Case ID: 6307

Judgment:
ivil Appeal No. 735 of 1975. From the Judgment and Order dated 21.6.1974 of the Bombay High Court in Spl. Civil Appln. No. 15 of 1971. U.U. Lalit and A.G. Ratnaparkhi for the Appellants. M.S. Gupta for the Respondent. 68 The Judgment of the Court was delivered by SAWANT	 J. These proceedings arise under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act	 1958 (hereinafter referred to as the Act). The appellant Hiraji Tolaji was admittedly a protected lessee or tenant of the agricultural land being Survey No. 30 of Village Madha	 Taluqa Chikhali District Buldana. The land measures approxi mately 25 acres and 31 gunthas. The respondent who is men tally disabled became the landlady of the land in question in quite queer circumstances which to say the least are indefensible in law. Her father	 one Mr. Brijlal Bansilal owned as many as 568 acres of land of which the suit lands are a part. The lands admittedly are ancestral. He effected first partition of his entire holding of lands on January 31	 1949 between himself on the one hand and his wife and a minor son on the other. On December 16	 1950	 he effected a second partition of the very same lands between himself on the one hand and his wife and his son on the other. Again on June 29	 1959 he effected a third partition of the said lands between himself on the one hand and his wife and his two minor daughters including the respondent on the other. There is further no dispute that it is in this third parti tion that the suit lands were given to the share of the respondent and the respondent became the alleged landlady w.e.f. the date of the said partition. It appears that sometime in 1962	 the respondent through her guardian	 namely her father Brij Lal initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default in payment of rent for three years	 namely 1959 60	 1960 61 and 196 1 62. By his decision of April 30	 1963 the Tehsildar dismissed 'the application holding that the respondent was not a landlady since the partitions in question were illegal. The Deputy Collector in appeal confirmed the said decision by his Order dated November 26	 1963. The respondent 's revision before the Maharashtra Revenue Tribunal also failed when the Tribu nal rejected it by its decision of April 29	 1965. In the Writ Petition filed before the High Court under Article 227 of the Constitution against the said decision of the three authorities below	 the High Court by its Order dated October 4	 1966 remanded the matter to the Tehsildar for investiga tion into the validity of the partition. Then started the second round of litigation. On remand	 the Tehsildar by his decision of March 16	 1968 held that the partition effected on June 29	 1959 (which was the only material partition so far as the respondent was con cerned) was bogus. Hence the notice of demand and therefore the proceedings for recovery of possession pursuant thereto	 were bad in law. 69 It appears that thereafter in a different proceeding the Maharashtra Revenue Tribunal on June 25	 1968 had held 'that the said partition was binding. It is after this decision of the Tribunal as stated earlier in an altogether different proceeding	 that the matter came up for hearing in appeal filed by the respondent before the Deputy Collector	 against the decision of the Tehsildar given on March 2	 1968. The Deputy Collector	 therefore	 followed the said decision of the Revenue Tribunal	 and by his decision of April 16	 1969 held that the partition being valid	 the respondent was the landlady of the suit land and	 therefore	 notice given by her	 terminating the tenancy on the ground of default of rent and the proceedings filed for recovery of the suit land	 were proper. He also held that the appellant was in arrears of rent for three years as contended by the respond ent and	 therefore	 allowed the said application for evic tion of the appellant from the suit land. Against the said decision	 the appellant preferred a revision before the Revenue Tribunal and the Tribunal by its decision of September 15	 1970 confirmed the findings of the Deputy Collector. Aggrieved by the decision	 the appellant preferred a Writ Petition before the High Court under Article 227 of the Constitution	 and the High Court by its impugned decision of June 21	 1974 dismissed the petition. Hence this appeal. Before the High Court	 two obvious illegalities committed by the lower authorities were highlighted on behalf of the appellant. The first illegality was that the property being admittedly ancestral	 Brijlal could not have effected partition of the property between himself on the one hand and his wife and his daughter on the other. In all the three partitions effected on July 31	 1949	 December 16	 1950 and June 29	 1959	 wife was one of the parties to the partitions. In the third partition made on June 29	 1959 besides his wife	 the other parties to the partition were two minor daughters. Secondly	 the same property is shown to have been partitioned by Brij Lal on three occasions. Admit tedly	 the partition of June 29	 1959 is between Brij Lal on the one hand and his wife and two minor daughters including the respondent on the other. This partition was obviously contrary to the provisions of Hindu Law. Hence the respond ent in any case could not have become a landlady of the suit land because it is in this third partition of June 29	 1959 that the said land is alleged to have gone to the share of the respondent. The High Court dismissed this contention with regard to the patent illegality by giving a spacious reason that the question 70 referred to the Tehsildar in its earlier remand order	 namely the validity or otherwise of the partition	 was investigated by the three authorities and that they had given a finding upholding the partition. The High Court further held that what was produced before the courts below was a family settlement and since the said family settlement created a right in favour of the respondent she should be held to have become the owner of the suit land. Unfortunate ly	 the High Court lost sight of the fact that the family settlement which is accepted by the Courts in lieu of parti tion	 is a settlement which gives share to the parties as per their legal entitlement and not a settlement which is made or purported to have been made to circumvent the law. A partition of the property can only be among the parties who have a preexisting right to the property. Under the Hindu Law	 a female	 major or minor has no share in the ancestral property. A female is given a share either in the self acquired property of the husband or the father	 or in the share of the husband or the father in the coparcenary property after the property is partitioned. There cannot	 therefore	 be a partition and hence a family settlement with regard to the ancestral property so long as it is joint	 in favour of either the wife or the daughter. Since this obvi ous illegality was ignored by the High Court	 it will have to be held that the High Court 's decision was patently wrong. The respondent	 therefore	 never became the landlady of the land and it was Brij Lal who continued to be the landlord of the same. Hence the notice given by the respond ent and the proceedings for eviction adopted by her are misconceived. Her application for possession of the land has	 therefore	 to be dismissed	 5. The second obvious illegality which was brought to the notice of the High Court was that even assuming that the partition deed of June 29	 1959 was a valid document	 the same has to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of Section 38(7) of the Act. Under Section 46 of the Act	 a protected tenant becomes the owner of the land on and from April 1	 1961. Under section 38(1)	 however	 a landlord is given a right to evict a tenant if he wants the land for bona fide personal cultivation. The right to adopt the proceedings for possession of the land has to be exer cised on or before March 31	 1961. The condition precedent to such application	 however	 is that the landlord should have given a notice to the tenant	 for the purpose	 on or before November 15	1961. Under Section 38(2)	 the time to apply for possession is extended in the case of the landlord who is a minor	 widow or a person subject to any physical or mental disability. We are concerned in the present case with a person who is mentally disabled	 since the respondent is alleged 71 to be a mentally disabled person. Further the proviso to sub section (2) of Section 38 also makes it clear that where such person is a member of a joint family	 the time given to the landlord to terminate the tenancy is not extended if atleast one member of the joint family is outside the cate gories of the disabled persons. Such disabled person	 fur ther	 has to be the owner of the land on March 31	1961. 6. The sum total of these provisions is that the appel lant in the present case would become the owner of the suit land on and from 1st April	 1961 if the respondent did not intervene as the landlady of the suit land before that date. Admittedly	 the respondent is alleged to have become the landlady by virtue of the partition effected on June 29	 1959. Section 38(7) of the Act	 however	 states as follows: "Nothing in this section shall confer on a tenure holder who has acquired any land by transfer or partition after the 1st day of August 1953 a right to terminate the tenancy of a tenant who is a protected lessee and whose right as such protected lessee had come into existence before such trans fer or partition. " It may be mentioned here that in some copies of the Act published by the Government Press	 instead of the 1st day of August 1953	 the date printed is 1st day of August 1963. That is admittedly wrong. We perused the Bombay Tenancy and Agricultural Lands (Vidarbha Region) (Amendment) Act 1963. By that Amending Act	 all that was done was to add the words "or partition" after the word "transfer" in Section 38(7). No amendment was made of the date the transfer effected after which would not result in conferring title to the land. In fact	 the Amending Act also states that the amend ment was effected pursuant to the decision of the Full Bench of the Bombay High Court reported in 1969 Maharashtra Law Journal page 933 where the Court had taken the view that the "transfer" contemplated by the unamended provision of Sec tion 38(7) did not include transfer by partition. It had	 therefore	 become necessary to include in the "transfer" also transfer by partition and	 hence	 the Amending Act was enacted only for the purpose of adding the words "or parti tion" after the words "by transfer" and "before such trans fer" in that Section. The position that obtains under Section 38(7) after the Amending Act 1963 is	 therefore	 that any transfer of land effected after 1st August 1953 whether by way of parti tion or otherwise	 has no effect of conferring on the trans feree a right to terminate the tenancy 72 of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition. This amendment is admittedly retro spective in operation. Even assuming	 therefore	 that the partition of June 29	 1959 was a valid one	 it did not give a right to the respondent to terminate the tenancy of the appellant who was admittedly a protected lessee prior to August 1	 1953 and was on the land as such tenant on April 1	 1961. The result therefore is that firstly	 the respondent had not become the landlady of the suit land since the share given to her in the partition was prima facie illegal and contrary to the provisions of law. Secondly	 assuming that the partition was valid	 the respondent had no right to terminate the tenancy of the appellant on any ground whatso ever. The appellant was a tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1	 1961. Hence he became a statutory owner under Section 46 on and from April 1	 1961. Any proceedings for evicting him on the ground that he was a tenant and	 therefore	 had fallen in arrears of rent could not have	 therefore	 been adopted in 1962. It is unfortunate that the High Court lost sight of the ' said patent legal position and brushed aside the con tention in that behalf on the ground that the question involved was a question of law and fact. We are unable to see what questions of fact were necessary to investigate for the disposal ot the said question. It was a pure question of law arising out of the admitted facts on record. Hence we allow the appeal	 set aside the decision of the High Court and hold that the appellant had become a statutory owner of the suit land on and from April 1	 1961. He was	 therefore	 not liable to be evicted at the hands of the respondent and the proceedings adopted by her were illegal and stand dismissed. The respondent will pay the costs throughout. R.S.S. Appeal al lowed.

Summary:
The appellant was a protected lessee or tenant of the agricultural land in dispute	 under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act	 1958. The respond ent became the landlady of the land on June 29	 1959 when her father effected a partition of his ancestral lands between himself	 on the one hand	 and his wife and his two minor daughters	 including the respondent	 on the other. This was the third partition effected by the respondent 's father	 who had earlier also twice partitioned the same lands. Sometime in 1962	 the respondent initiated proceedings against the appellant for recovery of possession of the suit land on the ground of default. The Tehsildar dismissed the application holding that the respondent was not a landlady since the partition in question was illegal. The Deputy Collector in appeal confirmed this decision	 and the Maha rashtra Revenue Tribunal rejected the respondent 's revision. In the Writ Petition filed before the High Court under Article 227 of the Constitution against the above decision of the three authorities below	 the High Court remanded the matter to the Tehsildar for investigation into the validity of the partition. On remand	 the Tehsildar held that the partition effected on June 29	 1959 was bogus. Thereafter	 in a different proceeding the Maharashtra Revenue Tribunal had held that the said partition was bind ing. Therefore	 in the appeal against the decision of the Tehsildar	 the Deputy Collector following the said decision of the Revenue Tribunal	 held the partition valid and al lowed the respondent 's application for eviction. The Revenue Tribunal	 in revision	 confirmed this order of the Deputy Collector. 67 The appellant preferred a writ petition before the High Court. It was	 inter alia	 contended before the High Court that: (1) the partition was contrary to the provisions of Hindu Law; and (2)even assuming that the partition deed of June 29	 1959 was a valid document	 the same had to be ignored since it could not confer the title of ownership on the respondent transferee in view of the provisions of section 38(7) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act	 1958. The High Court however dis missed the petition holding that what was produced before the courts below was a family settlement. Allowing the appeal	 this Court	 HELD: (1) A partition of the property can only be among the parties who have a pre existing right to the property. Under the Hindu Law	 a female	 major or minor has no share in the ancestral property. A female is given a share either in the self acquired property of the husband or the father	 or in the share of the husband or the father in the coparce nary property after the property is partitioned. There cannot	 therefore	 be a partition and hence a family settle ment with regard to the ancestral property so long as it is joint	 in favour of either the wife or the daughter. [70C D] (2) The position that obtain under section 38(7) after the Amending Act of 1963	 is that any transfer of land effected after 1st August 1953 whether by way of partition or otherwise	 has no effect of conferring on the transferee a right to terminate the tenancy of the tenant who was a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition. This amendment is admittedly retrospective in operation. [71G H; 72A] (3) The appellant was tenant since prior to 1st August 1953 and had also continued to be such tenant till April 1	 1961. Hence he became a statutory owner under section 46 of the Act on and from April 1	 1961. Any proceedings for evicting him on the ground that he was a tenant and	 there fore	 had fallen in arrears of rent could not have	 there fore	 been adopted in 1962. [72C D]