:1: IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 4087 OF 1988 WRIT PETITION NO. 4087 OF 1988 WRIT PETITION NO. 4087 OF 1988 1. Shiva Ragho Kumbhar, since 1. Shiva Ragho Kumbhar, since 1. Shiva Ragho Kumbhar, since deceased, by his heirs : deceased, by his heirs : deceased, by his heirs : A) Smt.Vithabai Shiva Kumbhar; A) Smt.Vithabai Shiva Kumbhar; A) Smt.Vithabai Shiva Kumbhar; B) Pandurang Shiva Kumbhar; B) Pandurang Shiva Kumbhar; B) Pandurang Shiva Kumbhar; C) Banda Shiva Kumbhar; C) Banda Shiva Kumbhar; C) Banda Shiva Kumbhar; D) Sou.Jijabai Tukaram Kumbhar; D) Sou.Jijabai Tukaram Kumbhar; D) Sou.Jijabai Tukaram Kumbhar; E) Sou.Ambubai Dinkar Kumbhar; E) Sou.Ambubai Dinkar Kumbhar; E) Sou.Ambubai Dinkar Kumbhar; F) Sou.Shalubai Kundlik Kumbhar; F) Sou.Shalubai Kundlik Kumbhar; F) Sou.Shalubai Kundlik Kumbhar; G) Suman Chandrakant Avekar; G) Suman Chandrakant Avekar; G) Suman Chandrakant Avekar; 2. Ishwara Ragho Kumbhar, since 2. Ishwara Ragho Kumbhar, since 2. Ishwara Ragho Kumbhar, since deceased, by his heirs : deceased, by his heirs : deceased, by his heirs : A) Smt.Parvati Ishwara Kumbhar; A) Smt.Parvati Ishwara Kumbhar; A) Smt.Parvati Ishwara Kumbhar; B) Shankar Ishwara Kumbhar; B) Shankar Ishwara Kumbhar; B) Shankar Ishwara Kumbhar; C) Pandurang Ishwara Kumbhar; C) Pandurang Ishwara Kumbhar; C) Pandurang Ishwara Kumbhar; D) Hindurao Ishwara Kumbhar; D) Hindurao Ishwara Kumbhar; D) Hindurao Ishwara Kumbhar; E) Sou.Balabai Vithal Kumbhar ... Petitioners E) Sou.Balabai Vithal Kumbhar ... Petitioners E) Sou.Balabai Vithal Kumbhar ... Petitioners versus versus versus Kalyan Krishnaji Kurne ... Respondent Kalyan Krishnaji Kurne ... Respondent Kalyan Krishnaji Kurne ... Respondent ... ... ... :2: Mr. S.V. Sadavarte, for the Petitioners. Mr. S.V. Sadavarte, for the Petitioners. Mr. S.V. Sadavarte, for the Petitioners. Mr. K.Y. Mandlik, for the Respondent. Mr. K.Y. Mandlik, for the Respondent. Mr. K.Y. Mandlik, for the Respondent. ... ... ... CORAM : A.M.KHANWILKAR,J. CORAM : A.M.KHANWILKAR,J. CORAM : A.M.KHANWILKAR,J. 18th June 2004 18th June 2004 18th June 2004 ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 01. This petition takes exception to the 01. This petition takes exception to the 01. This petition takes exception to the judgment and order passed by the Additional judgment and order passed by the Additional judgment and order passed by the Additional Commissioner, Pune Division, Pune dated June 3, Commissioner, Pune Division, Pune dated June 3, Commissioner, Pune Division, Pune dated June 3, 1988 in Revision No. TNC.RA.121.86. Briefly 1988 in Revision No. TNC.RA.121.86. Briefly 1988 in Revision No. TNC.RA.121.86. Briefly stated, the lands in question are Gut No. 1692 stated, the lands in question are Gut No. 1692 stated, the lands in question are Gut No. 1692 admeasuring 1 hectare 29 ares, Gut No. 1719 admeasuring 1 hectare 29 ares, Gut No. 1719 admeasuring 1 hectare 29 ares, Gut No. 1719 admeasuring 0 hectare 75 ares and Gut No. 217 admeasuring 0 hectare 75 ares and Gut No. 217 admeasuring 0 hectare 75 ares and Gut No. 217 admeasuring 1 hectare 31 ares, situated at admeasuring 1 hectare 31 ares, situated at admeasuring 1 hectare 31 ares, situated at Kapileshwar, Taluka Radhanagari, District Kapileshwar, Taluka Radhanagari, District Kapileshwar, Taluka Radhanagari, District Kolhapur. The Respondent claims to be landlord Kolhapur. The Respondent claims to be landlord Kolhapur. The Respondent claims to be landlord in respect of the suit lands. It is not in in respect of the suit lands. It is not in in respect of the suit lands. It is not in dispute that the Petitioners’ predecessor was dispute that the Petitioners’ predecessor was dispute that the Petitioners’ predecessor was :3: tenant in the suit lands prior to 1st April 1957. tenant in the suit lands prior to 1st April 1957. tenant in the suit lands prior to 1st April 1957. It is also not in dispute that the suit lands It is also not in dispute that the suit lands It is also not in dispute that the suit lands were originally held by Krishna, father of the were originally held by Krishna, father of the were originally held by Krishna, father of the present Respondent as joint family property. On present Respondent as joint family property. On present Respondent as joint family property. On 29th October 1956, an agreement was arrived at 29th October 1956, an agreement was arrived at 29th October 1956, an agreement was arrived at between family members of said Krishna and his between family members of said Krishna and his between family members of said Krishna and his seven sons, which was reduced into writing, seven sons, which was reduced into writing, seven sons, which was reduced into writing, purported to be partition deed, in which the suit purported to be partition deed, in which the suit purported to be partition deed, in which the suit lands were given to the share of the Respondent. lands were given to the share of the Respondent. lands were given to the share of the Respondent. The Respondent was at the relevant time in The Respondent was at the relevant time in The Respondent was at the relevant time in Military services. He retired from Military Military services. He retired from Military Military services. He retired from Military services on November 1, 1979, whereafter he gave services on November 1, 1979, whereafter he gave services on November 1, 1979, whereafter he gave notice of termination of tenancy and to hand over notice of termination of tenancy and to hand over notice of termination of tenancy and to hand over possession of the suit lands for personal possession of the suit lands for personal possession of the suit lands for personal cultivation. The tenant resisted the said demand cultivation. The tenant resisted the said demand cultivation. The tenant resisted the said demand notice. The Respondent thereafter filed notice. The Respondent thereafter filed notice. The Respondent thereafter filed application under section 43-1B of the Act on application under section 43-1B of the Act on application under section 43-1B of the Act on 29th June 1981 for possession of the suit land 29th June 1981 for possession of the suit land 29th June 1981 for possession of the suit land for personal cultivation being a certificated for personal cultivation being a certificated for personal cultivation being a certificated landlord. The said application has been allowed landlord. The said application has been allowed landlord. The said application has been allowed by the Assistant Collector by judgment and order by the Assistant Collector by judgment and order by the Assistant Collector by judgment and order dated January 31, 1986. The Petitioners carried dated January 31, 1986. The Petitioners carried dated January 31, 1986. The Petitioners carried the matter in revision before the Additional the matter in revision before the Additional the matter in revision before the Additional Commissioner, who, in turn, dismissed the Commissioner, who, in turn, dismissed the Commissioner, who, in turn, dismissed the revision affirming the decision of the Assistant revision affirming the decision of the Assistant revision affirming the decision of the Assistant :4: Collector by judgment and order dated June 3, Collector by judgment and order dated June 3, Collector by judgment and order dated June 3, 1988. Against these concurrent decisions, 1988. Against these concurrent decisions, 1988. Against these concurrent decisions, present writ petition has been filed. present writ petition has been filed. present writ petition has been filed. 02. It is relevant to note that before the 02. It is relevant to note that before the 02. It is relevant to note that before the authorities below the case of the tenant was that authorities below the case of the tenant was that authorities below the case of the tenant was that the purported partition was effected only to the purported partition was effected only to the purported partition was effected only to extricate the lands from application of statutory extricate the lands from application of statutory extricate the lands from application of statutory purchase by the tenant on the Tillers’ Day. It purchase by the tenant on the Tillers’ Day. It purchase by the tenant on the Tillers’ Day. It was contended that the partition was not in was contended that the partition was not in was contended that the partition was not in conformity with the requirements of the conformity with the requirements of the conformity with the requirements of the provisions of the Tenantcy Act and had to be provisions of the Tenantcy Act and had to be provisions of the Tenantcy Act and had to be ignored so as to hold that the lands belonged to ignored so as to hold that the lands belonged to ignored so as to hold that the lands belonged to the joint family property and no relief can be the joint family property and no relief can be the joint family property and no relief can be granted to the Respondent under the provisions of granted to the Respondent under the provisions of granted to the Respondent under the provisions of section 43-1B of the Act. This plea has been section 43-1B of the Act. This plea has been section 43-1B of the Act. This plea has been negatived by both the authorities below on the negatived by both the authorities below on the negatived by both the authorities below on the reasoning that the purported partition was reasoning that the purported partition was reasoning that the purported partition was effected on 29th October 1956, whereas Chapter effected on 29th October 1956, whereas Chapter effected on 29th October 1956, whereas Chapter III-AA came to be introduced only in the year III-AA came to be introduced only in the year III-AA came to be introduced only in the year 1964 and it is presumptuous to assume that the 1964 and it is presumptuous to assume that the 1964 and it is presumptuous to assume that the partition effected in 1956 was with intent to partition effected in 1956 was with intent to partition effected in 1956 was with intent to avail benefit of said amended provision. In avail benefit of said amended provision. In avail benefit of said amended provision. In other words, authorities below proceeded to hold other words, authorities below proceeded to hold other words, authorities below proceeded to hold :5: that the partition cannot be questioned and for that the partition cannot be questioned and for that the partition cannot be questioned and for which reason allowed the application preferred by which reason allowed the application preferred by which reason allowed the application preferred by the Respondent under section 43-1B of the Act. the Respondent under section 43-1B of the Act. the Respondent under section 43-1B of the Act. 03. After considering the rival submissions, 03. After considering the rival submissions, 03. After considering the rival submissions, to my mind, both the authorities below have to my mind, both the authorities below have to my mind, both the authorities below have committed manifest error. It is rightly argued committed manifest error. It is rightly argued committed manifest error. It is rightly argued on behalf of the Petitioners that the exercise on behalf of the Petitioners that the exercise on behalf of the Petitioners that the exercise expected from the authority during the inquiry expected from the authority during the inquiry expected from the authority during the inquiry under section 43-1B of the Act has not been under section 43-1B of the Act has not been under section 43-1B of the Act has not been undertaken as was required by the exposition of undertaken as was required by the exposition of undertaken as was required by the exposition of the Apex Court in Balkrishna Somnath v. Sada the Apex Court in Balkrishna Somnath v. Sada the Apex Court in Balkrishna Somnath v. Sada Devram Koli, reported in A.I.R. 1977 S.C. 894. Devram Koli, reported in A.I.R. 1977 S.C. 894. Devram Koli, reported in A.I.R. 1977 S.C. 894. Indeed, the said Supreme Court decision deals Indeed, the said Supreme Court decision deals Indeed, the said Supreme Court decision deals with the purport of section 32F(1)(a) of the Act. with the purport of section 32F(1)(a) of the Act. with the purport of section 32F(1)(a) of the Act. However, the said provision is analogous to However, the said provision is analogous to However, the said provision is analogous to section 43-1B(1)(b) of the Act. Besides, it is section 43-1B(1)(b) of the Act. Besides, it is section 43-1B(1)(b) of the Act. Besides, it is rightly contended on behalf of the Petitioners rightly contended on behalf of the Petitioners rightly contended on behalf of the Petitioners that the requirement of proviso to section that the requirement of proviso to section that the requirement of proviso to section 32F(1)(a) was fully applicable in the present 32F(1)(a) was fully applicable in the present 32F(1)(a) was fully applicable in the present case, because when the purported partition was case, because when the purported partition was case, because when the purported partition was effected on 29th October 1956, the mandate effected on 29th October 1956, the mandate effected on 29th October 1956, the mandate thereof applied to the serving members of the thereof applied to the serving members of the thereof applied to the serving members of the Armed forces. In para 13 of the reported Armed forces. In para 13 of the reported Armed forces. In para 13 of the reported :6: decision, the Apex Court has observed thus : decision, the Apex Court has observed thus : decision, the Apex Court has observed thus : " The Proviso clearly states that the " The Proviso clearly states that the " The Proviso clearly states that the disabled person’s share ‘in the joint disabled person’s share ‘in the joint disabled person’s share ‘in the joint family’ must have been ‘separated by family’ must have been ‘separated by family’ must have been ‘separated by metes and bounds’. Separation from the metes and bounds’. Separation from the metes and bounds’. Separation from the joint family means separation from all joint family means separation from all joint family means separation from all the joint family assets. Otherwise the the joint family assets. Otherwise the the joint family assets. Otherwise the sharer remains partly joint and, to that sharer remains partly joint and, to that sharer remains partly joint and, to that extent, is not separate from the joint extent, is not separate from the joint extent, is not separate from the joint family. Notional division or division in family. Notional division or division in family. Notional division or division in status also may not be enough because the status also may not be enough because the status also may not be enough because the Act insists on separation ’by metes and Act insists on separation ’by metes and Act insists on separation ’by metes and bounds’. Ordinarily ‘metes and bounds’ bounds’. Ordinarily ‘metes and bounds’ bounds’. Ordinarily ‘metes and bounds’ are appropriate to real property, are appropriate to real property, are appropriate to real property, meaning, as the phrase does, ‘the meaning, as the phrase does, ‘the meaning, as the phrase does, ‘the boundary lines of land, with their boundary lines of land, with their boundary lines of land, with their terminal points and angles’. In the terminal points and angles’. In the terminal points and angles’. In the context, the thrust of the expression is context, the thrust of the expression is context, the thrust of the expression is that the division must be more than that the division must be more than that the division must be more than notional but actual, concrete, clearly notional but actual, concrete, clearly notional but actual, concrete, clearly demarcated. The ineptness and involved demarcated. The ineptness and involved demarcated. The ineptness and involved structure and some ambiguity structure and some ambiguity structure and some ambiguity notwithstanding, the sense of the notwithstanding, the sense of the notwithstanding, the sense of the sentence is clear. sentence is clear. sentence is clear. :7: The share of a person in the joint The share of a person in the joint The share of a person in the joint family, plainly understood, means his family, plainly understood, means his family, plainly understood, means his share in all the joint family properties share in all the joint family properties share in all the joint family properties and not merely in the real estate part. and not merely in the real estate part. and not merely in the real estate part. What is more, the section uses the What is more, the section uses the What is more, the section uses the expression ‘the share of such person in expression ‘the share of such person in expression ‘the share of such person in the joint family’, ‘the share of such the joint family’, ‘the share of such the joint family’, ‘the share of such person in the land’, ‘the share of that person in the land’, ‘the share of that person in the land’, ‘the share of that person in the entire joint family person in the entire joint family person in the entire joint family property’. Thus it is reasonable to hold property’. Thus it is reasonable to hold property’. Thus it is reasonable to hold that when the expression used is ‘the that when the expression used is ‘the that when the expression used is ‘the share of such person in the joint share of such person in the joint share of such person in the joint family’, it is not confined to the share family’, it is not confined to the share family’, it is not confined to the share in the land only. It really means his in the land only. It really means his in the land only. It really means his share ‘in the entire joint family share ‘in the entire joint family share ‘in the entire joint family property’. Moreover, the statutory property’. Moreover, the statutory property’. Moreover, the statutory exercise expected of the Mamlatdar by the exercise expected of the Mamlatdar by the exercise expected of the Mamlatdar by the Proviso involves an enquiry into the Proviso involves an enquiry into the Proviso involves an enquiry into the share of the disabled person in the land, share of the disabled person in the land, share of the disabled person in the land, and its value, the share of that person and its value, the share of that person and its value, the share of that person in the entire joint family property, the in the entire joint family property, the in the entire joint family property, the proportion that allotment of the land proportion that allotment of the land proportion that allotment of the land bears to his share in the entire joint bears to his share in the entire joint bears to his share in the entire joint family property with a view to see that family property with a view to see that family property with a view to see that :8: there is no unfair manoeuvre to defeat there is no unfair manoeuvre to defeat there is no unfair manoeuvre to defeat the scheme of the Act. The necessary the scheme of the Act. The necessary the scheme of the Act. The necessary postulate is that there is a division in postulate is that there is a division in postulate is that there is a division in the entire joint family property. the entire joint family property. the entire joint family property. Therefore, the imperative condition for Therefore, the imperative condition for Therefore, the imperative condition for the operation of the Proviso is that the operation of the Proviso is that the operation of the Proviso is that there should be a total separation and so there should be a total separation and so there should be a total separation and so far as a disabled member is concerned it far as a disabled member is concerned it far as a disabled member is concerned it must cover all the joint family must cover all the joint family must cover all the joint family properties." properties." properties." In the present case, however, none of the In the present case, however, none of the In the present case, however, none of the authorities below have adjudicated the issue as authorities below have adjudicated the issue as authorities below have adjudicated the issue as to whether the share of the Respondent in the to whether the share of the Respondent in the to whether the share of the Respondent in the entire joint family property, the proportion that entire joint family property, the proportion that entire joint family property, the proportion that the allotment of the land bears to his share in the allotment of the land bears to his share in the allotment of the land bears to his share in the entire joint family property is or is not the entire joint family property is or is not the entire joint family property is or is not with a view to see that there is no unfair with a view to see that there is no unfair with a view to see that there is no unfair manoeuvre to defeat the scheme of the Act. This manoeuvre to defeat the scheme of the Act. This manoeuvre to defeat the scheme of the Act. This adjudication is necessitated, because, as adjudication is necessitated, because, as adjudication is necessitated, because, as mentioned earlier, the purported partition was mentioned earlier, the purported partition was mentioned earlier, the purported partition was admittedly effected on 29th October 1956 and if admittedly effected on 29th October 1956 and if admittedly effected on 29th October 1956 and if the said document is to be ignored in the light the said document is to be ignored in the light the said document is to be ignored in the light of the observations made by the Apex Court, then of the observations made by the Apex Court, then of the observations made by the Apex Court, then it would necessarily follow that on the Tillers’ it would necessarily follow that on the Tillers’ it would necessarily follow that on the Tillers’ :9: Day, i.e., 1st April 1957, the tenant had become Day, i.e., 1st April 1957, the tenant had become Day, i.e., 1st April 1957, the tenant had become deemed purchaser by operation of law and the deemed purchaser by operation of law and the deemed purchaser by operation of law and the authorities would be instead obliged to initiate authorities would be instead obliged to initiate authorities would be instead obliged to initiate proceedings under section 32G of the Act. proceedings under section 32G of the Act. proceedings under section 32G of the Act. However, in case it was to be found that the However, in case it was to be found that the However, in case it was to be found that the purported partition was not to subvert the purported partition was not to subvert the purported partition was not to subvert the operation of section 32 read with section 32-G of operation of section 32 read with section 32-G of operation of section 32 read with section 32-G of the Act, in that case, the tenant will not be the Act, in that case, the tenant will not be the Act, in that case, the tenant will not be entitled to purchase the land on the Tillers’ Day entitled to purchase the land on the Tillers’ Day entitled to purchase the land on the Tillers’ Day as by operation of section 32F, as it originally as by operation of section 32F, as it originally as by operation of section 32F, as it originally stood at the relevant time, the Tillers’ Day stood at the relevant time, the Tillers’ Day stood at the relevant time, the Tillers’ Day stood