Bombay High Court
Shripati Aba Bogar And Ors vs Vasant Waman Kulkarni And Anr on 24 June, 2016
Bench: R.P. Sondurbaldota
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 654 OF 1998
1. Shripati Aba Patil,
(Since deceased through heirs and L.Rs)
1a. Balaso Shripati Patil, Age : 60 years,
1b. Babaso Shripati Patil,
(Since deceased through heirs and L.Rs)
1b(i) Smt. Sushila Babaso Patil, Age : 60 years
1c. Bajirao Shripati Bogar
(Since deceased through heirs and L.Rs)
1c(i)Smt. Suvarna Bajirao Bogar-Patil,
Age : 45 years
1c(ii) Tushar Bajirao Bogar-Patil,
Age : 21 years
1c(iii)Aakash Bajirao Bogar-Patil,
Age : 15 years
[Minor, through mother-Pet.1c(i)]
Nos.1c(i) to 1c(iii) R/o. Yelur,
Tal. Walwa, Dist. Sangli
1d. Subhash Shripati Bogar, Age : 46 years
1e. Savitri Bhagwan Bogar, Age : 62 years
1f. Anjani Balaso Bogar, Age : 58 years
1g. Chaaya Subhash Bogar, Age : 43 years
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(Amendment in respect of Pet. Nos.1 & 2
as per Court's order dated 09.06.2014
passed in CA-1549/09 & 1551/09)
2. Sakharam Aaba Bogar,
(Since deceased through heirs and L.R.s)
2a. Shankar Sakharam Bogar, Age : 60 years
2b. Kisabai Sakharam Bogar, Age : 77 years
Nos. 2a and 2b R/0. Yelur,
Tal. Walwa, Dist. Sangli
2c. Smt. Kusum Baban Patil, Age : 55 years
R/o. Kapuskhed, Tal. Walwa, Dist. Sangli
2d. Sou. Sajabai Vishwas Patil, Age : 50 years
R/o. Tung, Tal. Miraj, Dist. Sangli.
2e. Shobha Sakharam Patil, Age : 43 years
R/o. Yelur, Tal. Walwa, Dist. Sangli
(Amendment in respect of Pet. Nos.1 & 2
as per Court's order dated 09.06.2014
passed in CAW-1552/09) .....Petitioners
(Orig. Tenants)
V/s.
1. Vasant Waman Kulkarni
(Since deceased through heirs and L.Rs)
1A. Vilas Vasant Kulkarni, Age : 62 years,
1B. Vishwas Vasant Kulkarni, Age : 57 years,
Nos.1A and 1B, residing at :
Flat No.23A, Sarita Society,
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Mayur Colony, Kothrud, Pune 38
1C. Vijaya Vasant Kulkarni,
(Since deceased through heirs and L.Rs.
(Since deceased through heirs and L.Rs
i.e. Resp. Nos.1A and 1B above)
2. Balwant Waman Kulkarni .....Respondents
(Orig. Landlord)
******
Mr. Pratap Patil, Advocate for the petitioners.
Mr. Vijay Patil, Advocate for respondent no.2.
CORAM :- SMT. R.P. SONDURBALDOTA, J.
DATED :- 24TH JUNE, 2016.
JUDGMENT :-
1). This petition under Article 227 of the Constitution of
India, challenges the judgment and order dated 15 th January, 1998
passed by the Maharashtra Revenue Tribunal in the Revision
Application preferred before it by the petitioners. The petitioners
are agricultural tenants in respect of the land in dispute i.e. land at
Survey No.237 admeasuring 4 Acres and 25 Gunthas and the land at
Survey No.244/2 admeasuring 2 Acres and 21 Gunthas situate at
Yellur, Wawal, Islampur. The respondents are the landlords of the
property.
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2). The brief factual background of the petition is that, one
Govind Kulkarni, the grandfather of the respondents was the
original owner of the property in dispute. He had two sons namely,
Damodar and Waman. Damodar died in the year 1924 leaving
behind his widow, Dwarkabai as his only heir. In the year 1927,
Dwarkabai filed Regular Civil Suit No. 185 of 1927 against Waman
for maintenance out of the joint family property. That suit was
decreed in her favour and she was awarded maintenance of Rs.90/-
per month. In the year 1949, she filed another suit being Regular
Civil Suit No. 69 of 1949 against Waman for enhanced maintenance
of Rs.390/- per year.
ig In that suit, Waman instead of paying
enhanced maintenance to Dwarkabai agreed to ½ share in the
properties of the joint family i.e. the properties in question. The
suit was decreed in the year 1951 whereby Dwarkabai was held
entitled to recover ½ share in the properties in question for her
maintenance from Waman after an equitable partition. The
partition was directed to be effected through Collector under
Section 54 of the Civil Procedure Code. Later, Dwarkabai filed
execution proceedings being Darkhast No.22/51 for partition and in
this Darkhast, the Collector of Satara passed final orders and the
Collector partitioned the land by metes and bounds and the
constructive possession was given to Dwarkabai on 28 th Feb, 1951.
The mutation entry 7581 was accordingly effected and the name of
Dwarkabai came to be recorded in the revenue records w.e.f. 28 th
February, 1959.
3). Dwarkabai died in the year 1966. Waman died in the
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year 1979. Thereafter, the respondents herein succeeded to the
properties in dispute alongwith the property fallen to the share of
Waman. Under the decree, as per the law prevailing on that day,
Dwarkabai had limited rights to the properties in question for
maintenance during her lifetime. However, her limited right
became the absolute right in view of the amendment to Section 14 of
the Hindu Succession Act, which came into force on 17 th June, 1956.
As such she became the absolute owner of the properties in
question.
4).
On 1st April, 1957 i.e. the Tillers Day, the petitioners and
their predecessors in title, by virtue of the operation of law, became
statutory owners of the properties in question of which they had
been agricultural tenants. Thereafter the proceedings under Section
32-G of The Bombay Tenancy and Agricultural Lands Act ('Tenancy
Act', for short) had commenced. But the same were postponed
because Dwarkabai was a widow. The case was again fixed for
enquiry on 29th January, 1994, and the proceedings were completed
by the order of Tahsildar passed on 18th March, 1994 by which he
held the purchase ineffective since the tenants had not given
statutory notice under Section 32F (1) (a) of the Tenancy Act and
directed inquiry under Section 32P for disposal of the lands in
question. The Tahsildar held that, after the death of Dwarkabai, the
tenants have admittedly not given intimation to the landlords as
required under Section 32F (1) (a) of the Tenancy Act within the
time prescribed therein i.e. one year from the expiry of the period
during which such landlord is entitled to terminate the tenancy
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under Section 31. Since no such notice was given, the right to
purchase was lost and the purchase became ineffective. Being
aggrieved by the order, the tenants preferred an appeal under
Section 74 of the Bombay Tenancy Act to the Assistant Collector,
Walwa, Division-Islampur. The Assistant Collector, by his order
dated 30th September, 1995 dismissed the appeal holding that
Dwarkabai had become the owner of the properties in question on
the date of the decree. It was contended on behalf of the tenants
before the Assistant Collector that, Dwarkabai had become the
owner of the properties in question in the year 1959 on execution of
the decree of maintenance in her favour and not on 1 st April, 1957
i.e. the date on which decree in her favour was passed. This
contention was rejected by the Assistant Collector holding that, she
became owner on the date of the passing of the decree, although she
may have taken actual possession later. It was also noted by the
Assistant Collector that, admittedly since the date of the decree the
tenants had paid rent to Dwarkabai. He further took note of the
failure on the part of the tenants to give notice under Section
32F (1) (a) of the Tenancy Act within a period of one year. The
petitioners then approached the Maharashtra Land Revenue
Tribunal by way of revision on 30 th November, 1985. The Tribunal
has also confirmed the decision of the Courts below for the reasons
stated therein and for the additional reason that on 1 st April, 1957
when the decree was passed in favour of Dwarkabai, she had
became absolute owner of the properties in question in view of
Section 14 (1) of the Hindu Succession Act, 1957, which became
applicable on 17th June, 1956.
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5). Mr. Patil, the learned Advocate appearing for the
petitioner submits that, the fact of Dwarkabai becoming the
absolute owner in respect of the properties in question on coming
into force of the amendment to Hindu Succession Act w.e.f. 17 th
June, 1956 was considered for the first time by the Tribunal and it
was not one of the contentions taken by any of the parties. In my
opinion, that would make no difference since the effect of the
change in the law by way of amendment was automatic conversion
of limited rights to the properties into full ownership. The Revenue
Tribunal had merely taken cognizance of this legal position. Mr.
Patil, then argues that, though Dwarkabai became full owner of the
properties in question, that by itself did not change either the status
of the property as the joint family property or the status of
Dwarkabai as a member of the joint family. In that circumstance,
Section 32F (1) (a) became applicable only on the happening of the
event of partition of the joint family property by metes and bounds
prior to 31st March, 1958 as mentioned in the proviso to the Section.
6). The provision of Section 32F (1) (a) reads as under :-
"32F. Right of tenant to purchase where landlord is
minor, etc. (1) Notwithstanding anything contained in
the preceding sections,-
(a)where the landlord is a minor, or a widow, or a
person subject to any mental or physical disability, the
tenant shall have the right to purchase such land under
section 32 within one year from the expiry of the period
during which such landlord is entitled to terminate the
tenancy under section 31 and for enabling the tenant to
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exercise the right of purchase, the landlord shall send an
intimation to the tenant of the fact that he has attained
majority, before the expiry of the period during which
such landlord is entitled to terminate the tenancy under
Section 31.
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 this
sub-section unless before the 31st day of March, 1958
the share of such person in the joint family has been
separated by metes and bounds and the Mamlatdar on
inquiry 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."
7). Mr. Patil submits that the amendment to Hindu
Succession Act though conferred absolute ownership upon a woman
in respect of a property in which she had a limited interest that by
itself does not change the status of a woman from being a member
of joint family. A woman can be a member of joint family having
absolute ownership over her share in joint family property. He
reiterates that Section 14 speaks of the nature of ownership and not
of status of member in joint family. It is his argument that if section
14 is interpreted to mean that after 17 th June, 1956 because of the
conversion of her limited interest into full interest, a Hindu woman
automatically ceases to be a member of joint family, it would mean
that after 17th June, 1956 there will not be any Hindu woman who is
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member of joint family because all Hindu women have became
absolute owner of their respective properties. Such interpretation
is impermissible. As an illustration he submits that if a Hindu male
dies intestate after 17th June 1956 leaving behind sons and
daughters as members of joint family, the daughters though
remaining to be members of joint family will become absolute
owners of their respective share in the property inherited by them
from father. Therefore, according to him even if it is assumed that
on 17th June 1956 Dwarkabai became absolute owner of her share in
the property, still it will not affect her status as a member of Joint
family. Mr. Patil argues that proviso to clause (a) of sub-section (1)
of Section 32F of the Tenancy Act was added by way of amendment
vide the Bombay Act 38 of 1957. By adding the proviso, time to
obtain possession by metes and bounds was granted till 31 st March,
1958. Section 32F (1) is clog on the tenant's right to purchase the
tenanted land. For operating this clog, it was made mandatory to
obtain possession by metes and bounds latest by 31 st March, 1958.
In the other words, if a widow fails to obtain possession by metes
and bounds by 31st March, 1958, the clog under Section 32F (1) of
the tenants right will not operate and in such a case it will not be
necessary for tenant to give notice under Section 32F (1) (a) of the
Tenancy Act. The addition of the proviso to clause (a) of Sub-
section 1 of Section 32F was in the year 1957 i.e. after coming into
force of the amendment to the Hindu Succession Act, 1956. Hence,
Section 14 of Hindu Succession Act cannot be interpreted to make
proviso to Section 32F (1) (a) of the Tenancy Act redundant.
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8). The four requirements of the proviso to Section 32F (1)
(a) for its application are (i) the person should fall in the category of
minor, widow or a person subject to any mental or physical
disability is a member of the joint family, (ii) atleast one member of
the joint family should be outside these categories, (iii) on/or before
31st March, 1958 the share of such person is separated by metes and
bounds and (iv) the Mamlatdar on enquiry is satisfied that the share
of such person in the land is separated in proper proportion and not
in a large proportion. In the facts and circumstances of the case, the
requirements of the proviso cannot be said to be satisfied. With the
decree passed in the year 1951 in Civil Suit No.69 of 1949, half share
in the joint property was given to Dwarkabai in lieu of maintenance
till her lifetime. There were only two members of the joint family
i.e. Dwarkabai as the heir of her husband Damodar and her brother-
in-law Waman. Therefore the decree passed in favour of Dwarkabai
receiving half share in joint property in lieu of maintenance coupled
with Section 14 (1) of the Hindu Succession Act resulted into
severance of the joint family. The illustration given by Mr. Patil
would be valid only in the case of absence of decree of the court
which is not of general partition but of giving specific property to
Dwarkabai. Therefore the exemption claimed by the petitioners
from the application of the proviso on the ground that the property
received by Dwarkabai was separated by the metes and bounds by
execution of the decree subsequent to the date of 31 st March, 1958 is
not available to them. As such the clog on the tenants right to
purchase the tenanted land continued to operate and
consequentially it was necessary for the petitioners to issue notice to
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the successors in title of Dwarkabai within a period of one year as
prescribed under Section 32F (1) (a) of the Tenancy Act of their
intention to purchase the property. In the circumstance, in my
opinion, there is no infirmity whatsoever in the impugned judgment
and order. Hence, the petition is dismissed.
9). Mr. Patil, the learned Advocate appearing for the
petitioner, seeks extension of the interim order in the petition is
passed on 11th June, 1998. The interim order passed was in terms of
prayer clause (c) of the petition. By that prayer, the petitioners had
sought stay of the impugned judgment and order. Since all the
impugned judgments and orders are of dismissal of the
proceedings, the interim order granted could be of no consequence.
However, Mr. Patil, points out that after declaring the purchase by
the petitioners ineffective, the Tahsildar had directed enquiry under
Section 32P for disposal of the suit land to be conducted. As a result
of the interim orders, this enquiry has not been conducted till date.
In that circumstance, the enquiry under Section 32P for disposal of
the suit lands pursuant to the order dated 15 th January, 1998 is
stayed for a period of 8 weeks from today i.e. till 19th August, 2016.
(SMT. R.P. SONDURBALDOTA, J)
