JUDGMENT - MANOHAR SHARAD, J.:—Three quite interesting questions fall for the determination of this Court in this petition, which arise from the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter, the Tenancy Act). To formulate the questions, it is necessary to give a few facts, about which there exists no dispute.

2. The suit property consists of Survey No. 42/2, admeasuring 24 acres and 24 gunthas. It belonged originally to one Vishram Ghurye. He partitioned the property during his life time into 3 parts; one for himself, the other for his wife Sumatibai and the 3rd for Dwarkanath who was his son from his earlier wife.

In 1957 Vishram filed Civil Suit No. 70 of 1957 against Vishram Vithoba Maharao and one Rukmini for possession of the suit lands in the Court of the Civil Judge, at Vengurle. On 2-7-1957 Vishram Gurye also executed a Will, by which Will he bequeathed his own 1/3rd share in the suit property upon Sumatibai along with his 1/3rd share in the other property. But it needs to be mentioned specifically that although before the making of the will, the suit lands were partitioned by Vishram, giving 1/3rd share to each of them, the actual partition by metes and bounds has never taken place. The result was that what Vishram bequeathed upon Sumatibai by the Will was only 1/3rd undivided share in the suit land. It would thus follow that Sumatibai started having 2/3rd undivided share in the suit land whereas the remaining 1/3rd undivided share became of the ownership of Dwarkanath.

3. Vishram Ghurye died on 18-1-1958 and hence in Reg. Civil Suit No. 70/57 filed by Vishram against Maharao and Rukmini, his two heirs, Dwarkanath and Sumati were brought on record.

It is not disputed that a dispute arose between Dwarkanath and his step-mother Sumatibai, the bone of contention being the validity of the Will executed by Vishram bequeathing his share upon Sumatibai. An application was therefore filed by Sumatibai in the District Court, at Ratnagiri, for the grant of Letters of Administration and on 7-2-1963 the letters of administration were granted to her by the District Court. The necessary implication was that the Will was held by the Court to be a valid Will. It follows that Sumatibai's contention that she got 2/3rd undivided share in the suit property stood vindicated. It is not disputed that various applications were made by Sumatibai for entering the names of both of them, herself and Dwarkanath, in the Revenue Record as the owners of the undivided share in the proportion of 2/3rd and 1/3rd. Initially, the mutation entry that was made and certified by the Revenue Authorities excluded the suit land as being of the ownership of Sumatibai and Dwarkanath in the proportion of 2/3rd and 1/3rd. But it is common ground before me that as at present the Record of rights shows that Sumatibai is having 2/3rd undivided share in the suit land and Dwarkanath continues to have 1/3rd undivided share therein.

On 1-12-1967 Civil Suit No. 70/57 filed originally by Vishram and continued thereafter by both Dwarkanath and Sumatibai against Vishram Vithoba Maharao and Rukmini was decreed by the trial Court and both of them even got possession of the suit land in pursuance of the Darkhast filed by them. The possession was received by them on 28-2-1968.

4. Now, we come to the event which has given rise to this legal dispute. On 27-9-1971 it is alleged by Dhond, present respondent No. 1 Sumatibai created a lease in favour of present respondent No. 1 Dhond. The factum and validity of the lease are in dispute on various grounds. But we are today concerned not with the factum of the lease, but about the validity of the lease or, rather, of the effectiveness of the lease. This question arises squarely because admittedly Sumatibai was having only undivided 2/3rd share in the suit lands; she could not have created a lease in respect of the entire suit lands unless she had the authority from Dwarkanath to create a lease in respect of

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