ORDER
1. The basic facts involved in these two petitions are common and, therefore, they are being disposed of by one judgment.
2. The respondent, Smt. Maltibai became an exclusive owner in respect of field Survey No. 24/1 measuring 6 acres 35 gunthas and 25/1 measuring 4 acres and 36 gunthas both of village Akot in District Akola by virtue of a sale deed dated 4-12-1947. Petitioner Gulab son of Puran in Special Civil Application No. 386 of 1974 is concerned with those fields. On 1-4-1957 the respondent created a tenancy in respect of these two fields in favour of one Shri Puran, the father of the petitioner Gulab. On 28-12-1958 notice was given by the respondent terminating the tenancy on the ground of bona fide personal cultivation. This was followed by an application dated 30-9-1959 under Section 36 (2) read with Section 39 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (hereinafter referred to as 'the Act' filed before the Tah-sildar, Akot, for possession. This was revenue case No. 173-59(10-F)/60 61 decided on 9-3-1962. The order was in favour of the respondent holding that the need was established. Inasmuch as on the date of the application this was the only land with the respondent possession in respect of l/3rd of a family holding that is 8 acres was granted in terms of Section 38 (4) (a) (i) of the Act. It may be mentioned that total area of the two fields comes to 11 acres 31 gunthas.
3. Inasmuch as few events have occurred between the date of the filing of the application arid the order dated 9-4-1962, their reference at this very stage will be necessary. These events are that father of the respondent Shri Dattatrava died on 29-12-1960, leaving he-hind him as his legal heirs his widow and two married daughters; out of them Maltibai being one. Thus, legal heirs of Dattatraya succeeded to the estate of Dattatraya and the estate included agricultural fields. On 6-2-1961 these 3 legal heirs effected a partition and in that partition some agricultural fields were allotted to the share of the respondent and one such property is field Survey No. 242 measuring 6 acres and 7 gunthas of Mouza Sarfabad, taluq Akot. The petitioner Rashidkhan son of Usmankhan in Special Civil Application No. 332 of 1974 is concerned with that property. The respondent gave a notice on 10-2-1961, terminating the tenancy of this land on the ground of bona fide personal cultivation and proceedings for possession against the said Rashidkhan who was a tenant on the field were initiated before the Tahsildar, Akot on 22-3-1981. This is Revenue Case No. 158/59 (1) of 60-61. The case filed against tenant Gulab, after receiving some jolts in remand, reached the Maharashtra Revenue Tribunal which vide order dated 15-10-1965 came to the conclusion that the position of the landlord as on the date of the filing of the application should be considered without any reference to the lands acquired subsequently and, therefore, ordered delivery of possession of 8 acres an area equivalent to l/3rd of the family holding which was more than half of the total area of the two fields which came to 11 acres 31 gunthas. Aggrieved by the order passed by the Maharashtra Revenue Tribunal, petitioner Gulab moved the High Court under Article 227 of the Constitution of India by filing Special Civil Application No. 150 of 1966- By judgment dated 14-3-1968 the petition came to be allowed and the matter was remanded back holding that position as regards the acreage of the land as emerged not on the date of the application but on the date of the order should be considered. The High Court observed as under in the remand order of the revision:--
'Hence the additional land which the respondent No. 4 got on partition had to be taken into consideration for granting the relief on the view taken by the Division Bench of this Court. Thus, on the date of the order the respondent No. 4 having more than a family holding, she was not entitled to any relief under Section 39 (1) of the Tenancy Act. However, the respondent No. 4 will he entitled to have her application considered under Section 38 of the TenancyAct, though she would not be entitled to a relief under Section 39. This aspect of the matter has not been considered by the Revenue Tribunal on the view it has taken. It appears to me that the view taken by the Special Deputy Collector remanding the matter for enquiring into the application as one under Section 38 (2) read with Section 38 of the Tenancy Act is correct.
Accordingly, the order of the Revenue Tribunal is set aside and the order of the Special Deputy Collector is restored. The petition thus succeeds to the extent indicated and is allowed.' After the remand order from the High Court, the matter went back to the Tahsildar and to the Sub-Divisional Officer in appeal who was again pleased to remand the matter to the Tahsildar.
4. As far as Revenue Case against Rashidkhan is concerned, it also reached the Maharashtra Revenue Tribunal in the similar fashion and the Tribunal vide order dated 19-11-1967 was pleased to allow the said revision holding that the provisions of Section 38 (7) of the Act was no bar to the maintainability of the application for possession on the ground of personal occupation, as the landholder had not acquired the said property either by transfer or by partition and that she had no right whatsoever in the property as on 1-8-1953, a date mentioned in the said sub-section. The case was remanded back to the Tahsildar for decision in accordance with law on the basis of that finding. Admitted position is that the tenant in that case chose to accept that order as final and no higher Court was moved in the matter. After the remand order from the High Court in Gulab's case referred to above and the remand order passed by the Maharashtra Revenue Tribunal dated 19-11-1967 confluence of both these cases took place before the Tahsildar. It may be mentioned that the cases of some other tenants were also amalgamated; but we are not concerned with those cases here. A common order came to be passed on 30-12-1970. The Tahsildar was pleased to grant possession of 8 acres of the land of the tenant Gulab and half of the area to tenant Rashidkhan. In appeal, the Sub-Divisional Officer maintained the order of delivery of possession in the case of Rashidkhan. However, the area in the case of tenant Gulab was reduced to half on the ground that as observed by the High Court, the total area of the landholder as on the date of the order will have to be considered and it undisputedly exceeded one family holding. The Maharashtra Revenue Tribunal was moved in to the matter by both the tenants. The tribunal vide common order dated 21-12-1973, passed in both the cases restored the order passed by the Tahsildar, thus, once again enhancing the area to the extent of 1/3rd family holding as far as tenant Gulab is concerned.
5. This common order passed by the Maharashtra Revenue Tribunal is subject matter of challenge by the two tenants and or their legal representatives in these writ petitions. On behalf of the tenant Gulab it has been contended that the Maharashtra Revenue Tribunal had committed an error in considering the total holdings on the basis of the position as emerged only on the date of the application without considering the additions to the acreage with the landholder before the order came to be passed. In my view, this submission appears to be perfectly correct especially in view of the finding recorded by the High Court in this very matter. In clear terms, the High Court has passed an order that the acreage of the land as on the date of the final order will have to be considered and not the one as emerges out on the date of the application. It is not in dispute that at the time of the order much more property was added; and land holder was holding to say the least, more than one family holding. Under the circumstances, the Maharashtra Revenue Tribunal was clearly in error in restoring the order passed by the Tahsildar and pressing into service, Section 38 (4) (a) (i) of the Act. In that view of the matter I quash the order passed by the Maharashtra Revenue Tribunal in the case of tenant Gulab; and the order passed by he Sub-Divisional Officer is maintained. The net result, therefore, is that the landlady will be entitled only to the extent of half of the area out of field survey Nos. 24/1 and 25/1 of Akot, Taluq Akot.
6. This takes us to the petition filed by the tenant Rashidkhan. At the threshold, it may be mentioned that the Maharashtra Revenue Tribunal in its order dated 21-12-1973 had come to the conclusion that the earlier revisional order dated 19-11-1967 holding that there was no bar of Section 38 (7) of the Act to the maintainability of the application operated as res judicata between the parties as that finding had become conclusive in the matter and proceeded to decide the case on that hypothesis. In this connection, my attention was invited to the case of Ratanlal v. Bajirao (1975 Mah LJ 65) in which this Court has decided that even though normally the order previously passed in a proceeding does amount to res judicata, there are exceptions to this rule, such as necessity of reconsideration due to discovery of some bask facts, unforeseen development after the remand, change of law or interpretation put to the same, in any case, the order passed by the Maharashtra Revenue Tribunal ceases to be res judicata before the High Court in writ jurisdiction if the matter reaches there. The learned counsel for the respondent fairly conceded that he was not invoking the principles of res judicata in this matter,
7. The main thrust of the argument advanced on behalf of the petitioner-tenant by Shri Palshikar the learned counsel is that inasmuch as the landlady had got the property by partition dated 6-2-1961 the application was not maintainable in terms of Section 38 (7) of the Act. Section 38 (7) of the Act, as it originally stood, reads as under:--
'Nothing in this section, shall confer on a tenure-holder who has acquired any land by transfer 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'.
A great controversy arose as to the meaning of the term 'transfer' as contained in the said provision. The Full Bench was required to be constituted to resolve this controversy and in that cage it was held that 'partition' was not included in the term 'transfer' within the meaning of Section 38 (7) of the Act, (Shrikrishna v. Namdeo Bapuji, : AIR1963Bom163 (FB), Section 38 (7) refers to the term 'acquires'. It was held that the word 'acquires' is referable to the acquisition for the first time. Inasmuch as partition does not give or create a title and only enables a party to obtain, what his own but in a definite or specified form or share, the partition is not included in transfer. It appears that the legislature at the time of enacting the said provision acted under the impression that the word 'transfer' would include even partition but as different meaning was attached to the term 'partition', the State Legislature decided to effect an amendment to the said provision. As sequel to the decision pronounced by the Full Bench, Amending Act 44 of 1963 was brought on the statute book, by adding the word 'or partition' after the word 'transfer'' whenever it occurs. Thus, after the amendment even the 'partition' was included in Section 38 (7) of the Act,
8. Inasmuch as it has become necessary to examine the provisions of the Act as amended, it will be necessary to see also the statement of objects and reasons. It is now well recognised that these statements of objects and reasons can certainly be looked into for limited purpose as it throws a focus upon the legislative intention and indeed is a key to open the mind of the legislature. The statements of Objects and Reasons as published in the Maharashtra Government Gazette dated 8-10-1963, Part V, at page 309, read as under;--
'STATEMENT OF OBJECTS AND REASONS'
As a result of a certain judgment of the High Court, it has become necessary to amend certain provisions of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, for making the intention of the Legislature clearer in respect of those provisions. It is also considered necessary to make certain provisions so as to remove the difficulties which have been noticed during the course of implementation of the Act, The Bill seeks to carry out these amendments.
2. The following notes on clauses explain the provisions of the Bill:--
'Clauses 2 and 3: Sub-section (7) of Section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, provides that nothing in that section shall confer as a tenure-holder who has acquired any land by transfer 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 the transfer. The expression 'transfer' in this provision was intended to include partition and the Maharashtra Revenue Tribunal had also taken a similar view. The High Court in Shrikrishna Ninaji v. Namdev Bapuji : AIR1963Bom163 has, however, held that the expression 'transfer' in this provision does not include partition. As a result of this decision many protected lessees stand in danger of being dispossessed of their lands. It has, therefore, become necessary to amend Sections 38 and 39 to make it clear that the expression 'transfer' includes 'partition'.'
Even after this amendment, the single Bench of this Court in Salubai v. Chandu : AIR1966Bom194 came to the conclusion that in certain circumstances even after the amendment the position did not change. Again, there was a conflict necessitating once again a Full Bench decision of this Court in Radhabai v. State of Maharashtra : AIR1970Bom232 in order to appreciate the ratio of this Full Bench decision, it will he also necessary to refer to certain basic facts and assumptions in that case. One Mohanlal formed a joint Hindu family consisting of his son Lakhanlal and a widow Radhabai. Mohanlal died on 15-4-1938 and the shares of his family members were divided by metes and bounds on 22-6-1959. Thus, Radhabai the petitioner in the Full Bench case (cited supra) was having a pre-existing right in the joint Hindu family property on the death of Mohanlal on 15-4-1938 which came to be specified into 1/3rd definite and specific share by partition in the year 1959. The Full Bench was pleased to overrule the decision in Salubai's case (cited supra) and came to the conclusion that the legislature intended to include in the word transfer' all the pre-existing rights and not acquisitions of the rights by person for the first time by making inter alia the following observations (at p. 239 of AIR 1970 Bom):--
'The proper construction of amendment, clearly shows that the Legislature intended to include in the word 'transfer' partition as normally understood, namely, the redistribution of pre-existing rights and not the acquisition of rights by a person for the first time.'
(underlining mine).
Thus, it was held that as Smt. Radhabai had a pre-existing right in the property before 1-8-1953 the partition of the year 1959 did not change the position. It appears to me, therefore, that the partition referred to in Section 38 (7) of the Act covers only that property in which the person claiming a right to terminate the tenancy had a pre-existing share on or before 1-8-1953, The reason seems to be obvious. As the legislature has put it, it intended to put it in the word 'transfer' even those rights which were in existence as on 1-8-1953 and which had remained unspecified in the absence of any partition, The intention thus was and is to cover only those transfers including 'partitions' which took place after 1-8-1953, the reason being that if any person voluntarily acquires some additional property after 1-8-1953 or gets his existing share denned or ascertained subsequently, it shall be impermissible to terminate the then existing rights of a tenant subject to which the property has been acquired in such transfer or partition. All other modes of acquisition such as devolution, succession etc. which are the result not of merely voluntary action but either of operation of law or events over which he has no control, are excluded from the operation of this Act. In case that is what was not intended by the legislature, nothing was more difficult than to cover all types of acquisitions in the said statute. But the Legislature in its wisdom did not think it fit to cover acquisition by other modes including succession, in the Act. The reason appears to be that it did not intend to exclude all those accretions to the estate which takes place for reasons beyond the control of the person or for and in which he was not a party. The argument on behalf of the petitioner is that it is unthinkable that such a protection was intended to be given to such transfers. The Courts have no means to know the legislative intention except through the language used in the statute. The first and foremost principle of interpretation of statutes is that plain and literal mean should be attached to the words used and all other principles of interpretation of statutes which are considered secondary, can be pressed into service only when there is a doubt about the meaning of the words used To assume a particular intention first and then to search it in the words or the statute will amount to putting the cart before the horse. The Court cannot supply casus omissus to the phraseology used in the enactment. Thus, it is not expected of a Court to modify the language in order to bring it in accordance with its view as to what is reasonable or right. It is also not possible to know for the Court if the omission is inadvertent or intentional. In either cases, it is not possible to venture upon this forbidden path of judicial legislation and to presume that even 'succession' was intended to be included in this sub-section. If the words do not embrace 'succession' it will be impermissible to read it in the said sub-section unless clear reason is to be found for doing so in the four corners of the Act itself. The following observations in Saloman v. Saloman 1897 AC 22 may be quoted with advantage:--
'Intention of the Legislature is a common hut very slippery phrase which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or equity, what the Legislature intended to be done or not to be done can only legitimately be ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implication.'
In the light of these basic principles of interpretation of statute, it is difficult to engraft the word, 'succession' or 'devolution'' in the phraseology of the section and then to interpret law on that basis. In case, the legislation history of this enactment is traced, it would be seen, as demonstrated above that initially acquisition by transfer only was covered in the enactment. The legislature thought that 'the partition' is included in the transfer and therefore even rights in the area of the land existing as on 1-8-1953 but not specified will have also to be considered. Thus if the right existed in the property before 1-8-1953 and was specified afterwards it was covered in the legislative intention. Because of the Full Bench decision in 1963 occasion arose for the Legislature to study the operation of the section second time. In spite of the Pull Bench decision and the observations made therein, it was decided only to add the word 'or partition' in the enactment. From the statement of objects and reasons and also the substantive amendment, it is clear that nothing else than a 'transfer' was intended to be covered in the section. After the amendment, it has been made clear that the word, 'partition' will include and will be deemed to have always included the term 'partition'. Thus, as stated above there was one more occasion for the Legislature to study the effect of Section 38 (7) of the Act. If any other mode of acquiring the property was also to be covered it could have easily used the words 'acquisition of any property' or at least the words 'or otherwise' would have been included in the enactment.
The word 'transfer' has not been defined in the provisions of the Act. Indeed, Section 5 of the Act makes it clear that the provisions of Chapter 7 of the Transfer of Property Act, 1882, shall in so far as they are (not) inconsistent with the provisions of this Act apply to the tenancy and leases of lands to which this Act applies. It is, therefore, necessary to go back to the Transfer of Property Act. Section 5 of the Transfer of Property Act defines 'transfer of property' as under:--
'5. In the following sections 'transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and 'to transfer property' is to perform such act. In this section, 'living person' includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals,'
It will be thus seen that transfer of property is referable only to an act inter vivos. Normally, no transfer of property can take place without the consent of the person getting it. It has been argued that the word 'acquire' used in the Act should be read as covering all acquisitions and the transfer and partition are used in the said enactment not exhaustively but illustratively. The word 'acquisition' cannot be read in isolation. Whatever the mode for getting of the property, it is acquisitioned and, therefore, that word has no specific significance. What is significant is the mode of acquisition. The close scrutiny of the intention behind this enactment either before or after the amendment is that if any one person had the property on the specified day mentioned in sub-section and if that property is defined subsequently and in case any person by any voluntary action, namely, 'transfer' gets any property and if before that a tenant operates on the land, the tenant shall not be evicted on the ground of personal occupation, reason being that whatever has been done by acquiring a property has been done voluntarily and with open eyes.
If anybody, therefore, gets a property either by succession or by devolution after 1-8-1953 and if he had no right whatsoever in the said property as on the date such acquisition is clearly not covered by Section 38 (7) of the Act. What is important is not merely the transfer or partition but also the rights of the parties vis-a-vis a particular date specified in the said sub-section. In this particular case undisputedly, the respondent Maltibai had nothing to do with and had no right in the property before her father's death which occurred on 29-12-1960. It is already on record that when her father Dattatraya died he left behind him only his widow and two married daughters including Maltibai as legal heirs. She thus acquired undefined or unspecified share in the disputed property for the first time on 29-12-1960 before which she was not concerned with the property in any manner whatsoever. This unspecified share which she got was defined on 9-2-1961 and the property in question fell to her share specifically. Shri Palshikar's contention is that she alone could not have terminated the tenancy before the partition and, therefore, she got specified share only by virtue of partition and, therefore, the case would be governed by Section 38 (7) of the Act. The argument though seemingly attractive, is untenable. There is no manner of doubt that she alone could not terminate the tenancy as some more persons were also owners of the property as tenants in common. But surely altogether could have terminated the tenancy. Imagine that the respondent, Maltibai was the only legal heir of her deceased father. In that case she could have got the whole of the property on 29-12-1960, Under these circumstances is it the intention of the legislature that all tenants in common together could have terminated the tenancy or if Maltibai was the legal heir she could have terminated the tenancy but only because there are other legal heirs, the tenancy could not be terminated in terms of Section 38 (7) of the Act? Such an interpretation will be obviously wrong and unintended and would lend to hazardous results. What is relevant is not merely the mode of succession but also the pre-existing right as on 1-8-1953 and not the right acquired after 1-8-1953 by succession or devolution either as sole legal heir or in-common with others. If the right was thus in existence it cannot be taken away merely by subsequent partition which does nothing excepting dividing the property by metes and bounds and fixes the limits of each others right of ownership over the property. Shri Talukdar for the landlady respondent in both the cases has laid emphasis on the date 1-8-1953 as mentioned in the sub-section and submits that the rights have to be worked out only as that day, and in my view very rightly. He invited my attention to the decision of this Court in the case of Vimlabai v. State of Maharashtra : AIR1977Bom77 . No doubt, this was a case under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, and the words 'acquire by transfer' used in the said Ceiling Act were being interpreted. Still the ratio of that decision to some extent certainly applies to the present case. The Court has observed as under (at pp. 80 and 81 of AIR) :--
'In Section 9 also the Legislature has used the words 'acquire by transfer'. By Explanation to this section the word 'transfer' is given same meaning as is given to the said word in Section 8 of the Ceiling Act. If any person or a member of a family unit acquired land by transfer on or after the commencement date, and if the said person or family unit is already holding land in excess of the ceiling area, or by this acquisition will hold land in excess thereof then the consequences as laid down by Sub-section (3) of Section 10......the Legislature has only used the word 'acquisition', and then in the bracket the position is clarified by using the words testamentary disposition or devolution on death, or by operation of law'. In this sub-section the word 'transfer' is not used by the Legislature. This clearly indicates that though a person can acquire land by testamentary disposition or devolution on death, or by operation of law, it cannot be termed to be an acquisition by transfer as contemplated by Section 9 or Explanation to Section 8 of the Ceiling Act......Therefore, this acquisition of property by virtue of the testamentary disposition, or devolution on death or operation of law is not equated by the Legislature with the acquisition of property by transfer. This clearly indicates the legislative intention.'
It is clearly on an authority that either a testamentary disposition, or devolution on death or by operation of law, cannot be equated with acquisition of property by transfer. Thus, there is nodoubt that Section 38 (7) of the Act does not include and never intended to include acquisition otherwise than by transfer or partition and the position as on 1-8-1953 alone is to be taken into consideration.
This being my view about interpretation of Section 38 (7) of the Act, it is clear that the order passed by the revenue authorities permitting termination of tenancy on the ground of bona fide occupation to the extent of half area in the case of tenant Rashidkhan are perfectly correct and need no interference.
For the foregoing reasons, Special Civil Application No. 332 of 1974 is partly allowed. The order of the Maharashtra Revenue Tribunal, Nagpur is quashed and that of the Sub-Divisional Officer, Akot, is maintained. The respondent will be entitled only to half of the area in possession of the tenant Gulab. Special Civil Application No. 386 of 1974 is, however, dismissed holding that the order passed by the three authorities permitting possession of half of the area is correct. In view of the divided success, there will be no order as to costs.
9. Order accordingly.