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TMI Blog1969 (2) TMI 182X X X X Extracts X X X X X X X X Extracts X X X X ..... nor. Lakhanlal attained majority on 29-4-1958, the age of majority in his case being twenty-one years because a guardian had been appointed. After he attained majority, the property belonging to the joint family came to be partitioned between Radhabai and Lakhanlal. This was on 22-6-1959 and the field survey No. 74/3 came to the share of Radhabai. Thus, Radhabai became the landholder. She required the field for her bona fide personal cultivation and she gave a notice under Section 38 (1) of the new Tenancy Act to the respondent No. 5 Uttamchand Uderaj Marwadi who was the tenant. After the notice, she applied under Section 38 for possession on the ground that she required the field for her bona fide personal cultivation. On the date on which the Naib Tahsildar decided the application the position in law and upon the authorities was as follows: In Manjurabai v. Pralhad 1958 Nag LJ 100 a Full Bench of the Revenue Tribunal at Nagpur had on 11-12-1957 held under Section 9 (9) of the Berar Regulation of Agricultural Leases Act that a partition is a transfer. On 24-6-1958 however a Division Bench of the High Court (to which one of us Ketval J. was a party) held in Manabai v. Ramchandra 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only on 22-6-1959 and therefore the landlady could apply under Section 38 (3) (d) of the Tenancy Act. The order is otherwise so cryptic and ill-written that it is difficult to understand what this Naib Tahsildar intended to say. 4. Radhabai the landlady filed an appeal to the Special Deputy Collector (the 3rd respondent before us), but before the appeal could come up for hearing before that officer other developments took place in the law. We have already referred to the decision of a Division Bench in Dayabhai's case 1960 Nag LJ 416 where it was held that both under the Transfer of Property Act and under the Prevention of Fragmentation and Consolidation of Holdings Act 1947 a partition amounts to a transfer. This view was felt to be in conflict with the earlier view of the Division Bench in 1958 Nag LJ 453. Therefore a Full Bench was constituted. In krishna v. Namdeo,' AIR1963Bom163 the Full Bench of this Court (to which one of us. Kotval J. was a party) held that a partition is not a transfer within the meaning of Subsection (7) of Section 38 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act (99 of 1958). As to the conflict (noted by the Full Bench in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neither the Special Deputy Collector nor the Member expressly referred to this provision, it is clear that their finding that the tenant was on the land prior to 1953-54 was with reference to this provision of the law. But In so holding what the Special Deputy Collector and the Member tacitly assumed throughout was that partitions of every kind are now included within the ambit of the provisions of Sub-section (7) of Section 38 a point which was acutely disputed before the learned single Judge and the Division Bench of this Court in the Writ Petition which came to be filed against the order of the Tribunal. The point is taken on the basis of a decision of a learned single Judge of this Court in AIR1966Bom194 decided on 23-4-1965. How this point arises on the basis of that decision may now be stated. 8. In AIR1963Bom163 the Full Bench gave three reasons for holding that a partition was not included within the meaning of the word "transfer" in Sub-section (7) of Section 38 of the Bombay Tenancy (Vidarbha) Act and the reasons were, (i) The expression "by transfer" was preceded by the words "has acquired any land". The Full Bench held that in the context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "transfer" wherever it occurred in this sub-section, thus doing away with the argument that a partition was not a transfer. We are not concerned with a small ancillary amendment also made in the sub-section. In considering this amendment, Salubai's case. AIR1966Bom194 noticed the previous decision of the Full Bench and the fact that the words "or partition" were added by legislation after the word "transfer". But the learned Judge who decided Salubai's case, AIR1966Bom194 took the view that that was the only change in the Sub-section and that the addition of those two words "or partition" had not affected either the structure of Sub-section (7) or any other sub-section of Section 38 or any other part of the Act so far as was material and relevant in construing the effect and ambit of the change brought about by the amendment. Principally it was pointed out that the word "acquired" preceding the words "any land by transfer or partition" remained the same as before the decision of the Full Bench; and since the Full Bench had said that "acquired" meant acquired for the first time, partition must also be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd by partition if partition is amongst the members of an undivided Hindu family who were already owners of the property. What takes place as a result of partition is the change in the mode of enjoyment." And in a later passage: "It is therefore clear to my mind that even after making the amendment in Section 38(7) by the addition of words 'or partition', the Legislature did not intend to bring within the mischief of the section by this amendment, the rights of those landlords who were owners of property from before and who chose to divide property as a result of partition which was only choosing a different mode of enjoyment of the property. On the other hand, what is intended to be hit even after the amendment is that class of landlords who would acquire the property for the first time as a result of partition or under the cloak of partition.........This mode of construction and inference would be permissible in view of the fact that no other change has been made in the structure of Sub-section (7) of Section 38 in spite of the view taken by the Full Bench of this Court that the use of the word 'acquisition' points out to obtaining rights of ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53. There does not appear to be anything In Subsection (7), or for that matter, in any of the provisions of Section 38 as such, to Indicate that the word "partition" was used in any special sense, much less in the sense "to acquire a light or title for the first time" in contradistinction with the redistribution of pre-existing rights or title. On the other hand, the sub-section gives the indication that barring the case of surrenders which is separately dealt with in the Act by the use of the words "transfer" and "partition", the Legislature intended to exhaust all the various means by which any person could get a right or title in a legal way. 14. Then we turn to the word "acquire". It is on that word that the decision in Salubai's case, AIR1966Bom194 principally turned. No doubt, In the Full Bench case one of the reasons given was the use in the Section of the word " acquire" before the words "any land by transfer". In the Full Bench, we (I say "we" because one of us, Kotval J. was a party to that decision) had pointed out the distinction between "partition" and "transfer" (S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, exclusion and others incidental to the right of ownership. A person who acquires a thing or property gets this right for the first time from someone else otherwise the use of the word acquire is inappropriate and will not convey the correct meaning." 16. If the word "acquire" is assigned its more generic connotation, namely, that it means to receive or to come into possession of, then in the context of transfer or partition, that word can be given its full meaning without any violence to the language used. In our opinion, there was no difficulty therefore in reading the word "acquire" to convey that meaning in the new context of the amended Act, that is to say, in the context of partition. On the other hand, what the learned Judge has done is to allow the meaning of the word "acquire" to remain the same, although the context is changed and to seek to reconcile the language used by giving a new connotation to the word "partition", and in this, as we shall presently, show, the learned Judge missed the whole purpose and object of the enactment In our opinion, there was no anomaly created by the use of the word "acquire" even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the approach suggested by Lord Coke in In re; Heydon's case, (1584) 3 Co. Rep. 7a, yields better results: 'To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act: to consider according to Lord Coke: 1. What was the law before the Act was passed; 2. What was the mischief or defect for which the law had not provided; 3. What remedy Parliament has appointed; and 4. The reason of the remedy." In that case, no doubt the Supreme Court applied these principles of construction to the interpretation of Section 34 (1A) of the Indian Income Tax Act after its amendment in 1956; but we can see no reason why the same principle will not operate in the construction of the present statute, especially when "its scope is sought to be curtailed by construction". 19a. Lastly, there is an important pronouncement on this subject in Shivanarayan v. State of Madras, 1967CriLJ946 where the expression "forward contracts" in Section 2 (c) of the Forward Contracts (Regulation) Act 1952, fell to be construed. Their Lordships observed in para 7 at p. 989: "It is sound rule of interpretation tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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'". The reference in the second paragraph to the decision of the Maharashtra Revenue Tribunal is obviously to the decision in 1958 Nag LJ 100 (Rev), which held that partition was included in the word "transfer". The reference to krishna Ninaji v. Namdeo Bapuji is to the Full Bench decision reported in AIR1963Bom163 (FE). 21. This Statement of Objects and Reasons throws a flood of light upon what was intended to be achieved by the amendment. The Full Bench decision of this Court is expressly referred to and it is stated that as a result of that decision, many protected lessees stood in danger of being dispossessed of their lands, and therefore, the amendment had become necessary; It is clear therefore that the Statement of Objects and Reasons removes that doubt or difficulty which the learned Judge experienced in Salubai's case. AIR1966Bom194 for, it says in clear terms tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 'so connected with the right to a partition' that it does not exist where there is no right to it" (the underlining (here in' ') is ours) and to the decision of the Privy Council in AIR 1916 PC 104 where Privy Council quoted with approval a passage from Barker's translation of Viromitrodaya: "For partition is made of that in which proprietary right has already arisen consequently partition cannot properly be set forth as a means of proprietary right Indeed, what is effected by partition is only the adjustment of the proprietary right into specific shares." It was also pointed out that even women sharers who had no right to enforce a partition but were entitled only to a share on partition got their share by virtue of only a pre-existing right and reference was made to the decision of this Court in Rangubai Lalji v. Laxman Lalji, AIR1966Bom169 thus showing that it is the fundamental nature of a partition that it is only a subdivision or re-distribution of rights already existing in those who get shares by partition. 23. It was also urged on behalf of the respondents that the second reason which prevailed with the Full Bench in coming to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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