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Judgment
B.A. Masodkar, J.—Petitioners Nos. 1 and 2 and the predecessor-in-title of petitioners Nos. 3 to 6 by name Dattatraya are admittedly land-holders and landlords of Survey No. 221 ad-measuring 11-12 acres. The respondent is the tenant.
Petitioner Nos. 1 and 2 along with their brother Dattatraya filed art application u/s 38 (1) of the Bombay Tenancy and Agricultural Lands Act, 1958 (hereinafter called the Tenancy Act) on 6-4-1950 on the ground that they needed the land for their bona fide personal cultivation. They pleaded that out of them two brothers i.e. Sitaram and Dattatraya had retired from service and wanted to take to cultivation and that was the only source of their livelihood. They claimed the right to resume the land for personal cultivation bona fide. Application was signed by all the three. Along with this application the notice served on the tenant dated August 25, 1959, as well the registered acknowledgment was filed. The notice was on behalf of the three brothers. However, it was signed by two of them, i.e. Sitaram and Dattatraya. There was no signature of Shriram on the notice but he signed the application filed in Court u/s 38 (1). On 7-6-1960 affidavit was filed by Sitaram explaining the need which was to the effect that out of the three, two were retired and needed the land for personal cultivation of all. There a statement was also made that there was some partition between them, though the statement is not clear with regard to the land in question. The revenue record showed that the land was jointly owned by these landlords and that the respondent was the tenant. No partition is recorded in the revenue record. The Naib Tahsildar held (hat the application was premature and proceedings in appeal were taken in which that order was set aside and remand was directed. The respondent went up in revision before the Maharashtra Revenue Tribunal and remand was maintained. Thereafter, the proceedings were again taken up by the Tenancy Naib-Tahasildar. The Tahasildar then rejected the application on the ground that there was partition in 1959-60 and on the basis of that partition the land was claimed and therefore provisions of section 38 (7) came in the way of the petitioner. This summary dismissal was challenged in appeal. The appellate Court again set aside that order observing that the matter regarding partition was not properly decided and in fact no enquiry was made. Allowing the appeal, the matter was again remanded to find out whether the application is barred u/s 38 (7) of the Act.
It appears that after this remand, the respondent purported to file his written statement which is of 9-11-1964. Then amongst others he stated that the notice was not proper. He pleaded that in 1959 there was a partition and, therefore, the application was not tenable. Oral evidence was recorded and evidence of Sitaram and Dattatraya was taken who stated that notice was served. They also stated how they bona fide needed the land. The tenant-respondent produced the original of the notice which is of 25 8-59 and it shows that it was given on behalf of the three petitioners and signed by Sitarara and Dattatraya. The document produced by the tenant of December 31, 1948 shows that he had taken land from all of them. The receipts of lease money indicate that those are given on behalf of all by Sitaram. There are several receipts to that effect. There are at least four receipts filed by the respondent himself for the year 1965, 1966 and 1960 as well one more receipt for the year 1959. Evidence of Amru proves those receipts that he was getting a valid discharge as far as lease money was concerned by paying the same to Sitaram. He had never insisted upon receipt from all the three. In the evidence it does not appear that he has made any grievance about the notice. On the other hand, he has given the evidence on merits.
On the basis of this evidence, the first Court found in favour of the petitioners by its order dated May 9, 1967. In the appeal taken by the respondent, that order was reversed only on the ground that the notice was not signed by all the three, i.e. Sitaram, Shriram and Dattatraya. The Tribunal was minded to affirm that view because of the decision of this Court reported in Manohar v. M. R. T. Nagpur 1966 Mh. L J 1141. It may be observed that the Tribunal did not enter upon the other part of the controversy. The appellate order however gives an impression that it was affirming the findings in favour of the petitioners on the other requirements of section 38.
Against the order of the Tribunal the present petition has been filed. A short and narrow question that falls for consideration depends on the requirements of the notice and its form as contemplated by sub-section (1) of section 38 of the Tenancy Act, for it is admitted on all hands that the recorded landlords had filed the application within time. The notice however was only signed by two, though it purported to have been issued on behalf of all the three.
The decision of this Court in Manohar''s case (supra) is clearly not available in such type of cases. The case that arose before this Court was the one of a joint Hindu family consisting of two sons and father and in the context of that litigation a contention was raised that as the land-holders formed the joint Hindu family along with the father, the notice had to be given either by all the members of the family or by the manager. While considering this contention, this Court observed:
.... The notice in this case has been given by the petitioners only who are not the managers and hence the notice was invalid.
It must be observed that this Court in Manohar''s case had made the above observation with regard to the facts as available there. Those observations are clearly restricted to the submission that was advanced. The judgment does not purport to lay down the general law on section 38 (1) about the notices that are required to be given by the representatives of the landlord. As stated earlier, in the present case, the lease was not from a family but even on the showing of the respondent was by three persons who are all the brothers. Even the document of lease is taken from these three members and it is not the evidence that it was taken from a Hindu joint family. Manohar''s case thus is not apposite.
Turning now to the scheme of section 38 (1) Court must find out what is the purpose of the notice that is required to be served before an application is filed. Is it a notice that terminates the lease and puts an end to the relationship of landlord and tenant ? Manifest scheme of section 38 of the Act regulates and inhibits termination of lease by notice which was the common law right further statutorily permitted by the provisions of Transfer of Properly Act. Landlord and tenant both were enabled under that Act to determine lease by notice. In contemplation as well in essence this right is put under eclipse by the Tenancy Act. Even in those cases where land is needed for bona fide personal cultivation landlord cannot determine the lease by notice simpliciter. The determination depends on the proceedings contemplated by section 38 itself. That takes in adjudication of the right itself as well requires statutory conditions to be fulfilled. The right has to be worked in the manner prescribed. It follows that only a successful proceedings under the Tenancy Act would come for the benefit of the landlord. It would be the order that eventually be passed would be determinative whether for bona fide personal cultivation a tenant''s lease would stand terminated and if so to what extent. This is the plain statutory scheme.
What therefore is the function of notice in section 38 (1)? Obviously it is a mere step in the proceedings to terminate the tenancy and not an effective instrument of its termination. Even after such notice is served the relationship under the lease continues. The provisions of Tenancy Act do not lend to any other inference. Tenant with notice from landlord u/s 38 does continue lawfully on the land. Neither the relationship is ruptured nor possession of land thereafter rendered unlawful. Subject to proceedings and final order it is still permissive and lawful. This emphasises that the requirement of notice is a mere precondition or a step that has to precede the proceedings to be initiated by an application.
The object of issuance of the notice under the present provision was considered by this Court in Rajaram v. M. R. T. & others 1966 Rev. Rul Note 23 (Special Civil Applications Nos. 290 and 298 of 1963 decided on 3-12-1964) and it was held that it was to give intimation to the tenant that the landlord wishes to terminate the tenancy for bona fide personal cultivation. The provisions were found to be directory.
Under the provisions of section 44 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, which permits land-holder to give notice before seeking resumption of land for bona fide cultivation the requirement of notice was held to be directory by the Division Bench of this Court See Dagdabai w/o Ramrao v. Baburao s/o Trimbakrao 12 T L R 30 (Spl. C. Appln. No. 795 of 1962 decided on 20-3-1963. The scheme of the provisions of section 38 (1) of the Tenancy Act and section 44 of the Hyderabad Tenancy Act is more or less similar. Therefore, there is no reason to hold that notice that is required to be given to the tenant before an application is filed must of necessity be the notice which will determine that lease itself. It is plain that such a notice is an intimation to be conveyed to the tenant in writing about the intention of the landlord that he needs the land for personal cultivation and for that he proposes to take steps provided for by law. Such an intimation obviously has to be followed by an application before the dates mentioned in sub-section (1) of section 38. It is thus no better than the step in proceeding and cannot be equated with the notice determining the lease or tenancy nor can be formalities and requirements of such notices be read as implicit in the modality of the notice contemplated u/s 38 (1).
Having found so, it will be clear that the requirement of such notice will have to be substantially complied with in that such notice must be in writing and must emanate from landlord expressing the intention to terminate the tenancy and must be served on the tenant. If these requirements are substantially complied with, the defect of non-signature would not affect the eventual application filed by the landlord. It is only if the other conditions of section 38 are satisfied, then the landlord would be entitled to resume the land under the orders of the Authority deciding his application.
That such notice can be validly given by the agent of the landlord or by any other authorised person on behalf of the landlord, appears to be well accepted by this Court in Shantabai and others v. Maharashtra Revenue Tribunal, Nagpur and 3 others 1967 Rev. Rule 18 (Special Civil Application No. 1018 of 1965 decided 00 29th September 1966), where notice given by the wife on behalf of the husband was treated as valid one and it was found that the husband who was the landlord could maintain an application for resumption u/s 38 of the Tenancy Act. It follows, therefore, that it is open to indicate by express or implied authority that a notice in writing that has been given by the landlord to the tenant does substantially comply with the provisions of section 38 (1) of the Tenancy Act.
Turning to the present proceedings, the application itself was signed by all the landlords. The record shows that even the tenant was paying the lease money to one of the brothers, though he had taken the lease from all the three brothers. The documents filed by him indicate that he was paying lease-money to Sitaram and obtaining full discharge on that count. Sitaram had also signed the notice. The notice purported to be given on behalf of all the three brothers. Sitaram''s agency while passing receipts evidencing the payment of lease-money was never doubted by the tenant at any time before. Though therefore the notice which was given in the name of all the three landlords was not signed by Shriram, i. e. one of them, who eventually pined in filing the application, and was signed by Sitaram and Dattatraya, the former having all the authority as appears from the conduct of the parties, it has to be held that the notice substantially complied with the requirements of section 38 (1) and the application could not be rejected on that ground.
The petition, therefore, is liable to be allowed, for by the impugned orders the notice is held to be bad only because it is not signed by Shriram.
The controversy, however, cannot be finally settled in the present petition and the matter will have to be remanded back to the appellate authority to find out whether the petitioners do satisfy or not the other conditions of section 33 of the Tenancy Act. It has to be mentioned that the document of lease produced by the tenant, itself shows that he had taken the lease from three brothers quite before the coming into force: of the Tenancy Act. That Authority will have to find out whether in such cases the provisions of section 38 (7) as was at one stage being canvassed would stand in the way of the landlords to resume their land. After finding the nature of the right of the landlords, the appellate Authority on the evidence will determine their claim to resume the land for personal cultivation.
Petition thus succeeds and is allowed, though under the circumstances, there would be no orders as to costs.