Laxman Baliram Ghunare vs Randhir Dinkar Deshmukh

H.W. Dhabe, J.—These are four connected writ petitions, which can he conveniently disposed of by this judgment. In Writ Petition No. 1759 of 1980, the petitioner is a tenant in respect of the fields survey No. 4 area 14.16 acres of village Mustafapur, Tahsil Daryapur, District Amravati. In Writ Petition No. 1944 of 1980, the petitioner is the tenant of the suit field survey No. 9, admeasuring 14.33 acres, of village Mustafapur, Tq. Daryapur, District Amravati. In writ petition No. 1945 of 1980 the petitioner is the tenant of field Survey No. 5, admeasuring 14.29 acres of village Mustafapur, Tahsil Daryapur, District Amravati. In respect of writ petition No. 1946 of 1980 the petitioner is the tenant of field Survey No. 8, admeasuring 13.30 acres of the aforesaid village. The original owner of the aforesaid fields was one Laxmibai Deshmukh the grandmother of the respondent. She executed a will on 2-3-1973 bequeathing all the aforesaid fields in favour of the respondent, who was then minor. The said Laxmibai died on 3-3-1973.

The petitioners filed applications under Sections 41, 46 and 49(A) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short the Tenancy Act) on 20-4-1976 for statutory transfer of ownership of the suit fields in their names and for determination of purchase price. The Agricultural Lands Tribunal consolidated all the four applications and by its common order dated 31-8-1976 the Additional Tahsildar rejected the applications filed by the petitioners/tenants and the proceedings for transfer of ownership were dropped. The petitioners/tenants preferred an appeal before the Sub Divisional Officer, who by his order dated 23-3-1979 allowed the appeals, holding that the petitioners are entitled to become statutory owners of the suit field on 1-4-1963 and,'' therefore, remanded the matter for fixation of purchase price In the Agricultural Lands Tribunal. The respondent-landlord, therefore, preferred the revision applications before the Maharashtra Revenue Tribunal against the common order passed by the Sub Divisional Officer in these cases. The Maharashtra Revenue Tribunal by its order dated 7-11-1979 set aside the order of the Sub Divisional Officer and restored the order of the Agricultural Lands Tribunal. Being aggrieved, the petitioners/tenants have preferred the instant writ petitions in this Court.

Few relevant facts which are necessary to be stated to appreciate the contention raised on behalf of the petitioners in these petitions are as follows : The original landlord Laxmibai was a widow and the petitioners who were admittedly her tenants for a period prior to 1-4-1961, could not become statutory owners u/s 46 of the Tenancy Act, because prior to 1-4-1961 they were not entitled to purchase from the said landlord Laxmibai, the suit fields by virtue of the provisions of Section 41(2) of the Tenancy Act, since she was a widow and their right to purchase the suit fields stood postponed till her interest in the suit fields ceased to exist. After her death, by virtue of the will dated 3-3-1973, the respondent had become the owner of the suit fields and hence their landlord. The question which is considered by the learned Maharashtra Revenue Tribunal is whether the date of the statutory ownership stood postponed, because the respondent also'' was a minor. Relying upon the decision of this Court in the case of Umabai and others v. State of Maharashtra and others (1971 MhLJ 815), the Maharashtra Revenue Tribunal held that since the respondent was a minor, the date of statutory ownership stood postponed again till he would cease to be a minor.

The learned counsel for the petitioners/tenants has urged before me that the date of statutory ownership cannot be postponed till the disability of the successor-in-title of the original landlord also ceases. In support of his contention he has relied upon the Division Bench Decision of this Court in the case of Harshavardhan Shrinivas Potnis v. Mahadu Pundlik Gangurde (1980 MhLJ 359). The learned counsel for the respondent has heavily relied upon the decision of this Court in Umabai''s case (cited supra), in support of his contention that the date of statutory ownership would again stand postponed in view of the minority of the respondent. The facts in the said case were that the interest of the original landlord who was a widow was inherited by her three daughters. One of the daughters who inherited the interest of the original landlord was also a widow. This Court held in the said case that if one of the daughters is a widow, her share does not stand transferred to the tenant during her life time in view of Section 41(2) of the Tenancy Act. It is clear from the said decision that this Court was considering the effect of Section 41(2) of the Tenancy Act or in other words the transfer of statutory ownership u/s 46 under which the condition of transfer of ownership is that the tenant must be entitled to purchase the land from his landlord. The learned counsel for the petitioners however, has contended that these cases are not u/s 46 but, according to him, these cases fell u/s 49-A of the Tenancy Act which is applicable notwithstanding anything contained in Sections 41 and 46 of the Tenancy Act. I find much substance in the contention raised by him. Section 49-A(l) of the Tenancy Act confers rights of statutory ownership notwithstanding anything contained in Section 41 or 46 thereof. The provisions of Section 41(2) in respect of the disabled landlords cannot, therefore, affect the conferral of the rights of ownership u/s 49-A of the Tenancy Act. The exception carved out to the conferral of statutory rights of ownership as on 1-4-1963 is u/s 49-A(3) of the Tenancy Act. u/s 49-A(l) the tenant becomes the statutory owner on and from 1-4-1963. However, sub-section (3) of Section 49-A provides that "where the landlord, belonging to any of the categories specified in sub-section (2) of Section 38, has not given notice of termination of tenancy in accordance with the said sub-section (2) or sub-section (3) of Section 39-A or has given such notice but has not made an application thereafter u/s 3d for possession, such tenant shall be deemed to be the full owner of the land held by him on the expiry of the period specified in subsection (3) of Section 39-A".

The effect of sub-section (3) of Section 49-A is to postpone the date of statutory ownership in certain contingencies in the ease of the landlords under disability- Subsection (3) must be read with sub-section (1) of Section 49-A and if so read, it means that the landlord referred therein is under the category of disabled persons on or before 1-4-1963. The article "The" which is used with reference to "the landlord" in sub-section (3) of section 49-A shows that the landlord contemplated therein is a definite person, namely the person contemplated by Section 49-A(1) of the tenancy Act. It is only when the landlord is of a disabled category mentioned in Section 38(2) that the lands held by him cannot vest on 1-4-1963 in the tenant.

The second requirement of sub-section (3) of section 49 A is that the landlord under any of the disabled categories mentioned in sub-section (2) of section 38 has not given notice of the termination of tenancy in accordance with the provisions of subsection (1) of Section 38 or Section 39 or sub-section (2) of Section 39-A or has given such notice but has not made an application thereafter u/s 36 for possession. The second requirement is put because if such notice is given and the application is made u/s 36 for possession, the matter would be governed by the proviso to Section 49-A(1) and not by sub-section (3) of Section 49-A(1) even though the landlord is of any of the disabled categories referred to above. Sub-section (3) of Section 49-A, therefore, applies to the landlord of any of the disabled categories who has not given a notice u/s 38(1) or 39-A(2) or has given such a notice but has not made an application thereafter u/s 36 for possession. In such cases the tenant is deemed to be the mil owner of the land held by him on the expiry of the period specified in sub-section (3) of Section 39-A. As already stated if the expression "landlord" used in sub-section (3) of Section 49-A is referable to the landlord contemplated by Section 49-A(1), which in other words would mean the landlord who is under a disabled category on 1-4-1963, then the date for transfer of statutory ownership for the tenant of such landlord would stand postponed to the date which is the date on which the period specified in sub-section (3) of section 39-A expires. Now sub-section (3) of Section 39-A deals with the question of giving notice in the case of landlord under the disabled categories. In the case of widow it is provided in Clause (B) of sub-section (3) of Section 39-A that if the landlord is widow then her successor in title can give the notice within one year from the date on which the widow''s interest in land ceases to exist. Thus as per the aforesaid provisions the date for giving notice for the successor in title would be one year after the death of the widow. For instance, in the instant case the original landlord Laxmibai died on 3-3-1973. The respondent, therefore, could give notice within one year from 3-3-1973. So far as the vesting of statutory ownership is concerned, as per subsection (3) of Section 49-A the ownership will vest upon the tenant one year after the death of the widow in the instant case i.e. on 3-3-1974.

It is clear from the perusal of Section 49-A(3) that it does not contemplate further postponement if the successor in title or heir of the landlord, who is of a disabled category on 1-4-1963 is also of a disabled category. The expression "such tenant" must be understood in the context of the expression "the landlord", i.e. the tenant of the original landlord, who is under disability on 1-4-1963.1 am supported in this view by the Division Bench decision of this Court in the ease of Harshavardhan Shrinivas Potnis v. Mahadu Pundalik Gangurde, cited supra, upon the similar provisions under the Bombay Tenancy and Agricultural Lands Act, 1948. It is already stated by me that the provisions of sub-section (3) of section 49-A must be understood in the context of the me of section 49-A(1) and if so understood then it does not contemplate any equivalent postponement of the transfer of ownership because the successor in title is1 under the disabled categories. The view taken by the Maharashtra Revenue tribunal in this regard is clearly erroneous and is, therefore, liable to be set aside.

In the result, the impugned order of the Maharashtra Revenue Tribunal in these petitions is set aside and order of the Sub Divisional Officer in these petitions is restored. Rule made absolute in the above terms. However, there will be no order as to costs.