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PETITIONER: KAHANDU DAULAT DANGDE

       Vs.

RESPONDENT: JAY WANTRAO YADAVRAO KHARADEAND ORS

DATE OF JUDGMENT:       14/02/1996

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) AHMAD SAGHIR S. (J)

CITATION:  1996 SCC  (7) 422        JT 1996 (5)   575  1996 SCALE  (2)148

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Kuldip Singh, J.      The appellant  was the  tenant of the agricultural land in dispute. The land was owned by Anjanabai. After her death on August  8, 1969,  Hirabai and  Draupdabai, respondents in the appeal herein, became the owners. The Agricultural Lands Tribunal in  the proceedings  under Section  32 F  read with Section 32  P of  the Bombay  Tenancy and Agricultural Lands Act,  1948  (the  Act)  came  to  the  conclusion  that  the appellant was  not entitled  to purchase the land in dispute and as  such was directed to surrender the possession of the said land  to the respondents. Appeal against the said order was dismissed  by the Sub Divisional Officer Parner division at Ahmednagar.  Revision application  filed by the appellant was also  dismissed by  the  Maharashtra  Revenue  Tribunal, Pune. The appellant, thereafter, challenged the order of the authorities under the Act by way of writ petition before the Aurangabad  Bench   of  the  Bombay  High  Court  which  was dismissed on  June 22, 1994 . This appeal by the appellant - tenant is against the judgment of the High Court.      We may  briefly state  the facts.  One Yadavrao  @ Yadu Kharade and his three sons - Baburao, Jaywantrao and Shankar - from  his wife  Anjanabai and  the fourth  son Balu from a predeceased wife constituted the joint family. Baburao filed a civil  suit in  the court  of Civil Judge at Shrigonda for partition and  possession of  his share  in the joint family property. The  suit was  disposed of  by the  Trial Court on April 6,  1961 by  way  of  compromise  decree.  It  is  not disputed that as a result of the compromise decree partition took place and the property was divided by metes and bounds. The land  in dispute  came to  the share of Anjanabai. It is further not  disputed that  the appellant  was the tenant of the land  in dispute  since prior  to April 1, 1957 (tillers day).      After  the   tillers  day,  Anjanabai  applied  for  an

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exemption certificate  under Section  88 C  of the  Act. The said proceedings were taken to the High Court which remanded the same  for disposal  to the original authority. After the death of  Anjanabai, the  proceeding were  continued by  her heirs  and  were  finally  disposed  of  by  the  Additional Tehsildar on December 1, 1981.      The case  of the  respondents  before  the  authorities under the  act was  that Anjanabai  - deceased  being  widow since prior  to April  1, 1957,  it was  mandatory  for  the appellant to  give notice under section 32 F (1A) of the Act indicating his  desire to  purchase the land. Since the said notice  was  not  given  within  the  statutory  period  the appellant was not entitled to purchase the land. The plea of the respondents  was accepted  by all  the courts below. The appellant’s  contention   was  that  the  proceedings  under Section 88 C of the Act were pending which terminated in the year 1981.  According to  him the requisite notice was given by him  within the specified period after the termination of the proceedings under Section 88 C of the Act.      The appellant  also contended  before the  courts below that the  land being  joint family  property and their being more than  one member of the joint family who did not belong to any  of the  categories mentioned  in Section 32 F(1)(a), the provision  of Section  32 F  were not applicable and the appellant was  entitled co purchase the land in dispute. The contention was rejected by the courts below.      Sections 32  F(1) and  88  C  which  are  relevant  are reproduced:-      "Section 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 under section      32 within  one year from the expiry      of the  period  during  which  such      landlord is  entitled to  terminate      the tenancy  under section  31 (and      for enabling the tenant to exercise      the right of purchase, the landlord      shall send  an  intimation  to  the      tenant of  the  fact  that  he  has      attained   majority,   before   the      expiry of  the period  during which      such  landlord   is   entitled   to      terminate the tenancy under section      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 separate, having regard      to    the     area,     assessment,      classification  and  value  of  the

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    land, in the same proportion as the      share of  that person in the entire      joint family property, and not in a      larger proportion) "      "88  C   (1)  (Save   as  otherwise      provided by sections 33-A, 33-B and      33-C, nothing  in sections)  32  to      32-R (both  inclusive) shall  apply      to lands  leased by  any person  if      such  land   does  not   exceed  an      economic  holding   and  the  total      annual  income   of   such   person      including the  rent  of  such  land      does not exceed Rs .1, 500:           Provided that  the  provisions      of this sub-section shall not apply      to any person who hold such land as      a  permanent   tenant  or  who  has      leased  such   land  on   permanent      tenancy to any other person.           (2) Every  person eligible  to      the  exemption   provided  in  sub-      section   (1)    shall   make    an      application in  the prescribed form      to  the   Mamlatdar  within   whose      jurisdiction all  or  most  of  the      pieces of  land leased  by him  are      situate   within   the   prescribed      period for a certificate that he is      entitled to such exemption.           (3)   On   receipt   of   such      application, the  Mamlatdar  shall,      after giving  notice to  the tenant      or  tenants   of  the   land,  hold      inquiry and decide whether the land      leased by  such  person  is  exempt      under  sub-section   (l)  from  the      provisions of sections 32 to 32R.           (4) If  the Mamlatdar  decides      that the  land  is  so  exempt,  he      shall issue  a certificate  in  the      prescribed form to such person.           ( 5  )  The  decision  of  the      Mamlatdar  under   sub-section  (3)      subject to appeal to the Collector,      shall be Final.)"      The following  contentions were raised by the appellant before the High Court: (a) Anjanabai  - though  a  widow  (disabled  category)  was member of  the joint  family of  which more than one members were not  the persons who were under disability, and as such she was  not entitled  to the  prosecution of Section 3SF of the Act in view of the proviso to Section 32F (1)(a). (b) When Anjanabai died in 1969 the proceeding under Section 88 C  of the  Act were pending. The said proceedings came to an end  on December  1, 1981  and immediately thereafter the appellant sent the notice under Section 32F(1A) in February, 1982. Even otherwise the appellant contested the proceedings under Section  88C of  the Act  and as such his intention to purchase the  land was  clear  and  obvious.  His  right  to purchase  the  land  could  not  be  defeated  on  technical grounds. (c) The  partition decree  on the  basis of  which Anjanabai became owner  of the  land in  dispute was collusive decree. There being  no partition  the provisions  of  Section  32-F

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(l)(a) were not attracted to the facts of this case.      We are of the view that the High Court fell into patent error in holding that proviso to Section 33-F (l) (a) of the Act was not attracted to the facts of the present case. High Court referred  to paragraphs  322 and  325 of Mulla’s Hindu Law and came to the conclusion that once a member of a joint family intimates  unequivocally to  the  other  members  his desires to sever himself from the joint family, his right to obtain and possess his share is unimpeachable whether or not they  agree   to  separation,  and  there  is  an  immediate severance of the joint status. Relying upon the judgments of this court  in A.  Raghavamma Vs.  A.Chenchamma (AIR 1964 SC 136), Puttranqamma Vs. M.S. Ranganna (AIR 1968 Supreme Court 1018) and  Smt.Krishnabai Ganpatrao  Deshmukh Vs.  Appasaheb Tuljaramrao Nimbalkar  (AIR 1979  Supreme Court  1880),  the High Court came to the conclusion that Baburao had asked for partition of  the property as back as March 1956 and as such the severance  of the  status of the joint family took place at that  time. According  to the  High Court  consent decree passed on  April 6,  1961 would relate back to 1956 and as a consequence there  would be no joint family on April 1, 1957 (tillers day).      We are  of the  view  that  deeming  fiction  regarding severance  of  the  joint  family  cannot  be  read  in  the provisions of  section 32  F (l)(a)  of the  act. Proviso to section 32-F(l)(a)  specifically provides that a member of a joint family who is minor, widow or subject to any mental or physical disability who has at least one member of the joint family outside the categories of disabled persons, cannot be given benefit of the said provision unless the following two conditions are fulfilled:      (i) Before  31st day  of March,  1958 the share of such person in  the joint  family  was  separated  by  metes  and bounds.      (ii) The  Mamlatdar on  enquiry was  satisfied that the share of  such person  in the  land  was  separated.  having regard to  the area, assessments classification and value of the land, in the same portion as the share of that person in the  entire   joint  family   property  and  not  in  larger proportion.      The concept  of notional  severance cannot be attracted in the context of the provisions of Section 32F(1)(a) of the Act. The  two overt-Acts  inherent in  proviso to  the  said section must  have happened  in practice and as a fact prior to March  31, 1958.  The theory  of relation-back  cannot be read in  the language  of the proviso to Section 39(1)(a) of the Act.      None of  the above  conditions  are  fulfilled  in  the present case.  There was  no  separation  of  the  share  of Anjanabai by  metes and  bounds till  the date  of decree in 1961 Since  it was  not done  before 31st day of March, 1958 the provisions  of Section  32 F(1)(a)  could  not  be  made applicable to  made applicable to Anjanabai. Even the second condition was  not fulfilled.  Since there was no separation of the  share of Anjanabai by metes and bounds prior to 31st day of  March, 1958, there was no question of any enquiry by Mamlatdar in  this case. On the plain reading of the proviso to Section  32-F(1)(a) of  the Act,  there is  no scope  for incorporating the  theory of  relation back  in the facts of the present case.      We, therefore,  set aside  the finding  reached  by the High Court  on this  issue and  hold that  on April  1, 1957 (tillers day) Anjanabai was d member of the joint family and as such  the  provisions  of  Section  32-F(1)(a)  were  not applicable to her.

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    The view  we have  taken on  the first point, it is not necessary to deal with other points arising in this case.      We allow the appeal, set aside the judgment of the High Court and  the orders  of the  authorities under the Act and hold that the appellant was tenant of the land in dispute on April 1,1957  and was  entitled  to  purchase  the  land  in accordance with  the provisions  of the  Act. The  competent authority under  the Act  shall now proceed with the case in accordance with law. No costs.