1969 (2) TMI 182 - HC - Indian Laws

Summary

Issues Involved:
1. Interpretation of the amended Sub-section (7) of Section 38 of the Bombay Tenancy and Agricultural Lands Act, 1958.
2. Whether partition constitutes a transfer under Sub-section (7) of Section 38.
3. The effect of legislative amendments on the interpretation of Sub-section (7) of Section 38.
4. The impact of judicial precedents on the interpretation of the term "transfer" and "partition."

Issue-wise Detailed Analysis:

1. Interpretation of the Amended Sub-section (7) of Section 38:
The core issue was whether the interpretation of the amended Sub-section (7) of Section 38 of the Bombay Tenancy and Agricultural Lands Act, 1958, as established in the decision of Salubai v. Chandu, AIR1966Bom194, was correct. The court analyzed the legislative intent behind the amendment, which aimed to clarify that the term "transfer" included "partition." The amendment was made to address the decision of the Full Bench in Krishna v. Namdeo, AIR1963Bom163, which held that a partition was not a transfer within the meaning of Sub-section (7) of Section 38.

2. Whether Partition Constitutes a Transfer:
The court examined whether a partition could be considered a transfer under the amended Sub-section (7) of Section 38. The Full Bench in Krishna v. Namdeo had held that a partition did not constitute a transfer, reasoning that partition merely redistributed pre-existing rights rather than creating new rights. However, the legislative amendment added the words "or partition" after "transfer," indicating that partitions should be treated as transfers for the purposes of Sub-section (7).

3. Effect of Legislative Amendments:
The court emphasized that the legislative amendment aimed to include partitions within the scope of "transfer" under Sub-section (7). The Statement of Objects and Reasons for the amendment clarified that the intention was to protect tenants from being dispossessed due to partitions. The court noted that the amendment was intended to override the Full Bench decision and ensure that partitions were treated as transfers, thereby protecting tenants' rights.

4. Impact of Judicial Precedents:
The court reviewed various judicial precedents, including the Full Bench decision in Krishna v. Namdeo and the decision in Salubai v. Chandu. The Full Bench had provided three reasons for excluding partitions from the definition of transfer: the meaning of "acquired," the potential conflict between Sub-sections (2) and (7) of Section 38, and the usage of "partition" and "transfer" in other parts of the Act. However, the court in the present case found that the legislative amendment addressed these concerns by explicitly including partitions within the definition of transfer.

Conclusion:
The court concluded that the interpretation in Salubai v. Chandu was incorrect. The legislative amendment intended to include partitions within the scope of "transfer" under Sub-section (7) of Section 38. By doing so, the legislature aimed to protect tenants from being dispossessed due to partitions. The court dismissed the petition, affirming that partitions of every kind are now included within the ambit of Sub-section (7) of Section 38 along with transfers. The petition was dismissed with costs.