# BALKRISHNA SOMNATH v. SADA DEVRAM KOLI & ANOTHER

- **Citation:** [1977] 2 S.C.R. 678
- **Court:** Supreme Court of India
- **Decided:** 1977-01-20
- **Case number:** Civil Appeal No. 129 of 1968
- **Bench:** V. R. Krishna Iyer, A. C. Gupta
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balkrishna-somnath-v-sada-devram-koli-another-7094
- **Pages:** 7

## Headnote

Bombay Tenancy & Agricultwal Lands Act, 1948 (Bombay Act LXVII of
1948) as amended by Bombay Act XIII of 1956, section 32-Scope of-Interpretation of the words "disabled person's share in the joint family
has beerr
separated by metes and bounds" occurring in proviso to s. 32 F(l) (a).
~
Under s. 32 of the Bombay Tenancy and Agricultural Lands Act 1948 the
tiller of the land had the. right to purchase the land tenanted to him. Where
the landlord is a minor or a widow or a person subject to any mental or physic'.11 disability, the right to purchase such land is postponed till their disability
d1sappea~s and one year lapses thereafter. But this embargo on the exercise
of the nght of purchase ]:>y the tenant does not operate as
per proviso to
s. 32F(l)(a), if the property belongs to a joint family and there is a partition
therein and the land is alloJted to the person under disability.
In both the appeals, the family owned lands and other assets and there was
a partition confined to agricultural land only. In one case the share fell to a
widow while in the other it fell to a minor, admittedly a disabled person within
the meaning of s 32F(1). Before the Tribunal and lhe High Court, the landlord claimed, ther_efore, protection under the proviso to clause (a) of section
32F(l) of the Act while the respondent contended that even if the agricultural
land had been divided and other assets admittedly remained joint, the appellant
was ineligible to .claim the benefit of the proviso. The High Court decided
against the landlord and held : "The proviso is not satisfied unless the share of
a disabled person is separated by metes and bounds in all the joint family property and unless the agricultural land allotted to him corresponds to his share
in the entire property and is not in excess thereof'.
Dismissing the app~al to this Court,
HELD : (1) The broad idea is to vest full ownership in the tenantry. A
compassionate exception is made in favour of a handicapped landlords
who
cannot prove their need to recover their land on approved grounds. The
Legislature conditioned the proviso by insisting that the sej)aration should be
from the whole joint family assets and not a tell-tale transaction where agricultural lands alone are divided and secondly even where there is a total partition
only a fair proportion of the lands is allotted to the disabled person. [682 C-D-FJ
(2) What section 32F(1) insists upon is that (a) share of such person in the
joint family has been separated by metes and bounds; (b) the Mamlatdar is
satisfied that the share of the disabled person in the land is separated in the
same proportion as the share of that person in the entire joint family property
and not in a larger proportian. [681 GJ
(3) The imperative condition for the operation of the proviso is that there
should be a total separation and so far as a disabled member is concerned, it
must cover all the joint family properties. The usage of the expressions "the ·
share of such person in the joint_family", "the share of such person in the
land" "the share of that person in the entire joint family
property" in
the·
sectio~ the clear statement in the proviso that the disabled person's share in
the joint family must have been separated by metes a.nd ~ound~ and the sta!utory exercise expected of the Mamlatdar by the proviso mvolvmg an enqmry
into the share of the disabled person in the land and its value, the share of
that person in the entire joint family properties, the proportion that the allotI ,,
(
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BALKRISHNA v. SADA DEVRAM (Krishna Iyer, J.)
679
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ment of the land bears to his share in the entire joint family property with a
A
view to see that there is no unfair manouvre to defeat the scheme of the Act-
.lead to the nec~ssary postulate that it is not confined to the share of the land
<0nly but really means his share in the entire joint family property.
[683 E-H, 684 Al
( 4) In the instant case there is no division of all the joint family property.
<Only the lan

## Text

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BALKRISHNA SOMNATH
v.
SADA DEVRAM KOLI & ANOTHER
January 20, 1977
[V. R. KRISHNA IYER AND A. C. GUPTA, JJ.]
Bombay Tenancy & Agricultwal Lands Act, 1948 (Bombay Act LXVII of
1948) as amended by Bombay Act XIII of 1956, section 32-Scope of-Interpretation of the words "disabled person's share in the joint family
has beerr
separated by metes and bounds" occurring in proviso to s. 32 F(l) (a).
~
Under s. 32 of the Bombay Tenancy and Agricultural Lands Act 1948 the
tiller of the land had the. right to purchase the land tenanted to him. Where
the landlord is a minor or a widow or a person subject to any mental or physic'.11 disability, the right to purchase such land is postponed till their disability
d1sappea~s and one year lapses thereafter. But this embargo on the exercise
of the nght of purchase ]:>y the tenant does not operate as
per proviso to
s. 32F(l)(a), if the property belongs to a joint family and there is a partition
therein and the land is alloJted to the person under disability.
In both the appeals, the family owned lands and other assets and there was
a partition confined to agricultural land only. In one case the share fell to a
widow while in the other it fell to a minor, admittedly a disabled person within
the meaning of s 32F(1). Before the Tribunal and lhe High Court, the landlord claimed, ther_efore, protection under the proviso to clause (a) of section
32F(l) of the Act while the respondent contended that even if the agricultural
land had been divided and other assets admittedly remained joint, the appellant
was ineligible to .claim the benefit of the proviso. The High Court decided
against the landlord and held : "The proviso is not satisfied unless the share of
a disabled person is separated by metes and bounds in all the joint family property and unless the agricultural land allotted to him corresponds to his share
in the entire property and is not in excess thereof'.
Dismissing the app~al to this Court,
HELD : (1) The broad idea is to vest full ownership in the tenantry. A
compassionate exception is made in favour of a handicapped landlords
who
cannot prove their need to recover their land on approved grounds. The
Legislature conditioned the proviso by insisting that the sej)aration should be
from the whole joint family assets and not a tell-tale transaction where agricultural lands alone are divided and secondly even where there is a total partition
only a fair proportion of the lands is allotted to the disabled person. [682 C-D-FJ
(2) What section 32F(1) insists upon is that (a) share of such person in the
joint family has been separated by metes and bounds; (b) the Mamlatdar is
satisfied that the share of the disabled person in the land is separated in the
same proportion as the share of that person in the entire joint family property
and not in a larger proportian. [681 GJ
(3) The imperative condition for the operation of the proviso is that there
should be a total separation and so far as a disabled member is concerned, it
must cover all the joint family properties. The usage of the expressions "the ·
share of such person in the joint_family", "the share of such person in the
land" "the share of that person in the entire joint family
property" in
the·
sectio~ the clear statement in the proviso that the disabled person's share in
the joint family must have been separated by metes a.nd ~ound~ and the sta!utory exercise expected of the Mamlatdar by the proviso mvolvmg an enqmry
into the share of the disabled person in the land and its value, the share of
that person in the entire joint family properties, the proportion that the allotI ,,
(
' I,
)
BALKRISHNA v. SADA DEVRAM (Krishna Iyer, J.)
679
i
ment of the land bears to his share in the entire joint family property with a
A
view to see that there is no unfair manouvre to defeat the scheme of the Act-
.lead to the nec~ssary postulate that it is not confined to the share of the land
<0nly but really means his share in the entire joint family property.
[683 E-H, 684 Al
( 4) In the instant case there is no division of all the joint family property.
<Only the landed properties have been separa~. [684-B]
-Observation :
The reform of the inherited law-niaking methodology may save court time
;and reduce litigation. Our legislative process, not an unmixed blessing, works
under such instant stress and ad hoc hephazardness that the whole piece of
legislation when produced makes experienced draftsmen blush, as in the instant
.case, the involved drafting of s. 32F has had its share in the marginal obscurity
,of meaning. [682 B-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 129 of 1968,
,;
Appeal by Special Leave from the Judgment and Order dated
the 18-8-66 of the Bombay High Court in S.C.A. No. 1299/67 and
Civil Appeal No. 2007 of 1969
From the Judgment and Order dated the 18th, 20th June 1968
<Jf the Bombay High Court in S.C.A. No. 1676 of 1964.
and
Special Leave Petition (Civil) No. 3175/75
From the Judgment and Order dated the 31-10-74 of the Bombay.
High Court ;n Special Civil Appln. No. 2610 of 1970.
V. M. Tarkunde, V. N. Ganpule and P. C. Kapoor for the appellant in C. A. 129 of 1968.
S. N. Anand for Respondent No. 1 in CA 129/68
V. N. Ganpule for the Petitioner in SLP
S. B. Wad and R. N. Nath for the Appellants in CA 2007 of 1969.
~
R. B. Datar and S. C. Agarwal for Respondent No. 1 in CA 2007 I
69
The Judgment of the Court was. del(•vered by
KRISHNA IYER, J.
These two appeals raise a short issue of interpretation of the proviso to s. 32F (1) (a) of the Bombay Tenancy
and Agricultural Lands Act, 1948 (Bombay Act LXVII of 1948)
(hereinafter referred to as the Act).
The appellants in both the
cases are the aggrieved landlords, the tenants' right of puchase under
t.he Act having been upheld by the Hi•gh Court.
The correctness of
this view is canvassed . before us by counsel.
The facts necessary . to appreciate the rival contentions may be
stated briefly.
The parties are different but the issue is identical. and
110 a single judgment will dispose of both the appeals.
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680
SUPREME COURT REPORTS
[1977] 2 S.C.R.
In Civil Appeal No. 2007 of 1969 the witlow of a deceased landowner, one Dattatraya, is the appellant. The deceased owned several
houses, had a money-lending business and considerable agricultural
lands.
He left behind him on his death in .1952 a widow'{the second,
appellant) and two sons, one of whom is the first appellant. Admittedly the Act, an agrarian reform measure, was extensively amended
by Bombay Act XIII of 1956 conferring great rights on tenants and,
inflicting ~erious mayhem on landlordism. The case of the appellants
is that there was a partition among the mother and the two sons of the
agricultural estate whereunder the second appellant (the widow) was
allotted around 80 acres of land out of which about 15 acres were
held by the first respondent as a tenant. On the Tillers' Day tenants
bloomed into owners by the conferment of the right of purchase.
On
the basis that the first respondent had become the o..yner, a proceeding
!or the determination of the purchase-price of these lands was initiated;
by the Tribunal, as provi'ded under s. 32G of the Act.
Although
notice was not given to the second appellant, the first appellant appeared before the Tribunal, urged the case that the land held by the
first responden~ was set apart in a family partition to his mother, the
second appellant, and that1 since she was a widow she came squarely
within the protective provision of the proviso to cl. (a) of s. 32F(l)
of the Act.
The first respondent, however, contested the partition
and further pressed the plea that even if the agricultural lands had
been divided since the house and the money-lending business and
other assets admittedly remained joint, the appellant was ineligible·
to claim the ·benefit of the proviso aforesaid.
We need not trace the
history of the litigation from deck to deck but may conclude the story
for the present purpose by stating that the High Court took the view
that the second appellant (widow did not qualify under the said pro-
. viso : "The proviso is not satisfied unless the share of a disabled person
is separated by metes and bounds in all of the joint family property and
unless the agricultural land allotted to him corresponds to his share
in the enti•re property and is not in excess thereof."-This was the
construction put by the Court on the proviso and challenged before
us by Shri Wad in C. A. 2007 of 1969 and by Shri Tarkunde in
C. A. 129 of 1968.
In Civil Appeal No. 129 of 1968 the legal scenario is
similar~
The family owned1 lands and other assets and tbere was a partition
on November 7, 1956 confined to agricultural land only,
but the
house property remained undivided.
The partition deed shows that
the land under the tenancy of the first respondent has been set apart
to the share of a minor appellant.
The Tillers' Day arrived.
The
tenant claimed to have become owner.
Proceedings ur1der s. 32G
of the Act for determination of the compensation were commenced,
and the mantle of protection of the proviso to s. 32F (1) (a) was
pleaded in vain.
The High Court having negatived the landlor?'s
contention summarily, this Court has been approached, the pomt
urged being the same as in the previous appeal.
In both the appeals we may proceed, for testing the legal proposition, on assumed facts.
We may take it that there was a parti-
BALKRISHNA v. SADA DEVRAM (Krishna Iyer, J.)
681
tion in both cases during the period referred to in the proviso, i.e.,
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before March 31, 1958.
We may further take it that the widow and
the minor come within the category specified in s. 3 2F (1) (a).
- We have also to proceed on the basis that the joint family in each
case has other assets which remain joint and undivided.
Before proceeding further with the discussion ~t may be proper
to read the relevant provision for a break up of the, statutory iimbs :
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"32F. (1) Notwithstanding anything contained in the
proceeding sections-
( a) where the landlord i<s a minor, or a widow
or a
person subject to any mental or physical disabi'lity the tenant
shall have the right to purchase such land under section 32
within one year from the expiry of the period during which
such landlord is entitled to terminate the tenancy under section 31 and for enabling the tenant to exercise the right of
purchase, the landlord shall send an intimatiton to the tenant
of the fact that he has attained majority, before the expiry
of the period during which such landlord is entitled to terminate the tenancy under section 31 :
Provided that where a person of such category is a member of a joint family, the provisions of this
sub-secti'on
shall not apply if at least one member of the joint family·
is outside the categories mentioned in this sub-section unless before the 31st day of March 1958 the share of such
person in the joint family has been separated by metes and
bounds and the Mamlatdar on inquiry is satisfied that the
share of such person in the land is separated, having regard
to the area, assessment, classification and value of the land,
in the same proportion as the share of that person in the
entire joint family property, and not in a larger proportion.
x
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x
x"
Where the landlord is a minor or a widow, as in this case, the
tenants' right to purchase such land under s. 32 is postponed till their
disability disappears and one year lapses thereafter. But this embargo
on the exercise of the right of purchase by the tenant does not operate
if the property belongs to a joint family and there is a
partition
therein and the land in question is allotted to the person under disabiMy.
What the section insists upon is that (a) share of such person in the joint family has been separated by metes and bounds; andi
(b) the Mamlatdar is satisfied that the share of such person in the·
land is separated in the same proportion as the share of that person
in the entire joint-family property and not in a larger proportion.
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We are dealing with an agrarian reform law whose avowed object
its to confer full proprietorship on tilling tenants and it is a fact of
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common knowledge that landlords resort to cute agrarian legal
engineering to circumvent the provisions.
The legislature, with local
knowledge of famili'ar manipulations and manouvres
calculated to
682
SUPREME COURT REPORTS
[1977] 2 s.c.R.
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defeat land re~or~s, m~kes widely-worded provisions the 'why' of it
may not. be easily ~1s.cermble to the Court. We have to give full force <\lld
effect without whittling down or supplying words. Nor can the Court
presume the mischief and remedy. the evil by interpretative truncation.
~ bl7nd of the grammatical and !]ie teleological modes of construction ts the best and that iSJ what has been done by the High Court.
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We arei free to agree that the itnvolved drafting of the section has
had its share in the marginal obscurity of meaning.
But our legis~
lative process, not an unmixed blessing, works under such instant
stress and ad hoc haphazardness that the whole piece when produced
makes experienced draftsmen blush.
Reform of the inherited lawmaking methodology may save court time and reduce litigation.
Be
that as it may, we have to wrestle with the language of the Proviso
to decode its true sense.
The broad idea is to vest full
ownership in the tenantry.
A
compassionate exception is made in favour of handicapped landlords
who cannot prove their need to recover their land on approved
grounds.
These disabled categories include infants and
widows.
But if the lands belong to joint fami!l.ies of which they are members,
the raison d'etre for such protection does not exist because the
manager of this joint family_ takes care of its
collective interests.
Where, h.owever, there has been a partition of the joint family, then
the widow or minor has to stand on her or his own disabled legs and
so the Proviso to s. 32F (1) (a) was brought in by amendment to
give them protection for the period of the disability and a little longer.
But every ruse to save the lands is used by landlords and so, once
it was in the air that minors and widows may be exempted, a spate
of partitions perhaps ensued.
Joint living is the dear, traditional
hindu way of life but jettisoning jointness to salvage land is dearer
still.
Blood is thicker than water, it has been said; but in
this
mundane world, property i'S thicker than blood:
So partition deeds,
conveniently confined to land, became a popular art of extrication.
And the, Legislature, anxious to inhibit such abuse, while willing to
exempt genuine, total separations, conditioned the Proviso under consideration by insisting that the separation should be from the whole
joint family assets and not a tell-tale transaction where agricultural
lands alone are divided and secondly, even where there is a total partition, only a fair proportion of the lands is allotted to the disabled
person.
In this light, we may read the Proviso.
To steer clear of possible
confusion we may agree that partial partition may be lega!Iy permis~ible and the Hindu law does not require investigation into the
motives or motivelessness behind the partition.
We also accept that
division in status is good enough to end commensality .or jointness
under the personal law.
But we are now in the jurisdiction of land
reform legislation and the Legislature, with a view to fulfil its
objectives, may prescribe special requirements.
The Court has to
give effect to them, in the spirit of agrarian reform and not read down
the wide words on judicial suppositions.
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.llALKRISHNA v. SADA DEVRAM (Krishna Iyer, J.)
683
Here the Proviso can rescue. the widow or the minor only if the
prerequisites are fai!rly and fully fulfilled.
Section 32 states that the
tenants shall be deemed to have purchased the tenanted land on the
Tillers' Day. The Tribunal suo motu takes action to determine the
purchase price.
But all this is kept in abeyance if the landlord belongs
to the disabled category and qualifies under s. 3 2F ( 1) . The crucial
issue is whether the Proviso applies even if the separat;\ln of the
widow or minor is restricted to agricultural lands.
Shri Wad and
Shri Tarkunde vehemently urge that it is none of the concern of the
agrarian law what happens to the other assets of the joint family,
so long as the lands are divided i!n fair
proportion.
Shri Datar
presses what the High Court has laconically reasoned, viz., that it is
possible tq defeat the scheme by division of the lands alone.
For
one thing, in most such partial partitions, inspired by the desire to
avoid the land reforms i•n the offing, the Legislature can, as a policy
decision, insist on a whole partition, to reduce the evasion.
Moreover, there will be a: sudden fancy for allotting all the good lands to
the share of widows and minors, depriving the tenants of their legitimate expectations. And, if lands and other assets are to be divided, then
less lands will go to the disabled persons or even none. For instance
the house may be allotted to the widow and the lands taken over by
adult males.
The ornaments may all go to the woman, the agriculture to the men.
We need not speculate, but may content ourselves with stating that the Legislature has, for some reasons, decided
to lay' down conditions and the words of the text must be assigned
full effect.
The Proviso clearly states that the disabled person's s_!iare 'in the
joint fam:Jl.y' must have been
'separated by metes and bounds'.
Separation from ~~ joint family means separation from all the joint
family assets. Otherwise the sharer remains partly joint and, to that ex~
tent, i's not separated from the joint family. Notional division or division
. in status also may not be enough because the Act insists on separation
'by metes and bounds'. Ordinarily 'metes and bounds' are appropriate to real property, meaning, as the phrase does, 'the boundary
lines of land, with their terminal points and angles'.
In the context,
the thrust of the expression is that the division must be more than
notional but actual, concrete, clearly demarcated.
The ineptness and
involved structure and some ambigui.lfy notwithstanding, the sense of
the sentence is clear.
The share of a person in the joint family,
plainly understood, means his share in all the joint family properties
and not merely in the real estate part. What is more, the sedion
uses the expressions 'the share of such person in the joint family',
'the share of such person i!n the land', 'the share of that person in the
entire joint family property'. Thus it is reasonable to hold that when
the expression used is 'the share of such person in the point family',
it is not confined to the share in the land only. It really means his
share 'in the entire joint family property'. Moreover. the statutory
exercise expected of the Mamlatdar by the Provi<so involves an enquiry
into the share of the disabled person in the Jand, and its value, the
share of that person in the entire joint family property, the proportion
that the allotment of the land bears to his share in the entire joint
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684
SUPREME COURT REPORTS
(1977] 2 S.C.R.
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family property, wifth a view to see that there is no unfair manouvre
to defeat the scheme of the Act.
The. necessary postulate is that
there is a division in the entire joint family property.
Therefore, the
imperative condition for the operation of the Proviso is that there
should be a total separation and so far as a disabled member i's concerned it must cover all the joint family properties.
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We are therefore in agreement with the interpretation adopted by
the High Court.
In the cases under appeal there is no division of
all the joint family properties.
Only the landed properties have been
separated.
The appeals
therefore faill. and are dismissed.
In the
circumstances, we direct parties to bear their costs.
S.R.
Appeals dismissed.
. ..
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