Partitions of every kind are now included within the ambit of Sub-section (7) of Section 38 of the Bombay Tenancy and Agricultural Lands Act, 1958 (XCIX of 1958) along with transfers.

Headnote:
BOMBAY TENANCY AND AGRICULTURAL LANDS ACT - SECTION 38(7) - INTERPRETATION - PARTITION - WHETHER INCLUDES ALL PARTITIONS - YES
Fact of the Case:

A landholder died in 1938 leaving behind a minor son. The son attained majority in 1958 and the property was partitioned between him and his mother in 1959. The mother applied for possession of the field for her bona fide personal cultivation under Section 38(1) of the Bombay Tenancy and Agricultural Lands Act, 1958 (XCIX of 1958) (hereinafter referred to as the new Tenancy Act). The Naib Tahsildar decided the application in favor of the mother. The tenant filed an appeal to the Special Deputy Collector, who upheld the order of the Naib Tahsildar. The tenant then filed a revision application to the Maharashtra Revenue Tribunal, which also dismissed the application. The tenant filed a writ petition in the High Court, which referred the matter to a larger bench to determine whether the interpretation of the amended Sub-section (7) of Section 38 of the new Tenancy Act, in the decision of the High Court in Salubal v. Chandu, 1966 Mah LJ 289 is correct, and if not, what is the correct interpretation.
Finding of the Court:

The Court held that the interpretation of the amended Sub-section (7) of Section 38 of the new Tenancy Act, in the decision of the High Court in Salubal v. Chandu, 1966 Mah LJ 289 is not correct. The Court held that after its amendment by Act 44 of 1963 partitions of every kind are now included within the ambit of Sub-section (7) of Section 38 along with transfers.
Issues: Whether the interpretation of the amended Sub-section (7) of Section 38 of the new Tenancy Act, in the decision of the High Court in Salubal v. Chandu, 1966 Mah LJ 289 is correct.
Ratio Decidendi: The Court held that the language of Sub-section (7) is initially clear and unambiguous and there is no difficulty in giving full effect to the new words added "or partition". The Court also held that there is no basis for the distinction between partitions of one kind and another, namely, partitions which gave rights for the first time and partitions which merely redistribute pre-existing rights, nor can the Court see that the word "acquire" in the new context in which it is used in the amended Sub-section (7) of Section 38 creates any anomaly, difficulty or doubt. The Court further held that a reference to the Objects and Reasons of the Bill put the matter beyond any shadow of doubt.
Final Decision: The Court dismissed the petition with costs.

JUDGMENT - Kotval, C.J.

1. The short question that arises for decision in this reference is whether the interpretation of the amended Sub-section (7) of Section 38 of the Bombay Tenancy and Agricultural Lands Act, 1958 (XCIX of 1958) (hereinafter referred to as the new Tenancy Act), in the decision of this Court in Salubal v. Chandu, 1966 Mah LJ 289 is correct, and if not, what is the correct interpretation.

2. The circumstances under which the reference came to be made are as follows: One Mohanlal was a landholder of survey No. 74/3, area 9.17 acres, In village Uttar Wadhona in Yeotmal District. Mohanlal had a wife Radhabai and a son Lakhanlal who was born on 29-4-1937. Mohanlal died on 15-4-1938 and on that date Lakhanlal was a minor. Lakhanlal attained majority on 29-4-1958, the age of majority in his case being twenty-one years because a guardian had been appointed. After he attained majority, the property belonging to the joint family came to be partitioned between Radhabai and Lakhanlal. This was on 22-6-1959 and the field survey No. 74/3 came to the share of Radhabai. Thus, Radhabai became the landholder. She required the field for her bona fide personal cultivation and she gave a notice under Section 38 (1) of the new Tenancy Act to the respondent No. 5 Uttamchand Uderaj Marwadi who was the tenant. After the notice, she applied under Section 38 for possession on the ground that she required the field for her bona fide personal cultivation. On the date on which the Naib Tahsildar decided the application the position in law and upon the authorities was as follows: In Manjurabai v. Pralhad, 1958 Nag LJ 100 a Full Bench of the Revenue Tribunal at Nagpur had on 11-12-1957 held under Section 9 (9) of the Berar Regulation of Agricultural Leases Act that a partition is a transfer. On 24-6-1958 however a Division Bench of the High Court (to which one of us Ketval J. was a party) held in Manabai v. Ramchandra, 1958 Nag LJ 453 under the same provision of law that the word "transfer" as used in Section 9 (9) does not include a partition. It expressly reversed the decision in Manjurabais case, 1958 Nag LJ 100 (Rev.). These cases were as stated above decided under the provisions of the Berar Regulation of Agricultural Leases Act. Before the Naib Tahsildars decision however the Bombay Tenancy Agricultural Lands Act (Vidarbha Region) Act 1958 (Act XCIX of 1958) came into force on 30-12-1958. Section 132 thereof repealed the Berar Agricultural Leases Act. Two further decisions must thereafter be noted. On 11-12-1959 a Division Bench of the High Court held in Dayabhai v. State of Bombay, 1960 Nag LJ 416 under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947 that the word "transfer" not being defined in that Act, must be given the same meaning as in Section 5 of the Transfer of Property Act and under the Transfer of Property Act it had been held in a number of cases that "transfer" includes a partition and that therefore it must be held that under the Prevention of Fragmentation and Consolidation of Holdings Act 1947 also a partition of an agricultural holding amounts to a "transfer" within the meaning of Section 27 (b) of that Act. On 23-8-1961 a Division Bench of Maharashtra Revenue Tribunal held in Rambhau v. Bhaskar, 1961 Nag LJ 493 under Section 9 (9) of the Berar Regulation of Agricultural Leases Act that a partition amounts to a transfer. This decision was obviously wrong in view of the previous decision of a Division Bench of this Court in Manabais case, 1958 Nag LJ 453, The Maharashtra Revenue Tribunal was bound to follow the decision of the High Court.

3. This was the position in law and upon the authorities when the present matter came up for decision before Mr. D. N. Kharche the Naib Tahsildar. He had of course to decide the case under the provisions of Section 38 of the new Tenancy Act (99 of 1958) and could have taken the view that he was uninhibited by the previous decisions be

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Judicial Analysis