Back
1976 Supreme(Bom) 242
IN THE HIGH COURT OF BOMBAY
G.N. VAIDYA, J.
Nilavabaj Sida Khajure – Appellant
Versus
Chanamalappa Bassappa Khajure – Respondent
Spl. C.A. No. 1565 of 1970
Decided on : 20-09-1976
Advocate Appeared:
For the Appellant : J.R. Lalit
For the Respondent: D.S. Deshmukh, Bhimrao N. Naik, R.G. Bhadekar
The word 'family' in section 5(a) of the Hyderabad Tenancy and Agricultural Lands Act, 1950 should be interpreted broadly to include all descendants of a common ancestor, and not just members of a joint family.
Headnote:
HYDERABAD TENANCY AND AGRICULTURAL LANDS ACT, 1950 - SECTION 2(1)(G), 5(A) - INTERPRETATION - 'FAMILY' - MEANING - TENANCY RIGHTS - EXCLUSION OF FAMILY MEMBERS.
Fact of the Case:
The petitioner, a widow, owned two agricultural lands. Respondents Nos. 1 and 3, her brother-in-law and nephews, cultivated the lands without giving her any income. She filed a suit for possession, and the issue of tenancy was referred to the Naib Tahsildar. The Naib Tahsildar held that the respondents were not tenants as they were members of the petitioner's family under section 5(a) of the Hyderabad Tenancy and Agricultural Lands Act, 1950. The Deputy Collector and the Revenue Tribunal reversed this decision, holding that the respondents were tenants as they were separated from the petitioner. The petitioner challenged these decisions in the High Court.
Finding of the Court:
The High Court held that the Deputy Collector and the Revenue Tribunal erred in interpreting section 5(a) of the Act. The court found that the word 'family' in the Act should be interpreted broadly to include all descendants of a common ancestor, and not just members of a joint family. The court also held that the mere fact of separation between family members did not extinguish their blood relations or family ties. Therefore, the respondents could not be considered tenants under the Act.
Issues: 1. Whether the respondents were tenants of the petitioner's lands under the Hyderabad Tenancy and Agricultural Lands Act, 1950? 2. Whether the word 'family' in section 5(a) of the Act should be interpreted broadly or narrowly?
Ratio Decidendi: 1. The court held that the respondents were not tenants of the petitioner's lands because they were members of her family under section 5(a) of the Act. The court interpreted the word 'family' in the Act broadly to include all descendants of a common ancestor, and not just members of a joint family. The court also held that the mere fact of separation between family members did not extinguish their blood relations or family ties. 2. The court held that the word 'family' in section 5(a) of the Act should be interpreted broadly to include all descendants of a common ancestor, and not just members of a joint family.
Final Decision: The High Court allowed the petition, set aside the orders of the Deputy Collector and the Revenue Tribunal, and restored the order of the Naib Tahsildar declaring that the respondents had no locus standi as tenants of the suit lands.
JUDGMENT :
The petitioner in the above Special Civil Application, owns two agricultural lands, bearing Survey Nos. 135A and 136B, situate at village Naldurg, taluka Tuljapur, admeasuring 7 acres 14 gunthas and 7 acres 39 gunthas respectively. Respondent No. 1 is the brother of the plaintiff's deceased husband. The original respondent No. 2, who died during the pendency of the above Special Civil Application, and original respondent No. 3, were nephews of the respondent No. 1, being the sons of another brother of the deceased husband of the petitioner.
2. Respondents Nos. 1 and 3 taking advantage of the helpless condition of the petitioner, as a widow, were cultivating the lands and were not giving any income to the petitioner, as agreed to by them. The petitioner, therefore, filed a suit being Civil Suit No. 97 of 1966, in the Court of the Civil Judge, Junior Division, Tuljapur, for possession of the suit lands. The respondents resisted the suit contending inter alia, that they were the tenants. The issue was, therefore, referred to the Naib Tahsildar (Revenue), Tuljapur, under section 99A(1) of the Hyderabad Tenancy and Agricultural Lands Act, 1950.
3. The Naib Tahsildar of Tuljapur, by his judgment and order dated January 30, 1968, considered the evidence led by the parties and the contentions raised by them under section 5 of the Hyderabad Tenancy and Agricultural Lands Act, 1950, and held that the respondents were not tenants and could never claim any tights as tenants under sections 34 and 37 of the Hyderabad Tenancy and Agricultural Lands Act, inasmuch as they were the members of the petitioner's family, observing as follows:
"The provisions of the Tenancy Act, clause (a) of section 5 clearly lay down that under any circumstances a member of the family cannot be deemed as a tenant. In this case the plaintiff has executed a Batai Patra long back in favour of the defendants have been shown as tenants. But irrespective of the above fact the Tenancy Act does not confer any tenancy rights on the defendants, who are family members of the plaintiff. Any action which is prima facie against the mandatory provisions of the Act cannot be superseded and overruled by any omission. When the provision of the Act does not permit a family member to become a tenant, the other corollary argument etc. will have no value in the eyes of law. As pointed out by the learned Advocate for the defendants the provisions of sections 34 and 37 of the Hyderabad Tenancy and Agricultural Lands Act do not apply in this case for the reasons that they have not been declared as P.T.S. at any time only because no tenancy right could be conferred on them as per law."
4. The finding of the Naib Tahsildar was set aside by the Deputy Collector, Land Reforms, Osmanabad, in an appeal filed by the respondents, on the ground that the relationship between the petitioner and the respondents was irrelevant, as there was separation between the respondents and the petitioner for over 30 years; and that respondents must be considered as tenants as the word "family" denotes a jointness in share and profit and also jointness in residence; and as per the definition of the word "family" given in the Chamber's 20th Century Dictionary, it means a joint family where the interest of all the family members are one and common; and as per section 2, clause (11) of the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, the word "family" includes, a Hindu undivided family.
5. The decision of the Deputy Collector was confirmed by the Revenue Tribunal in a revision application filed by the petitioner. The Revenue Tribunal agreed with the view of the Deputy Collector, that because of the separation and partition between the petitioner's husband and respondent No. 1 and the father of respondents Nos. 2 and 3, the respondents were not the members of a "family" within the meaning of section 5(a) of the Hyderabad Tenancy and Agricultural Lands Act, 1950, though the Revenue Tribunal did
