Smt. Salubai vs Chandu and others

N.L. Abhyankar, J.—This order will dispose of a batch of 28 special civil applications which raise a common question of law and also interpretation of the Constitution. These special civil applications are:

Special Civil Applications Nos.-(1) 92 of 1964. (2) 440 of 1962. (3) 255 of 1964. ( 4 ) 256 of 1964. ( 5 ) 257 of 1964. ( 6 ) 302 of 1964. ( 7 ) 309 of 1964. (8) 358 of 1964. (9) 369 of 1964. (10) 384 of 1964. (11) 407 of 1964. (12) 411 of 1964. (13) 475 of 1964. (14) 476 of 1964. (15) 490 of 1964. (16) 511 of 1964. (17) 542 of 1964. (18) 544 of 1964. (19) 554 of 1964. (20) 555 of 1964. (21) 556 of 1964. (22) 557 of 1964. (23) 562 of 1964. (24) 587 of 1964. (25) 588 of 1964. (26) 600 of 1964. (27) 50 of 1965. (28) 75 of 1965.

The common question of law that arises in all these cases is whether a landholder who has commenced proceedings for terminating the lease of a tenant u/s 38 (1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, and for possession of that land is not entitled to any relief in respect of the land Held by his tenant if the said tenant was a protected lessee whose rights as such protected lessee had come into existence before the landholder acquired such land by partition and such acquisition of land by partition took place after the first day of August 1953.

It is common ground in all these cases that the landholder who claims possession of the land claims this right on the ground that as a result of partition in the joint family particular land had been allotted to his share and therefore he or she was entitled to terminate the lease of the tenant and get possession according to law.

Hereafter, the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, i. e. Bombay Act No. XCIX of 1958 will be referred to as the Vidarbha Act because it is operative in the eight districts of Vidarbha Region of the State of Maharashtra.

The Legislative Assembly of the reorganised State of Bombay passed the Vidarbha Act "which came into force in this region on 30th of December 1958. The Act was published in the Extraordinary Gazette of the Bombay Government Gazette on December 26, 1958. It is reproduced in the regular issue of the Bombay Government Gazette of January 1, 1959 in Part IV, pages 1 to 69. On page 1 of the Gazette, the text of the Act is preceded by the following note under the signature of the Secretary to the Government of Bombay, Legal Department:

The following Act of the Bombay. Legislature, having been assented to. by the President on the 25th December 1958, is hereby published far general information.

The preamble to the Act is divided into two paragraphs and it is to the following effect:

WHEREAS it is expedient to amend the law which governs the relations of landlords and tenants of agricultural lands and sites used for allied pursuits in. the Vidarbha Region and the Kutch area of the State of Bombay with a view to bringing the status and rights of tenants as far as possible in line with those prevailing in certain other parts of the State;

AND WHEREAS it is expedient in the interests of the general public to regulate and impose restrictions on the transfer of agricultural lands and of dwelling houses and lands appurtenant thereto and sites used for allied pursuits belonging to or occupied by agriculturists, agricultural labourers, artisans and persons carrying on allied pursuits in the Vidarbha Region and the Kutch area of the State of Bombay and to provide for the assumption of the management of agricultural lands in certain circumstances and to make provisions for certain other matters hereinafter appearing; It is hereby enacted in the Ninth Year of the Republic of India as follows:

Section 2 of the Act gives definitions and sub-section (34) of section 2 states, the words and expressions used in this Act but not defined shall have the meanings assigned to them in the Code and the Transfer of Property Act, 1882, as the case may be. But there is an overriding caution in the beginning of the definition section, that this should be so unless the context requires otherwise. The ''Code'' referred to in sub-section (34) means u/s 2 (7), the Madhya Pradesh Land Revenue Code, 1954.

Section 38, the interpretation of which is in issue in these cases originally stood in its various sub-sections as follows:

* * * *

(After reproducing section 38, the judgment proceeds-)

This section as well as other parts of the Act have been amended from time to time and the important amendment with which we are concerned was made in sub-section (7) of section 38 by the Maharashtra Act No. XLIV of 1963. This Amending Act received also the assent of the President and was first published after receiving such assent on the 16th December 1963, which would therefore be the date on which the Amending Act came into force. Section 2 of the Maharashtra Act XLIV of 1963 amended the provisions of section 38 of the Vidarbha Act by adding words "or partition" in two places in the original section. As amended, sub-section (7) of section 38 would read as follows:

38 (7) Nothing in this section shall confer on a tenure-holder who has acquired any land by transfer or partition after the 1st day of August 1953, a right to terminate the tenancy of a tenant who is a protected lessee and whose right as such protected lessee had come into existence before such transfer or partition.

The Amending Act XLIV of 1963 further provides by its sixth section that sections 38 and 39 of the principal Act as amended by that Act shall also apply as respects all suits, appeals and proceedings which are pending before any authority, tribunal or Court on the date of the commencement of this Act, Thus, the result of the Amending Act so far as section 38 is concerned would be that even though the amended provision would not affect the cases finally decided by any authority, tribunal or Court before the Amending Act was passed or made applicable, the amended provision would govern the disposal of all suits, appeals and proceedings which may be pending before any authority, tribunal or Court on the date of the commencement of the Amending Act viz. 16th December 1.963.

It is not disputed in all these petitions that proceedings were pending before one authority or another when the amendment made, in section 38 became applicable by reason of the provisions of Act XLIV of 1963.

The principal argument is divided into two branches. It is first contended that the new provision which apparently includes acquisition of land as a result of partition amongst members of a joint family violates or abridges the rights of the landholders guaranteed to them under Articles 14, 19 and 31 of the Constitution, and therefore, they are ultra vires of the provisions of the powers of the Legislature of the State. While including partition as a mode of acquisition of land in section 38 (7) of the Vidarbha Act, the Legislature has invaded the inherent rights of the members of the joint family to effect disruption of their joint status and get the joint family property divided according to their shares and interests to an unreasonable extent. This is because the allottee of the land at the joint family partition which is effected after 1-8-1953 and after the tenant on land had acquired the status of a protected lessee, creates an invidious discrimination between the partition effected prior to 1-8-1953 and after 1-8-1953 and thus is violative of equal protection of law under Article 14 of the Constitution. It is also urged that there is no particular object to be achieved with reference to this date selected by the Legislature to immune from eviction a protected lessee who came on land prior to the date of partition or who came on land after such date. It is also urged that there is an inherent right in a member of a joint family to hold and enjoy his property without detriment and the restriction put on the member of a joint family in preventing him from terminating the tenancy of a protected lessee is an unreasonable restriction under Article 19 of the Constitution. The restriction also amounts in effect to acquisition of property or at any rate drastic abridgment of rights in property of a member of the joint family for which there is no justification because it is done without any compensation. Thus the three Articles of the Constitution which are alleged to be violated by the amending provisions of the Act are Articles 14, 19 and 31 of the Constitution.

The second branch of the argument is that even assuming that the challenge under Article 14, Article 19 or Article 31 is not possible, as a matter of construction of the amended section, if properly interpreted, a member of a joint family cannot be said to ''acquire'' land as a result of partition effected amongst the members of the joint family. A member of a joint family has unity of interest in ownership, possession and enjoyment and what happens in the case of a joint Hindu family is a declaration of his intention to separate or in other words a declaration of intention to disrupt the joint status and on declaration of such intention it is only the mode of enjoyment of the property that is altered, but there is no acquisition of any land as a result of partition.

As there was a challenge to the vires of the Act which amended the provisions of sub-section (7) of section 38, the State of Maharashtra was impleaded and a notice was also issued to the Advocate-General. Arguments regarding the first question have been addressed on behalf of the State as well as the respondents-tenants in reply to the submissions made by the learned counsel for the petitioners-landlords.

The principal contention on behalf of the opponents to the challenge grounded on the basis of violation of the guarantees under Article 14, Article 19 or Article 31 of the Constitution was the effect of Article 31A of the Constitution as introduced by the Constitution (First Amendment) Act, 1951, and amended by the Constitution (Fourth Amendment) Act, 1955, and the Constitution (Seventeenth Amendment) Act, 1964. According to the respondents, the Vidarbha Act, as originally passed, or after its amendment by the Maharashtra Act XLIV of 1963, is immune from challenge on the ground that any of its provisions is void being inconsistent with or because it takes away or abridges any of the rights conferred by Article 14, 19 or 31 of the Constitution notwithstanding anything contained in Article 13 of the Constitution because the Vidarbha Act is a law providing for extinguishment or modification of rights in an estate and providing for rights in an estate. Article 31A prior to its further modification by the Constitution (Seventeenth Amendment) Act, 1964 stood as follows:

31A. (1) Notwithstanding anything contained in article 13, no law providing for-

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14, article 19 or article 31:

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President has received his assent. (2) In this article,- (a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and shall also include any jagir, inam or muafi or other similar grant (and in the States of Madras and Kerala, any janmam right;

(b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder (raiyat, under -raiyat) or other intermediary and any rights or privileges in respect of land revenue.)

According to the respondents, the land with respect to which the Vidarbha Act makes a provision fully answers what is described as "estate" in clause (2) (a) of Article 31A and it has been so held by the Supreme Court in its decision reported in Shri Mahadeo Paikaji Kolhe Yavatmal Vs. The State of Bombay, .

In view of this position of judicial pronouncement which prima facie decides the question of vires of the impugned legislation, the learned counsel for the petitioners Shri Natu made certain submissions which do not appear to have been pressed or agitated before the Supreme Court in the above case. As there have been no reference to any such argument, Shri Natu was heard in details in amplification of his submissions on all these matters.

According to Shri Natu, the Vidarbha Act i. e. the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, i. e. Bombay Act XCIX of 1958, is not a piece of legislation which could be included in the proviso to the first clause of Article 31A. In other words, the contention raised by Shri Natu is that the Vidarbha Act is not a law made by the Legislature of the State because it was not reserved for consideration of the President and has not received the assent of the President. This submission is based on the manner in which the Bombay Act XCIX of 1958 came to be published both in the Extraordinary and Ordinary Government Gazette with the Note of the Secretary to the Government of Bombay, Legal Department. That Note states, "The following Act of the Bombay Legislature, having been assented to by the President on the 25th December 1958, is hereby published for general information." Shri Natu''s contention is that what seems to have been assented to by the President is the Act of the Bombay Legislature and not the Bill as passed by the two Houses of Legislature of the then State of Bombay. There is no dispute that in order that a piece of legislation may become a valid Act if such legislation is of the State Legislature, it should not only be passed by the Legislative Houses but also receive the assent of the Governor of the State. It is only the assent to the Bill passed by the Legislature of the State which makes that legislation an Act of the State Legislature. The argument further says that there is no provision in the Constitution for reserving an Act for the consideration of the President or for the assent of the President. Under Article 200 of the Constitution, when a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President. We are not concerned with the two provisos to Article 200 which are not called in aid here. Then Article 201 provides that when a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom. Basing his argument on the text of these two Articles of the Constitution, it was argued on behalf of the petitioners that the endorsement appearing under the signature of the Secretary to the Government of Bombay, Legal Department in the Gazette Notification, does not show that the Bill of the Bombay Legislature was assented to by the President or was reserved for the consideration of the President but it specifically referred to the Act of the Bombay Legislature having been assented to by the President and therefore according to the learned counsel for the petitioners this is not a law which could be said to have been reserved for the consideration of the President or to have received his assent.

There is no doubt that it is only a Bill by the Legislature of a State whether it is single or bicameral which can be reserved for the consideration of the President and for assent of the President. There is no provision in either of the two Articles 200 and 201 or any Article of the Constitution which permits the Governor of a State to assent to a Bill passed by the Legislature of the State and thereafter reserve it for the consideration of the President to obtain a further assent. We may mention here that this contention was not raised in the petitions but was allowed to be argued at the hearing because according to the learned counsel for the petitioners it was a mere matter of interpretation, It is not a mere matter of interpretation. As far as we can see it is a question of fact in each case whether a Governor of a State assented to a Bill passed by the Legislature of a State or not. It is also a question of fact in each case whether what was reserved for the consideration of the President was the Bill as passed by the Legislatures of the State and assent of the President was obtained to the Bill or to an Act. In view of the presumption of an official act being done according to the procedure prescribed by law, it cannot possibly be presumed that in this case the Governor of the State of Bombay first assented to the Bill as passed by the two Houses of Legislature and then reserved it for the consideration or for obtaining the assent of the President. The whole argument is founded on a very slender basis viz. that the description in the endorsement above the text of the Act where the Secretary of the Legal Department has stated that "the following Act of the Bombay Legislature, having been assented to by the President on the 25th December 1958, is hereby published for general information." It is not difficult to understand what this endorsement means. In the first place, this is not a part of the text of the Act. It is an intimation for the information of general public that this was a piece of legislation which was reserved for the consideration of the President and was assented to by the President on a particular date. It is true that the Secretary has described this as an Act of the Bombay Legislature, but this description equally fits in with the legislation being called an Act after the Bill passed by the State Legislatures received the assent of the President for whose consideration it was reserved by the Governor. What the endorsement, in other words, says is that the legislation of the Bombay Legislature in the form of a Bill was reserved for the consideration by the President and assented to by him and has now therefore become an Act of the Bombay Legislature. I do not think any other interpretation is possible and the argument that the law is outside Article 31A of the Constitution because it is an Act of the Legislature and could not be reserved for the assent of the President must therefore be rejected.

The next contention is that the decision of the Supreme Court in Makadeo Kolhe''s case AIR 1961 SC 1617 proceeds on the footing that the provision of law relating to land-tenure which is relevant for consideration is the Madhya Pradesh Land Revenue Code and it is the provision of that Code which has been examined to find whether the rights of tenure-holders could be called the rights in respect of an "estate" as understood in Article 31A(2)(a) of the Constitution.

Article 31A(2)(a) prior to its amendment by the Constitution (Seventeenth Amendment) Act, 1964, defined "estate" as follows:

The expression "estate" shall, in. relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land-tenures in force in that area,

What had to be found therefore was whether there was a local equivalent to the expression "estate" or the expression "estate" used in the existing law relating to land-tenures in force in a particular area with respect to which the legislation was made came to be examined. Now, the expression "the existing law relating to land-tenures in force" must be understood in the sense in which the words "existing law" have been used in Article 366(10) of the Constitution. "Existing law" means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or presort having power to make such a law, Ordinance, order, bye-law, rule or regulation. In other words, reference to "existing law relating to land-tenures in force" would mean that legislation relating to land-tenures which was in force on the date of the coming into force of the Constitution, i. e. on 26th January 1950. Shri Natu draws support for this contention from the decision of the Supreme Court in Karimbil Kunhikoman Vs. State of Kerala, , paras. 11 & 12 at pp. 730-731. This contention appear to be correct. It is also clear that the Madhya Pradesh Land Revenue Code, 1954 became the law in the then State of Madhya Pradesh in respect of certain provisions only on 12th February 1955 and in respect of other provisions on 1st October 1955. The provisions of the Madhya Pradesh Land Revenue Code therefore may not strictly satisfy the description of being an existing law within the meaning of Article 314(2)(a) of the Constitution.

Shri Natu therefore invited attention to the provisions of the law relating to land-tenures which was applicable to the four districts of Berar on and before 26th January 1950. On that date, the Berar Land Revenue Code was applicable to the four districts of Berar, viz. Yeotmal, Akola, Amraoti and Buldana. Section 38 (7) of the Vidarbha Act affects the right of the landholder to terminate the tenancies of tenants who were protected lessees within the meaning of section 2 (25) of the Vidarbha Act and that definition of "protected lessee" in its turn, makes a reference to section 6 (2) of the same Act. Under this latter provision, for the purposes of the Tenancy Act, a person shall be recognised to be a protected lessee if such person was, immediately before the commencement of this Act, deemed to be a protected lessee u/s 3 of the Berar Regulation of Agricultural Leases Act, 1951. The Berar Regulation of Agricultural Leases Act, 1951, was a piece of tenancy legislation which was operative only in the four districts of Berar mentioned above. Therefore, the law relating to land-tenures which is relevant for consideration in interpreting section 38 (7) as existing law in force in the area would be the Berar Land Revenue Code of 1928. For this reason the provisions of the Berar Land Revenue Code have to be examined.

According to Shri Natu, under the Berar Land Revenue Code, land-tenures differed according as land was alienated land or un-alienated land. Section 2 (2) defines "alienated land" and means land in respect of which the Crown has assigned in whole or in part its right to receive land-revenue equal in amount to the fair assessment, and the person to whom such assignment is made is called the "superior holder". The Berar Land Revenue Code also defines "holder" in section 2 (4) and "holding" in section 2 (5) of the Code. Then comes the definition of "land" in section 2 (7) which means a portion of the earth''s surface and, where land is referred to in this Law, it shall be deemed to include all things attached to or permanently fastened to anything attached to such land. Section 54 of the Berar Land Revenue Code describes the position of an occupant. That section is as follows:

54 (1) The person who acquires the rights to occupy land u/s 23 is called an occupant of such land, and shall hold it in accordance with the provisions of this Law.

(2) All persons who, prior to the commencement of this Law, have been granted rights in un-alienated agricultural land under the style of ''occupant'', or have been granted or have held rights in un-alienated non-agricultural land under the style of ''occupant'' or under leases which entitle them to hold in perpetuity, shall be deemed to be occupants within the meaning of this section, and all restrictions hitherto imposed on their rights shall henceforth be of no effect in so far as they may be inconsistent with the provisions of this Law.

It is contended that the position of an occupant i, e. of a person entitled to cultivate un-alienated land with the rights of transfer, devolution and alienation and which were also heritable were different and larger in content under the previously operative law relating to land-tenures in this region, and this law was the Berar Land Revenue Code of 1896, which was known as Hyderabad Assigned Districts Land Revenue Code of 1896.

According to Shri Natu, until the Berar Land Revenue Code, 1928, came to be enacted, un-alienated land in possession of occupants was of the private ownership of the occupant and not of the State ownership. This position was altered and the rights of occupants were abridged under the Berar Land Revenue Code of 1928 and there was establishment of direct relationship between an occupant in respect of un-alienated land held by him and the State thereafter. In other words, the State asserted its ownership on land vis-a-vis occupant under the Berar Land Revenue Code of 1928 and to that extent there was diminution in the rights of an occupant under the Code of 1928. In support of this proposition the learned counsel relied on the Commentary on the Berar Land Revenue Code by late Mr. Hirurkar, and, in particular, the observations at pages 10-12.

I do not think this contention is well founded. It does not appear that there has been any substantial change in the rights of the occupants of an un-alienated land between the Code of 1896 and that of 1928 in the four districts of Berar. The rights of an occupant were heritable and transferable under both the Codes. An occupant could relinquish and obtain his holding under certain circumstances under both the Codes. The liability of an occupant to pay land-revenue is not different under either Code. Whatever theory may therefore be propounded as to the ultimate right of the sovereign over land and sub-soil rights under the land, there does not appear to be any violent departure in respect of the rights of an occupant under the Code of 1896 and the rights of an occupant recognised under the Berar Land Revenue Code of 1928. In this context it is more useful to consider the views of another learned Commentator on the law of land-tenure in Berar, viz. the late Diwan Bahadur K. V. Brahma. In his Commentary on Berar Land Revenue Code, 1928, Third Edition, published in 1950, at page 123 of the Book the learned author observed as follows, with reference to the rights of an occupant:

This is a clear statement for the first time in the Code that the rights of an occupant are permanent; heritable and transferable property....

The Code of 1896, in section 68, declared that an occupant had a right to hold his land in perpetuity on his paying the amount due on account of land-revenue. It said nothing about the nature of the property, and the result was that occupants were held to be mere tenants by the Court of the Additional Judicial Commissioner at Nagpur in the case of Baliram v. Maruti 6 N L R 78. All doubts are now set at rest by the clear wording of this section. An occupant is now a proprietor or owner of his land subject however to certain restrictions.

The learned author then refers to an attempt made by the Berar Legislative Committee expressly to describe an occupant as an owner of the land which he holds. This was not accepted by the Governor-General in Council because the sense in which the status of an occupant was understood viz. that of a proprietor from the earliest times was clear from the words used by Sir Lyall in a document reproduced in the Berar Gazetteer, as Commissioner of West Berar. Sir A. C. Lyall had then observed as follows:

Subject to certain restrictions, the occupant is an absolute proprietor of his holding; he may sell, let or mortgage it or any part of it, cultivate it or leave it waste so long as he pays its assessment which is fixed for the term of the settlement (usually 30 years) and may then be revised only on general principles; that is the assessment of an entire district or village may be raised or lowered as may seem expedient, but the impost may not be altered to the detriment of any occupant, on account of his own improvement.

Of the restrictions on this principle some are intended to protect the rights of the Government, and to check the excessive sub-divisions of land the chief defect of a peasant proprietary system and the rest to protect the interest of persons other than the occupant who may have an interest in the holding. First if an occupant wishes to do anything which will destroy the value of his land, as to quarry in it, he must apply for the permission to do so and pay a fine to compensate Government for the prospective loss of assessment. Indeed the Borar occupancy tenure has many features resembling the copy-hold estate in the reservations of the manorial rights.

The learned author thereafter gives a comparison of the rights and liabilities of an occupant under the Berar Land Revenue Code of 1928. Rights include, (1) right to transfer, or will away or deal with the land as he likes (section 56); (2) right to make any improvements (see. 57); (3) right to divert his land after notice (sec. 58); (4) right to relinquish his occupancy; (5) right to be entitled to trees (sec. 46); (6) right to hold land without increase in the assessment during the currency of a settlement; (7) right to pre-empt a share in a survey number; (8) right to be entitled to allusion (sec. 67) and a right to have a person who diverts his land without his consent evicted [sec. 59 (4).]

Among the liabilities are the following liabilities:

(1) Liability to pay land revenue and cases;

(2) Liability to repair boundary marks;

(3) Liability to permit inspection;

(4) Liability to furnish flag holders.

(5) Liability to inform acquisition of rights;

(6) Liability not to work mines or take out minerals of value;

(7) Liability to submit to a right of way in case of necessity; and

(8) Liability not to divert land without notice.

On consideration of these rights and liabilities, it could hardly be said that the rights of an occupant in Berar in respect of un-alienated lands are any the less than the rights of a proprietor of a holding.

In several cases which considered the applicability of the provision of Article 31A(2)(a) of the Constitution to land tenure or land as ''estate'', tests have been laid down by the Supreme Court. Broadly speaking, the test is to find out whether a tenure-holder is holding land under the State and paying land-revenue for the land which is held by him. It is true that the Berar Land Revenue Code which was existing law in force on the date of coming into operation of the Constitution, docs not contain the definition of ''estate''. But as observed by their Lordships in Shri Mahadeo Paikaji Kolhe Yavatmal Vs. The State of Bombay, :

Art. 31A(2)(a) refers not only to estate but also to its local equivalent. It was realised that in many areas the existing law relating to land tenures may not expressly define an estate as such though the said areas had their local equivalents described and defined.

It was for this reason that the Constitution makes a provision by using both the words ''estate'' as well as its local equivalent in existing law relating to land tenure in force in that area.

Their Lordships of the Supreme Court had to consider the basic idea of the meaning of the word ''estate'' as used in Article 31A(2)(a) in Purushothaman Nambudiri Vs. The State of Kerala, . The legislation under consideration was the Kerala Agrarian Relations Act (4 of 1961). In paragraph 24 their Lordships observed as follows:

It is necessary therefore to have some basic idea of the meaning of the word ''estate'' as used in Art. 31A(2)(a). As we have said already, where the word ''estate'' as such is used in the existing law relating to land-tenures in force in a particular, area, there is no difficulty and the word ''estate'' as defined in the existing law would have that meaning for that area and there would be no necessity for looking for a local equivalent. But where the word ''estate'' as such is not defined in an existing law it will be necessary to see if some other term is defined or used in the existing law in a particular area which in that area is the local equivalent of the word ''estate''. In that case the word ''estate'' would have the meaning assigned to that term in the existing law in that area. To determine therefore whether a particular term defined or used in a particular area is the local equivalent of the word ''estate'' as used in Art. 31A(2)(a) it is necessary to have some basic concept of the meaning of the word ''estate'' as used in the relevant Article of the Constitution. It seems to us that the basic concept of the word ''estate'' is that the person holding the estate should be proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part. If therefore a term is used or defined in any existing law in a local area which corresponds to this basic concept of ''estate'' that would be the local equivalent of the word ''estate'' in that area. It is not necessary that there must be an intermediary in an estate before it can be called an estate within the meaning of Art. 31A(2)(a); it is true that in many cases of estates such intermediaries exist, but there are many holders of small estates who cultivate their lands without any intermediary whatever. It is not the presence of the intermediary that determines whether a particular landed property is an estate or not, what determines the character of such property to be an estate is whether it comes within the definition of the word ''estate'' in the existing law in a particular area or is for the purpose of that area the local equivalent of the word ''estate'' irrespective of whether there are intermediaries in existence or not. This, in our opinion, is also borne out by consideration of the relevant decisions of this Court to which we will now turn.

It will therefore be useful to examine the decision of their Lordships of the Supreme Court where the question whether an occupant in Berar holding land which was an ''estate'' came directly under examination. That was in Shri Mahadeo Paikaji Kolhe Yavatmal Vs. The State of Bombay, . It is true that the provisions of law which have been considered in this decision are those of the Madhya Pradesh Land Revenue Code but that in my judgment makes no difference because it has not been shown that there is any substantial difference in the provisions of the Berar Land Revenue Code of 1928 and those of the Madhya Pradesh Land Revenue Code of 1954 which came to be examined by their Lordships. It may also be pointed out that the law which was directly under scrutiny was the Vidarbha Act, viz., The Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutoh Area) Act XCIX of 1958. Reference is first made to the definition of ''land'' in section 2 (17) of the Vidarbha Act and also to the definition of ''landholder'' in section 2 (18) of the same Act. Section 2 (18) of the Vidarbha Act defines ''land-holder'' as meaning a tenure-holder whom the State Government has declared on account of the extent and value of the land or his interests therein to be a landholder for the purposes of this Act. Now, the word ''tenure-holder'' is not defined in the Vidarbha Act, but that expression is defined in the Madhya Pradesh Land Revenue Code. In section 2 (20) of the Code ''tenure-holder'' means a person holding land from the State Government as a Bhumiswami or a Bhumidhari. Now, these two latter expressions have been used in section 145 of the Madhya Pradesh Land Revenue Code which says that there shall be the following classes of tenure-holders of lands held from the State, that is to say: (i) Bhumiswami and (ii) Bhumidhari. What a Bhumiswami is, is made clear in section 146 of the Madhya Pradesh Land Revenue Code. That section is as follows:

Every person, who at the coming into force of this Code belongs to any of the following classes, shall be called a Bhumiswami and shall have all the rights and be subject to all the liabilities conferred or imposed upon a Bhumiswami by or under this Code, namely:-

(a) every person in respect of land held by him as a malik-makbuza or a plot proprietor in the Central Provinces;

(b) every person in respect of land lawfully held by him as house site in abadi in the Central Provinces;

(c) every person in respect of land held by him as a raiyat malik in the Central Provinces;

(d) every person in respect of land held by him as an absolute occupancy tenant in the Central Provinces;

(e) every person in respect of land held by him as an occupant in Berar;

(f) every person in respect of laud held by him as an ante-alienation tenant or a tenant-of-antiquity in Berar in respect of which he has become lessee of the State under sub-section (2) of section 68 of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950.

It will be seen from the definition of Bhumiswami in this section that every person in respect of land held by him as occupant in Berar is called a Bhumiswami. Thus, in the phraseology of the Madhya Pradesh Land Revenue Code, 1954, an occupant in Berar who held land from the State under the Berar Land Revenue Code, 1928, would be Bhumiswami or a tenure-holder within the meaning of section 2 (18) of the Madhya Pradesh Land Revenue Code which describes him as a land-holder under the Vidarbha Act. There is no dispute also that the land which is the subject-matter of suit in these proceedings is the land used or capable of being used for agricultural purposes and answers the description of land within the meaning of section 2 (17) of the Vidarbha Act.

Their Lordships then referred to the definition of ''holding'' in section 2 (7) of the Madhya Pradesh Land Revenue Code. The Madhya Pradesh Land Revenue Code defines ''holding'' to mean (a) a parcel of land separately assessed to land-revenue; and (b) in reference to land held by a tenant a parcel of land held from a tenure-holder under one lease or set of conditions. Now, precisely the same definition is given for the word ''holding'' in section 2 (5) of the Berar Land Revenue Code. Reference is then made to section 2 (20) of the Madhya Pradesh Laud Revenue Code for the definition of ''tenure-holder'' meaning a person holding land from the State Government as a Bhumiswami or a Bhumidhari. Their Lordships then referred to Chapter XII of the Madhya Pradesh Land Revenue Code which deals with tenure-holders and particularly to section 145 referring to the two classes of tenure-holders vi2. Bhumiswami and Bhumidhari and the definition of Bhumiswami given in section 146 of the Madhya Pradesh Land Revenue Code. It has already been pointed out that the definition of ''Bhumiswami'' in section 146 and in particular inclusion of an occupant in Berar in this definition shows that the land in possession of an occupant in Berar who later on came to be called a tenure-holder being a Bhumiswami was in substance relating to land which will answer the description of ''estate''. This conclusion must follow from what their Lordships have observed in the above decision with respect to land held as a tenure-holder by reference to the provisions of the Madhya Pradesh Land Revenue Code. Their Lordships have also observed that though the word ''estate'' as such has not been employed in the Madhya Pradesh Land Revenue Code it has to be borne in mind that Article 31A(2)(a) refers not only to estate but also to its local equivalent. It was realised that in many areas the existing law relating to land-tenures may not expressly define an estate as such though the said areas had their local equivalents described and defined, and that is why the relevant provision of the Constitution has deliberately used both the words ''estate'' as well as its local equivalent. Their Lordships then observed that the petitioners in that case held lands under the State and they pay land-revenue for the lands thus held by them and therefore there was no difficulty in holding that under the existing law relating to land-tenures the lands held by them fell within the class of the local equivalents of the word ''estate'' as contemplated by Article 31A(2)(a). I have gone in some details to show that the provisions of the Madhya Pradesh Land Revenue Code and the Berar Land Revenue Code, 1928, are identical word for word and the mere fact that it was the provision of the Madhya Pradesh Land Revenue Code which came to be examined by their Lordships made no difference to the conclusion reached viz. that the land held by an occupant in Berar sufficiently answered the description and definition of ''estate'' as used in Article 31A(2)(a) of the Constitution.

The learned counsel for the petitioners however urged that the lands held by the occupants in Berar were under the ryotwari tenure. It was therefore contended that in another decision of the Supreme Court in Karimbil Kunhikoman Vs. State of Kerala, lands held by ryotwari pattadars from the districts of South Canara were not held to be estates and that decision therefore should be preferred to the decision of the Supreme Court in Shri Mahadeo Paikaji Kolhe Yavatmal Vs. The State of Bombay, to hold that un-alienated lands held by an occupant in Berar were not an estate. It is necessary to state a few facts of the case relied upon by the learned counsel for the petitioners. The legislation under consideration was the Kerala Agrarian Relations Act No. IV of 1961. The petitioners came from that part of the State of Kerala which was formerly in the South Canara district of the State of Madras and came to the State of Kerala by virtue of the States Reorganisation Act, 1956. Actually, their lands were situated in Hosdrug and Kasargod taluks which have now been made part of the Cannanore District in the State of Kerala. The petitioners held large areas of lands as ryotwari pattadars, according to the ryotwari settlement in the State of Madras under the Board''s Standing Orders of that State. Their Lordships, therefore, observed that it was necessary to look at the state of the law as it was in the State of Madras on January 26, 1950, for the area from which the petitions came namely the district of Canara, which was then a part of the Province of Madras. The usual feature of land-tenure in Madras was the ryotwari form but in some districts a landlord class had grown up both in the northern and southern parts of the Presidency of Madras as it was before the Constitution. The permanent settlement was introduced in a part of the Madras Presidency in 1802, but there were other forms of tenures arising out of revenue free grants all over the Province. There were various Acts in force in the Madras Presidency with respect to landlord-tenures but so far as ryotwari tenures were concerned, they were governed by the Standing Orders of the Board of Revenue. Eventually, in 1908, the Madras Legislature passed the Madras Estates Land Act, No. 1 of 1908, which was later amended from time to time and that Act contained a definition of the word ''estate'' which was in force when the Constitution came Into force.

But it was further found in that case that though the Act of 1908 dealt with land-lord-tenures of Madras and was the existing law relating to laud-tenures, there were other classes of land-tenures which consisted of ryotwari pattadars which were governed by the Board''s Standing Orders there being no Act of Legislature with respect to them. The holders of ryotwari pattas used to hold lands on lease from Government. After noticing the features of land-tenure called ryotwari pattadar, their Lordships proceeded to observe that though the Act of 1908 was in force all over the State of Madras, it did not apply to lands held on ryotwari settlement and contained a definition of the word ''estate'' which was also applicable throughout the State of Madras except the area indicated from which it was clear that in the existing law relating to land-tenures the word ''estate'' did not include the lands of ryotwari pattadars and therefore the impugned legislation was held not to be saved in respect of land from South Canara district which was held as ryotwari pattadars by the litigants before the Supreme Court.

The learned counsel particularly relies on the observations in paragraph 13 of this decision which describes the broad features of the system of ryotwari pattadars. Their Lordships observed as follows in this connection:

The holders of royatwari pattas used to hold lands on lease from Government. The basic idea of ryotwari settlement is that every bit of land is assessed to a certain revenue and assigned a survey number for a period of years, which is usually thirty and each occupant of such land holds it subject to his paying the land-revenue fixed on that land. But it is open to the occupant to relinquish his land or to take now land which has been relinquished by some other occupant or become otherwise available on payment of assessment,.... Though, theoretically, according to some authorities, the occupant of ryotwari land held it under an annual lease (see Maeleane, Vol. I Revenue Settlement, p. 104), it appears that in fact the Collector had no power to terminate the tenant''s holding for any cause whatever except failure to pay the revenue or the ryot''s own relinquishment or abandonment. The ryot is generally called a tenant of Government but he is not a tenant from year to year and cannot be ousted as long as he pays the land-revenue assessed. Ho has also the right to sell or mortgage or gift the land or lease it and the transferee becomes liable in his place for the revenue. Further, the lose of a ryotwari pattadar has no rights except those conferred under the lease and is generally a sub-tenant at will liable to ejectment at the end of each year. In the Manual of Administration, as quoted by Baden-Lowell in Vol. III of Land Systems of British India at p. 129, the ryotwari tenure is summarised as that ''of a tenant of the State enjoying a tenant-right which can be inherited, sold, or burdened for debt in precisely the same manner as a proprietary right, subject always to payment of the revenue due to the State.'' Though therefore the ryotwari pattadar is virtually like a proprietor and has many of the advantages of such a proprietor, he could still relinquish or abandon his land in favour of the Government. It is because of this position that the ryotwari pattadar was never considered a proprietor of the land under his patta, though he had many of the advantages of a proprietor.

According to Mr. Natu these features of land held as ryotwari pattadar in the South Canara district of Madras are analogous to the rights and liabilities of an occupant in Berar and therefore it is urged that he should not be considered to be holding land which answers the description of ''estate'' within the meaning of Article 31A (2)(a) of the Constitution.

It is not possible to accept this contention mainly because the precise rights in which the tenure-holder like an occupant in Berar holds land under the Madhya Pradesh Land Revenue Code have been the subject-matter of examination by their Lordships of the Supreme Court in Shri Mahadeo Paikaji Kolhe Yavatmal Vs. The State of Bombay, and as shown above the rights of an occupant in Berar governed by the Berar Land Revenue Code of 1928 which was the existing law when Article 81A was introduced into the Constitution are in no way different in view of the pronouncement of their Lordships of the Supreme Court that such an occupant holds land answering the definition of ''estate'' in the existing law relating to land tenures. It is not open now to the petitioners to urge that the landholders-petitioners in these cases were not holding land which was an ''estate''. The case from Kerala is easily distinguishable also because there was no existing law which governed land held by a particular petitioner in Karimbil Kunhikoman Vs. State of Kerala, because they were shown to be holding under leases granted by the Government according to the instructions of the Board of Revenue. There is a world of difference between the status of persons holding land under lease from the Government and occupants in Berar. Under the Berar Land Revenue Code of 1928 which was the existing law in force within the meaning of Article 31A(2)(a) of the Constitution, the petitioners were occupants and not holding land as lessees from the Government. The manner in which the land could be granted by the Government to lessees is separately provided in section 55 of the Berar Land Revenue Code and it is also provided in the same section that the provisions of section 53 and section 54 of the Berar Land Revenue Code will not apply to such lessees. In view of this clear provision of law, it is difficult to uphold the contention of the petitioners that merely because the system of land tenures in respect of un-alienated land in Berar was analogous to the ryotwari system the occupants would be called lessees of the Government or were in any manner analogous to ryotwari pattadars in the South Canara district of Madras.

Shri Natu particularly relied on the provision for relinquishment of land held by an occupant and disposal of the same under sections 60 and 61 of the Berar Land Revenue Code. It is not possible to hold that merely because a tenure-holder is entitled under the law to relinquish a holding, he would any-the-less be the proprietor of the land. This provision is made for preservation of agricultural property and also for protecting the rights of the State as overlord. It is interesting to note that an occupant may relinquish his rights, that is, resign them in favour of the Crown in section 60 of the Berar Land Revenue Code but relinquishment is made subject to any rights, tenures, encumbrances or equities lawfully subsisting in favour of any person other than the Crown or the occupant and a notice is required to be given of such relinquishment. In the case of relinquishment of any sub-division of a survey number u/s 60, the Deputy Commissioner is required to offer the right to occupy such sub-division at such premium as he thinks fit to the occupants of the other sub-division of the same survey number. The land so relinquished by the occupant whether full survey number or a sub-division of the survey number was liable to be disposed of by the procedure prescribed by section 53 which governs the disposal of un-alienated land. It is also noteworthy that what is disposed of u/s 53 of the Berar Land Revenue Code is the right to occupy unoccupied un-alienated land and whatsoever is granted this right gets the rights of an occupant within the meaning of section 54 of the Berar Land Revenue Code. It must be held therefore that land held by the petitioners as landlords came within the local equivalent having the same meaning as estate in the existing law relating to land tenures in force in. Berar within the meaning of Article 31A(2)(a) of the Constitution. In view of this position, the impugned Act or any of its provisions viz. the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, was immune from challenge on the ground that it is inconsistent with, or takes away or abridges the rights conferred by Articles 13, 19 and 31 of the Constitution notwithstanding anything contained in Article 13 of the Constitution.

The learned Additional Government Pleader appearing for the State also relied on the amendment effected in Article 31A by the Constitution (Seventeenth Amendment) Act, 1964, which came into force on 20th June 1964. By this Constitution Amendment Act, sub-clause (a) of clause (2) of Article 31A is substituted as follows. This amendment is expressly made retrospective because it states that it shall be always deemed to have been substituted for sub-clause (a) as follows:

(a) the expression ''estate'' shall in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include-

(i) any jagir, inam or muafi or other similar grant and in the States of Madras and Kerala, any janmam right;

(ii ) any land held under ryotwari settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans.

Relying on this latest amendment to the definition of ''estate'', the learned Additional Government Pleader urged that the land held by the petitioners could in any ease answer the description of third category, viz. land held or let for purposes of agriculture or for purposes ancillary thereto and would be an ''estate'' within the meaning of Article 31A of the Constitution.

The learned counsel for the petitioners has tried to meet this contention urged on behalf of the State by showing that if there was no law relating to land-tenures having the same meaning as the expression ''estate'' or its local equivalent in the existing law relating to land tenures in force, then the amendment effected in Article 31A(2)(a) by the Constitution (Seventeenth Amendment) Act, 1964 should make no difference in the result. What he means is that the Vidarbha Act i. e. the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958, would be an invalid piece of legislation being contrary to and a violative provision of Articles 14 and 31 of the Constitution and would to that extent be a dead piece of legislation, in view of Article 13(2) of the Constitution. The argument is that Article 13(2) of the Constitution expressly prohibits the State from making any law which takes away or abridges the rights conferred by Part III of the Constitution and any law made in contravention of this clause shall, to the extent of the contravention be void. If the law made prior to the introduction of the Constitution (Seventeenth Amendment) Act, 1964, is void because it takes away or abridges the rights conferred by Part III of the Constitution under Article 13(2) thereof, then life cannot be resuscitated in such an Act merely by making the Seventeenth Amendment introduced in the Constitution retro-active. There will be considerable force in this argument were it possible to uphold the earlier contention of the petitioners that under the un-amended definition of ''estate'' in Article 31A(2)(a) there was no local equivalent in the existing law relating to land-tenures to ''estate'' or, in other words, the lands held by the petitioners were not an ''Estate'' within the meaning of that expression in the un-amended provision of Article 31A(2)(a). As I have held that the lands held by the petitioners must answer the description of the expression ''estate'' in view of the local equivalent in the existing law relating to land-tenures in force on the date of the coming into force of the Constitution, this contention must also be rejected.

In view of the position reached, therefore, that Article 31A gives a complete answer to any challenge founded either on Article 13 or Article 14, 19 or 31 of the Constitution, it is not possible for the petitioners to challenge the validity of section 38 (7) of the Vidarbha Act because it is shown to violate or abridge any of the fundamental rights of the petitioners. That challenge must fail on this short ground.

It is therefore necessary now to consider the second argument urged on behalf of the petitioners founded mainly on the construction of the section itself as amended by Maharashtra Act 44 of 1963. The amended provisions have been reproduced above and it would show that the only amendment effected by Maharashtra Act 44 of 1963 in this sub-section of section 38 is the addition of the words ''or partition'' after the word ''transfer'' in two places in the sub-section. The main contention of the petitioners is that a member of a joint family owning property in land by reason of the fact that he is a member of the joint family and partition among the joint family members does not clothe him with any new right of ownership which he did not previously possess. Even after the amendment effected by Maharashtra Act 44 of 1963, it is urged, that disability is created only on that type of tenure-holder who has ''acquired'' any land by transfer or partition after the 1st day of August 1953. The phrase "acquired any land" whether by transfer or partition postulates acquisition of ownership in respect of the land by a person who had no preexisting right of ownership in that land. The use of the word "acquired" has a definite implication which cannot be lost sight of in the construction of subsection (7) of section 38 in spite of the amendment effected therein. According to the learned counsel for the petitioners, a person is said to have "acquired" something when he becomes owner of that thing for the first time as a result of the transaction; in other words, the rights which become vested in a person vis-a-vis piece of property are conferred on him for the first time, if the person is said to have "acquired" that property. It postulates non-existence of those rights in that person prior to such acquisition. The use of the word "acquired" therefore according to the petitioners itself suggests that the sub-section affects that class of tenure-holders who came on the land for the first time as such viz. tenure-holders who did not possess the rights of a tenure-holder prior to the transfer or partition. According to this line of reasoning, the addition of words "or partition" has made no difference as to the class of tenure-holders who are hit by the restrictions imposed in sub-section (7) of section 38 and that class is those tenure-holders who acquired or obtained rights of a tenure-holder for the first time either as a result of transfer or as a result of partition,

It is also urged that even though the amendment was effected in sub-section (7) of section 38, no other amendment is effected so far as this aspect is concerned in other sub-sections of section 38 or other parts of the Act. In this connection special emphasis is placed on the provisions of sub-section (2) of section 38 which still continues to govern the rights of tenure-holders for whom a special provision is made in sub-section (2) of section 38. Subsection (2) of section 38 is as follows:

(2) Where the landlord is of the following category, namely:-

(a) a minor,

(b) a widow,

(c) a serving member of the armed forces, or

(d) a person subject to any physical or mental disability, then, if he has not given a notice and made an application as required by sub-section (1), such notice may be given and such application may be made.-

(A) by the landlord within one year from the date on which (i) in the case of category (a) he attains majority; (ii) in the case of category (c) he ceases to serve in such force; (iii) in the case of category (d) he ceases to be subject to such physical or mental disability; and

(B) in the case of a widow by the successor in title within one year from the date on which the widow''s interest in the land ceases to exist:

Provided that where a person of such category is a member of a joint family the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in that sub-section unless the share of such person in the joint family has been separated by motes and bounds before the prescribed date and the Tahsildar on enquiry is satisfied that the share of such person in the land is separated having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion:

Provided further that where land is held by two or more joint landlords, the provisions of this sub-section shall not apply if at least one joint holder is outside the categories specified in clauses (a) to (d) of this section.

According to the petitioners the land-holders or landlords who are of the specified categories, viz. a minor, a serving member of the armed forces or a person subject to any physical or mental disability, or a widow, have been given a special right to give notice and make an application for possession of land required by section 38 (1), after the date mentioned in sub-section (1) of section 38, which was 15th day of February 1961, till 31st March 1961. Different periods are prescribed for persons in different categories of landlords for whom a provision is made in sub-section (2) of section 38. Under the first proviso to this sub-section the right of giving a notice as provided in clause (A) is made subject to the condition that this facility may not be available to a person under disability unless where a person of such category is a member of a joint family, of whom any other member of such family is outside the categories mentioned in that sub-section. In other words, if a landlord who is a minor, a widow, a serving member of the armed forces or a person subject to physical or mental disability is a member of the joint family, of which at least one or other member is outside this category then this privilege of extended period of giving a notice may not be available. But this exception again is made subject to one contingency and that contingency is that the benefit of the extended period will be restored to such person under disability if the share of such person in the joint family has been separated by metes and bounds before the prescribed date which is the 30th June 1959. In other words, what this proviso means is that if partition by metes and bounds, which is fair and equitable, has taken place by 30th June 1959 in a joint family in which one of the landholders is of the specified categories, that is, a minor, a widow, a serving number of the armed forces or a person subject to any physical or mental disability, then the right of such a person to give notice terminating the tenancy and apply for possession is extended as provided in clause (A) of this sub-section. Now, the argument is if sub-section (7) of section 38 wore to be operative in all cases, including those of persons governed by sub-section (2) of section 38 then the two sub-sections cannot be reconciled so far as the landlords of protected lessees are concerned. Sub-section (2) of section 38 in terms preserves the rights of such landlord to terminate the tenancy and obtain possession where such rights are claimed as a result of partition effected till 30th June 1959 and yet on a literal interpretation of sub-section (7) of section 38 such landlord would not have such rights. The obvious anomaly arising from such interpretation, it is contended, can only be avoided by harmonising the two provisions in such a way as to avoid apparent conflict and contradiction which is only possible by construing sub-section (7) of section 38 which uses the words "acquired any land by transfer or partition" to mean acquired ownership as a tenure-holder for the first time as a result of a transfer or partition and would not apply to tenure-holders who had pre-existing right of ownership or interest in the property as owners.

There is yet another aspect on which also reliance is placed on behalf of the petitioners. The Vidarbha Act was put on the statute book long after the tenancy legislation had been enforced in other part of the then State of Bombay and now of Maharashtra called Western Maharashtra. This legislation was the Bombay Tenancy and Agricultural Lands Act, 1948, which was operative in Western Maharashtra and the Hyderabad Tenancy and Agricultural Lands Act which was in force in the Marathwada districts merged in the bi-lingual State of Bombay as a result of reorganisation of States in 1956. One of the objects stated in the preamble of the Vidarbha Act is to amend the law which governs the relations of landlords and tenants of agricultural lands and sites so far as the Vidarbha Region and the Kutch Area of the State of Bombay are concerned with a view to ''bringing the status and rights of tenants as far as possible in line with those prevailing in certain other parts of the State''. Now, it is not disputed that in the rest of the area of the State of Maharashtra, that is areas other than eight districts of Vidarbha, a tenure-holder or a landholder who acquires land as a result of partition among members of a joint family is not prohibited from terminating tenancies of his tenant if he needs the land bona fide for personal cultivation. There is therefore no reason to hold that the protected lessees in Vidarbha were intended to be given some special protection from eviction at the instance of a tenure-holder who bona fide needed the land for personal cultivation, but who claimed the right to terminate the tenancy and get possession after disruption of the joint family and partition and division of land in the family. There is no such prohibition in the rest of the State of Maharashtra on a tenure-holder and it is contended that there was no reason so to interpret section 38 (7) of the Act as to create invidious distinction between one class of tenure-holders or landlords and others when the obvious intention of the Legislature was to bring the law relating to landlords and tenants in Berar on par with that in the rest of the State of Maharashtra.

The learned counsel for the respondents and the State have resisted this interpretation of section 38 (7) on the ground that the word "acquired" is used in a loose and comprehensive sense in section 38 (7). It is in the sense of ''obtained'' or ''got'' and the word ''acquired'' has no special significance and should be interpreted accordingly. If so interpreted, it would only mean that a tenure-holder who obtains land by transfer or partition would be prohibited if such land is obtained after 1-8-1953 by evicting the lessees who were already on land prior to that date.

It is next urged that a member of a joint family who acquires land on partition cannot be said to be a tenure-holder who has acquired any land by transfer. Elaborating this contention, it is pointed out that the word "tenure-holder" has a special meaning given to it under the Madhya Pradesh Land Revenue Code in section 2 (20) which means a Bhumiswami or a Bhumidhari. What is urged is that unless a member of a joint family who acquires land as a result of partition is regarded as a Bhumiswami, he cannot be said to be a tenure-holder who has acquired land by transfer or partition, and therefore, is not saved from the mischief of this section. Prior to partition or disruption of the joint status a member of a joint family has not the status of a tenure- holder, but the tenure-holder, would be the joint family or at the most the head of such family. As an individual member of a joint family would not himself be a tenure-holder until after partition and correction of the record-of-rights, it cannot be said that a member of a joint family would be a tenure-holder entitled to give notice terminating the tenancy or get possession u/s 38 (1) of the Vidarbha Act. There is no substance in this contention.

Section 38(7) of the Vidarbha Act, prior to its amendment by Maharashtra Act XLIV of 1963 came to be interpreted in several decisions of the Maharashtra Revenue Tribunal at Nagpur on the question whether the word ''transfer'' in that section included partition among members of a joint family. The Maharashtra Revenue Tribunal took a view in a series of decisions that transfer included partition among the members of a joint family and therefore a person who claimed to terminate the tenancy of a tenant on the ground that he bona fide required the land for personal cultivation after the field or land under the tenancy was allotted to his share at such partition was held not entitled to do so if partition took place after 1-8-1953, while the tenant was on the land prior to the date of partition.

The matter was therefore considered by a Full Bench of this Court in Special Civil Application No. 319 of 1961 with some other Special Civil Applications which came to be decided on 18-2-1963. According to the Full Bench decision, partition was not a transfer within the meaning of section 38 (7) of the Vidarbha Act. In reaching this conclusion, the Pull Bench observed as follows in paragraph 6 of its judgment: (1963 Mh. L. J. 289)

Mr. Dharmadhikari has, therefore, argued that as the person to whom a land is allotted on partition, acquires by the process of partition the interest of other coparceners in that land, he can be said to have acquired that land on partition. This argument is not correct, for, as observed by the Privy Council in Musammat Girja Bai v. Sadaehiv Dhundiraj AIR 1913 P. C. 104 : 43 I A 151 at p. 161, partition does not give him a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers. At page 159, their Lordships have quoted Sarkar''s translation of a passage in Biromitrodaya by Mitra Misra which is as follows:

For partition is made of that in which proprietary right has already arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what effected by partition is only the adjustment of the proprietary right into specific shares.

Partition does not therefore, give the person, to whom a land is allotted, any new title or create a title in him to that land. He was already the owner of the land along with other coparceners and partition only enables him to acquire exclusive title to that land. As, therefore, in the words of the Privy Council, partition only enables him to obtain in a definite and specific form the land which was his own, it cannot be said that he has acquired that land. By the process of partition, he no doubt acquires the interest of other co-sharers in that land, but the words in the sub-section are ''acquired any land'' It does not contain the words ''or any interest therein'', such as are used in section 119B.

In subsequent paragraph the Full Bench referred to another difficulty in accepting the contention of the tenant because of the conflict between sub section (2) and sub-section (7) of section 38. In this context, the learned Chief Justice observed as follows:

Under sub-section (7), a tenure-holder, who has acquired any land by transfer after August 1, 1953, has no right to terminate the tenancy of the tenant, who is a protected lessee and whose right as such protected leasee had come into existence before the transfer. This sub-section applies to protected tenants only, while sub-sections (1) and (2) apply to all tenants including protected tenants. As pointed out above, sub-section (2) gives a right to a person, who belongs to one of the categories referred to in this sub-section, to terminate the tenancy of his tenant, even if he is a protected tenant, after June 30, 1959, if his share in the family property has been separated by metes and bounds before this date. He would be able to exercise this right, even if the partition has taken place after August 1, 1953, but before June 30, 1959. This right will not be available to him at least in respect of protected tenants if partition has taken place after August 1, 1983, and is regarded as a transfer. If it had been the intention of the Legislature to treat partition as a transfer the date specified in the proviso to sub-section (2) would have been the same as is mentioned in sub-section (7), viz. August 1, 1953. The usual rule of interpretation is to read the different provisions of an Act in such a manner as to avoid a conflict between them If, therefore, sub-sections (2) and (7) are to be reconciled, as they should be, the word, ''transfer'' as used in sub-section (7) cannot be held to include a partition.

In paragraph 9, the Full Bench also has answered one of the submissions made on behalf of the respondents-tenants in this case also viz. that the legislation being specially enacted for the benefit of tenants should be interpreted in their favour as far as possible. With regard to such contention the learned Chief Justice observed:

It is however necessary to remember that while the Act imposes several restrictions on landlords, it also contains provisions enabling the landlords to obtain possession of then lands on certain grounds, subject to the conditions specified in the Act The object of the Act cannot, therefore be said to have been frustrated, if the restrictions on the landlords are not extended beyond those, which are imposed by the Act.

The question that falls for consideration therefore is whether the manner in which the amendment is effected in sub-section (7) of section 38 alters and if so, to what extent the right of a tenure-holder or landlord who acquired land as a result of partition effected after the tenant was inducted on land while the property was joint family property. It is to be remembered that excepting the addition of the words, "or partition," after the word ''transfer'' change has not been effected either in the structure of sub-section (7) or in any other sub-section of section 38 or in any other part of the Act so far as is material and relevant in construing the effect and ambit of the change brought about by the amendment in sub-section (7) of section 38 by the Maharashtra Act XLIV of 1963.

It would thus appear that the restriction is still confined to a tenure-holder who has acquired any land by transfer or partition after the 1st day of August 1953 vis-a-vis the protected tenant. In my judgment, the manner of acquisition or the event which entitles a tenure-holder is indicated in subsection (7) of section 38 as ''acquisition of land''. Now, the word ''acquisition'' and the verb ''acquire'' have a definite meaning recognised in judicial pronouncements whenever used in a statute relating to property. One of the reasons which has been accepted by the Full Bench of this Court in interpreting this un-amended section 38 (7) of the Vidarbha Act was the use of the word ''acquired'' in sub-section (7) which is even now retained after the amendment. According to the Shorter Oxford Dictionary, ''to acquire'' means to gain or to get as one''s own (by one''s own exertions or qualities). Its secondary meaning is to receive or to come into possession of. The use of the word ''acquire'' necessarily postulates a change of relationship vis-a-vis thing or property which is said to be acquired and which was not existing before. The notion of ownership of property implies various component rights viz. that of possession, enjoyment, destruction, alienation, exclusion and others incidental to the right of ownership. A person who acquires a thing or property gets this right for the first time from someone else otherwise the use of the word acquire is inappropriate and will not convey the correct meaning. In this context the decision in Starey v. Graham 1899 (1) Q. B. 406 may be useful. In that case the question was whether a person who had been bona fide in practice as a patent agent prior to the passing of the Patents, Designs and Trade Marks Act, 1888, and who was consequently entitled under the Act to be registered as a patent agent could be said to have acquired a right which was saved from the operation of the Act by section 27. The petitioner claimed that having bona fide acted as a patent agent and in practice as such prior to the passing of the Act he was entitled to be registered without payment of fees because he had acquired a right u/s 27. Section 27 had a saving clause which protected the right of a person for an act done, right acquired or liability incurred before the commencement of this Act, and the question that was posed was whether a person could be said to have ''acquired'' any right merely because he was in practice as a patent agent. In negativing the contention, the High Court observed as follows:

The answer to that seems to mo to be that ''right acquired'' moans some specific right which in one way or another has been acquired by an individual, and which some persons have got and others have not got. It does not mean ''right'' in the sense in which it is often popularly used. In one sense, no doubt, every one has a right to do that which the law does not forbid. Every one has a right to wear spectacles, for instance, but he does not acquire a right to wear them by the fact that ho docs wear them. He is only doing something which the law does not forbid; and if a law wore passed forbidding people to wear spectacles, everybody would stand in precisely the same position whether they had in fact been wearing them before the Act or not. If a person has been wearing them he has done so not because he had acquired a right to wear them, but merely because the law had not forbidden him to do so. In the same way, before the passing of this Act, anybody had a right to call himself a patent agent, that is to say, the law did not forbid him to do so. A right enjoyed in that way is not, within the meaning of this saving clause, a ''right acquired''.

The question came up in another form before their Lordships of the Supreme Court when called upon to interpret the provisions of the Bihar Private Forests Act in Guru Datta Sharma Vs. State of Bihar, . The question before the Supreme Court was whether the Government could be said to have ''acquired'' property within the meaning of section 299 (2) of the Government of India Act, 1935, when the Government took the management of private forests under the Bihar Act. In repelling the contention of the petitioner, that taking land for management amounted to acquisition, their Lordships observed in paragraph 30 of the judgment as follows after referring to the decision of the Belfast case 1960 A C 490:

We consider the principles laid down in the Belfast case 1960 A C 490 apt as an aid to the construction of the content of the expression ''acquired'' in section 299 (2) of the Government of India Act, 1935. The contention urged by the learned counsel for the appellant that deprivation of the land-holder of the right of management and control over the forest without his legal title thereto or beneficial enjoyment thereof being affected amounts to acquisition of land within section 299(2) of the Government of India Act, 1935 must be rejected. The extract we have made earlier from the judgment of Viscount Simonds affords a sufficient answer to a submission that the right of the landholder to possession was itself a right of property and as this had been taken over it constituted an acquisition within the constitutional provision. Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include the right of possession, the right to enjoy, the right to destroy, the right to retain, the right to alienate and so on. All these of course, would be subject to the relevant law-procedural or substantive- bearing upon each of these incidents, but the strands that make up the total are not individually to be identified as those constituting ''property''. So understood, there is no scope for the contention that the imposition, so to speak, of a compulsory Governmental agency for the purpose of managing the forest with liability imposed to account for the income as laid down by the statute is an ''acquisition'' of the property itself within section 299(2) of the Government of India Act, 1935.

In arriving at this conclusion, their Lordships have considered the previous decision of the Supreme Court reported in Dwarkadas Shrinivas of Bombay Vs. The Sholapur Spinning and Weaving Co. Ltd. and Others, to which reference was made by the learned counsel for the respondents even in this case. It would therefore appear that whenever property is said to be ''acquired'' it postulates absence of pre-existing right in the property and the change as a result of acquisition must mean getting ownership of the property with all its component incidental rights. The Calcutta High Court has taken a similar view in Sasadhar Chandra Day and Others Vs. Sm. Tara Sundari Dasi and Others, . In this case the provision under consideration was section 14 (I) and (2) of the Hindu Succession Act, 1956. It was held that a property is said to be acquired when prior to the acquisition the person acquiring it had no interest in the property. The donee of a gift or the devisee under a will acquires the property because prior to the gift or devise he had no title or right to the property which he gets as gift or devise. This decision is also useful regarding the view of that Court as to the rights of members of a joint family and the effect of partition of the family property. In this context the Court observed as follows:

The disruption of a Hindu co-parcenary by partition results in the distribution of the co-parcenary property amongst the co-parceners to be enjoyed by each in severalty. In order to ensure separate possession and enjoyment by each the other co-parceners cease to have title on properties not allotted to them. No co-parcener acquires any new property by partition. In lieu of his undivided share in the whole estate he is given exclusive right in the properties allotted. There is no new acquisition of property by any coparcener. It is immaterial that in the case of Dayabhaga co-parcenary there is no unity of ownership but only unity of possession and enjoyment. A co-parcener might have his defined share in the coparcenary property during the subsistence of the coparcenary. On disruption, his interest in the coparcenary is crystallised in the coparcenary property allotted to him. He does not acquire the property. Nor does the allotment amount to acquisition of the shares of the other co-parceners in that property.

With respect, the effect of partition must he held to be so as observed in this decision. It is precisely on this principle that this Court in the Full Bench case has already held that a person cannot be said to have acquired property as a result of partition.

A similar view of the meaning of the word ''acquire'' used in the tenancy legislation is accepted in the Kerala High Court in Narayanan v. Sinaba AIR 1956 TC 397. The question there was whether a person could be said to have acquired interest in the holding of a verumpattamdar in the case of devolution of right on the heirs of the deceased lessee. Rejecting this contention it was observed:

The word ''acquired'' signifies the obtaining of title as a result of a positive act done by the acquirer and will not apply to a case where, on account of death, the right devolves upon the heirs of the deceased losee.

In the case of the members of a joint family who have pre-existing rights in the property itself it could hardly be said that they acquired land or property in the sense in which the word ''acquired'' has to be understood as a result of partition.

The question then arises as to what is the effect of the amendment made by Maharashtra Act XLIV of 1963. The respondents'' contention is that the amendment was necessary precisely because the Full Bench of this Court interpreted un-amended sub-section (7) of section 38 as not covering acquisition of land by transfers and the effect of the amendment would be rendered nugatory if the same result is to follow because of retention of the word ''acquired''. It does not appear to be the intention of the Legislature to debar every kind of tenure-holder intending to terminate the tenancy of his tenant in respect of land obtained by partition. The retention of the phrase ''acquired land'' does not fit in with any such intention being attributed to the Legislature. The decision of the Full Bench was well-known and must be presumed to be known to the legislators and it was clearly held that a person does not acquire land by partition, because a member of a joint family is already an owner of land and he does not become an owner as a result of partition. The anomaly of the conflict which was pointed out between sub-section (2) and sub-section (7) of section 38 was also pointedly referred to in the decision of the Full Bench, but the Legislature did not think it advisable to make any change in sub-section (2) of section 38. If it was the intention of the Legislature to exclude all tenure-holders from terminating the tenancies in respect of lands as a result of partition, retention of sub-section (2) of section 38 in the form in which it was originally enacted and continuing the use of the phrase ''acquired land by transfer or partition'' indicate that the addition of the word partition is intended to restrict its effect only to those classes of tenure-holders who did not have any right in the property or pre-existing right in land prior to partition but got such right of ownership for the first time as a result of partition. It is not disputed that the partition may create rights for the first time in persons who had no pre-existing rights; but where a member of a joint family had preexisting right in property, partition cannot be said to create or confer the right of ownership on such person having pre-existing right in the property so as to fit in with the use of the phrase ''acquired land by transfer or partition''. It is not difficult to conceive of cases where a person not having any right in property prior to partition got such right as a result thereof in the property. It is not that every member of a joint family has a right in the property of the family. that right depends on his or her relationship with the family and whether the right is acquired by partition or by marriage or some other event which creates such a right. The right to partition postulates pre-existing right in the property. The Tenancy Act i. e. the Vidarbha Act defines a person as including joint family and joint family is defined as meaning an undivided Hindu family. By and large, there would be very few other persons or groups or units the members who by custom or usage are joint in estate or residence and would therefore conform to the definition of joint family in the Tenancy Act. The very concept of a joint family as an undivided Hindu family which has been specially defined shows that the Legislature was fully aware of the incidents of right to property among the members of an undivided Hindu family. The awareness of the Legislature in this regard is patently brought out by some special provisions made in the Act itself. Section 38 (2) is one such provision where special rights which are created in favour of a minor, or a widow, or a serving member of the armed forces or a person subject to any physical or mental disability are protected if such a person is a member of a joint family. Another indication is found in the provision made in section 38 (3) (d). Under this sub-section one of the conditions required to be satisfied by the landlord is that the land leased stands in the record-of-rights or in any public record or similar revenue record on the 1st day of August 1957 and thereafter during the period between the said date and the date of the commencement of the Vidarbha Act in the name of the landlord himself or any of his ancestors. But from this requirement, persons who succeed to the property by succession are excluded. This obviously shows that the Legislature was aware that the members of an undivided Hindu family who have unity of ownership, possession and enjoyment of the property may not have their names reflected in the record-of-rights on the date mentioned and that the names of their ancestors from whom they claimed right by survivorship may be in the records. This specific provision is in sharp contrast with those classes of landholders who do not get benefit of the names of their predecessors-in-title being in the record-of-rights on the prescribed dates because title is derived by succession or by transfer.

All this discussion will, therefore, show that retention of the words ''acquired land by partition'' must be given their full meaning and a person cannot be said to acquire land by partition if partition is amongst the members of an undivided Hindu family who were already owners of the property. What takes place as a result of partition is the change in the mode of enjoyment. As observed by the Privy Council in Girja Bai''s case AIR 1916 P. C. 104 : 43 I A 151 at p. 159.

In Hindu Law, ''partition'' does not mean simply division of property into specific shares; it covers, as pointed out by Lord Westbury in Approver''s case 11 M. I. A. 71 both ''division of title and division of property." In the Mitakshara, Vijnaneswara defines the word ''vibhaga'' which is usually rendered into English by the word ''partition'', as the ''adjustment of divers rights regarding the whole by distributing them in particular portions of the aggregate''. Mitra Misra explains in the Viromitrodaya the meaning of this passage;

''he shows that the definition of Vijnaneswara does not mean exclusively the division of property into specific shares as alone giving right to property, but includes the ascertainment of the respective rights of the individuals, who claim the heritage jointly.

He says; "For partition is made of that in which proprietary right has (sic) arisen, consequently partition cannot properly be set forth as a means of proprietary right. Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares.

...So far as their Lordships are aware, nowhere in the Mitakshara is it stated that agreement between all the coparceners is essential to the disruption of the joint status or that the severance of rights can only be brought about by the actual division and distribution of the property held jointly. If this were so and there were minors in a joint undivided family, partition would be impossible until they had all attained majority, a position which is expressly combated and negatived in the Viromitrodaya. In fact later writers leave no room for doubt that ''separation'' which means the severance of the status of jointness, is a matter of individual volition. For example, Nilkantha, the author of the Vyavahara Mayukha expressly lays down that ''even when there is a total absence of common property a partition is effected by the mere declaration ''I am separate from thee'', for partition is a particular condition of the mind, and the declaration is indicative of the same.....But the following gloss is the Viromitrodaya appears to their Lordships conclusive on the rule of law under the Mitakshara. ''Here again'', it says, ''partition at the desire of the sons which expression includes ''Grandsons and great-Grandsons'' whether in the life-time of the father or after his demise, may take place by the choice of a single coparcener, since there is no distinction.

Later on at page 161, their Lordships referred to Madko Parshad v. Mehrban Singh (sic) 17 I A 194 and observed:

Partition does not give him a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form for purposes of disposition independent of the wishes of his former co-sharers.

It is therefore clear to my mind that even after making the amendment in section 38 (7) by the addition of words ''or partition'', the Legislature did not intend to bring within the mischief of the section by this amendment, the rights of those landlords who were owners of property from before and who chose to divide property as a result of partition which was only choosing a different mode of enjoyment of the property. On the other hand, what is intended to be hit even after the amendment is that class of landlords who would acquire the property for the first time as a result of partition or under the cloak of partition. This may happen, for instance. if a Hindu father in respect of his separated or self-acquired property effects a partition of that property between himself and his sons and in such property the sons may have no interest before -the partition but they acquire interest for the first time as a result of partition effected by the father in respect of what was his sole property. This may also happen in the case of other similar partitions effected by persons who are sole owners of property who want to share it after partition with their close'' relations out of love and affection or for any other reason. In my judgment, the addition of words ''or partition'' must be confined to that class of partition where the landlord gets a right in the property for the first time as a result thereof and does not include a landlord who has pre-existing right in the property as an owner because such landlord could not be said to be acquiring land as a result of partition. There is another reason why such construction seems more consistent with the retention of the words ''transfer and partition''. In construing the sub-section it would be permissible for the petitioners to say that the use of the word partition must take its colour from the context associated with the word transfer. The phrase being ''acquired any land by transfer or partition'', acquisition of land by transfer postulates acquiring or be coming owner of property as a result of transfer. The association of the word partition with transfer in this context must therefore lead to the inference that the use of the word partition was also intended to be understood in the same sense as transfer. This mode of construction and inference would be permissible in view of the fact that no other change has been made in the structure of sub-section (7) of section 38 in spite of the view taken by the Full Bench of this Court that the use of the word ''acquisition'' points out to obtaining rights of ownership for the first time.

It has also been argued on behalf of the petitioners that one of the objects of enacting the Vidarbha Act was to bring the law relating to landlords and tenants of agricultural lands in this area in line with the status and rights of tenants prevailing in other parts of the State, that is principally in the Western Maharashtra and Marathweda districts of the former State of Hyderabad which were merged first in the Bombay State and then in the Maharashtra State. Now, there is no doubt that the Bombay Tenancy and Agricultural Lands Act, 1948, which is an analogous legislation on the subject of landlords and tenants of agricultural lands does not disentitle a member of an undivided Hindu family to make an application u/s 29 read with section 31 on the ground of partition. This has been so held by a Division Bench of this Court in Special Civil Application No. 104 of 1961, decided on 16-6-1961 reported in Arwindlal v. Khandu 1962 N L 3 65. In that case, the petitioner was a member of a joint Hindu family which owned about 420 acres of land. On 20th December 1956, a partition was effected in which 12 acres, 19 gunthas of land fell to the share of the petitioner including the lands of the tenants against whom applications were made by the petitioner to the Mamlatdar for possession as being required bona fide for personal cultivation. The Mamlatdar allowed the applications and that order was affirmed by the Deputy Collector but the orders were set aside by the Revenue Tribunal on the grounds that there was no compelling necessity for valid partition which made it necessary for the members of the family to separate from one another. Repelling this view, the learned Chief Justice delivering the It is not necessary in law that any necessity for making a partition should exist. Since questions regarding partitions have arisen in many cases both in applications made u/s 29 and u/s 88C of the Tenancy Act, we consider it necessary to state what the correct position in law is. In Hindu law partition means severance of joint status. It consists in defining the shares of the coparcener in the joint property and actual division of the property by metes and bounds is not necessary. Once the shares are defined, the partition is complete. The property ceases to be joint immediately the shares are defined and thenceforth the parties hold the properties as tenants-in-common see Mulla''s Hindu Law 1959 Ed. pp. 492-493. Every member of an undivided Hindu family has an indefeasible right to demand a partition of his own share and he may assert his right at any time ho chooses. Partition does not give him a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form. It is not necessary that any necessity should exist or that there should be any circumstances which compel him to ask for separation. He may ask for separation for any reason he deems proper. But whatever be the reasons, on account of which he wants severance, his right to obtain and possess the share, to which he is entitled, cannot be denied. The other members of the family must submit to it, whether they like it or not.....The motive or the reasons, on account of which partition is effected, have, therefore, no bearing on its validity....

* * * *

The Tenancy Act does not take away or restrict the right given by law to members of an undivided family to effect a partition. Sub-section (2) of section 31 specifies March 31, 1957, as the last date, before which a landlord, who wants possession of his land either for personal cultivation or for any non-agricultural purpose, must make an application to the Mamlatdar. Sub-section (3) extends this date in cases in which the landlord is a minor, a widow or a person subject to mental or physical disability, or a serving member of the armed forces. The proviso to this sub-section states that this sub-section shall not apply, if a person of such category is a member of a joint family, unless the share of such person in the joint family has boon separated by metes and bounds before March 31, 1958, and unless such person has got his proper share and not larger one in the entire joint family property. Similar provisions have been made in the proviso to clause (a) in sub-section (1) of section 32F and in the proviso in sub-section (4) of section 33A recently added to the Act. By these provisions the Legislature has, therefore, conferred benefits on persons, falling in the above categories, in whose cases partition had been made before March 31,1958. It is, therefore, clear that the Legislature intended that partition should have its ordinary legal effect oven for purposes of the Tenancy Act....

I consider myself bound by these observations and similar considerations must lead to an inference that in spite of the amendment effected in section 38 (7) but in the absence of any amendment either in the preamble or in section 38 (2) of the Vidarbha Act, it would not have been the intention of the Legislature to make violent departure from the law of the land which recognised the right of the members of an undivided Hindu family to choose a different mode of enjoyment of property by effecting a partition of the property of which they were already owner.

It is also to be remembered that the impugned Act is immune from challenge on the ground of violation of any of the fundamental rights of the citizens after incorporation of Article 31A of the Constitution. There is no valid reason why any piece of tenancy legislation avowedly put on the statute book to bring the law relating to the landlords and tenants of agricultural lands in line with similar statutes governing landlords and tenants of agricultural lands in the rest of the State should be so interpreted as to make an invidious distinction between the rights of landlords in this region as against the rights of landlords and tenants similarly situated but in other parts of the State, only in the matter of consequences flowing from partition among members of an undivided Hindu family. On the other hand, it would be more in consonance with the well accepted principle that the Legislature knows the needs of its people and their interests and could not be attributed with making a law ex-facie containing discriminatory provisions, and no other interpretation ought to be put on section 38 (7) after the amendment should be accepted. It is true that no provision of this Act is liable to be challenged on account of Article 31A of the Constitution but that is all the more reason why Courts will be slow to attribute an intention to the Legislature in making a law which would be patently discriminatory knowing full well that the citizens or persons affected by the law will have no remedy or relief normally open under the Constitution in respect of such a provision on the statute. If the intention of the Legislature is to be gathered therefore it will more be appropriate not to attribute an intention to make discriminatory law with regard to the same matter in a piece of legislation specially enacted to make a provision on the same topic in this region on the lines of similar law in the rest of the State.

It must therefore be held in the case of all those petitioners who have pre-existing rights in the family property as members of an undivided Hindu family are not affected by partition of joint family property whether effected after 1st day of August 1953 or not in respect of lands held by protected lessees from the date prior to the date of such partition and section 38 (7) would be no bar to their making an application for possession of the land after terminating the tenancy of such protected tenants. As all these cases have been decided on the main ground that the amended provision of section 38 (7) barred the right of such petitioners, the orders based on this view of section 38 (7) are liable to be quashed.

I therefore quash the orders of the Maharashtra Revenue Tribunal in all these cases and the cases are remanded to the Tribunal for a fresh decision according to law in view of what has been stated above. The Tribunal shall examine each case and find out whether the decision of the subordinate authorities is also based only on the interpretation of section 38 (7) and not on merits of the decision of other contentions raised by the parties. If it is found in any case, that the decision of the Naib-Tahsildar or the appellate authority is based solely on the interpretation of section 38 (7), regarding partition, the Tribunal in its turn will quash the orders of the subordinate authorities and send back the case for a fresh disposal to the Naib-Tahsildar for decision according to law on other matters. On the other hand, if it is found that in any case other contentions raised between the parties have also been decided then the Tribunal may either retain the case on its file or finally decide the revision application or pass appropriate orders according to the merits of each Case and decide whether the matter should be remanded for decision of any of the subordinate authorities.

In view of the Tribunal''s order having been quashed purely on the question of interpretation there will be no order for costs in any of these cases.