Case: Jijabai Vithalrao Gajre Vs. Pathankhan &amp; Ors

and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.12. It has also been found by the High Court and all the revenue tribunals that the mother was protecting the appellant and looking after her interest and was also managing the suit lands by leasing them to the tenant. There is no evidence to establish that the transaction of lease is in any way an imprudent one or not in the interest of the minor appellant It has also been found that the lease in favour of the tenant has begun from 1951. Though the lease for some years was oral, for the year 1956-57 a written lease deed was executed on February, 12, 1956 by the tenant in favour of the appellant represented by her mother as guardian. If so, it follows, as held by the High Court, that the tenancy had been created even prior to the first day of April, 1957". Though the revenue tribunals also found that the tenant was in possession of the properties as lessee from l951 onwards, they declined to recognise his rights, on the view that those leases were not binding on the appellant. That view, as we have already pointed out, is erroneous. Therefore, it follows that the contention of Mr. Sanghi that the High Courts view about the validity and legality of the lease executed by the mother on February 12, 1956 is not correct, cannot be accepted.13. In view of the above ending that the lease executed on February 12, 1956 is valid and binding on the appellant, it follows that this is not a case of a tenancy created by the landlord "not earlier than the first day of April, 1957" which is one of the essential ingredients for the maintainability of the application under Section 39. Therefore, the third contention of Mr. Sanghi that the construction placed upon Section 39 by the High Court and holding that the application of the appellant is barred by limitation is not correct, does not arise for consideration. The applicability of Section 39 would have arisen for consideration only if it had been found that the lease by the mother is not valid and by virtue of occupation of the land in 1958-59 the tenant is to be considered as a deemed tenant under Section 6.14. We may, however, indicate that the High Court has held that Section 39 will not apply on the bound that the lease in this case is prior to April 1, 1957, and the application filed by the appellant on March 30, 1963 was barred by limitation. So far as the view of the High Court that the lease in this case is one created prior to April 1, 1957 is concerned, we have already accepted that finding. Regarding the application being barred by limitation, the view of the High Court briefly is as follows: The Act in the Vidarbha region came into force on January 23, 1961. Under Section 39, sub-section (1), the application by the landlord should be filed within one year from the date of the Act coming into force, i e., on or before January 28, 1962. Sections 38 and 39-A while providing a period for making the application had also enabled a minor to file an application within one year of his or her attaining majority. Similar provisions are not to be found in Section 39 (1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occurring in Section 39 (1) referred to the enabling provisions in favour of the minor contained in sub-section (2) of Section 38. At any rate as one of the ingredients for attracting Section 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such Section 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on Section 39 (1) regarding other aspects.15. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that Section 39 is inapplicable. However, the High Court, even after holding that Section 39 does not apply, has shown consideration to the appellant when it has treated her application as one under Section 36 read with Section 38. Applying Section 38, the appellant would not be entitled to the possession of the entire field. As per clause (a) proviso (i) of sub-sec. (4) of Section 38, she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her, whichever is more. It is seen that the High Court was informed that the family holding in this case consists of 32 acres and on that basis the High Court held that half of the land leased would be more and as such the appellant would be entitled to get possession of half of the area leased, namely, half of 27 acres and 37 gunthas. It is for the purpose of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the High Court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar Those directions given by the High Court, in our view, are perfectly correct and justified.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. We are not impressed with this contention of Mr. Sanghi. Mr. Sanghi referred us to certain decisions where the powers of a guardian of a minor have been considered. But in the view that we take that the contention of Mr. Sanghi in this regard is not acceptable to us, no useful purpose will he served by reference to those decisions. We have already referred to the fact that the father and mother of the appellant had fallen out and that the mother was living separately for over 20 years. It was the mother who was actually managing the affairs of her minor daughter, who was under her care and protection. From 1951 onwards the mother in the usual course of management had been leasing out the properties of the appellant to the tenant. Though from 1951 to 1956 the leases were oral, for the year 1956-57 a written lease was executed by the tenant in favour of the appellant represented by her mother. It is no doubt true that the father was alive but he was not taking any interest in the affairs of the minor and it was as good as if he was non-existent so far as the minor appellant was concerned. We are inclined to agree with the view of the High Court that in the particular circumstances of this case, the mother can be considered to be the natural guardian of her minor daughter. It is needless to state that even before the passing ofthe Hindu Minority and Guardianship Act, 1956, (Act 32, of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under Section 6 the natural guardians of a Hindu minor in respect of the minors person as well as the minors property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. But on the facts found above the mother was rightly treated by the High Court as the natural guardian.We may, however, indicate that the High Court has held that Section 39 will not apply on the bound that the lease in this case is prior to April 1, 1957, and the application filed by the appellant on March 30, 1963 was barred by limitation. So far as the view of the High Court that the lease in this case is one created prior to April 1, 1957 is concerned, we have already accepted that finding. Regarding the application being barred by limitation, the view of the High Court briefly is as follows: The Act in the Vidarbha region came into force on January 23, 1961. Under Section 39, sub-section (1), the application by the landlord should be filed within one year from the date of the Act coming into force, i e., on or before January 28, 1962. Sections 38 and 39-A while providing a period for making the application had also enabled a minor to file an application within one year of his or her attaining majority. Similar provisions are not to be found in Section 39 (1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occurring in Section 39 (1) referred to the enabling provisions in favour of the minor contained in sub-section (2) of Section 38. At any rate as one of the ingredients for attracting Section 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such Section 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on Section 39 (1) regarding other aspects.15. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that Section 39 is inapplicable. However, the High Court, even after holding that Section 39 does not apply, has shown consideration to the appellant when it has treated her application as one under Section 36 read with Section 38. Applying Section 38, the appellant would not be entitled to the possession of the entire field. As per clause (a) proviso (i) of sub-sec. (4) of Section 38, she would be entitled to resume for personal cultivation either one third of the family holding or half of the lands leased by her, whichever is more. It is seen that the High Court was informed that the family holding in this case consists of 32 acres and on that basis the High Court held that half of the land leased would be more and as such the appellant would be entitled to get possession of half of the area leased, namely, half of 27 acres and 37 gunthas. It is for the purpose of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the High Court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar Those directions given by the High Court, in our view, are perfectly correct and justified.