01 September 1970
Supreme Court
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JIJABAI VITHALRAO GAJRE Vs PATHANKHAN & ORS.

Case number: Appeal (civil) 40 of 1967


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PETITIONER: JIJABAI VITHALRAO GAJRE

       Vs.

RESPONDENT: PATHANKHAN & ORS.

DATE OF JUDGMENT: 01/09/1970

BENCH: VAIDYIALINGAM, C.A. BENCH: VAIDYIALINGAM, C.A. SHELAT, J.M.

CITATION:  1971 AIR  315            1971 SCR  (2)   1  1970 SCC  (2) 717

ACT: Hindu  Law-Hindu adoption and Guardianship Act 32  of  1956- Father  and mother living separately-Minor  daughter  living with mother-Mother is natural guardian. Constitution of India, Art. 227-Jurisdiction of High Court. The  Bombay Tenancy & Agricultural Lands  (Vidarbha  Region) Act,  (Bombay Act 99 of 1958), ss. 38, 39-Application  under s.  39 does not lie when tenancy created prior to  April  1, 1957-Application under s. 39 may be treated as one under  s. 38 in suitable circumstances.

HEADNOTE: The appellant obtained from her father under a gift a  piece of  land admeasuring 27 acres and 37 gunthas.  As  owner  of the  land  she served a notice dated March31,  1962  on  the tenant  informing  him  of her intention  to  terminate  his tenancy of the land on the ground that she required the land bonafide  for her personal cultivation.  On March  30,  1963 she filed an application before the Naib Tahsildar under  s. 36  read  with s. 39 of the Bombay  Tenancy  &  Agricultural Lands  (Vidarbha  Region) Act (Bombay Act 99  of  1958)  for termination  of the tenancy of the tenant and for  directing him  to surrender possession of the entire land.  Later  the application  was amended to include an alternative plea  for being given possession of half the land in question in  case possession  of  the  entire land could not  be  given.   The tenant resisted the application.  The Naib Tahsildar held  : (1)  that the application filed by the landlord under s.  36 read with s. 3.9 was maintainable and that the notice issued by   her on March 31, 1962 was valid; (2) that the  landlord was born on    July 6, 1944 and attained majority on July 6, 1962; (3) that under s.  39  (as  interpreted  by  the  Naib Tahsildar) the landlord was entitled to file the application within  one  year after her attaining majority and  in  this case  the application had been filed within that  time;  (4) that  there  were oral leases granted by the mother  of  the landlord in favour of the tenant from 1951 onwards and  that the  tenant bad also executed a kabuliyat in favour  of  the landlord represented by her mother on February 12, 1956  for the  year 1956-57 and that he had been in possession of  the land  as  tenant even during the period  1958-59;  (5)  that

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since,  however, the father of the landlord was  alive,  and was  in law her natural guardian, the leases granted by  the mother  were  not valid; (6) that, nevertheless,  since  the tenant was in occupation of the land during 1958-59 he was a deemed tenant under s. 6 of Bombay Act 99 of 1958; (7)  that since  the  deemed  tenancy arose after April  1,  1957  the landlord was entitled to get relief under s. 39 of the  Act; (8) that the landlord had no other land and no other  source of income and the suit land were less than a family holding. In the result the Naib Tahsildar ordered that the possession of  the entire land be granted to the appellant.  The  order was   confirmed   by   the   Sub-Divisional   Officer    and substantially  confirmed  by the Revenue  Tribunal.   ’These three  orders  were  challenged  by the  tenant  in  a  writ petition under Act 227 of the Constitution.  The High  Court taking into account the finding of the Revenue Tribunal that the appellant’s 2 father  was not taking any interest in his minor  daughter’s affairs  and the mother was looking after her  and  managing her  properties, held that in the circumstances  the  mother must  be considered the natural guardian.   Consequently  in the  High  Court’s view the lease granted by the  mother  on February 12, 1956 was legal and valid.  The lease being  one recorded  prior to April 1, 1957, s. 39 was  not  attracted. The High Court further held that since the application under s. 39 was not filed within one year of the coming into force of  Bombay  Act  99 of 1958, it  was  time-barred.   However treating  the application as one under s. 38 of the Act  the High  Court remanded the case to the Naib Tahsildar to  give effect to its view that the appellant was entitled to resume for  cultivation one third of the family holding or half  of the  land leased by her whichever was more.  Appeal  against the  High Court’s order Was filed in this Court  by  special leave.  The questions that fell for consideration were : (i) whether  the High Court had exceeded its jurisdiction  under Art.  227; (ii) whether the appellant’s mother was  entitled in law to grant a lease of her land and whether the  tenancy of  the  tenant was one created prior to April  1,  1957  to which   s.  39  was  not  applicable;  (iii)   whether   the application under s.     39 was barred by limitation. HELD  : (i) The powers of the High Court under Art. 227  are not   greater  than  the  powers  under  Art.  226  of   the Constitution.  The powers of interference under Art. 227 are limited  to  seeing that the tribunals function  within  the limits of their authority and that the High Court cannot sit in  appeal  against the order of a tribunal  in  a  petition under  Art. 227.  In the present case the High  Court  could not  be said to have ’exceeded its jurisdiction  under  Art. 227 because it was only on two material aspects of the  case which,  affected the jurisdiction of the tribunals to  grant relief,  namely, (a) the power of the mother, on  the  facts found by the tribunals, to giant the lease on behalf of  the minor daughter and (b)   the    maintainability    of    the application under s. 39 of the Act, that the High Court  had differed ’from the tribunals. [7 C-D] Nagendra Nath Bara & Anr. v. Commissioner of Hills  Division and Appeals, Assam & Anr. [1958] S.C.R. 1240 and Rambhau  v. ShankarSingh  &  Anr.   C.A.  No.  35/1966  dt.   17-3-1966, applied. (ii) 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

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as if he was non-existent so far as the minor appellant  was concerned.   The High Court was therefore right  in  holding that in the particular circumstances of this case the mother could  be  considered be the natural guardian of  her  minor daughter.   This was the position in Hindu law  both  before and after the passing of the Hindu Minority and Guardianship Act, 1956. [8 E-H] There  was  evidence to establish that  the  transaction  in question was in any way imprudent or not in the interest  of the minor. [9 A-D] The  leases granted by the mother being valid,  the  tenancy was clearly one granted before April 1, 1957 to which s.  39 was not applicable. [9 E] (iii)     Section 39 being inapplicable the question whether the  appellant’s application under that section  was  within the  period of limitation did not arise  for  consideration. [10 B-C] (iv) The  High Court even after holding that s. 39  did  not apply  had shown consideration to the appellant by  treating her application as one 3 tinder s. 36 read with s. 38.  Applying s. 38 the  appellant would not be entitled to the possession of the entire field. As  per  el. (a) proviso (i) of sub-sec. (4) of  s.  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 was more.  On this basis  the  directions given  by the High Court in remanding the case to  the  Naib Tahsildar were correct. [10 D-F]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 40 of 1967. Appeal  by special leave from the judgment and  order  dated July  13,  1966 of the Bombay High Court,  Nagpur  Bench  in Special Civil Application No. 499 of 1965. G. L. Sanghi and A. G. Ratnaparkhi, for the appellant. Danial A. Latifi and M. 1. Khowaja, for respondent No. 1. The Judgment of the Court was delivered by Vaidialingam  J. This appeal, by special leave, is  directed against  the judgment and order dated July 13, 1966  of  the High  Court  of  Bombay  (Nagpur  Bench)  in  Special  Civil Application  No.  499 of 1965 filed under Art.  227  of  the Constitution by the first respondent herein (to be  referred as the tenant). The  appellant  (to be referred as the  landlord)  was  the- daughter  of  one  Champatrao.  She had  obtained  from  her father  under a gift deed dated September 15, 1944 the  suit field survey No. 56 of an extent of 27 acres 37 gunthas.  As owner of the lands she served a notice dated March 31,  1962 on  the tenant informing him of her intention  to  terminate his tenancy of the lands on the ground that she required the lands  bonafide for her personal cultivation.  On March  30, 1963  she  filed an application before the  Naib  Tahsildar, Darwha under s. 36 read with s. 39 of the Bombay Tenancy and Agricultural  Lands  (Vidarbha Region) Act, Bombay  Act  No. XCIX  of  1958  (herein after referred to as  the  Act)  for termination  of tenancy of the tenant and for directing  him to  surrender  possession of the entire lands  comprised  in field  survey No. 56.  Later on she amended her  application and prayed in the alternative that if for any reason she was found  not entitled to get possession of the  entire  lands, she  may  be  allowed to recover half of the  lands  in  the possession  of the tenant and that in respect of that  half,

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in  the  eastern  portion 13 acres and  38  gunthas  may  be allotted to her. The  tenant resisted the claim of the landlord  on  various. (,rounds.   He  pleaded that the father and  mother  of  the landlord had fallen out very long ago and that the  landlord was  a  minor, was being looked after and protected  by  her another  Smt.  Chandrabhagabai and the mother  was  managing the suit 4 properties  on behalf of her minor daughter.  In the  course of such management the suit properties were being leased  in his  favour from time to time beginning from 1951-52 and  as such  he has been in possession as tenant from April,  1951. Though the original leases granted by the mother were  oral, for  the year 1956-57 he had executed a kabuliyat in  favour of  the landlord represented by her mother as guardian.   In as much as he has been the tenant of the properties under  a lease  created prior to April 1, 1957, he had  acquired  the status  of  a protected lessee even before the  coming  into force  of the Act.  He further pleaded that as the  landlord had not filed the application within one year of the  coming into  force of the Act, her claim was barred  by  limitation and  the application under S. 39 was not  maintainable.   He had also raised a controversy regarding her date of birth as well  as  the validity of the notice dated March  31,  1962, issued by the landlord. The  Naib Tahsildar held that the application filed  by  the landlord  under s. 36 read with s. 39 was  maintainable  and that  the notice issued by her on March 31, 1962 was  valid. He further found that the landlord was born on July 6,  1944 and attained majority on July 6, 1962.  An interpretation of s.  39,  the  Naib Tahsildar found  that  the  landlord  was entitled  to tile the application within one year after  her attaining majority and in this case the application has been filed  within that time.  He further found that  there  were oral leases granted by the mother of the landlord in  favour of the tenant from 1951 onwards and that the tenant had also executed a lease deed in favour of the landlord  represented by her mother on February 12, 1956 for the year 1956-57  and that  he has been in possession of the lands as tenant  even during the period 1958-59.  But the Naib Tahsildar held that as the father of the appellant was alive and was in law  her natural  guardian,  the  lease executed  by  the  tenant  on February 12, 1956 was not legal and valid as the mother  was not  entitled to represent her minor daughter.  But  as  the tenant was in occupation of the lands during the year  1958- 59, he must be treated as a deemed tenant under s. 6 of  the Act.  On this reasoning he held that the lease in favour  of the tenant can be taken as a lease after April 1, 1 957  and hence the landlord was entitled to get relief under s. 39 of the  Act.  In view of his further finding that the  landlord had  no other land and no other source of income and as  the suit  lands  were  less than the  family  holding,  she  was entitled  to  get possession of the entire  lands  from  the tenant.  Accordingly he granted the relief asked for by  the landlord  in full.  The findings of the Naib Tahsildar  enu- merated above were confirmed by the Sub-Divisional  Officer, Darwha  in the appeal filed by the tenant.  The  Maharashtra Revenue Tribunal, whose revisional jurisdiction was  invoked by 5 the tenant also substantially confirmed the findings of  the two subordinate authorities. All these three orders were challenged by the tenant  before the  High Court in the writ petition under Art. 227  of  the

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Constitution.   The High Court, in its order  under  appeal, has  accepted  the findings of facts regarding the  date  of birth of the landlord; the date of her attaining majority as well  as the legal validity of the notice issued by  her  on March  31, 1962.  The High Court also accepted  the  finding recorded by the Revenue Tribunal that the father and  mother had fallen out and were living separate and that the  father was  not looking after the interests of- his minor  daughter and  that, on the other hand, the landlord was living  under the care and protection of her mother Smt.  Chandrabhagabai, who  was  also managing the suit properties on  her  behalf. The  High  Court  also found that the  tenant  has  been  in possession of the lands on the basis of the lease granted in his  favour by the mother from 1951 onwards.  But  the  High Court  differed  from  the views expressed  by  the  Revenue Tribunal  on  two  important  aspects,  namely,  (i)   legal validity of the lease granted by the mother of the  landlord in favour of the tenant and (ii) the maintainability of  the application  tiled by the landlord under s. 39 of  the  Act. Regarding  validity of the lease granted by the mother,  the High  Court  held  that even if the oral  leases  from  1951 onwards  are  eliminated,  there has been  a  written  lease executed  by the tenant on February 1.2, 1956 in  favour  of the landlord represented by her mother for the year 1956-57. As  the  father ,was not taking any interest  in  his  minor daughter’s  affairs and as the mother was looking after  her minor daughter’s interest and managing the suit  properties, the  mother must be considered, in the circumstances, to  be the natural guardian of the landlord and as natural guardian she  was  entitled  to lease the properties  and  hence  the written lease granted by her on February 12, 1956 was  legal and  valid, and therefore the lease in favour of the  tenant is  one created prior to April 1, 1957 and hence s.  39  was not attracted. The  High Court on a construction of s. 39 of the  Act  held that as the Act had come into force on January 28, 1961, the application ’Should have been filed within one year, namely, on  or  before  January  28, 1962.   The  landlord  was  not entitled  to  file the application as she has  done  in  the present case within one year of her attaining majority as s. 39 does not give any such extended period for minors.  Hence the High Court held that the application filed on March  30, 1963 was -barred by limitation.  Notwithstanding the finding that  the application under s. 39 was not  maintainable  the High Court held that the landlord’s application 6 the application had been filed within the period referred to in  S.  38,  she could be granted  relief  under  the  later section.  In this view the High Court held that  though  the landlord was not entitled to possession of the entire  field as  claimed by her, she is nevertheless entitled  to  resume for personal cultivation one third of the family holding, or half of the land leased by her, whichever is more.  In  this view  the High Court. remanded the proceedings to  the  Naib Tahsildar   for  passing,  necessary  orders  treating   the application  filed by the appellant as one under s. 36  read with s. 38. Mr.  G.L. Sanghi, learned counsel for the  appellant  raised three  contentions  :  (i)  the  High  Court  in  exercising jurisdiction   under  Art.  227  of  the  Constitution   has functioned in this case as a Court of Appeal and  interfered with the concurrent findings of facts recorded by the  three revenue  tribunals and such exercise of jurisdiction is  not warranted  by  the decisions of this Court.  (ii)  the  High Court’s view that the lease executed by the mother on behalf

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of  the appellant on February 12, 1956, as guardian  of  the appellant  is  valid in law, is erroneous : (iii)  the  High Court’s  view  that the application filed by  the  appellant before  the  Naib Tahsildar on March 30, 1963 is  barred  by limitation  and as such the application under s. 39  is  not maintainable, is again erroneous. On  the  other hand, Mr. Danial A. Latifi,  learned  counsel appearing for the tenant respondent has urged that the  High Court has not exceeded its jurisdiction under Art. 227,  but has  strictly  limited its inquiry to find out  whether  the subordinate  tribunals have functioned within the limits  of their  jurisdiction.  All the findings of facts recorded  by those  tribunals have been accepted by the High Court.   The High   Court   has  only  differed  on  the,   question   of interpretation  to be placed on the material sections so  as to  find out whether the revenue tribunals had  jurisdiction to  entertain the application of the appellant under  S.  36 read  with  S.  39 of the Act.   The  learned  counsel  also pointed  out  that on the findings recorded by  the  revenue tribunals  about the father not taking any interest  in  the affairs of the minor daughter, the High Court has come to  a different  conclusion  of  law that  the  mother  under  the circumstances,  was  the  natural  guardian  of  her   minor daughter and was competent to enter into lease  transactions on behalf of the appellant.  If it was found that the  lease transaction  entered into with the tenant by the  mother  of the  appellant  was valid, the nature of the reliefs  to  be granted  to  the  appellant under  the  Act  will  radically differ.   The  counsel further urged that  the  construction placed  upon  S.  39 of the Act by the High  Court  is  also correct. 7 Mr. Sanghi in support of his first contention has drawn  our attention to the principles laid down in Nagendra Nath  Bora and  another  v.  The Commissioner  of  Hills  Division  and Appeals,  Assam  and others(1) and (in  Rambhau  v.  Shankar Singh  and another(2).  It is no doubt true that this  Court has  held  in those decisions that the powers  of  the  High Court  under Art. 227 are not greater than the powers  under Art. 226 of the Constitution. It has been further laid down that the power if interference under  Art.  227 was limited to seeing  that  the  tribunals function  within the limits of their authority and that  the High  Courts  cannot sit in appeal against the  order  of  a tribunal in a petition under Art. 227.  In our opinion,  the High  Court  in  this  case cannot  be  considered  to  have exceeded   its   jurisdiction   under  Art.   227   of   the Constitution.   We have already stated that all findings  on material facts have been accepted by the High Court.  It  is only  on two material aspects which affect the  jurisdiction of the revenue tribunals to grant the necessary relief under the Act, that the High Court differed.  Those were : (i) the power  of the mother on the facts found by the tribunals  to grant  the  lease on behalf of her minor  daughter  and  its legal effect; and s.     39  of  the  Act.   Therefore,   we cannot  accept the contention of Mr. Sanghi that  any  error has  been committed by the High Court in  considering  these aspects in proceedings under Art. 227. The  nature  of  the relief that could  be  granted  to  the appellant  under the Act depends upon the  question  whether the tenancy in this case has been created "not earlier  than the first day of April, 1957." There is no controversy that- the  appellant  was  not owning  lands  exceeding  a  family holding.   If  the tenancy in favour of the tenant  in  this case  is  one  created "not earlier than the  first  day  of

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April, 1957" and if the other conditions mentioned in s.  39 are  satisfied,  relief could be granted  to  the  appellant under that     section.   We  have already referred  to  the facts that     the  appellant’s application was under s.  36 read with s.   3  9. In order to find out whether the  lease in this case is one created "not earlier than the first  day of April, 1957", it is really necessary to inquire about the legal effect of the lease executed by the mother as guardian of the appellant on February 12, 1956 for the year  1956-57. If  that  lease is valid and binding on the  appellant,  the result will be that s. 39 will not be attracted.  Therefore, we  will first consider +he question as to the legal  effect of the lease granted by the mother, which is the subject  of the  second  contention raised by Mr. Sanghi.   Mr.  San,-hi urged that on the findings of all the revenue tribunals and (1)  [1958] S.C.R. 1240. (2)  Civil Appeal No. 35 of 1966, decided on Match 17, 1966. 8 accepted  by the High Court, Champatrao, the father  of  the appellant  was admittedly alive.  If so, the father  is  the natural  guardian  of  the appellant under  the  Hindu  Law. Though  the  appellant  may  have  been  staying  under  the protection  of her mother Smt.  Chandrabhagabai, the  mother had  no authority in law to execute the lease deed so as  to bind the appellant.  The counsel further urged that even  if it be held that the mother was competent to enter into lease transactions  on behalf of her minor daughter, there  is  no evidence  led by the tenant that the lease is beneficial  or advantageous to the interest of the minor.  Under those cir- cumstances, the counsel urged, the lease is void and has  to be ignored, and if so, this is not a case of tenancy created "not earlier than the first day of April, 1957" and hence s. 39 fully applies to the facts of this case. 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  be 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 of the 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 s. 6 the natural guardians of a Hindu  minor in  respect  of the minor’s person as well  as  the  minor’s 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

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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. 9 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,  if follow  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 1951 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 point-Mr. Sanghi that the  High  Court’s view  about the validity and legality of the lease  executed by the mother on February 12, 1956 is not correct, cannot be accepted. In view of the above finding that the lease executed on Feb- ruary  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 s. 39.   Therefore, the  third  contention of Mr. Sanghi that  the  construction placed  upon  s. 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  appli- cability  of s. 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 s. 6. We may, however, indicate that the High Court has held  that s.  39 will not apply on the ground 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  Vidharbha region  _ came into force on January 28, 1961.  Under s.  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 39A while providing a period for making the application  had L235 Sup.CI(P)71--2 10 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 s. 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) occuring in  s. 39(1)  referred to the enabling provisions in favour of  the minor  contained  in sub-section 2 of section  38.   At  any

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rate,  as  one  of the ingredients  for  attracting  s.  39, namely, the tenancy having been created after April 1, 1957, is  not  present  in  this case and as  such  S.  39  stands eliminated,  we  do not think it necessary  to  express  any opinion  on the construction placed by the High Court on  s. 39(1) regarding other aspects. The  High  Court has rightly pointed out  that  the  revenue tribunals  have  only  proceeded  to  grant  relief  to  the appellant  on the basis that s. 39 is applicable.   However, the  High  Court,  even after holding that s.  39  does  not apply, has shown consideration to the appellant when it  has treated her application as one under s. 36 read with s.  38. Applying  s. 38, the appellant would not be entitled to  the possession of the entire field.  As per’ clause (a)  proviso (i)  of sub-section (4) of s. 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 ,If 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. The,  appeal fails and is dismissed with costs of the  first respondent. G.C.                     Appeal dismissed. 11