Bombay High Court
Shri Raghunath Mahadeo More vs 1. Sukhdeo Shivba More (Decd.) By ... on 10 December, 2015
Bench: M.S. Sonak
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 532 OF 1988
Shri Mahadev S. More
(since deceased by his heirs and
legal representatives
1A. Raghunath M. More and ors.)
and anr. .. Petitioners
vs.
Shri. Sukhdeo S. More
(since deceased by his heirs and
legal representatives
1A. Smt. Sushila S. More and anr.) .. Respondents
Mr. U.R. Mankapure for the Petitioners.
Mr. D.S. Sawant for the Respondent No.1(A) and 1(F).
AND
SECOND APPEAL NO. 567 OF 2005
Shri. Raghunath M. More .. Appellant
vs.
Shri. Sukhdeo S. More
(since deceased by his heirs and
legal representatives
1A. Smt. Sushila S. More and anr.)
and others. .. Respondents
Mr. U.R. Mankapure for the Appellants.
Mr. R.P. Walvekar for the Respondent No.1(A).
CORAM : M. S. SONAK, J.
Date of Reserving the Judgment : 26 November 2015.
Date of Pronouncing the Judgment : 10 December 2015.
JUDGMENT :-
1] This Court by order dated 3 May 2005 had directed that the
writ petition and the second appeal be clubbed and heard together.
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The reason for this was set out in the order dated 3 May 2005,
which reads thus:
1. This Petition was heard extensively for final decision
and during the course of hearing it was pointed out that
Civil Application No. 1289 of 1995 came to be decided by
the learned III Additional District Judge at Satara on
31.1.2005. The Appeal was allowed by setting aside the
judgment and decree passed by the Trial Court on
31.8.1994 in RCS No. 105 of 1972. The Appellate Court
has declared that the Plaintiffs Sukhdeo Shivba More, his
sister Parvatibai, brother Shidu and Arjuna has 1/8th
share and Defendant No. 1 Mahadeo Shripati More
represented by his legal representatives has ½ share in the
property. This decree of the Lower Appellate Court has been
challenged in Second Appeal under Stamp No. 8323 of
2005 filed on 30.5.2005 before this Court by the present
Petitioners.
2. The dispute in the said proceedings as well as in the
proceedings giving rise to the impugned order in this
Petition are properties of Shankar and succeeded by his
wife Anubai, who died on 21.1.1971 and the couple did
not bear a child. On her demise, Shankar's 3 cousins, i.e.
Shivba, Mahadu and Balu would have equal share in the
property of Shankar but Shivba died in 1957 and Balu
died in 1962. The claim of the Respondents in the property
of Shankar is based on, inter-alia, the provisions of section
3-1(a) of the Hindu Succession Act, 1956. It was claimed
that on the demise of Shivba, his wife Sonabai was alive as
on 21.1.1972 and, therefore, alongwith Mahadu, Sonabai
had half share in the property of Shankar as per the
Respondents. This position has been accepted by the Lower
Appellate Court but the present Petitioners have challenged
the said decree in the Second Appeal.
3. The record reveals that Balu's wife Gopikabai was
also alive on 21.1.1972 and, therefore, the property of
Shankar would be subject to division in 3 equal parts,
namely, Mahadu-1/3rd, Shivba represented by his wife-
1/3rd and Balu represented by his wife Gopikabai-1/3rd.
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4. Under such circumstances, this Petition cannot be
decided unless the pending Second Appeal is heard and
decided finally. It prima facie shows that in the decree
passed by the Lower Appellate Court, the share of Balu
succeeded by his wife, who was alive on the date of
Anubai's death, has not been considered. Both the learned
counsel for the respective parties had fairly conceded that
all the proceedings pending before this Court, could be
amicably settled, but inspite of their sincere efforts, there
has been no response more particularly from the
Respondents.
5. Registry, is therefore, directed to club this Petition
with Second Appeal under Stamp No. 8323 of 2005.
2]
The learned counsel for the parties submitted that it would be
appropriate if Second Appeal No. 567 of 2005 is taken up for
hearing first. In case, Second Appeal No. 567 of 2005 is to be
allowed, there would arise no necessity of taking up Writ Petition
No. 532 of 1988 for consideration.
3] The Appellants and the Petitioners in the appeal and petition
are one and the same. In the Appeal, the Appellants have claimed
sole and exclusive ownership to the suit property. In the petition, the
Petitioners have claimed to be the agricultural tenant in respect of
the suit property. Mr. Umesh Mankapure, learned counsel appearing
for the Appellants - Petitioners, has submitted that it is permissible
for the parties to raise such alternate pleas without prejudice to one
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and another. He has submitted that in case, the claim in the appeal
fails, it would be necessary to consider the claim in the petition.
However, if the claim in the appeal succeeds, there would not be no
necessity to consider the claim in the petition.
4] Although, the second appeal was admitted on 2 July 2009,
when the matter was taken up for final hearing on 29 January 2015,
it transpired that no substantial questions of law as contemplated by
Section 100 of Code of Civil Procedure, 1908 (CPC) were framed, at
that stage. Accordingly, by order dated 29 January 2015, the
following substantial questions were framed and final hearing was
deferred, in order to afford the learned counsel for the parties,
further opportunity to address on the same:
a) Whether, since only the original Defendant No. 1,
Mahadu was alive on the date of death of Anubai in 1972
and no other male members of the family as described under
Section 14 and 16 of the Hindu Succession Act, 1956 were
alive on the said date, the property of late Anubai ought to
have been only upon Madhu and not others ?
b) Whether the death extract, neither exhibited nor
produced in the course of evidence could have been relied
upon in preference to admission by the Plaintiff and his
witnesses ?
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5] For the purposes of appreciating the contentions raised in this
appeal/petition, it is necessary to refer to the following admitted
genealogy :
NARU
!
----------------------------------------------!---------------------------------------------
! ! ! ! !
Savla Tatyaba Gopal Shripati Rama
! ! given in ! !
! (Vithabai) adoption ----------- !
Shivba - (Sonabai) ! Shankar
died on
!
ig22.1.72
!---------------------------! Died
! Mahadu Balu on 1927
----------------------------- (D.1) ! !--------!
! ! ! ! -----------! !---- wife
Tukaram Sukhdeo Shindu Arjun ! Anubai
(given (Plff.) (D.4) (D.5) Ganpati died on
in (Dft.2) (21.1.72)
adoption.
6] Sukhdeo S. More instituted Regular Civil Suit No. 105 of 1972
against Mahadu seeking partition and separate possession of half
share in the suit property. This was on the basis that Naru, the
predecessor-in-title of the parties, had in all five sons, out of which,
Gopal had been given in adoption to another family. Thereafter there
was partition between four sons of Naru and each were placed in
possession of separate shares of the property held by Naru. Tatyaba
died some time in 1936 and was succeeded by his wife Vithabai.
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Upon demise of Vithabai, her share, was succeeded to and divided
between Sukhdeo's father Shivba, Mahadu and Shankar's wife
Anubai. Anubai died on 21 January 1972, issuless and intestate. In
terms of Section 15(2) of the Hindu Succession Act, 1956 (said Act),
since Anubai had inherited the suit property from her husband
Shankar, the same was required to devolve upon the heirs of
Shankar. Sukhdeo and Mahadu being the only legal heirs of Shankar
are entitled to half share each, in the suit property. Hence, the claim
for partition.
7] Mahadu, on the other hand, claimed that he was the only
surviving legal heir of Anubai and Shankar, as, on the date of demise
of Anubai on 21 January 1972, Sonabai, i.e., wife of Shivba was not
living. In this regard, reliance was subsequently placed upon the
statement of Sushila (Plaintiff No.1A) in the course of evidence that
Sonabai had expired one day prior to demise of Anubai. In the
alternate, Mahadu claimed that he was a Class-II heir and therefore,
in terms of Section 8 read with Schedule to the said Act, was entitled
to priority over any legal heirs claiming under Shivba and Sonabai.
Apart from all this, Mahadu had raised an independent claim that
he was the agricultural tenant in respect of suit property and
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therefore, there was no question of claim of Sukhdeo claiming any
rights to the suit property after the Tiller's day, i.e., 1 April 1957 in
terms of provisions of the Maharashtra Tenancy and Agricultural
Lands Act, 1948 (Tenancy Act).
8] The Civil Judge, Junior Division at Vaduj (Trial Court)
dismissed the Regular Civil Suit No. 105 of 1972 instituted by
Sukhdeo. In Regular Civil Appeal No. 128 of 1995, instituted by
Sukhdeo, however, III Additional District Judge, Satara (First Appeal
Court) has set aside the judgment and decree dated 31 August 1994
and decreed the Regular Civil Suit No. 105 of 1972, in the following
terms:-.
(A) It is hereby declared that Plaintiff, defendant No.3,
defendant No.4 and defendant No. 5 each has 1/8 th share
and defendant No. 1 had ½ share in the suit properties
described in Para-2A and 2B in the plaint.
(B) The Plaintiff is entitled for partition and separate
possession of the suit properties described in Para-2B in the
plaint as per his share through Court Commissioner.
(C) The Plaintiff is entitled for partition and symbolic
possession of the suit lands described in Para-2A in the Plaint
as per his share. However, if tenancy issue finally decided in
his favour then, he is entitled for physical possession of the
suit lands as per his share.
(D) Partition of the suit lands described in Para 2A in the
plaint be effected accordingly through the Collector of this
District or any subordinate Gazetted Officer appointed by
him in this behalf.
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9] Similarly, the Authorities under the Tenancy Act, i.e.,
Tahsildar, Sub-Divisional Officer (SDO) and the Maharashtra
Revenue Tribunal (MRT) have concurrently held against Mahadu, in
the matter of claim of tenancy to the suit property. The Authorities
have further held that on Tillers' day, i.e., 1 April 1957, even as per
the case set out by Mahadu, the landlady Anubai was a widow and a
disabled landlady. The Tillers' day and the consequently right to
purchase the suit property, therefore, stood postponed. There is no
record of Mahadu issuing necessary notice with regard to intention
to purchase the suit property within a period prescribed under
Section 32-F of the Tenancy Act. Accordingly, Mahadu is not entitled
to claim the tenancy and/or right to purchase the suit property
under the Tenancy Act.
10] Mahadu and now his legal representatives are pursuing Writ
Petition No. 532 of 1988 questioning the decisions of the Authorities
under the Tenancy Act with regard to claim of tenancy and the
Second Appeal No. 567 of 2005 with regard to the claim for
exclusive ownership.
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11] Mr. Umesh Mankapure, learned counsel for the Petitioners -
Appellants, has submitted that Sushila (Plaintiff No.1A) in the
course of her deposition before the Trial Court has clearly admitted
that Sonabai had expired a day prior to demise of Anubai. In view
of such admission, the First Appeal Court has erred in placing
reliance upon the death extract to hold that Sonabai expired on 22
January 1972, i.e., a day after demise of Anubai. On the date of
demise of Anubai, i.e., on 21 January 1972, Mahadu was the only
legal male heir in terms of Class-II to the Schedule to the said Act. In
terms of Section 8 of the said Act, even assuming that Sonabai was
living on the date of demise of Anubai, it is Mahadu who was
entitled to priority over Sonabai and the persons claiming under
Sonabai. Without prejudice, it was also faintly urged that Sonabai,
being widow of Shivba did not answer the definition of the term,
'agnate' under Section 3(1)(a) of the said Act and therefore,
Sukhdeo, who claims through Sonabai, cannot claim as an 'agnate' to
the legal estate of late Anubai and Shankar. For all these reasons, Mr.
Mankapure urged that the second appeal be allowed and the
impugned judgment and decree dated 31 January 2005, be set
aside.
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12] In the writ petition, Mr. Mankapure submitted that the
material on record establishes Mahadu's claim to the tenancy and
further, there was no requirement of any intimation/notice under
Section 32-F of the Tenancy Act. In the facts and circumstances of
the present case, Mr. Mankapure submitted that the findings
recorded by the Authorities under the Tenancy Act are vitiated by
perversity. For all these reasons, Mr. Mankapure submitted that the
decisions of the Authorities under the Tenancy Act are liable to be
set aside and Mahadu and now his legal representatives be declared
as agricultural tenants of the suit property and entitled to purchase
the same under Section 32-G of the Tenancy Act.
13] Mr. R.P. Walwekar and Mr. D.S. Sawant, learned counsel for
the Respondents, submitted in unison that there was no admission
with regard to the date of demise of Sonabai, as urged. They
submitted that the death extract, which is a public document, relied
upon by the First Appeal Court, makes it amply clear that Sonabai
was very much alive on 21 January 1972, i.e., date of demise of
Anubai. The learned counsel further submitted that both Mahadu as
well as Sonabai were not Class-II heirs, as claimed, but were
agnates. The position that even a widow is an agnate stands settled
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by the decision of the Division Bench of this Court in case of
Nanasaheb V. Devre Vs. Parwatibai S. Chavan and anr. 1, and the
First Appeal Court has rightly followed the same. The learned
counsel finally submitted that there is absolutely no material on
record to establish the tenancy claim of Mahadu. In any case, they
submitted that even as per the case set out by Mahadu, Anubai was a
widow on the Tillers' day. Therefore, within the period prescribed
under Section 32-F of the Tenancy Act, it was necessary that
notice/intimation be issued, which notice/intimation was never
issued. There is no perversity in the findings of fact recorded by the
Authorities under the Tenancy Act. For all these reasons, the learned
counsel for the Respondents urged dismissal of the second appeal as
well as the writ petition.
14] The rival contentions now fall for determination.
15] There is no jurisdictional error whatsoever in the First Appeal
Court admitting the death extract concerning Sonabai in evidence at
the appellate stage. The First Appeal Court had ample powers to
admit such document in evidence, considering the provisions
contained in Order 41 Rule 27 of the Code of Civil Procedure, 1908
1 1980 (O) BCI 73
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(CPC). Secondly, the death extract is a public document and it is not
even the case of the Appellants-Petitioners that the same was not
authentic or not obtained from the public records maintained by the
State. In fact, there is no record of the Appellants-Petitioners
objecting to admission of this document on record. The First Appeal
Court was further entirely right in awarding greater evidentiary
value to such public and unimpeached document than the statement
of Sushila (Plaintiff No.1A) in the course of her deposition. Sushila,
in the course of her cross-examination, may have stated that her
mother-in-law, i.e., Sonabai died one day prior to death of Anubai.
This statement is required to be considered in the context. The death
extract establishes that Sonabai expired on 22 January 1972, i.e.,
one day after the demise of Anubai. To the witness, i.e., Sushila,
what was crucial was the said difference of one day. Nothing much
therefore, turns upon the statement. In any case, it is always
permissible to explain an admission. The admission stands suitably
explained in terms of the death extract produced on record. There is
neither any jurisdictional error or even error of law in the approach
of First Appeal Court in awarding greater evidentiary value to the
death extract than the statement of witness in the course of cross-
examination. In any case, assessment of evidence, does not normally
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give rise to any substantial question of law. The second substantial
question of law framed in this matter will therefore have to be
answered against the Appellants-Petitioners.
16] Equally, there is no basis to accept that Mahadu was a Class-II
heir in terms of Section 8 and the Schedule to the said Act. If the
geneology is taken into consideration, it is clear that Mahadu, upon
demise of Anubai, does not fall into any of the entries in Class-II of
the Schedule to the said Act. Mahadu, upon demise of Anubai could
have only claimed as an agnate. The claim, in the facts and
circumstances of the present case, cannot be exclusive, because on
the date of demise of Anubai, i.e., on 21 January 1972, Sonabai, the
widow of Shivba, was very much alive. The First Appeal Court has
rightly held that both Mahadu/his legal representatives and
Sonabai/her legal representatives, being agnates, are entitled to
claim to the legal estate of Anubai, in equal measure. There is no
question of Mahadu claiming any priority in the matter.
17] In this case, we are concerned with succession to the legal
estate of Anubai (Female Hindu), who expired on 21 January 1972.
Section 15 of the said Act provides for general rules of succession in
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case of female Hindus. In terms of Section 15 (1) of the said Act,
property of a female Hindu dying intestate shall devolve according
to the rules set out in Section 16,-
(a) firstly, upon the sons and daughters (including the
children of any pre-deceased son or daughter) and the
husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
18] Section 15 (2) of the said Act provides that notwithstanding
anything contained in sub-section (1), any property inherited by a
female Hindu from her husband or from her father-in-law, shall
devolve, in the absence of any son or daughter of the deceased
(including the children of any predeceased son or daughter) not
upon the other heirs referred to in sub-section (1) in the order
specified therein, but upon the heirs of the husband. Further, Rule 3
of Section 16 of the said Act provides that devolution of the property
of the intestate, upon the heirs referred to in clauses (b), (d) and (e)
of sub-section (1) and in sub-section (2) to Section 15 of the said
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Act, shall be in the same order and according to the same rules as
would apply, if the property had been the father's or the mother's or
the husband's, as the case may be, and such person had died
intestate in respect thereof immediately after the intestate's death.
19] Applying the aforesaid provisions, including in particular the
provisions contained in Section 15(2) (b) and Rule 3 of Section 16
of the said Act, the devolution of the property in the present case
shall have to be upon heirs of Anubai's husband viz. Shankar, as if,
the said Shankar had died intestate immediately after Anubai's
demise on 21 January 1972. For this purpose, reference shall have to
be made to the provisions contained in Section 8 of the said Act,
which provides general rules of succession in case of males.
20] Section 8 of the said Act provides that the property of a male
Hindu, dying intestate shall devolve according to the provisions of
this Chapter-II-
(a) firstly, upon the heirs, being the relatives specified in
class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the
heirs, being the relatives specified in class II of the
Schedule;
(c) thirdly, if there is no heir of any of the two classes,
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then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates
of the deceased.
21] Section 9 of the said Act provides that from amongst the heirs
specified in the Schedule, those in Class-I shall take simultaneously
and to the exclusion of all other heirs; those in the first entry in
class- II shall be preferred to those in the second entry; those in the
second entry shall be preferred to those in the third entry; and so on
in succession.
22] As noted earlier, neither Mahadu/his legal representatives nor
Sonabai/her legal representatives classify as heirs in either Class-I or
Class-II of the Schedule to the said Act. Therefore, there was no
question of Mahadu/his legal representatives claiming any priority
over the claim of Sonabai/her legal representatives. In fact, both
claim as agnates and the First Appeal Court was entirely justified in
decreeing the suit for partition upon the said basis.
23] Mr. Mankapure, faced with this position, faintly urged that
Sonabai did not qualify as 'agnate' within the meaning assigned to
this term under Section 3(1)(a) of the said Act, since according to
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him, Sonabai was not related to her husband Shivba 'by blood' . This
contention, however, is no longer res integra. The Division Bench of
this Court, in case of Nanasaheb Devre (supra), has precisely
considered and rejected such contention.
24] The Division Bench of this Court in case of Nanasaheb Devre
(supra), has held that the provisions of said Act were meant to
codify the law relating to intestate succession among the Hindus and
to achieve uniformity and certainty about various otherwise
nebulous and shifting matters. This objective has, however, to be
understood against the backdrop of existing interpreting system of
personal law. Therefore, it would not be appropriate to begin with
any legislative premise that the term related "by blood" has been
introduced in any narrow sense. Rather, effort will have to be made
to reach its applicative connotation. By reference to several
precedents and principles, the Division Bench has held that
conceptually, the Hindu marriage, as far as the wife is concerned,
clearly brings out consanguine results, the wife merging and sharing
the particles of the body of her husband and as such that of their
common ancestor. Such kinship or consanguinity conceptually as
well as physically cannot be less than of the blood relationship.
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Marriage is not only social but religious fact to a Hindu. It
distinctively brings about union of two persons involving acceptance
of a female into the family of the male spouse. Relation that ensues,
is not restricted to male that marries but to the entire family of the
male. Married wife in a family, thus becomes related to it wholly
through her male spouse. The definition of the word "related" shows
that to be related, persons could be treated as related to each other
only if they belong to lawful or legitimate kinship. The definition
makes reference to "kinship". The accepted modes by which such
kinship results are clearly implied. Kinship is blood relationship. In
social unit like family, marriage is an apparent mode of forging such
relation. As far as the definition of "agnate" is concerned, the statute
contemplates that this relationship should arise firstly, "by blood or
adoption", and secondly, wholly through males. The words employed
by the defining clauses having reference to blood will have to be
understood and interpreted so as to further the obvious object of the
Act and as far as possible to provide uniform system of succession.
Law is not merely a biological text tracing decent and ascent. It is a
sociological sanction in favour of those who can claim succession to
the deceased. Sociology and history of given law often speak
through the legislated words. The choice of the words "by blood" in
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the definition along with the word "adoption" is clearly intended to
recognise all social modes resulting in the legitimate relationship.
The words "by blood" cannot be read as "by birth" so as to restrict
them to genetical incidence of family, for legislature, had it intended,
would have surely spoken in that way.
25] The Division Bench of this Court at paragraph '17' has
observed thus:
What then is the meaning of the word blood ? Does it
signify only the vital fluid that sustains the life or is it also
indicative of relationship which results in kinship by known
and accepted modalities ? There are various meanings
assigned to the word "blood", including the one biologically
attributed. From Webster's Third new International
Dictionary, pages 236 and 237, the following relevant
meanings can be extracted :
"Blood" : 1 a. the fluid that circulates in the principal
vascular system of vertebrate animals carrying nourishment
and oxygen to all parts of the body and bringing away
waste products for excretion and that consists of a liquid
plasma containing dissolved nutrients, waste products and
other substances and suspended red blood cells, leukocytes,
and blood plateles-see CIRCULATION, RESPIRATION;
COAGULATI-ON;
2a. blood regarded as a vital principle :LIFEBLOOD;
broadly: LIFE, b : human blood regarded as a hereditary
differentiating factor typical of and specific to a given
family, stock lineage, or race (English-) : esp : the national
royal-used with the (a prince of the-), c : the whole body of
physical traits passed from parent to offspring whether in
men, animals, or plant; d : relationship by decent from a
common ancestor (the Delaware grape shows a strong
strain or vinifera-) : KIN-SHIP CONSANGUINITY (-is
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thicker than water), e : person related through a common
familial or racial descent : KINDRED, LINEAGE, STOCK,
RACE; also, obs : KINSMAN, RELATIVE.
The connotation of the word, therefore, is not merely
biological but includes familial, racial and other recognised
modes of kinship amongst men. It is futile to submit that
the words related by blood should be equated with related
by birth, though birth may be the primary incident of
relationship between the two human beings. That is,
however, of the only incident that brings about human
relations into existence. When community of men develops
and social relationship evolves, manifold relations come
into being and in the context of relations, when the word
blood is used, it suitably indicates the relationship by
descent from a common ancestor or a kinship or
consanguinity amongst a recognised social group. Marriage
is an acknowledged social form bringing two beings
together amongst the society of Hindus as a result of which
the female enters the family of the male and becomes
kindred of the family of the male and as such gets related as
a kin of that family having common ancestor in the
husbands family. The term by blood, therefore, in our view,
has no biological or genetic limitation, but, including that,
has a wider reach in the context of the personal law of
Hindus and takes in female that enters by marriage the
family of the male. Only because after the words by blood,
the Legislature has put the words or adoption, thus
indicating another legal form by which a person becomes
the kin in the family, it is not possible to exclude the
marriage from the connotation of the term "by blood". To
have the relationship of the kind of agnate, it follows that
relationship should arise wholly through males and should
be a relationship of blood. As we have indicated, even prior
to the present enactment, the applicative law held that as a
result of marriage, a widow truly became gotraja sapinda
in her husband's family. The principle on the basis of which
the applicative judgments were rendered was clearly the
principle to hold that by marriage the wife shared the
community of the common particles of the body and was as
such a relative by blood.
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26] Applying the aforesaid principles, submission of Mr.
Mankapure that Sonabai or her legal representatives could not be
included within the expression 'agnate' cannot be accepted. The first
substantial question of law, will also have to be decided against the
Appellants-Petitioners.
27] Neither of the learned counsel made any reference to Balu or
his legal representatives being alive upon the date of demise of
Anubai. In such circumstances, there arises no reason to consider
entitlement of Balu or his legal representatives. Neither Balu nor his
legal representatives have objected to the judgment and decree
dated 31 August 1994 made by the First Appeal Court.
28] Now turning to Writ Petition No. 532 of 1988, the material on
record clearly indicates that on the Tiller's day, ie., 1 April 1957, the
landlady was a widow. Therefore, the Tiller's day and consequently
the right to purchase the tenanted property stood postponed. The
landlady, i.e., Anubai expired on 21 January 1972. Even if, the
factum of Sonabai being alive on the said date is excluded, in terms
of Section 32-F of the Tenancy Act, the Appellants-Petitioners were
required to express their willingness to purchase the suit property
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within two years from the date of demise of Anubai, i.e., 21 January
1972. Admittedly, no such option was exercised within the said
period of two years or for that matter even thereafter. All Courts, i.e.,
Tehsildar, SDO and MRT, have concurrently held that there was
failure on the part of the Appellants-Petitioners to issue notice as
contemplated by Section 32-F of the Tenancy Act. There is absolutely
no perversity in the record of such finding of fact. Mr. Mankapure
was unable to demonstrate as to why the provisions of Section 32-F
were not attracted to the case of the Appellants-Petitioners.
29] In fact, there is no material on record which establishes that
the Appellants-Petitioners were the tenants in respect of the suit
property on the Tiller's day. However, even assuming that they were
tenants, there is no dispute that the landlady was a widow on the
Tiller's day and therefore, the provisions of Section 32-F of the
Tenancy Act were clearly attracted. There is no case made out by the
Appellants-Petitioners to disturb the concurrent findings of fact
recorded by all three authorities. The petition is, therefore, liable to
dismissed.
DSS J-wp-532-88 @ SA 567-05
30] Upon cumulative consideration of aforesaid, there is no merit
in the second appeal as well as the petition. Accordingly, both second
appeal as well as writ petition are hereby dismissed. The interim
orders, if any, to stand vacated. There shall, however, be no order as
to costs.
(M.S. SONAK, J.)
