Ku. Madhuri vs Gangadhar

M. N. Chandurkar, J.—The question involved in this petition relates to the construction of the second proviso to section 41 (2) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as the Tenancy Act). The facts necessary to be stated for the purposes of decision of this petition are: The petitioner is the daughter of one Keshaolal and there was a partition on 5-2-1959 of the ancestral property in the hands of Keshaolal between Keshaolal and his son Rajendra and by this deed of partition the field in dispute which is survey No. 1 /2 of mouza Sonkal was given to the petitioner Madhuri for meeting the expenses of her maintenance, education and marriage. Keshaolal was to act as her guardian. There is a recital in the deed of partition that Keshaolal was entitled to sell the property which was set apart in the name of the petitioner if necessary, and that after the marriage of the petitioner, if any property was left that property would revert back to Keshaolal''s son and to any other sons that may be born to him after the date of partition. Admittedly, after this partition the tenant-respondent recognised the petitioner as his landlord and the petitioner had also taken proceedings u/s 38 of the Tenancy Act against the respondent. These proceedings, however terminated against the petitioner on the ground that her claim for resumption was hit by the provisions of section 38 (7) of the Tenancy Act. The tenant then made an application on 2-5-1963 u/s 43 read with section 41 of the Tenancy Act. By this application he prayed for the purchase price of the field to be fixed and he sought an order making the purchase price payable in 12 equal installments and that a certificate of sale should be issued in his favour. This application was made in exercise of the right of purchase given by section 41 of the Tenancy Act. The substantial defence of the petitioner to this application was that she was a minor and therefore under sub-section (2) of section 41, right to purchase u/s 41 could be exercised by the tenant only after the expiry of two years from the date on which the petitioner attained majority.

The Additional Tahsildar held that the tenant was entitled to purchase the field in dispute off which he was the tenant and by an order passed on 30-1-1964 he ordered that on payment of the full purchase price as determined by him, a certificate of purchase in the prescribed form shall be issued to the tenant and thereupon he shall be deemed to be a Bhumiswami of the land, Against this order, the petitioner filed an appeal and the appellate authority held that the provisions of section 41 (2) of the Tenancy Act were not attracted in the case of the petitioner and that the Additional Tahsildar was justified in holding that the tenant was entitled to purchase the field in dispute. The petitioner then filed a revision application against this order to the Revenue Tribunal. The Tribunal found that the petitioner had failed to prove what her share was in the joint family property of which petition was effected on 6-2-1959 and that she had further failed to show that the property which she had obtained as a result of that partition was given to her in proportion to her share in the entire property so far as the area, assessment, classifications and value of the land were concerned, as contemplated by the latter part of the second proviso to section 41 (2). The Tribunal therefore held that the minority of the petitioner was not a bar to the right of purchase conferred on the tenant by section 41(1) of the Act. The revision application was therefore rejected, The petitioner-landlord has now filed this petition challenging the orders of the Revenue Authorities.

The learned counsel appearing on behalf of the petitioner contends that on the finding of the Revenue Authorities that the petitioner had not satisfied the requirements of the second proviso to section 41 (2), the petitioner''s ease would be governed by the main provision in section 41 (2) and therefore until after two years after she attained majority the tenant was not entitled to purchase the land in dispute. It is contended that the petitioner had a right to he maintained out of the ancestral property in the hands of the father, Keshaolal, and that there was justification for setting apart some property in her name in order to meet the expenses of her maintenance, education and marriage, and therefore she was entitled to continue in possession of this property during her minority and that the tenant would be entitled to purchase the field in dispute, which belonged to her, only after she had attained majority as provided by section 41 (2) of the Tenancy Act.

In order to appreciate this contention, it is necessary to refer to the provisions of section 41 of the Tenancy Act which is as follows:

"41. (1) Notwithstanding anything to the contrary in any law, usage or contract but subject to the provisions of sections 42 to 44 (both inclusive) a tenant other than an occupancy tenant shall, in the case of land held by him as a tenant, be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally.

(2) Where the landlord is of the following category, namely: -

(a) a minor,

(b) a widow,

(c * * * * *

(d) a person subject to any physical or mental disability, such tenant shall be entitled to purchase the landlord''s interest under this section after the expiry of two years from the date on which-

(i) the landlord of category (a) attains majority,

ii) * * * *

iii) the landlord of category (d) ceases to be subject to such disability, and

(iv) the interest of the landlord of category (b) in the land ceases to exist;

Provided that where land is held by the tenant under two or more joint landlords, this sub-section shall not apply if at least one joint landlord is outside the categories specified in clauses (a), (b) and (d) of this sub-section:

Provided further that where a person of any such category is a member of a joint family this sub-section shall not apply, if at least one member of the joint family is outside such categories, unless the share of such person in the joint family has been separated by metes and bounds before the prescribed date and the Tahsildar on inquiry is satisfied that the share of such person in the land is separated having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property and not in larger proportion.

(3) Nothing in section 91 shall affect the right of a tenant to purchase under this section the land held by him on lease."

Section 41 (1) gives a right to a tenant, other than an occupancy tenant, in the case of land held by him as a tenant, to purchase from the landlord the land held by him as a tenant and cultivated by him personally. There is no dispute that the field survey No. 1 /2 is held by the respondent as a tenant and that he is cultivating it personally. Sub-section (2) of section 41 enumerates three kinds of landlords in whose case a special provision is made that their tenants will become entitled to purchase the landlord''s interest not immediately but after the expiry of two years, from the date on which the events referred to therein take place. In the case of a minor, this right to purchase can be exercised after the expiry of two years from the date on which the minor attains majority, in the ease of a widow, the right to purchase can be exercised within two years after the interest of the widow in the land ceases to exist; and in the case of a person subject to any physical or mental disability, the right to purchase can be exercised by the tenant within two years from the date on which such disability ceases to exist. For the purpose of convenience, I shall refer to the landlords referred to in sub-section (2) of section 41 as "disabled persons". How, to this general provision dealing with disabled persons in sub-section (2) of section 41 there are two provisos. The first proviso provides that if land is held by the tenant under two or more joint landlords, then if at least one of the joint landlords is outside the categories of disabled persons, i. e. a minor, a widow or a person subject to any physical or mental disability, the provisions of sub-section (2) shall not apply. In other words, the effect, of this proviso is that where the land is held under two or more joint landlords, if one of those landlords is not a minor, or a widow or a person subject to any physical or mental disability, the right to purchase the land u/s 41 (1) is not postponed as provided for in sub-section (2) of section 41.

Then comes the second proviso. The second proviso can be split up in two parts. The first part of the second proviso which is in the following words:-

''''Provided further that where a person of any such category is a member of a joint family this sub-section shall not apply, if at least one member of the joint family is outside such categories."

govern cases in which the disabled person or persons were members of a joint family and at least one member of the joint family is outside the categories of disabled persons. In such a case, in spite of the fact that the landlord is a minor, or a widow or a person subject to any physical or mental disability, if he is a member of a joint family and if any one member of the joint family is a person who does not fall into the category of disabled persons, the provisions of sub-section (2) of section 41 do not apply to such cases, and in such a case therefore the right to purchase is not held in abeyance merely because of the disability of the disabled landlord as contemplated by sub-section (2) of section 41.

Then the second part, which is the remaining part of that proviso, however provides that if certain conditions are satisfied, even in such a case where the disabled persons are members of a joint family and at least one member of the joint family is outside such categories, the provisions of subsection (2) will apply. The conditions required to be satisfied under the latter part of this proviso is that the share of such disabled person in the joint family has been separated by metes and bounds before the prescribed date and the Tahsildar on inquiry is satisfied that the separation of the share of such disabled person in the land is, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property and not in a larger proportion. The first prerequisite therefore in a ease where a disabled person who was a member of a joint family claims that he is governed by the main provision in section 41 (2) is that his share in the joint family property is separated by metes and bounds before the prescribed date. This prescribed date admittedly is 30-6-1959. The second pre-requisite is that the share which has been allotted to such a disabled person must be the proper share, or in other words, the share to which he was entitled, and the allotment of the property to the share of such a person must not be larger in proportion to what he was normally entitled to, The object of the Legislature in enacting this proviso appears to be to make sure that the right of a tenant of a joint family to purchase land is not defeated by so partitioning the agricultural land that the tenanted land is allotted to the share of a member of that family who falls within the category of disabled persons in excess of his normal share. If the requirement of a proper share being allotted to the disabled person out of the joint family property was not there, the allotment of excessive land in the possession of tenants to the share of the disabled member would have the effect of postponing the right of the tenant to purchase land which was given him u/s 41 (1), since the right to purchase land owned by the disabled landlord would then be governed by subsection (2) of section 41. Thus, in a case where it is the claim of the disabled landlord who is a member of a joint family that the right of purchase by the tenant u/s 41 (1) was postponed under sub-section (2) of section 41, the landlord will have to show not only that his share in the joint family was separated by metes and bounds before 30-6-1959 but also that the property which had come to his share by virtue of this partition was in the same proportion as such share in the entire joint family property and was not in a larger proportion. Unless this was shown, the case of a disabled landlord must fall in the first part of the second proviso to sub-section (2) of section 41, if at least one member of the joint family was outside the categories of disabled persons, and consequently the provisions of sub-section (2) of section 41 would not be attracted in such a case.

The contention of the learned counsel for the petitioner, however, is that the membership of a joint family contemplated by the first part of the second proviso is with reference to 1-4-1961 which is the date specified in section 46, and the further contention is that partition in the instant case having been already effected on 5-2-1959 there was no question of the petitioner being a member of a joint family or one member of the joint family being outside the categories of disabled persons on 1-4-1961. This argument however cannot be accepted. The very fact that the partition, which is contemplated by this proviso, is to take place before 30 6-1959 and this partition is of the joint family property, the joint family which is referred to in this proviso is the joint family existing on or before 30-6-1959, because, unless the joint family is taken to exist on or before 30-6-1959, there cannot be a partition of that joint family property before 30-6-1959. It is obvious that in a case where the tenant holds land belonging to a joint family, if that joint family property was not partitioned before 30-6-1959, his right to purchase would be governed by section 41 (1) of the Act. If it is the ease of the disabled landlord that the right of a person who was a tenant of the joint family to purchase land, which at the Material at time belonged to him, cannot be exercised by the tenant during the continuance of the disability of the landlord, then the only provision which governs such a case is the proviso to sub-section (2) and that proviso contemplates a partition before 30 6-1959. Thus, the words "where a person of any such category is a member of a joint family" refer to a joint family on the date on which the Act came into force and thereafter up to 30-8-1959 which is the prescribed dale and partition before which alone can be taken in to account for the purpose of finding out whether the case of a disabled person is governed by the special provision in sub section (2) of section 41

The case of the petitioner will have to be considered with reference to the construction which I have now placed on the second proviso to section 41 (2). No doubt, she will be a landholder at least up to the date of her marriage by virtue of the partition dated 5-2-1959; but as already observed, unless she satisfied the conditions in the hitter part of the second proviso to section 41(2), her case cannot be governed by the main provision in section 41 (2). As the Tribunal has observed, there is no doubt a partition before 306-1959. That however does not take the case of the petitioner further. Admittedly, the petitioner as a daughter of Keshaolal did not on 5-2-1959 have any share in the ancestral property in the hands of Keshaolal during the lifetime of Keshaolal. Therefore, there could be no share to which she would be entitled on partition, and therefore no question of a share in the proper proportion being allotted to her arises. Thus she obviously does not fulfil the requirements contemplated by the second proviso. If she does not satisfy the requirements of the second proviso, then the pre-requisite for the applicability of the main provision u/s 41 (2| is not satisfied and the tenant''s right to purchase land cannot be postponed u/s 41 (2) of the Tenancy Act. His right to purchase would then be governed by section 41(1) of the Tenancy Act.

So far as the construction of the second proviso to section 41(2) of the Tenancy Act is concerned, a reference may usefully be made to a Division Bench decision of this Court in Anant Dattatraya v. Chintaman 1969 Mah. L J 35. In that case the Division Bench was concerned with the construction of a similarly worded proviso to section 32F of the Bombay Tenancy and Agricultural Lands Act 1948. Section 32F of that Act dealt with the right of a tenant to purchase land where the landlord was one of the disabled persons. The relevant part of section 32F is as follows:

"32-F. (1) Notwithstanding anything contained in the preceding sections,-

(a) where the landlord is a minor, or a widow, or a person subject to any mental or physical disability the tenant shall have the right to purchase such land u/s 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy u/s 31:

Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a large proportion."

While construing this proviso, the Division Bench held that the words "such person" in the proviso refer to the disabled person, and dealing with the scope of the proviso, it observed:

"Now, the proviso which was introduced in identical terms in section 31 (3) and section 32-F (1) (a) was designed to meet cases where such disabled persons were members of a joint family. The proviso says, in the first place, that where a disabled person was a member of a joint family, the provisions of section 31 (3) and of section 32-F (1) (a) shall not apply if at least one member of the joint family was outside the categories of disabled persons. The proviso, however, further lays down that the aforesaid provisions [the provisions of section 31 (3) and of section 32-F (1) (a)] shall apply to disabled persons who were members of a joint family, if there was a partition in the family before 31st March 1958 and if that partition fulfilled certain requirements. Thus the main effect of the proviso is to postpone the date on which a tenant could become a purchaser of the leased land where the land belonged to a joint family of which a disabled person was a member and in which a, partition took place before 31st March 1958 fulfilling certain conditions."

Then referring to the object of this proviso, the Division Bench observed in paragraph 9 of judgment:-

''''Obviously, in making this provision the Legislature intended to ensure that members of a joint family shall not adversely affect the rights of tenants by allotting agricultural land to a disabled member is excess of his proper share in the entire joint family property. The interests of tenants would not be adversely affected if a member of the family, who was not a disabled person, was given in a family partition a larger proportion of agricultural land than the proportion which represented his share in the entire joint family property. It must follow that the expression ''such person'' In the proviso denotes a disabled person and not a person who is not disabled."

Further in paragraph 12 of the judgment, the Division Bench observed:

"The proviso is not satisfied unless the share of a disabled person is separated by metes and bounds in all the joint family property and unless the agricultural land allotted to him corresponds to his share in the entire properly and is not in excess thereof,"

The observations quoted above support the view which I have taken.

It is therefore clear that since the tenanted land was the joint family-property before 30-6-1959 and the petitioner had no share in that joint family property, she does not satisfy the requirements of the proviso which are required to be satisfied before the provisions of section 41 (2) are attracted and the Revenue Tribunal was therefore justified in taking the view that the right to purchase land was not postponed u/s 41 (2) of the Tenancy Act.

This was the only point argued in this petition. The finding on this point being against the petitioner, the petition must fail and is dismissed with coats.