# JUABAI VITHALRAO GAJRE v. PATHANKHAN & ORS

- **Citation:** [1971] 2 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1971
- **Case number:** Civil Appeal No. 40 of 1967
- **Bench:** J. M. Shelat, C. A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/juabai-vithalrao-gajre-v-pathankhan-ors-5322
- **Pages:** 10

## Headnote

Hindu Law-Hindu adoption and Guardianship Act 32 of 1956-Father
cincl 1nother living separately-Minor daughter living with mother-Mother
is natural guardian.
Constitutio11 of India, Art. 221-Jurisdiction of High Court.
The Bo:nbay Tenancy & Agricultural Lands (Vidarbha Region) Act,
(Bombay Act 99 of 1958), ss. 38, 39-Application under s. 39 does not
lie when ten1J11Cy created prior to April I, 1951-Application under s. 39
ma,y be treated as one under s. 38 in suitable circumstances.
The appellant obtained from her father under a gift a piece of land
admeasuring 27 acres and 37 gunthas. As owne'r of the land she. served
a notice dated March 31, 1962 on the tenant informing him of her
intention to terminate his tenancy of the land on the ground that she
required the land boM fide for her personal cultivation.
On March 30,
1963 she filed an application before the Naib Tahsildar under s. 36 read
with s. 39 of the Bombay Tenancy & Agricultural Lands (Vidarbha
Region) Act (Bombay Act 99 of 1958) for termination of the tenancy
of the tenant and for directing him to surrender possession of the entire
land.
Later the application was amended to include an alterntive plea
for being given possession of half the land in question in case possession
of the entire land could not be given. The tenant resisted the application.
Tiie Naib Tahsildar held : (I) that the application filed by the landlord
under s. 36 read with s. 39 was maintainable and that the notice issued
by her on March 31, 1962 was valid; (2) that the landlord was born
on July 6, .1944 and attained majority on July 6, 1962; (3) that under
s. 39 (as interpreted by the Naib Tahsildar) the landlord was entitled to
file the application within one year after her attaining majority and in
this case the application had been filed within that time; ( 4) that there
were oral leases granted by the mother of the landlord in favour of the
tenant from 1951 onwards and that the tenant had also executed a
kabuliyat in favour of the landlord represented by her mother on February
12, 1956 for the year 1956-57 and that he had been in possession of the
land as tenant even during 'the period 1958-59; (5) that since, however,
the fat.1er of the landlord was alive, and was in law her natural guardian,
the leases granted by the mother were not valid; ( 6) that, nevertheless,
·since the tenant was in occupation of the land during 1958-59 he was
a deemed tenant under s 6 of Bombay Act 99 of 1958; (7) that since
the deemed tenancy aros~ after April l, 1957 the landlord was entitled
to get relief under s, 39 of the Act; ( 8) that the landlord had no other
land _and no other source of income and the suit land \Vere less than a
family holding .. In the result the N aib Tahsildar ordered that the possession of the entire land be granted to the appellant: The_order was confirmed by the Sub-Divisional Officer and substantially confirmed by the
Revenue Tribunal.
'These three orders were challenged by the tenant. 11)
a writ petition under Act 227 of the Constitution. The High Court takm,g
into account the finding of the Revenue Tnbunal that the appellants
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SUPREME COURT REPORTS
( 1971] 2 S.C.R.
father was not taking any interest in his minor d2uohtcr's affairs and the
moth~r was looking after her and n1unaging her pr~1per1ics, held that in
the c1rcun1stances the mothe'r must be considered the natural guardian.
Consequently in the High Court's view the lease granted by the mother
on. February_ 12. J 956 was lr!gal and vali<l. The lease being one recorded
prior to April I. 1957, s. 39 wus not attracte~. The High Court further
held that since the application .under s. 39 \Vas not tiled \Vithin one yea'r
of,the con1ing into force of Bombay Act 99 of 1958, it was tiinc-barred.
HL1Wever treating the application as one under s. 38 of the Act the High
Court remanded the case to the Naih Tahsildar to give effect to its vie\\'
that the appellant was entitled to resume for cultivation one third of the
family holding or

## Text

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JUABAI VITHALRAO GAJRE
v.
PATHANKHAN & ORS.
September l, 1970
(J. M. SHELAT AND C. A. VAIDIALINGAM, JJ.]
Hindu Law-Hindu adoption and Guardianship Act 32 of 1956-Father
cincl 1nother living separately-Minor daughter living with mother-Mother
is natural guardian.
Constitutio11 of India, Art. 221-Jurisdiction of High Court.
The Bo:nbay Tenancy & Agricultural Lands (Vidarbha Region) Act,
(Bombay Act 99 of 1958), ss. 38, 39-Application under s. 39 does not
lie when ten1J11Cy created prior to April I, 1951-Application under s. 39
ma,y be treated as one under s. 38 in suitable circumstances.
The appellant obtained from her father under a gift a piece of land
admeasuring 27 acres and 37 gunthas. As owne'r of the land she. served
a notice dated March 31, 1962 on the tenant informing him of her
intention to terminate his tenancy of the land on the ground that she
required the land boM fide for her personal cultivation.
On March 30,
1963 she filed an application before the Naib Tahsildar under s. 36 read
with s. 39 of the Bombay Tenancy & Agricultural Lands (Vidarbha
Region) Act (Bombay Act 99 of 1958) for termination of the tenancy
of the tenant and for directing him to surrender possession of the entire
land.
Later the application was amended to include an alterntive plea
for being given possession of half the land in question in case possession
of the entire land could not be given. The tenant resisted the application.
Tiie Naib Tahsildar held : (I) that the application filed by the landlord
under s. 36 read with s. 39 was maintainable and that the notice issued
by her on March 31, 1962 was valid; (2) that the landlord was born
on July 6, .1944 and attained majority on July 6, 1962; (3) that under
s. 39 (as interpreted by the Naib Tahsildar) the landlord was entitled to
file the application within one year after her attaining majority and in
this case the application had been filed within that time; ( 4) that there
were oral leases granted by the mother of the landlord in favour of the
tenant from 1951 onwards and that the tenant had also executed a
kabuliyat in favour of the landlord represented by her mother on February
12, 1956 for the year 1956-57 and that he had been in possession of the
land as tenant even during 'the period 1958-59; (5) that since, however,
the fat.1er of the landlord was alive, and was in law her natural guardian,
the leases granted by the mother were not valid; ( 6) that, nevertheless,
·since the tenant was in occupation of the land during 1958-59 he was
a deemed tenant under s 6 of Bombay Act 99 of 1958; (7) that since
the deemed tenancy aros~ after April l, 1957 the landlord was entitled
to get relief under s, 39 of the Act; ( 8) that the landlord had no other
land _and no other source of income and the suit land \Vere less than a
family holding .. In the result the N aib Tahsildar ordered that the possession of the entire land be granted to the appellant: The_order was confirmed by the Sub-Divisional Officer and substantially confirmed by the
Revenue Tribunal.
'These three orders were challenged by the tenant. 11)
a writ petition under Act 227 of the Constitution. The High Court takm,g
into account the finding of the Revenue Tnbunal that the appellants
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SUPREME COURT REPORTS
( 1971] 2 S.C.R.
father was not taking any interest in his minor d2uohtcr's affairs and the
moth~r was looking after her and n1unaging her pr~1per1ics, held that in
the c1rcun1stances the mothe'r must be considered the natural guardian.
Consequently in the High Court's view the lease granted by the mother
on. February_ 12. J 956 was lr!gal and vali<l. The lease being one recorded
prior to April I. 1957, s. 39 wus not attracte~. The High Court further
held that since the application .under s. 39 \Vas not tiled \Vithin one yea'r
of,the con1ing into force of Bombay Act 99 of 1958, it was tiinc-barred.
HL1Wever treating the application as one under s. 38 of the Act the High
Court remanded the case to the Naih Tahsildar to give effect to its vie\\'
that the appellant was entitled to resume for cultivation one third of the
family holding or half of the land lease<l by hpr whichever was niote.
Appeal against the High Court's order was filed ,in this Court by special
leave.
The questions that fell for consideratioii were: (i) \vhCther the
High Court hnd exceeded its jurisdiction undef Art. 227; (ii) whether
the appellant's n1other was entitled in Jaw to grant a lease of her land and
wheth<!r the tena'ncy of the tenant was one ~created prior to April l, 1957
to which s. 39 wa') not applica_blc; (iii) w1fether the application under.
s. 39 \Vas barred by JirnitatiOn.
HELD : (i) The _powers of the High Court under Art. 227 are not
greater than the po\.\•efs under Art. 226 of the Constitution. The pO\Vers
of interference under Art. 227 are· limited to seeing that the• tribunals
function within the limits of their authotity and thaf the High Court
cnnnot sit in appeal against the order of a tribunal in a petition under
Art. 227.
In the present case the High Court could not be said to have
exceeded its jurisdiction under Art. 227 because it was only on
two
material aspects of 'the case which affected the juriSdiCtion of the tribunals
t.o grant relief, namely, (aj the pO\\'cr of the mother, on the facts found
hy the tribunals, to grant the lease on behalf of the minor daughter and
(b) the maintainability of the application under s. 39 of the Act, that
the High Court had differed from the tribunals.
[7 C-D]
Nagendra Nath Bora & Anr. v. Commissioner of Hills Division and
,,1.ppeals, Assam & Anr. [1958] S.C.R. 1240 and Ramblwu v. Shankar
Sing/1 & Am·. C.A. No. -35/1966 dt. 17-3-1966, applied.
(ii) Tho,.e. from 1951 to i956 the leases were oral, for the year
1956-57 a written lease was executed by the tenant in favour of the
appellant represented by her mother.
Jt,-ig no doubt true that the father
was alive bpt he \Vas not taking any interest in the affairs of the minor
arid it was as"' good as.jf he -was- non-existent so far as the minor appellant
wus concerned.
The High Court was therefore right in holding. that in
the particular circumstances of this c~se the mother could be considered
to be the natural guardian of her minor daughter. This was the position
in Hindu la\V both before and after.the passing of the Hindu fv{ino.rity a.nd
Guardianship Act. 1956. [8 E-HJ
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There was o evidence to establish that the transaction in question
was in any way imprudent or not in the interest of the minoi;.
f9 A-Bl
The leases granted by the mother being valid, the tenancy was clearly
one granted before April 1, 1957. ·to which s. 39 was oot-np~licablc. [9 El
(iii) Section 39 being inapplicable the question whether the appellant's
application under that section was within the period _of limitation did not
nrise for consideration. [10 B-C]
(iv) The High Court even after holding that s. 39 did not apply had
shown consideration to· the appellant by treating her application as one
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JIJABAI v. PATHANKHAN (Vaidia/ingam, l.J
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under s. 36 read with s. 38.
Applying s. 38 the appellant would not be
entitled to the possession of the entire field.
As per cl. (a) proviso (i)
of sub-sec. (4) of s. 38 she would be entitled to resume for personal cul·
tivation either one-third of the family holding or h•lf of the lands leased
by her. whichever was more.
On this basis the directions given by the
High Court in remanding the case to the Naib Tahsildar were. correct.
[10 D-F]
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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 40 of
1967.
Appeal by special leave from the judgment and order dated
July 13, 1966 of the Bombay High Court, Nagpur Bench in
Special Civil Application No. 499 of 1965.
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G. L. Sanghi and A. G. Ratnaparkhi, for the appellant.
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Danial A. Latifi and M. I. Khowaja, for respondent No l.
The Judgment of the C::mrt was delivered bv
Vaidialingam J.
This appeal, by special leave, is directed
against the judgment and order dated July 13, 1966 of the High
Court of Bombay (Nagpur Bench) in Special Civil Application
No. 499 of 1965 filed under Art. 227 of the Constitution by the
first respondent herein (to be referred as the tenant).
The appellant (to be referred as
the landlord)
was
the
daughter of one Champatrao.
She had obtained from her father
under a gift deed dated September 15, 1944 the suit field survey
No. 56 of an extent of 27 acres 37 gunthas.
As owner of the
lands she served a notice' dated March 31, 1962 on the tenant
informing him of her intention to terminate his tenancy of the
lands on the ground that she required the lands bonafide for her
personal cultivation.
On March 30, 1963 she filed an ·appJica,
tion before the Naib Tahsildar, Darwha under s. 36 read with
s. 39 of the Bombay Tenancy and Agricultural Lands (Vidarbha
Region) Act, Bombay Act No. XCIX of
1958
(hereinafter
referred to as the Act) for tem1ination of tenancy of the tenant
and for directing hin1 to surrender possession of the entire lands
comprised in field survey No. 56.
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 lands in the p<issession
of the tenant and that in respect of that half, in
the eastern
po_rtjon 13 acres and 38 gunthas may be allotted to her.
The tenant resisted the claim of the landlord on various
grounds. He pleaded that the father and mother of the land·
lord had fallen out very long ago and that the landlord was a
minor, was being looked after and protected
by her mother
Smt. Chandrabhagabai and the mother was managing the suit
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[1971] 2 S.C.R.
properties on behalf of her minor daughter. In the course of
such management the suit properties were being leased in his
favour from time to time· beginning from 1951"52 and as suc.h
he has been in possession as tenant from April, 1951.
Though
the original leases granted by the mother were oral, for the year
1956-57 he had executed a kabuliyat in favour of the landlord
represented by her mother as guardian. In as much as he has
. been the tenal)t of the properties under a lease created prior to
.April l, 1957, he had acquired the status of a protected lessee
.even before the coming into force of the Act.
He further pleaded that as tae landlord had not filed the application within one
year of the coming into force of the Act, her claim was barred by
limitation and the applic:ition under s. 39 was not maintainable.
He had also raised a cpntroversy regarding her date of birth as
well as the validity of the notice dated March 31, 1962, issued by
the landlord.
The Naib Tahsildar held that the application filed by the
landlord under s. 36 read with s. 39 was maintainable and th.ill
the notice issued by her on March 31, 1962 was
valid.
He
further found that the landlord was bOrn on July 6, 1944 alid
.attained majority on July 6, 1962. An interp;etation of s. 39,
the Naib Tahsi!dar found that the landlord was entitled to file
the application within one year after her attaining majority and
in this case the application has be~n -filed within that time.
He
further found that there were oral leases granted by the mother
of the landlord in favour of the tenant from 1951 onwards and
that the tenant had also executed a lease deed in favour of the
landlord represented by her mother on February 12, 1956 for
the year 1956,57 and that he has been in possession of the lands
as tenant even during the period 1958-59. · But the Naib
Tahsilclar held. that as the father of the appellant was alive and
was in law her natural guardian, the Jease executed by the· tenant
on February 12, 1956 was not legal and valid as the mother
was not entitled to represent her minor daughter.
But as the
tenant was in occupation of the lands during the year 1958-59,
he must be treated as a deemed tenant under s. 6 of the Act.
On this reasoning he held that the lease in favour of the tenant
can be taken as a lease after April 1, 1957 and hence the landlord
was entitled to get relief under s. 39 of the Act. In view of his
further finding that the landlord had no other land and no other
source of income and as the suit lands ~ere less than the family
holding, she was entitled to get posses$ion of the entire lands
from the tenant.
Accordingly he granted the relief asked for by
the landlord in full.
The findings of the Naib Tahsildar enumerated above were confirmed by the Sub-Divisional Officer,
Darwha in the appeal filed by the ten~nt. The Maharashtra
Revenue Tribunal, whose revisional jurisdiction was invoked by
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JJJABAI v. PATHANKHAN (Vaidialingam, I.)
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the tenant also substantially confirmed the findings of the tw<>
subordinate authorities.
All these three orders were challenged by the tenant before
the High Court in the writ petition 1,1nder Art. 227 of the Constitution. The High Court, in its order under appeal, has accepted
the findings of facts regarding the date of birth of the landlord;
the date of her attaining majority as well as the legal validity Of
the notice issued by her on March 31, 1962.
The High Court
also accepted the finding recorded by the Revenue Tribunal that
the father and mother had fallen out and were Jiving separate and
that theJather was not looking after the interests of his minor
daughter ar.d that, on the other hand, the landlord was living
undo.;r the care and protection of her mother Smt. Chandrabhagabai,
who was also managing the suit properties on her behalf.
The
High Court also found that the tenant has been in possession of
the lands on the basis of the lease granted in his favour by the
mother from 1951 onwards.
But the High Court differed fremthe views expressed by the Revenue Tribunal on two important
aspects, namely, (i) legal validity of the lease granted by the
mother of the landlord in favour of the tenant and
(ii)
the
maintainability of the application filed by the landlord under
s. 39 of the Act.
Regarding validity of the lease granted by the
mother, the High Court held that even if the oral leases from 1951
onwards are eliminated, there has been a written lease executed
by the tenant on February 12, 1956 in favour of the landlord
represented by her mothsir for the year 1956-57. As the father
was not taking any interest in his minor daughter's affairs and
as the mother was looking after her minor daughter's interest and
managing the suit properties, the mother must be considered, in
the circumstances, to be the nawral guardian of the landlord and
as natural guardian she was entitled to lease the properties and
hence the written. lease granted by her on February 12, 1956
was legal and vahd. and therefore the lease in favour of the
tenant is one created prior to April 1, 1957 and hence s. 39 was
not attracted.
The High Court mi a construction of s. 3 9 of the Act held
that .as .the Act had come into forc.e on January 28, 1961, the
apphcat10n should have been filed within one year, namely, on or
before Jaarnary 28, 1962.
The landlord was not entitled to file
the applica.ti?n as s~e !ias done in the present case within one year
of her attammg ma1onty as s. 39 does not give any such extended
~eriod for minors.
Hence the High Court held that the applicat1on ~led on Mar~h 30, 1963 was barred by limitation.
Notwith-·
stai;idm)l the find1nl;( that the application uncbr s. 39 was not
mamtamable the High Court held that the landlord's application
could be treated as one filed under s. 36 read with s. 38 and as
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SUPREME COURT REPORTS
[1971) 2 S.C.R.
the.· application had been filed within the period referred to in
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s. 38, she could be granted relief under the later section. In this
view the High Court held that though the landlord was ;1ot entitled
to possession of the entire field as claimed by her, she is nevertheless
entitled to resume for personal cultivation one third o4' the family
holding, or half of the land leased by her, whichever is more.
In
this· view the High Court remanded the proceedings to lhe Naib
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Tahsildar for passing necessary orders treating the application
filed by the appellant as one under s. 36 read with s. 38.
Mr. G. L. Sanghi, learned counsel for the appellant raised
three contentions:
(i) the High Court in exercising jurisdiction
under Art. 227 of the Constitution has functioned in .this case
as a 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 mo.ther
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on· behalf of the appellant on February 12, 1956, as guardian of
the appellant is valid in law, is erroneous : (iii) the High Ccurt's.
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view that the application filed by the appellant before the N aib
Tahsildar on March 30, 1963 is barred by limitation and as such
the application under s. 39
is
not maintainable,
is
again
erroneous.
On the other hand, Mr. Danial A. Latifi, learned counsel
appearing for the tenant respondent has urged that the High Court
has not exceeded its jurisdiction under Art. 227, but has strictly
limited its inquiry to find out whether the subordinate tribunals
have functioned within the limits of their jurisdiction. All the
findings of facts recorded by those tribunals have been accepted
by the High Court. The High Court has only differed on the
question of interpretation to be placed on the material sections
so as to find out whether the revenue tribunals had jurisdiction
to entertain the application of the. appellant under s. 36 read
with s:39 of the Act.
The learned counsel also point~d out
that on the findings recorded by the revenue tribunals about the
father not taking any interest in the affairs of the minor daughter,
the High Court has come to a different conclusion of Jaw that
the mother under the circumstances, was the natural guardian .of
her minor daughter and was competent to enter into lease transactions on behalf of the appellant. If it was found that the lease
transaction entered into with the tenant by the mother of the
appellant was valid, the nature of the reliefs to be granted to
the appellant under the Act will radically differ.
The counsel
further urged that the construction placed upon s. 39 of the Act
by the High Court is also correct. ·
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JJJABAI v. PATHANKHAN (Vaidialingam, J.)
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Mr. Sanghi in support of his first contentiQll h<AA frawn our
attention to the principles laid down in Nagendra Mic.I~ Bora and
a11o:her v. The Commissioner of Hills Division and Appeals,
Assam and others(') and (in Rambhau v. Shankar Sr'ngh and
another(~). It is no doubt true that this Court has held in those
·decisions that the powers of the High Court under Art. 227 ar'~
not greater than the powers under ~Art. 226 of
the .Constitution.
It hos been ,further laid dowill that the power if interference under
Art. 227 wus limited to seeing that the tribunals function within
the limits of their authority and that the HiW1 Courts ,cannot sit
in
appeal against the order of a tribunal in, a petition under Art, 227. In our opinion, the High Court in
this case cannot be considered to have exceeded its jurisd1cticm
under Art. 227 of the Constitution.
We !:ave already, stated that
all findings on material facts have been accepted by the High
Court. It is only on two material aspects which affect the jurisdiction of the revenue tribunals to grant the necessary t·e!ief undi:r
the Act, that the High Court differed. Those were : (i) the power
of the mother on the facts found by the tribunals .to grant the
lease on behalf of her minor daughter and its legal effect; and
(ii) the maintainability of the application of the appeliant under
s. 39 of the Act.
Therefore, we cannot accept the contention
of Mr. Sanghi that any error has been committed Ly the High
Court in considering these aspects in proceedings under Art. 227.
The nature of the relief that could be granted to the appellant
under the Act depends upon the question whether the tenancy
in this case has been created "not earlier than the first day of
April, 1957." There is no controversy that the appellant was not
owning lands exceeding a family holding. If the tenancy in
favour of the tenant in this case is one created "not earlier than
the first day of April, 1957" and if the other conditions mentioned
in s. 39 are Htisfied, relief could be granted to the appellant under
that section.
We have
already referred to ·the facts
that the appellant's application was under s. 36 read with
s. 39.
In order to find out whether the lease in this
case is one created "not earlier than the lint day of April
1957", it is really necessary to inquire ·about tlie legal effect of
the lease executed by the mother as guardian of the appellant on
February 12, 1956 for the year 1956-57. If that lease is valid
and binding on the appellant, the result will be th:it s. 39 will
not be attracted. Therefore, we will first consider the question
as to the legal effect of the lease granted by the mother, which is
the subject of the second contention raised by Mr. Sanghi.
Mr.
Sanghi· urged that on the findings of all the revenue tribunals and
(I) [1958] S.C.R. 1240.
(l) Civil Appeal No. 35 of 1966, decided on March 17, 1966.
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SUPREME COURT REPORTS
· [1971) 2 s.c.R.
accepted by the Higl:\ Court, Champarrao, the fatner of the appel·
It.
!ant was acmittedly alive. If so, the fatheris the JiatunJ guardian
of the appellant under the Hindu Law.
Though the appellant may
have been staying under the protodion of her mother Smt.
Chandrabhagabai, the mother had no authority in law to execute
the lease deed so as to bind the appellant.
The counsel further
urged that even if it be held that the mother was ·competent to
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enter into lease transactions on behalf of her minC'r daughter,
there is no evidence led by the tenant that the lease is beneficial
. or advantageous to the interest of the minor.
Under those cfr..
cumstances, the counsel urged, the lease is void and has to be
ignored, and if so, this is not a case of tenancy created "not
earli
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·~r thanhthfe first fday. of April, 1957" and hence s. 39 fully
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app 1es to t e ads o this case.
We are not impressed with this contention of l'vlr. Sanghi.
Mr. Sanghi referred us to certain decisions where the powers of
a guardian of a minor have been considered.
But in the vjew
that we take that the contention of Mr. Sanghi in this regard is
not acceptable to us, no useful purpose will be served by reference
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to those decisions.
We have already referred to the fact that the
father and mother of the appellant had fallen out and that Ike
mother was living separately for over 20 years.
It was the mother
who was actually managing the affairs of her minor daughter,
who was under her care and protection.
From 195 l onwards the
mother in the usual course of management had been leasing out
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the properties of the appellant to the tenant.
Though from 1951
to 1956 the leases were oral, for the year 1956-57 a written lease
was executed by the tenant in favour of the ap~llant represented
by her mother. It is no doubt true that the father was alive but
he was ·not taking any iuterest in the affairs of the minor and it
was as good as if he was non-existent so far as the minor appellant
was concerned.
We are inclined to agree with the view of the
High Court that in the particular circumstances of this case, the
mothe~ can be considered to be the natural guardian of her minor
daughter.
It is needless to state that even before the passing of
the Hindu Minority and Guardianship Act, 1956 (Act 32 of 1956)
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the mother is the natural guardian after the father.
The above · G
Act came into force on August 25, 1956 and under s. 6 the
natural guardians of ~ Hindu minor in respect of the minor's pe_fson as well as the mmor's property are the father and after him
the mother.
The position in the Hindu Law before this enact·
ment was also the same.
That is why we have stated that nor-
~ally when th~ father is alive he is the natural guardian and it
lS only after him that the mother becomes the natural guardian.
But on the facts found· above the mother was rightly treated by
the High Court as the natural guardian.
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JJJAIIAI v. PATHANKHAN (Vaidia/ingam, I.)
9
It.has also been found by the High Court and all the revenue
tribunals that the mother was protecting the appellant and looking
after her interest and was also managing the suit lands by leasing
them to the tenant.
There is no evidence to establish that the
transaction of lease is in any way an imprudent one or not in
the interest of the minor appellant.
It has also been found that
the lease in favour of the tenant has begun from 1951.
Though
the lease for some years was oral, for the year 1956-57 a written
lease deed was executed on February 12, 1~56 by the tenant in
favour of the appelfo.nt represented by her mother as guardian.
If so, if follow as held by the High Court that the tenancy had
been created even prior" to the first day of April, 1957". Though
the revenue tribunals also found that the tenant was in possession
of the properties as lessee from 1951 onwards, they declined to
recognise his rights, on the view that those leases were not
binding on the appellant.
That view, as we have already pointed out, is erroneous.
Therefore, it follows that the contention of
Mr. Sanghi that the High Court's view about the validity and
legality of the lease exe.cute<l by the mother on February 12, 1956
is not correct, cannot be accepted.
In view of the above finding that the lease executed on February 12, 1956 is valid and binding on the appellant, it follows
that this is ncit a case of a tenancy created by the landlord "not
earlier than the first day of April, 1957" which is one of the
essential ingredients for . the maintainability of the application
under s. 39.
Therefore, the third contention of Mr. Sanghi that
the construction placed upon s. 39 by the High
Court and
holding that the application of the appellant is . barred by limitation is not correct, does. not arise for consideration.
The applicability of s. 39 would have arisen for consideration only if it
had been found that the l~ase by the mother is not valid and
by virtue of occupation of the land in 1958-59 the tenant is
to be considered as a 'deemed tenant' under s. 6.
We may, however, indicate that the High Court has held
that s. 39 will not apply on the ground that the lease in this case
is prior to April 1, 1957 and the application filed by the appellant
on March 30, 1963 was barred by limitation.
So far as the
view of the High Court that the lease in this case is one created
prior to April I, 1957 is concerned, we have already accepted
that finding.
Regarding the application being barred by limitation, the view of the High Court briefly is as follows : The Act
in the Vidharbha region came into force on January 28, 1961.
Under s. 39 sub-section I, the application by the landlord should
be filed within one year from the date of the Act coming into
force, i.e .. on or before January 28, 1'962..
Sections 38 and
39A while providing a period for making the application had
L235SJp.Gl(P)71-2
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SUPREME COURT REPORTS
[ 1971] 2 S.C.R.
also enabled a minor to file an application within one year. of
A
his or her attaining majority. · Similar provisions are not t~ be
found in s. 39(1).
Therefore, the fact that tne appellant attamed
majority on July 6, 1962 and had filed the application wit~
one year of her attaining majority, is of no avail.
The High
Court declir.ed to accept the contention on behalf of the appellant
that the words "but" ~ubject to the provisions of sub-sectif'n (2)
B
occuring in s. 39(1) referred to the enabling provisions in favour
of the minor contained in sub-section 2 of section 38.
At any
rate, as one of the ingredients for attracting s. 39, namely, the
tenancy having been created after April 1, 1957, is not present
in this case and as such s. 39 stands eliminated, we do not think
it necessary to express any opinion on the construction placed c
uy the High Court on s. 39(1) regarding other aspects.
The High Court has rightly pointed out that the rever:ue
tribunals have only proceeded to grant relief to the appellant on
the basis that s. 39 is applicable.
However, . the High Court,
even after holding that s. 39 does not apply, has shown consideration to the appellant when it has treated her application as one
under s. 36 read with s. 38.
Applying s. 38, the appellant would
not be entitled to the possession of the entire field.
As
per
clause (a) proviso (i) of sub-section (4) of s. 38, she would be
entitled to resume for personal cultivation either one third of
the family holding or half of the lands leased by her, whichever
is more.
It is seen that the High Court was informet! that the
family holding in this case consists of 32 acres and on that basis
the H;gh Court held that half of the land leased would be more and
as such the appellant would be entitled to get possession of half
(If the area leased, namely, half of 27 acres and
37 gunthas.
It is for the purpose of effecting a division of the leased properties
i~to two halves a~d place the landlord and the tenant in possession of one portion, that the High Court after setting
aside
. the order of the reve·nue tribunals remanded the matrer to the Naib
1:nhsildar. . Those directions given by the High Court, in our.
view, are perfectly correct and justified.
The nppeal fails and is dismissed with costs of the first respondent.
G.C.
Appeal dismissed·.
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