JIJABAI VITHALRAO GAJRE versus PATHANKHAN & ORS.

Citation: [1971] 2 S.C.R. 1 · Decided: 01-09-1970 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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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 posses-
sion of the entire land be granted to the appellant: The_order was con-
firmed 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 w

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