Jijabai Vitharao Gajre V. Pathankhan and Ors: Case Comment

Author: Shreya Chakraborty, Amity Law School

Case:Jijabai Vitharao Gajre V. Pathankhan and Ors.

Court:

The Supreme Court of India

Bench:

 J.M. ShelatAnd C.A. Vaidialingam, JJ

Decided on:

September 1, 1970

Citation:

1970 (2) SCC 717

Facts:

• The judgment was delivered by the apex court in the instant case, the appellant was the daughter of Champatrao. She obtained from her father under a gift deed, 27 acres of land. As the owner of the land, she served a notice on tenant informing him of her intention to terminate his tenancy of the land on the ground that she required the lands bona fide fir her personal cultivation.
• In March 1963 the appellant filed and application before the Naib Tahsildar, under section 36 read with section 39 of the Bombay Tenancy and Agricultural Lands 1958 for termination of tenancy of the tenant and for directing him to surrender possession of the entire land.
• Later on, she amended her application and prayed in the alternative that if for any reason she was found not entitled to get possession of the entire lands, she may be allowed to recover half of the land in the possession of tenant and that in respect of that half, in the eastern portion 13 acres and 38 gun that may be allotted to her.
• The tenant resisted the claim of the landlord on the ground that the father and mother of the landlord had fallen out very long ago and that the landlord was a minor who was under the care of her mother Smt. Chandrabhagabai and she were managing the suit properties on behalf of her minor daughter.  During this time suit properties were being leased in the favour of the respondent (Tenant). Initially, the leases were granted by the mother who was managing the suit properties orally to the tenant but later on he executed a Kabuliyat in favour of the landlord represented by her mother as guardian.
• Prior to the Act coming into effect, the tenant acquired the status of a protected lessee. The tenant pleaded that as the landlord hadn’t filed the application within one year of the coming into force of the act, thus her claim was barred by limitation and the application under Section 39 was not maintainable. The tenant raised controversy regarding the birthdate of the appellant.
• The Naib Tahsildar held the application filed by the landlord under section 36 read with section 39 maintainable. He further found that the landlord was born on July 6, 1944, and attained majority on July 6, 1962, thus held that the landlord was entitled to file within one year of attaining the majority and in the instant case landlord has filed the case within that time only. The Tahsildar further held that since the father of the landlord was alive and was in law her natural guardian, the lease executed by the tenant on Feb 1956 was not legal and valid as the mother was not entitled to represent her minor daughter.
• In view of the further finding, the landlord had no other land and no other source of income and as the suit lands were less than the family holding, she was entitled to get possession of the entire lands from the tenant. Accordingly, he granted the landlord relief in full.

Issues raised:

1. Legal validity of the lease granted by the mother of the landlord in favour of the tenant.
2. The maintainability of the application filed by the landlord under Section 39 of the Bombay Tenancy Act.

Subject:

• Code of Civil Procedure, 1901
• Bombay Tenancy and Agricultural Lands Act, 1958
• Constitution of India, 1950

Law Applied:

• Bombay Tenancy and Agricultural Lands Act, 1958 – Section 6, 36 and 39
• Constitution of India, 1950 – Section 226

Arguments in favour of the Petitioner:

The counsel for the appellant raised three contentions: i) the High Court exercising jurisdiction under Article 227 of the Indian Constitution has functioned in this case as Court of Appeal and interfered with the concurrent findings of facts recorded by the three revenue tribunals and such exercise of jurisdiction is not warranted by the decisions of this court, ii) the High Court’s view that the lease executed by the mother on behalf of the appellant on February 12, 1956, as guardian of the appellant is valid in law, is erroneous, iii) the High Court’s view that the application filed by the appellant before the Naib Tahsildar is barred by limitation is again erroneous.

Further, the counsel on behalf of the appellant stated the case of NagendraNath Bora and Another V. The Commissioner of Hills Division and Appeals, Assam and Others[1] and in Rambhau V. Shankar Singh and Another[2]. The counsel on behalf of the appellant drawn attention towards the principle laid down in these cases. It is no doubt true that

Arguments in favour of Defendant:

The orders given by the revenue tribunal and the Naib Tahsildar were challenger before the High Court by the tenant under Article 227 of the Constitution. The High Court accepted the findings of the revenues tribunal that father and the mother had fallen out and were living separate and the father was not looking after the interest of his minor daughter and on the other hand landlord was living under the care of her mother who was managing the suit properties on her behalf.

The High Court regarding the oral leases stated that even if they are eliminated than also a written lease has been executed in favour of the landlord represented by her mother. As the father was not taking any interest in his minor daughter’s affair and as the mother was looking after her minor daughter’s interest, the mother must be considered in the circumstances to be the natural guardian of the landlord and as natural guardian, she was entitled to lease the properties and hence written lease granted by her was legal and valid and therefore the lease in favour of the tenant is one created prior to April 1, 1957, and hence Section 39 was not attracted.

The High Court further held that as Act came into force on January 29, 1961, the application should be filed within one year, namely or before January 28, 1962. The landlord was not entitled to file the application as she has done in the present case within one year of her attaining majority as Section 39 does not give any such extended period for minors. Hence the High Court held that the application filed on March 30, 1963, was barred by limitation. Further, the High Court held that application under Section 39 was not maintainable and should be treated as on filed under Section 36 read with Section 38and should be granted relief under the same section.

The High Court gave his view that, though the landlord was not entitled to possession of the entire field as claimed by her, she is nevertheless entitled to resume for personal cultivation one-third of the family holding, or half of the land leased by her whichever is more.

Judgment:

The High Court has rightly pointed out that the revenue tribunals have only granted relief to the appellant on the basis of Section 39. However, the High Court in spite of holding section 39 not applicable yet has shown consideration to the appellant and treated her application under section 36 read with section 38. For the purposes of effecting a division of the leased properties into two halves and place the landlord and the tenant in possession of one portion, that the high court after setting aside the order of the revenue tribunals remanded the matter to the Naib Tahsildar. The appeal fails and is dismissed by the Apex Court.

Case Law Referred:

• Nagendra Nath Bora and Another V. The Commissioner of Hills Division and AppealsAssam and Others
• Rambhau V. Shankar Singh and Another

Comment:

In the present case, the conflict arose between the landlord and tenant over a piece of land which was allotted to the tenant through leases which were granted by the mother on behalf of the landlord who was at that time minor. Initially, the leases were granted orally but later lease was granted in written as well. After attaining the majority the landlord demanded the land for personal cultivation and filed a suit under the Bombay Tenancy Act. The Naib Tahsildar granted relief to the landlord by giving the charge of the entire land but the tenant challenged the decision in High Court in terms of the limitation period of filing the suit. The tenant made an appeal that suit was barred by the limitation period. After all the arguments the High Court granted relief to the landlord by allowing the possession of half of the land.

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[1] (1958) SCR 1240: AIR 1958 SC 398.

[2] Civil Appeal No. 35 of 1966, decided on March 17, 1966.