the relevant tenancy law shall apply to the said lease, and the rights and liabilities of the holder of such land and his tenant or tenants shall, subject to the provisions of this Part, be governed by the provisions of that law:” Proviso appended to section 8 will make it manifestly clear that in regard to the compulsory purchase of land ( 8 ) by a tenant, the date of regrant must be taken as the date of commencement of the lease. In other words, the tenant’s lease was revived due to such legal fiction w.e.f. 27-05-1970 i.e. the date of regrant of the lease. In “Ishwara Sheku Nangare Since deceased by heirs Mahadeo Ishwara Nangare and others v. Vishwasrao Dattajirao Ingale since deceased by heirs Ranjit Vishwasrao Ingale and others” 2006 (5) Mh.L.J. 299, this Court held that where the tenant was in lawful cultivation of the land on the appointed date i.e. 01-01-1983 as contemplated under the Maharashtra Revenue Patels (Abolition of Office) Act, 1962, the rights of the tenant to purchase the tenanted land could not be held as abrogated due to his failure to exercise the right under section 32-F within the statutory period. 11. Mr. Patil seeks to rely on certain observations in “Nasib Ali v. Wajed Ali” (AIR 1927 Calcutta 197). A Division Bench of Calcutta High Court held that for the purpose of valid gift under the Mahomedan Law, the required essentials are a declaration of hiba by the ( 9 ) donor an acceptance, express or implied, of the gift by the donee, and delivery of possession of the property, which is subject matter of the gift, according to its nature. It is observed that a simple gift can only be made by going through the above formalities and no written instrument is required. It is further held that the instrument of gift-deed executed by a Mahomedan is mere piece of evidence and does not require registration within meaning of section 17 of the Registration Act. There cannot be duality of opinion regarding the legal position in so far as gift transaction is concerned. The Rule that a Mahomedan can make a oral gift is a general Rule applicable in respect of properties of any kind. However, it must give way to any special rules relating to a gift of any particular kind of property. The gift by the original landlady i.e. Sardarbi could not be validly effected without following provisions of section 63 of the BT&AL Act. Chapter-V of the BT&AL Act provides for certain restriction on transfer of agricultural lands, which are subject of the tenancy law. The petitioner did not seek permission from Collector or any authorized officer as contemplated ( 10 ) under Proviso to Section 63 (1) of the BT&AL Act. The transfer cannot be validly created if it would amount to breach of the specific provisions of the BT&AL Act. The transfer of the land by gift in contravention of the provisions of Section 63 of the BT&AL Act cannot be regarded as valid one. It need not be emphasized that the BT&AL Act is a beneficial and special enactment. Therefore, provisions of the tenancy law shall prevail over the general provisions relating to such transfers. 12. What emerges from the record is that the tenant gave notice to the petitioner on 10-12-1988 of his intended purchase under section 32-F of the BT&AL Act. The petitioner’s mother i.e. original landlady – Sardarbi died on 09-02-1987. The notice contemplated under section 32-F can be given by the tenant within period of one year after the landlord would give intimation regarding removal of the disability created under section 32-G. It is pertinent to notice that under section 31 (3) of the BT&AL Act where a landlord or landlady is a minor or widow or a person subjected to mental or physical disability, the landlord/landlady may ( 11 ) give notice to terminate the tenancy for personal cultivation within one year after removal of the disability. In case of a widow, section 31 (3) (ii) will be attracted. It is amply clear that the successor-in-title of a widow is entitled to give notice of termination of the tenancy rights within one year from the date on which her interest in the land ceases to exist. The interest of deceased Sardarbi ceased to exist qua the land in question in the event of her death. The earlier gift could not be regarded as valid one and, therefore, her interest in the land continued to exist during her lifetime. A plain reading of section 32-P of the BT&AL Act will show that the Tenancy Tribunal has power to resume and dispose of land not purchased by the tenant. The power may be invoked where a tenant fails to exercise the right to purchase the land held by him within the specified period under section 32-F. The tenant could have exercised his right under section 32-F only after the knowledge regarding death of Sardarbi. The right could be exercised within one year commencing from the expiry of the period during which the petitioner was entitled to terminate the ( 12 ) tenancy under section 31. As stated before, in view of section 31 (3) (ii), the petitioner being successor-in- title of deceased Sardarbi could have exercised her right within one year from the date on which interest of Sardarbi had ceased to exist. In other words, within one year from 09-02-1987, the petitioner could have exercised the right to terminate the tenancy of the tenant and from the terminal point of such period, within one year, the tenant could have exercised his right to purchase the land in question. Thus, he could have exercised the right under section 32-F before 10-02-1989. Considering the legal position as discussed hereinabove, it will have to be said that the notice dated 10-12-1988 given by the tenant was within the prescribed period of limitation and, therefore, his possession could not be regarded as unauthorized. He was not liable to be evicted by invoking powers under section 32-P of the BT&AL Act in as much as the purchase of the land by the tenant under section 32 had not become ineffective. 13. For the reasons aforestated, I find it ( 13 ) difficult to interfere with the findings of the Tenancy Tribunals including Maharashtra Revenue Tribunal. The petition is, therefore, dismissed. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/wp618-91