PETITIONER:
BALKRISHNA SOMNATH
Vs.
RESPONDENT:
SADA DEVRAM KOLI & ANOTHER
DATE OF JUDGMENT20/01/1977
BENCH:
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION:
1977 AIR 894 1977 SCR (2) 678
1977 SCC (2) 15
ACT
Bombay Tenancy & Agricultural Lands Act, 1948 (Bombay
Act LXVII of 1948) as amended by Bombay Act Xlll of 1956,
section 32--Scope of--Interpretation of the words "disabled
person’s share in the joint family has been separated by
metes and bounds" occurring in proviso to s. 32 F(1)(a).
HEADNOTE
Under s. 32 of the Bombay Tenancy and Agricultural Lands
Act 1948, the. tiller of the land had the right to purchase
the land tenanted to him. Where the landlord is a minor or
a widow or a person subject to any mental or physical disa-
bility, the right to purchase such land is postponed till
their disability disappears and one year lapses thereafter.
But this embargo on the exercise’ of the right of purchase
by the tenant does not operate as per proviso to s.
32F(1)(a), if the property belongs to a joint family and
there is a partition therein and the land is allotted to the
person under disability.
In both the appeals, the family owned lands and other
assets and there was a partition confined to agricultural
land only. In one case the share fell to a widow while in
the other it fell to a minor, admittedly a disabled’ person
within’ the meaning of s 32F(1). Before the TribUnal and
the High Court, the landlord claimed, therefore, protection
under the proviso to clause (a) of section 32F(1) of the Act
while the respondent contended that even if the agricultural
land had been divided and other assets admittedly remained
joint, the appellant was ineligible to claim the benefit of
the proviso. The High Court decided against the landlord
and held: "The proviso is not satisfied unless the share of
a disabled person is separated by metes and bounds in all
the joint family property and unless the agricultural land
allotted to him corresponds to his share in the entire
property and is not in excess thereof’.
Dismissing the appeal to this Court,
HELD: (1) The broad idea is to vest full ownership in
the tenantry. A compassionate exception is made in favour
of a handicapped landlords who’ cannot prove their need to
recover their land on approved grounds. The Legislature
conditioned the proviso by insisting that the separation
should be from the whole joint family assets and not a
tell-tale transaction where agricultural lands alone are
divided and secondly even where there iS a total partition
only a fair proportion of the lands is allotted to the
disabled person. [682 C-D-F]
What section 32F(1) insists upon is that (a) share of
such person in the joint family has been separated by metes
and bounds; (b). the Mamlatdar is satisfied that the share
of the disabled person in the land is separated in the same
proportion as the share of that person in the entire joint
family property and not in a larger proportion. [681 G]
(3) The imperative condition for the operation of the
proviso is that there should be a total separation and so
far as a disabled member is concerned, it must cover all the
joint family properties. The usage of the expressions "the
share of such person in the joint .family", "the share of.
such person,, in the land", "the share of that person in
the, entire joint family property in the section the
clear statement in the proviso that the disabled person s
share in the joint family must have been separated by metes
and bounds and the statutory exercise expected of the Mam-
latdar by the proviso involving an enquiry into the share
of the disabled person in the land and its value, the share
of that person in the entire joint family properties, the-
proportion that the allot-
679
ment of the land bears to his share in the entire joint
family property with a view to see that there is no unfair
manouvre to defeat the scheme of the Act-lead to the neces-
sary postulate that it is not confined to the share of the
land only but really means his share in the entire joint
family property.
[683 E-H, 684 A]
(4) In the instant case there is no division of all the
joint family property. Only the landed properties have been
separated. [684-B]
Observation:
The reform of the inherited law-making methodology may
save court time and reduce litigation. Our legislative
process, not an unmixed blessing, works under such instant
stress and ad hoc hephazardness that the whole piece of
legislation when produced makes experienced draftsmen blush,
as in the instant case, the involved drafting of s. 32F has
had its share in the marginal obscurity of meaning. [682
B-C]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 129 of 1968,
Appeal by Special Leave from the Judgment and Order
dated the 18-8-66 of the Bombay High Court in S.C.A. No.
1299/67 and
Civil Appeal No. 2007 of 1969
From the Judgment and Order dated the 18th, 20th June
1968 of the Bombay High Court in S.C.A. No. 1676 of 1964.
and
Special Leave Petition (Civil) No. 3175/75
From the Judgment and Order dated the 31-10-74 of the
Bombay, High Court in Special Civil Appln. No. 2610 of 1970.
V.M. Tarkunde, V.N. Ganpule and P.C. Kapoor for the
appellant in C.A. 129 of 1968.
S.N. Anand for Respondent No. 1 in CA 129/68
V.N..Ganpule for the Petitioner in SLP
S.B. Wad and R.N. Nath for the Appellants in CA 2007 of
1969.
R.B. Datar and S.C. Agarwal for Respondent No. 1 in CA 2007/
69
The Judgment of the Court was delivered by
KRISHNA IYER, J. These two appeals raise a short issue
of interpretation of the proviso to s. 32F (1) (a) of the
Bombay Tenancy and Agricultural lands Act, 1948 (Bombay Act
LXVII of 1948) (hereinafter referred to as the Act). The
appellants in both the cases are the aggrieved landlords,
the tenants’ right of purchase under the Act having been
upheld by the High Court. The correctness of this view is
canvassed ,before us by counsel.
The facts necessary to appreciate the rival contentions
may be are different but the issue is identical and, stated
briefly. The parties so a single judgment will dispose of
both the appeals.
680
In Civil Appeal No. 2007 of 1969 the widow of a deceased
landowner, one Dattatraya, is the appellant. The deceased
owned several houses, had a money-lending business and
considerable agricultural lands. He left behind him on his
death in 1952 a widow (the second appellant) and two sons,
one of whom is the first appellant. Admittedly the Act, an
agrarian reform measure, was extensively amended by Bombay
Act XIII of 1956 conferring great rights on tenants and
inflicting serious mayhem on landlordism. The case of the
appellants is that there was a partition among the mother
and the two sons of the agricultural estate whereunder the
second appellant (the widow) was allotted around 80 acres of
land out of which about 15 acres were held by the first
respondent as a tenant, On the Tillers, Day tenants,
bloomed into owners by the conferment of the right of pur-
chase. On the basis that the first respondent had become
the owner, a proceeding for the determination of the pur-
chase-price of these lands was initiated? by the Tribunal,
as provided under s. 32G of the Act. Although notice was
not given to the second appellant, the first appellant
appeared before the Tribunal, urged the case that the land
held by the first respondent. was set apart in a family
partition to his mother, the second appellant, and. that
since she was a widow she came squarely within the protec-
tive provision of the proviso to cl. (a) of s. 32F(1 ) of
the Act. The first respondent, however, contested the
partition and further pressed the plea that even if the
agricultural’ lands had been divided since the house and the
money-lending business and other assets admittedly remained’
joint, the appellant was ineligible to claim the benefit of
the proviso aforesaid. We need not trace the history of the
litigation from deck to deck but may conclude the story for
the present purpose by stating that the High Court took the
view that the second appellant (widow did not qualify under
the said proviso: "The proviso is not satisfied’ unless the
share of a disabled person is separated by metes and bounds
in all of the joint family property and’ unless the agricul-
tural land allotted to him corresponds to his share in the
entire property and is not in excess thereof."--This was
the construction put by the Court on the proviso and chal-
lenged before us by Shri Wad in C.A. 2007 of 1969 and by
Shri Tarkunde in C.A. 129 of 1968.
In Civil Appeal No. 129 of 1968 the legal scenario is
similar. The family owned lands and other assets and there
was a partition on November 7, 1956 confined to agricultural
land only, but the house property remained undivided. The
partition deed shows that the land under the tenancy of the
first respondent has been set apart to the share of a minor
appellant. The Tillers’ Day arrived’. The tenant claimed to
have become owner. Proceedings under s. 32G of the Act for
determination of’ the compensation were commenced and the
mantle of protection of the proviso to s. 32F (I) (a) was
pleaded in vain. The High Court having negatived the land-
lord’s contention summarily, this Court has been approached,
the point urged being the same as in the previous appeal.
In both the appeals we my proceed, for testing the legal
pro. position, on assumed facts. We may take it that there
was a parti-
681
tion in both cases during the period referred to in the
proviso, i.e., before March 31, 1958. We may further take
it that the widow and the minor come within the category
specified in s. 32F (1) (a). We have also to proceed on the
basis that the joint family in each case has other assets
which remain joint and undivided.
Before proceeding further with the discussion it may be
proper to read the relevant provision for a break up of the!
statutory limbs:
"32F. (1) Notwithstanding anything
contained in the proceeding 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 exercise the right of
purchase, the landlord shall send an intima-
tion 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 satis-
fied 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 proper-
ty, and not in a larger proportion.
X X X X"
Where the landlord is a minor or a widow, as in this
case, the tenants’ fight to purchase such land under s. 32
is postponed till their disability disappears and one year
lapses thereafter. But this embargo. on the exercise of the
fight of purchase by the tenant does not operate if the
property belongs to a joint family and there is a partition
therein and the land in question is allotted to the person
under disability. What the section insists upon is that (a)
share of such person in the joint family has been separated
by metes and bounds; and (b) the Mamlatdar is satisfied that
the share of such person in the land is separated in the
same proportion as the share of that person in the entire
joint-family property and not in a larger proportion.
We are dealing with an agrarian reform law whose avowed
object is to confer full proprietorship on tilling tenants
and it is a fact of common knowledge that landlords resort
to cute agrarian legal engineering to circumvent the
provisions. The legislature, with local knowledge of famil-
iar manipulations and manouvres calculated to
682
defeat land reforms, makes widely-worded provisions the
’why’ of it may not be easily discernible to the Court. We
have to give full force and effect without whittling down or
supplying words. Nor can the Court presume the mischief and
remedy the evil by interpretative truncation. A blend of the
grammatical and the teleological modes of construction is
the best and that is what has been done by the High Court.
We are free to agree that the involved drafting of the
section has had its share in the marginal obscurity of
meaning. But our legislative process, not an unmixed bless-
ing, works under such instant stress and ad hoc haphazard-
ness that the whole piece when produced makes experienced
draftsmen blush. Reform of the inherited lawmaking method-
ology may save court time and reduce litigation. Be that as
it may, we have to wrestle with the language of the Proviso
to decode its true sense.
The broad idea is to vest full ownership in the tenan-
try. A compassionate exception is made in favour of handi-
capped landlords who cannot prove their need to recover
their land on approved grounds. These disabled categories
include infants and widows. But if the lands belong to
joint families of which they are members, the raison d’etre
for such protection does not exist because the manager
of this joint family takes care of its collective inter-
ests. Where, however, there has been a partition of the
joint family, then the widow or minor has to stand on her or
his own disabled legs and so the Proviso to s. 32F (1) (a)
was brought in by amendment to give them protection for the
period of the disability and a little longer. But every ruse
to save the lands is used by landlords and so, once it was
in the air that minors and widows may be exempted, a spate
of partitions perhaps ensued. Joint living is the dear,
traditional Hindu way of life but jettisoning jointness to
salvage ,land is dearer still. Blood is thicker than
water, it has been said; but in this mundane world,
property is thicker than blood: So partition deeds, conven-
iently confined to land, became a popular art of extrica-
tion. And the Legislature, anxious to inhibit such abuse,
while willing to exempt genuine, total separations, condi-
tioned the Proviso under consideration by insisting that the
separation should be from the whole joint family assets and
not a tell-tale transaction where agricultural lands .alone
are divided and secondly, even where there is a total parti-
tion, only a fair proportion of the lands is allotted to
the disabled person.
In this light, we may read the Proviso. To steer clear
of possible confusion we may agree that partial partition
may be legally permissible and the Hindu law does not
require investigation into the motives or motivelessness
behind the partition. We also accept that division in
status is good enough to end commensality or jointness under
the personal law. But we are now in the jurisdiction of
land reform legislation and the Legislature, with a view
to fulfil its objectives, may prescribe special require-
ments. The Court has to give effect to them, in the
spirit of agrarian reform and not read down the wide words
on judicial suppositions.
683
Here the Proviso can rescue the widow or the minor only
if the prerequisites are fairly and fully fulfilled. Sec-
tion 32 states that the tenants shall be deemed to have
purchased the tenanted land on the Tillers’ Day. The Tribu-
nal suo motu takes action to determine the purchase price.
But all this is kept in abeyance if the landlord belongs to
the disabled category and qualifies under s. 32F (1). The
crucial issue is whether the Proviso applies even if the
separation of the widow or minor is restricted to agricul-
tural lands. Shri Wad and, Shri Tarkunde vehemently urge
that it is none of the concern of the agrarian law what
happens to the other assets of the joint family, so long as
the lands are divided in fair proportion. Shri Datar
presses what the High Court has laconically reasoned, viz.,
that it is possible to defeat the scheme by division of the
lands alone. Fox one thing, in most such partial parti-
tions, inspired by the desire to avoid the land reforms in
the offing, the Legislature can, as a policy decision,
insist on a whole partition, to reduce the evasion. More-
over, there will be a sudden fancy for allotting all the
good lands to the share of widows and minors, depriving the
tenants of their legitimate expectations. And, if lands and
other assets are to be divided, then less lands will go to
the disabled persons or even none. For instance the house
may be allotted to the widow and the lands taken over by
adult males. The ornaments may all go to the woman, the
agriculture to the men. We need not speculate, but may
content ourselves with stating that the Legislature has,
for some reasons, decided to lay down conditions and the
words of the text must be assigned full effect.
The Proviso clearly states that the disabled person’s
share ’in the joint family’ must have been ’separated by
metes and bounds’. Separation from the joint family means
separation from all the joint family assets. Otherwise the
sharer remains partly joint and, to that extent, is not
separated from the joint family. Notional division or divi-
sion in status also may not be enough because the Act in-
sists on separation ’by metes and bounds’. Ordinarily
’metes and bounds’ are appropriate to real property, mean-
ing, as the phrase does, ’the boundary lines of land, with
their terminal points and angles’. In the context, the
thrust of the expression is that the division must be more
than notional but actual, concrete, clearly demarcated. The
ineptness and involved structure and some ambiguity notwith-
standing, the sense of the sentence is clear. The share of
a person in the joint family, plainly understood, means
his share in all the joint family properties and not merely
in the real estate part. What is more, the section uses
the expressions ’the share of such person in the joint
family’, ’the share of such person in the land’, ’the share
of that person in the entire joint family property’. Thus
it is reasonable to hold that when the expression used is
’the share of such person in the point family.’, it is not’
confined to the share in the land only. It really means his
share ’in the entire joint family property’. Moreover, the
statutory exercise expected of the Mamlatdar by the Proviso
involves an enquiry into the share of the disabled person in
the land, and its value, the share of that person in the
entire joint family property, the proportion that the allot-
ment of the land bears to his share in the entire joint
684
family property with a view to see that there is no unfair
manouvre to defeat the scheme of the Act. The necessary
postulate is that there is a division in the entire joint
family property. Therefore, the imperative condition for
the operation of the Proviso is that there should be a total
separation and so far as a disabled member is concerned it
must cover all the joint family properties.
We are therefore in agreement with the interpretation
adopted by the High Court. In the cases under appeal there
is no division of all the joint family properties. Only the
landed properties have been separated. The appeals there-
fore fail and are dismissed. In the circumstances, we
direct parties to bear their costs.
S.R. Appeals dis-
missed.
685.