RAGHUNATH v.

POPAT LAL AND ORS.

FEBRUARY 14, 1996

[K. RAMASWAMY ANDS. SAGHIR AHMED, JJ.]

Bombay Tenancy and Aglicultural Lands Act, 1948 :

Tenants purchasing the equity redemption of lands for considera- C tion-One of the tenants selling the undivided interest in the land to the mother of the appellant-Mamlatdar and appellate auth01ity recorded a finding that the lesser 1ight of tenancy stood merged with the tenants' larger 1ight as owners and they no longer remained tenants and the purchaser alone was held to be owner of the undivided share in the land-High Court reversing the order-n appeal, held, the respondents 2 and 3 and the appeliant D became co-owners in the property and entitled to p01tition after redemption of 11101tgage in equal moiety and enjoyment thereof-Respondents to deposit the sum as directed in the prelimin01y decree-on such deposit being made, llial cowt to draw up the final decree within four weeks and to deliver possession of his share of land to the appellant within six weeks thereafter.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1990 (N) of 1979.

From the Judgment and Order dated 19.3.76 of the Bombay High Court in A. No. 584 of 1974.

Mrs .. T.S. Wad, Manoj Wad and Mrs. S. Usha Reddy for the Appellants.

G.B. Sathe and AS. Bhasme for the Respondents.

G The following Order of the Court was delivered :

The only question is whether the respondents can claim right as tenants to the possession of the demised lands under the Bombay Tenancy and Agricultural Lands Act, 1948 (for short 'the Act')? The admitted facts are that the land originally belonged to one Lilachand Bhandari. He H hypothecated the lands on July 27, 1942 in favour of one Hirachand, the

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father of respondent Nos. 1 and 4 (defendants 1 & 4) under the possessory A mortgage. In 1947- 48 Hirachand leased those lands to respondent Nos. 2 and 3 (defendants 2 & 3). While remaining to be tenants, respondent No.2 had purchased the equity of redemption of the suit lands for a sum of Rs. 12,000 on December 27, 1949. The second respondent in turn sold half of the undivided interest in the land to one Housabai, mother of the appellant on January 19, 1950. From these facts the question arose : whether the second and the third respondents remained to be tenants in the land after the Act had come into force? When the matter was referred to Mamlatdar for decision, a finding was recorded by him and also by the appellate authority that the property having been purchased by way of equity of redemption, the lesser right of tenancy stood merged with their larger right as owners and that, therefore, the respondents no longer remained to be

the tenants; consequently the appellant alone was held to be the owner of undivided share in the land and the respondent could not claim tenancy rights under the Act. But, unfortunately, the High Court in Second Appeal reversed the said finding and held in the impugned order that the respon- D dents remained to be tenants and that, therefore, the Act got attracted.

The appellant thereby had to surrender his rights to the tenants. Thus this appeal by special leave.

It would be seen that though the respondent Nos. 2 and 3 had come into possession as tenants in the year 1947-48 from the mortgagee E Hirachand, after the second respondent's purchase of the equity of redemption on December 27, 1949, they became absolute owner of the suit property. Thereby, their lesser tenancy rights which they had under the mortgagee Hirachand, stood merged with their larger interest as owner of the lands. Thereby on and from December 27, 1949 they ceased to be the p tenants. Having sold the undivided half land to the mother of the appellant who has since died and the appellant havifig succeeding the land by intestate succession by registered conveyance dated January 19, 1950 they became co-owners in the property. Thereby, they are ntitled to partition of the same after redemption of the mortgage in equal moiety and enjoyment thereof. The suit of the appellant, therefore, is clearly maintainable. G It is accordingly to be decreed.

We are informed that pursuant to the preliminary decree granted by the trial Court, the appellant had deposited a sum of Rs. 4,000 as directed in the preliminary decree but it would appear that the respondents have H

SUPREME COURT REPORTS

[1996] 2 S.C.R.

A not deposited their share. Three months time from today is granted to the respondents to deposit the same. On deposit being so made, the trial Court would draw up the final decree within four weeks thereafter and pass appropriate orders according to law and deliver possession of the land that fell to the share of the appellant, within six weeks thereafter.

B The appeal accordingly allowed. No costs.

G.N.

Appeal allowed.