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SUPREME COURT OF INDIA
V.R. KRISHNA IYER AND A.C. GUPTA, JJ.
Balkrishna Somnath, Appellant
Versus
Sada Devram Koli and another, Respondents.
Anant Dattatraya Mali and another, Appellant
Versus
Chintamani Govind Patil and another, Respondents.
Balkrishna Somnath, Petitioner
Versus
Sadu Devram Koli and others, Respondents.
(1) Civil Appeal No. 129 of 1968 :
(2) Civil Appeal No. 2007 of 1969 :
(3) Special Leave Petn. (Civil) No. 3175 of 1975 :
Advocates appeared
Mr. V. M. Tarkunde, Sr. Advocate, (M/s. V. N. Ganpule and P. C. Kapoor, Advocates with him), for Appellant in C. A. No. 129 of 1968; Mr. S. N. Anand, Adv. for Respondent No. 1 In C. A. No. 129 of 1968; Mr. V. N. Ganpule, Advocate, for Petitioner in Spl. L. P. (Civil No. 3175 of 1975); M/s. S. B. Wad and R. N. Nath, Advocates, for Appellants. In C. A. No. 2007 of 1969; M/s. R. B. Datar and S. C. Agarwal, Advocates, for Respondent No. 1 in C. A. No. 2007 of 1969.
Bombay Tenancy and Agricultural Lands Act, 1948 - Section 32F (1) (a) - Tenants right of purchase – Claim of compensation - Deceased owned several houses, had a money-lending business and considerable agricultural lands. He left behind him on his death a widow and two sons one of whom is the first appellant - Admittedly Act an agrarian reform measure was extensively amended by Bombay Act conferring great rights on tenants and inflicting serious mayhem on landlordism - Case of the appellants is that there was partition among the mother and the two sons of the agricultural estate where under the second appellant was allotted around acres of land out of which about acres were held by the first respondent as a tenant - On Tillers Day tenants bloomed into owners by the conferment of the right of purchase - On basis that the first respondent had become owner a proceeding for determination of purchase-price of these lands was initiated by Tribunal as provided under Section 32G of Act Although notice was not given to second appellant first appellant appeared before Tribunal urged case that land held by the first respondent was set apart in family partition to his mother second appellant and that since she was a widow she came squarely within the protective provision of the proviso to clause (a) of Section 32F (1) of Act - First respondent however contested the partition and further pressed the plea that even if agricultural lands had been divided since house and the money-lending business and other assets admittedly remained joint appellant was ineligible to claim benefit of the proviso aforesaid - Court need not trace history of the litigation from deck to deck but may conclude the story for present purpose by stating that High Court took the view that the second appellant did not qualify under said proviso – Held, There will be a sudden fancy for allotting all good lands to share of widows and minors depriving the tenants of their legitimate expectations and if lands and other assets are to be divided then less lands will go to the disabled persons or even none - For instance house may be allotted to widow and the lands taken over by adult males - Ornaments may all go to the woman, the agriculture to the men – Court need not speculate, but may content ourselves with stating that the Legislature has for some reasons decided to lay down conditions and words of text must be assigned full effect - Proviso clearly states that disabled persons share in joint family must have been separated by metes and bounds - Separation from joint family means separation from all joint family assets - Otherwise sharer remains partly joint and to that extent is not separate from the joint family - Notional division or division in status also may not be enough because Act insists on separation by metes and bounds - Ordinarily metes and bounds are appropriate to real property meaning, as the phrase does boundary lines of land with their terminal points and angles - In context thrust of the expression is that division must be more than notional but actual concrete clearly demarcated - Ineptness and involved structure and some maguey notwithstanding sense of the sentence is clear - Share of a person in joint family plainly understood means his share in all joint family properties and not merely in real estate part - What is more section uses expression share of such person in the joint family share of such person in land share of that person in the entire joint family property - Thus it is reasonable to hold that when expression used is share of such person in joint family it is not confined to share in the land only. It really means his share in the entire joint family property. Moreover, the statutory exercise expected of by the Proviso involves an enquiry into share of the disabled person in the land and its value share of that person in the entire joint family property proportion that allotment of the land bears to his share in the entire joint family property with a view to see that there is no unfair maneuver to defeat scheme of the Act - Necessary postulate is that there is a division in entire joint family property – Therefore imperative condition for the operation of Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint family properties - Petition dismissed
Judgment
KRISHNA IYER, J. :- These two appeals raise a short issue of interpretation of the proviso to Section 32F (1) (a) of the Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948) (hereinafter referred to as the Act). The appellants in both the cases are the aggrieved landlords, the tenants right of purchase under the Act having been upheld by the High Court. The correctness of this view is canvassed before us by counsel.
2. The facts necessary to appreciate the rival contention may be stated briefly. The parties are different but the issue is identical and so a single judgment will dispose of both the appeals.
3. In Civil Appeal No. 2007 of 1969 the widow of a deceased landowner, one Dattatraya, is the appellant. The deceased owned several houses, had a money-lending business and considerable agricultural lands. He left behind him on his death in 1952 a widow (the second appellant) and two sons, one of whom is the first appellant. Admittedly the Act, an agrarian reform measure, was extensively amended by Bombay Act XIII of 1956 conferring great rights on tenants and inflicting serious mayhem on landlordism. The case of the appellants is that there was partition among the mother and the two sons of the agricultural estate where under the second appellant (the widow) was allotted around 80 acres of land out of which about 15 acres were held by the first respondent as a tenant. On the Tillers Day tenants bloomed into owners by the conferment of the right of purchase. On the basis that the first respondent had become the owner, a proceeding for the determination of the purchase-price of these lands was initiated by the Tribunal, as provided under Section 32G of the Act Although notice was not given to the second appellant, the first appellant appeared before the Tribunal, urged the case that the land held by the first respondent was set apart in family partition to his mother, the second appellant, and that since she was a widow she came squarely within the protective provision of the proviso to clause (a) of Section 32F (1) of the Act. The first respondent, however, contested the partition and further pressed the plea that even if the agricultural lands had been divided since the house and the money-lending business and other assets admittedly remained joint, the appellant was ineligible to claim the benefit of the proviso aforesaid. We need not trace the history of the litigation from deck to deck but may conclude the story for the present purpose by stating that the High Court took the view that the second appellant (widow) did not qualify under the said proviso: "The proviso is not satisfied unless the share of a disabled person is separated by metes and bounds in all of the joint family property and unless the agricultural land allotted to him corresponds to his share in the entire property and is not in excess thereof." - This was the construction put by the Court on the proviso and challenged before us by Shri Wad in C. A. 2007 of 1969 and by Shri Tarkunde in C. A. 129 and 1968.
4. In Civil Appeal No. 129 of 1968 the legal scenario is similar. The family owned lands and other assets and there was a partition on November 7, 1956 confined to agricultural land only, but the house property remained undivided. The partition deed shows that the land under the tenancy of the first respondent has been set apart to the share of a minor appellant. The Tillers Day arrived. The tenant claimed to have become owner. Proceedings under Section 32G of the Act for determination of the compensation were commenced and the mantle of protection of the proviso to Section 32F (1) (a) was pleaded in vain. The High Court having negatived the landlords contention summarily, this Court has been approached, the point urged being the same as in the previous appeal.
5. In both the appeals we may proceed, for testing the legal proposition, on assumed facts. We may take it that there was a partition in both cases during the period ref
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