HIRAJI TOLAJI BAGWAN versus SHAKUNTALA

Citation: [1990] 1 S.C.R. 66 · Decided: 16-01-1990 · Supreme Court of India · Bench: K.N. SAIKIA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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HIRAJI TOLAJI BAGWAN 
v. 
SHAKUNTALA 
JANUARY 16, 1990. 
[K.N. SAIKIA AND P.B. SAWANT, JJ.] 
Bombay Tenancy and Agricultural Lands (Vidarbha Region) 
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Act, 1958: Sections 38 and 46-Transfer of land after 1st August, 1953 
by partition-Whether confers on transferee a right to terminate 
tenancy. 
The appellant was a protected lessee or tenant of the agricultural 
land in dispute, under the Bombay Tenancy and Agricultural Lands 
(Vidarbha Region) Act, 1958. The respondent became the landlady of 
the land on June 29, 1959 when her father effected a partition of his 
ancestral lands between himself, on the one hand, and his wife and his 
two minor daughters, including the respondent, on the other. This was 
the third partition effected by the respondent's father, who had earlier 
also twice partitioned the same lands. 
Sometime in 1962, the respondent initiated proceedings against 
the appellant for recovery of possession of the suit land on the ground of 
default. The Tehsildar dismisse•l the application holding that the 
respondent was not a landlady since the partition in question was 
illegal. The Deputy Collector in appeal confirmed this decision, and the 
Maharashtra Revenue Tribunal rejected the respondent's revision. 
In the Writ Petition filed before the High Court under Article 227 
of the Constitution against the above decision of the three authorities 
below, the High Court remanded the matter to the Tehsildar for investi-
gation into the validity of the partition. On remand, the Tehsildar held 
that the partition effected on June 29, 1959 was bogus. 
Thereafter, in a different proceeding the Maharashtra Revenue 
Tribunal had held that the said partition was binding. Therefore, in the 
appeal against the decision of the Tehsildar, the Deputy Collector fol-
lowing the said decision of the Revenue Tribunal, held the partition 
valid and allowed the respondent's application for eviction. The 
Revenue Tribunal, in revision, confirmed this order of the Deputy 
Collector. 
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H.T. BAGWAN v. SHAKUNTLA 
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The appellant preferred a writ petition before the High Court. It A 
was, inter alia, contended before the High Court that: (I) the partition was 
contrary to the provisions of Hindu Law; and (2)even assuming that the 
partition deed of June 29, 1959 was a valid document, the same had to 
be ignored since it could not confer the title of ownership on the respon-
dent transferee in view of the provisions of section 38(7) of the Bombay 
Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958. The 
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High Court however dismissed the petition holding that what was pro-
duced before the courts below was a family settlement. 
Allowing the appeal, this Court, 
HELD: (1) A partition •of the property can only be among the 
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parties who have a pre-existing right to the property. (jnder the Hindu 
Law, a female, major or minor has no share in the ancestral property. 
A female is given a share either in the self-acquired property of the 
husband or the father, or in the share of the husband or the father in the 
coparcenary property after the property is partitioned. There cannot, 
therefore, be a partition and hence a family settlement with regard to 
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the ancestral property so long as it is joint, in favour of either the wife 
or the daughter. [70C-D] 
(2) The position that obtain under section 38(7) after the Amend-
ing Act of 1963, is that any transfer of land effected after Isl August 
1953 whether by way of partition or otherwise, has no effect of confer-
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ring on the transferee a right to terminate the tenancy of the tenant who 
was a protected lessee and whose right as such protected lessee had 
come into existence before such transfer or partition. This amendment 
is admittedly retrospective in operation. [71G-H; 72A] 
(3) The appellant was tenant since prior to 1st August 1953 and 
had also continued to be such tenant till April 1, 1961. Hence he became 
a statutory owner under section 46 of the Act on and from April 1, 1961. 
Any proceedings for evicting him on the ground that he was a tenant 
and, therefore, had fallen in arrears of rent could not have, therefore, 
been adopted in 1962. [72C-D] 
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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 735 
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of 1975. 
From the Judgment and Order dated 21.6.1974 of the Bombay 
High Court in Spl. CivilAppln. No. 15 of 1971. 
U. U. Lalit and A.G. Ratnaparkhi for the Appellants. 
M.S. Gupta for the Respondent. 
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