KAHANDU DAULAT DANGDE versus JAY WANTRAO YADAVRAO KHARADE AND ORS.

Citation: [1996] 2 S.C.R. 612 · Decided: 14-02-1996 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
KAHANDU DAULAT DANGDE 
v. 
JAY WANTRAO YADAVRAO KHARADE AND ORS. 
FEBRUARY 14, 1996 
B 
[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.] 
Bombay Tenancy and Agricultural lands Act, 1948 : 
Ss.2(7A), 32F( 1)( a) Proviso, 88C-A151icultural land belongi,ng to" joint 
C family''-Tenant's light to purchase-On partition in 1961 land falling in share 
of widow-Proceedings u/s. BBC at the instance of widow ended in 
1981-Tenant's notice to purchase land-Held, land being in tenancy on 
1.4.1957, tenant entitled to purchase it-By virtue of the proviso to s.32F( 1)( a) 
provisions of the section not applicable to widow-Concept of notional 
severance cannot be read in provisions of the section. 
D 
Hindu Law: 
Doctline of relation back-Joint family prope1tyWidow member as 
such of joint family since plior to l.4.1957-Pa1tition taking place in 
E 
1961-Proceedings under S.32F (l)(a) of Bombay Tenancy and A151icultural 
Lands Act, 1948 by tenant--Held, concept of notional severance cannot be 
read in provisions of section. 
In a suit for partition filed by one of the members of the joint family 
of which 'A', a widow was also a member, a compromise decree was passed 
F 
in 1961 as a result of which the land in dispute came in the share of 'A'. 
'A'. had applied, for an exemption certificate under s.88C of the Bombay 
Tenancy and Agricultural Lands Act, 1948. The proceedings were contested 
by the appellant, the tenant of the land in dispute. After the death of 'A' 
in 1969, the proceedings were continued by her heirs and were disposed of 
on 1.12.1981. Thereafter, the appellant initiated proceedings under s32 
G F(l) (a) of the Act. The respondents resisted the claim on the ground that 
'A' being a widow since prior to 1.4.1957, the appellant, having not given 
notice under s32 F(l)(a) within the statutory period, was not entitled to 
purchase the land. The Revenue authorities as well as the Maharashtra 
Revenue Tribunal held that the appellant was not entitled to purchase the 
H land; and he was directed to surrender the possession of the land to the 
612 
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K.D. DANGDE v. J.W.Y. KHARADE 
613 
respondents. 
A 
The appellant filed a petition before the High Court contending that 
'A' though a widow, was member of the joint family and was, by virtue of 
the proviso to s.32F(1) (a), not entitled to protection of s.32F; that when 
'A' died in 1969 proceedings under s.88C of the Act were pending and the 
appellant sent the notice under S.32 F(1)(a) immediately after the said B 
proceedings came to an end; and that the partition decree on the basis of 
which 'A' became owner of the land in dispute was a collusive decree and 
there being no partition, the provisions of s.32F(1) (a) were not applicable 
to the present case. The High Court rejected the claim of the appellant and 
dismissed his writ petition holding that one of the members of the joint C 
family had asked for partition in March 1956 and as such the severance 
of the status of the joint family took place at that time and the consent 
decree passed in 1961 would relate back to 1956 and as a consequence there 
would be no joint family on 1.4.1957 . Aggrieved, the appellant filed the 
present appeal. 
Allowing the appeal, this Court 
HELD : 1. The appellant was tenant of the land in dispute on April 
D 
1, 1957 and was entitled to purchase the land in accordance with the 
provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The E 
High Court erred in holding that proviso to Section 32-F(1)(a) of the Act 
was not attracted to the facts of the present case. [615-A, 617-F] 
2.1. The concept of notional severance cannot be attracted in the 
context of the provisions of section attracted in the context of the 
provisions of section 32F(a)(1) of the Act. Nor can the theory of relation F 
back be read in the language of the proviso to the section. The proviso 
specifically provides that a widow/disabled member of a joint family which 
has at least one member outside the categories of disabled persons cannot 
be given benefit of the said provision, unless before 31st day of March, 
1958 the share of such person in the joint family was separated by metes G 
and bounds and the Mamlatdar on enquiry was satisfied that the share of 
such person in the land was separated. [618-E, C-D] 
2.2. In the present case, there was no separation of the share of 'A' 
by metes and bounds till the date of decree in 1961. Since, it was not done 
before 31st day of march 1958, the provisions of Sec

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