R. Appln. No. 550. (with Rev. Applns. Nos. 551 and 552) of 1962

27th July, 1962.

Petitioner Counsel: M.B. Pangarkar
Respondent Counsel: R.N. Deshpande

Cases Cited:
1. Reported at page 54 of the TLR Digest, 1959-60.
Spl. C.A. 563 of 1959 decided on 5-11-1959.
2. Spl. C.A. 1133 of 1959 decided on 10-3-1960 (vide pages 54-55 of TLR Digest, 1959-60).

JUDGMENT

ORDER:- The order governs the following three revision applications filed under section 111 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (hereinafter referred to as the New Tenancy Act):

Application No.	Applicant	Non-applicant.
550/Ten/61	Shailabai	Janu Dasraji
551/Ten/61	Rajeshwaribai	Bhaggulal Shiomangal
552/Ten/61	Rajeshwaribai	Gulabrao Gangaramji

The original proceedings before the Tahsildar, Achalpur, were initiated under section 38(2) read with section 38(1) of the New Tenancy Act by one Baisanlal Chandulal, Managing Trustee of the applicants. The Tahsildar passed orders in the respective cases under section 36(3) holding that the applicants were entitled to restoration of possession of half the area claimed and directed delivery of possession accordingly. The tenants preferred appeals against these orders to the Sub-Divisional Officer, Achalpur, who held that the provisions of section 38(7) of the New Tenancy Act were attracted in these cases and that the applicants who were transferees after 1-8-1953, were not entitled to terminate the tenancies of the non-applicants. The Tahsildar's original orders were accordingly set aside and the applications filed by the applicants were rejected as being untenable. It is against these appellate orders of the Sub-Divisional Officer that the applicants have now filed these applications for revision.

2. The grounds on the basis of which the appeals have been allowed by the Sub-Divisional Officer in the three cases are more or less identical. We, therefore, reproduce below the relevant part of the Sub-Divisional Officer's order in one of the appeals, namely, Appeal No. 105/59 (6) of 1960-61 in order to indicate the line of reasoning adopted by him: "3. The Tahsildar only framed one issue viz, whether the applicant landlady was entitled to possession and gave his finding in the affirmative in respect of only half the area. The order is very cryptic and does not show that the contentions of the appellant were given the thought it deserved. Counsel for the appellant argued that the deed of settlement amounts to the transfer of the property and it being after 1-8-1953 the respondent cannot evict the appellant-tenant and the notice under section 38 is inoperative. The contention has considerable force. The deed of settlement as it is termed is in fact a gift deed and the trustee or the beneficiary is a transferee after 1-8-1953. The extract of the record-of-rights of the lands in question filed in the record shows the appellant Janu in possession of the fields in question since 1951-52 and he is a protected lessee. Under the repealed Berar Regulation of Agricultural Leases Act, a transferee of land after 1-8-1953 could not terminate the lease of a protected lessee. Section 38(7) of the New Tenancy Act also protects the right of such protected lessee and transferees of the land after 1-8-1953 cannot terminate the tenancy on the ground that the land is required for personal cultivation. The respondent had also not proved that the income from the produce of the fields is the main source of income for the maintenance of the respondent. The notice given by the respondent is not valid and operative."

3. We have heard Shri M.B. Pangarkar for the applicants, Shri R.N. Deshpande for non-applicant Janu, Shri S.R. Ahmed for non-applicant Bhaggulal and Shri B.G. Pangarkar for non-applicant Gulabrao. The arguments put forward by Shri M.B. Pangarkar mainly centred round the wording of section 38(7) of the New Tenancy Act which reads thus:

"38(7). Nothing contained 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 the transfer."

It was contended by Shri Pangarkar that the applicants were not hit by this sub-section since, having regard to the terms of the deeds of settlement, it was clear that they were mere beneficiaries on whose behalf the field property was held in trust and managed by a trustee. It was pointed out that the applicants were neither tenure-holders nor had any acquisition or transfer of property taken place within the meaning of sub-section (7) of section 38. In support of the ground that they were not tenure-holders, Shri Pangarkar referred us to sections 2(2), 53, 54, 56 and 146(o) of the Madhya Pradesh Land Revenue Code and argued that since they did not possess the rights of an occupant, they could not be deemed to be tenure-holders. In this connection, he referred us to the terms of the deeds of settlement which specifically prohibited transfers. It was also pointed out that since the applicants did not get the corpus of the property, it could not be said that there was any acquisition of property. It was also argued that as the deeds of settlement were only by way of a family arrangement, they did not amount to transfer of property within the meaning of section 5 of the Transfer of Property Act. In the second part of his argument, Shri Pangarkar pointed out that even though the applicants were not tenure-holders, their trustees were entitled as landlords to serve the non-applicants with notice under section 38(1) of the New Tenancy Act. In this connection he referred us to the definition of the word 'landlord' in section 2(12) of the Act and relying on the commentary of Shri Gupte at page 45 argued that any person entitled to lease out the property was a 'landlord' within the meaning of section 38(1) of the New Tenancy Act. Shri R.N. Deshpande met these contentions by pointing out that it was not open to the applicants to disown their status as tenure-holders as they have described themselves as such in the original applications, filed by them before the Tahsildar and have not raised any such plea before. Shri Deshpande then referred us to the wording of sub-section (3) of section 38 of the New Tenancy Act and argued that since the right of a landlord to terminate a tenancy was made subject to the conditions laid down in that section, it was not open to him to say that he was not governed by any of these conditions. It was incumbent on him to satisfy all those conditions, including the fact that he was a tenure-holder. Shri Deshpande also pointed out that there was no essential difference between the meaning of the words 'landlord' and 'tenure-holder' which were interchangeable. According to Shri Deshpande, it would be absurd to think that a beneficiary had better rights than a tenure-holder and he also added that a trustee was not entitled to claim land for personal cultivation just as a Wahiwatdar could not on behalf of a deity. Shri S.R. Ahmed, who appeared for non-applicant Bhaggulal adopted the arguments of Shri Deshpande. Shri B.G. Pangarkar, who appeared for non-applicant Gulabrao drew our attention to section 38(3)(d) of the New Tenancy Act and said that the landlord serving a notice under section 38(1) must be a tenure-holder with his name recorded in the record-of-rights. Further, relying on section 2(24) of the Indian Stamp Act, he pointed out that the settlement of property amounted to non-testamentary disposition and was, therefore, a transfer. He also referred us to a case decided by the Bombay High Court: Radhabai v. Babu Kesu1.

4. It is clear from the deeds of settlement, copies of which are on record, that the applicants are mere beneficiaries on whose behalf the fields in dispute are held in trust by a trustee. The important condition laid down in the deeds of settlement is about the absoluue prohibition against transfer of property. Since transferability of land is an important condition of occupancy right (vide section 56 of the Berar Land Revenue Code), it follows that neither the trustees nor the beneficiaries are tenure-holders of the fields. We have, therefore, no hesitation in upholding the contention of Shri M.B. Pangarkar that the applicants are not tenure-holders of the fields. The observation of the lower appellate Court that the deed of settlement was in fact a gift deed is obviously incorrect.

5. The next question is whether in spite of the fact that the applicants were not the tenure-holders, they were entitled to terminate the tenancies under section 38(1) of the New Tenancy Act. It is true that the actual word used in section 38(1) is 'landlord'. The question is whether the word should be held to apply to any person who happens to be a lessor or whether it should necessarily mean a 'landholder' or a 'tenure-holder'. We consider that the section should be interpreted against the background of the corresponding section 9 of the Berar Regulation of Agricultural Leases Act in which instead of the word 'landlord' the word 'landholder' has been used and the word 'landholder' has been defined in section 2(d) of that Act as meaning an 'occupant'. As pointed out at page 247 of Bindra's Interpretation of Statutes (Third Edition) "if there be doubt as to the construction or if a construction according to the strict grammar would lead to a manifestly unreasonable or absurd conclusion, the statute must be construed with regard to the law at the time when it was enacted". In the same book at page 193, the following principle has been laid down as an internal aid to interpretation:

"Thus where different statutes deal with identical subjects at different times or deal with a person or a thing for the same purpose, they are in pari materia and they should be taken and considered together as one system and as explanatory of each other."

Viewed in this light, there is no doubt that the word 'landlord' ought to be interpreted as meaning 'landholder' in the context in which the said word was used in the repealed Act. That such was the intention is also clear from the various requirements of section 38 itself, e.g. sub-sections (3) (d) and (4) (a) etc. The use of the word 'tenure-holder' in section 38(7) is also in a way a clear indication of the intention of the Legislature that that word was used as a synonym of the word "landlord". There are also other sections in the Act in which the word 'landlord' has been used but even then having regard to the context in which it is used, the only meaning that could be assigned to it is that of 'landholder' or 'tenure-holder'. We might, for example, refer to section 21 in which the word used throughout is 'landlord' but there is no doubt that it means a 'landholder' or a 'tenure-holder'. So, we cannot accept the contention of Shri Pangarkar that the word 'landlord' in section 38(1) does not mean a 'tenure-holder'. Since in the instant case, neither the trustee, who gave the notices, nor the beneficiaries, on whose behalf they were given, were the tenure-holders of the fields in question, they were not entitled to serve termination notices on the non-applicants who were protected lessees of the real landholder Mohanlal.

6. Section 38(1) of the New Tenancy Act is intended to enable the landholders themselves to claim back possession of lands for personal cultivation. But in these cases, notices were served by the trustees in whom the legal ownership over the fields in dispute had not been vested and were not, therefore, landholders of the fields. It could not thus be said that the landholders required the lands for personal cultivation. In fact, the analogy of the manager of a Dewasthan is applicable to the instant case: Babasaheb v. Yesu1. As in the instant cases, the applicants became holders of the lands by virtue of deeds of settlement, the principle laid down by the Bombay High Court in Badhabaiv. Babu Kesu Bhosale2 is also applicable since in that case it is held that a person holding land by virtue of a deed of settlement could not be regarded as a landlord within the meaning of section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 a section corresponding to section 38 of the New Tenancy Act.

7. So, we have no hesitation in holding that the applicants who were not tenure-holders and were not entitled to terminate the leases of the non-applicants under section 38(1). Since the notices themselves were thus illegal, the question whether the provisions of section 38(7) were attracted or not does not, strictly speaking, arise. We do not, therefore, consider it necessary to decide whether the applicants were hit by section 38(7) or not.

8. So, in our view, the orders passed by the lower appellate Court do not call for interference though, as already indicated our reasons for coming to the conclusion that the applicants were not entitled to terminate the leases are different. All the three applications for revision are, therefore, rejected.

Application rejected.