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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 ..... n 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 1958 Nag LJ 453 under the same provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 paragraph 3 of its judgment) which had really prompted the reference i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 in which it was used, the word acquired had the meaning of 'acquired a title for the first time' and partition does not give a person a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsidering 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 given a similar meaning. The learned Judge observed in para 53 Mah.LJ 310 :AIR 51 Par 210 : One of the reasons which has been accepted by the Full Bench of this Court In interpreting this unamended Section 38(7) of the Vidarbha Act was the use of the word 'acquired' in Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 for the first time. 11. Now, it seems to us that in taking this view the learned Judge was greatly influenced by the nature of the arguments before him and the stand taken by counsel and perhaps by the concession which counsel made in that case. In para 59 at p. 313 (of Mah LJ) = (Para 56 at p. 212 of AIR) the learned Judge has noted. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (See paras 5 and 6) and the fact that a partition does not give a person a title or create a title in him but that it only enables him to get what is his own in a definite and specific form for purposes of disposition independently of the wishes of his former co-sharers. At the same time, the Full Bench had noted in that case that the word acquire can also be used in the context of partition. At p. 291 para 6 (of Mah LJ) = (At p. 210, Para 47 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 after the addition of the words or partition in Sub-section (7) of Section 38. The proper construction of the amended section should be to read the word acquire in a wider sense which it is capable of bearing in the context of the addition of the words or partition , and if so read, the whole meaning of the statute becomes clear, 17. But as Salubai's case. AIR1966Bom194 itself shows, the learned Judge, on reading the reasons given in the Full Bench case, felt great doubt and difficulty in construing the provisions of the amended sub-section, because, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that a statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the statute. In construing, therefore. Section 2(c) of the Act and in determining its true scope it is permissible to have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the statute, the reason which led to its being passed, the mischief which it intended to suppress and the remedy provided by the statute for curing the mischief. In holding so, their Lordships again referred to Heydon's case (1584) 3 Co Rep 7a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 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 that it was the intention of the Legislature to include partition in the word transfer from the very start, but since the Full Bench has held that it was not so included, the Legislature was by the amendment including it in other words, accepting the principle of the decision of the Full Bench, the amendment sought to undo the effect of that Full Bench decision. It is always open to the Legislature to thus express its real intention and set aside the interpretation put upon a statute by the Courts, and that is precisely what the Legislature intended to do in the present case. 22. Nothing Is clearer than the statement made in the Objects and Reasons w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 conclusion that partition was not included in the word transfer in the unamended sub-section, namely, that otherwise there would be a conflict between Sub-sections (1) and (2) on the one hand and Sub-section (7) on the other does hot really prevail especially after the amendment. Counsel took us through the previous history of the legislation particularly through the provisions of Section 9 of the Berar Regulation of Agricultural Leases Act, and he pointed out that protected lessees under those provisions enjoyed a special protection and that therefore it in Sub-section (7) of Section 38 which deals only with protected lessees, a special date is fixed for giving notice to the tenure-holder which creates ..... X X X X Extracts X X X X X X X X Extracts X X X X
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