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Arwindlal Bhukandas Shah v. Khandu Jaina Patil
Judgment Summary — Chainani, C.J.
Factual and Procedural Background
The petitioner in four applications sought possession from his tenants by applying to the Mamlatdar. The tenants are identified as the first opponents in applications Nos. 104, 105 and 106 and as the first and second opponents in application No. 107. The petitioner was a member of an undivided Hindu family owning roughly 420 acres. A partition dated December 20, 1956, purportedly allotted about 12 acres and 19 gunthas (approximately 12½ acres) to the petitioner; the lands allotted to him included lands in the possession of the opponents.
The Mamlatdar ordered that possession of half the lands be handed to the petitioner. The Deputy Collector confirmed those orders. The Revenue Tribunal set aside the Mamlatdar's and Deputy Collector's orders and remanded the matters to the Mamlatdar for fresh inquiry. The petitioner challenged the Revenue Tribunal's remand orders before the court whose opinion is summarized here.
Legal Issues Presented
- Whether a partition executed by a coparcener of a joint Hindu family must be supported by a showing of necessity or bona fide requirement (for personal cultivation or maintenance) in order to be valid for the purposes of landlord rights under the Tenancy Act.
- Whether the Tenancy Court (or other forums hearing applications under s. 29 read with s. 31 of the Tenancy Act) is competent to inquire into the genuineness of an alleged partition when a tenant disputes the factum of partition.
- Whether a partition effected after the statutory cut-off dates (or shortly before notices under s. 31) is, by reason of its timing alone, to be treated as an evasion of the Tenancy Act, or whether only a sham/pretended partition can be treated as evasion.
- How the provisions of the Tenancy Act (including references to s. 29, s. 31, s. 32F, s. 33A and s. 88C as appearing in the opinion) interact with the Hindu law right to demand partition.
Arguments of the Parties
Petitioner
- The petitioner claimed a share in the joint family property by virtue of a partition dated 20 December 1956 and applied to the Mamlatdar for possession of lands falling to his share (including lands in the tenants' possession).
- By implication, the petitioner relied on the partition to establish that he was the landlord entitled to possession and that the income from the land would be his principal source of maintenance.
Opponents / Tenants
- The tenants contended that the partition was fictitious (i.e., not genuine), challenging the factum of partition.
Counsel for the Tenants (Mr. Merchant)
- Argued that a Tenancy Court is not competent to inquire into whether a partition is genuine; that question, he contended, could only be agitated in a civil Court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Girja Bai v. Sadashiv Dhundiraj | Stated principle that once partition is effected the court does not question the coparcener's motives and must give effect to the right to have a share allocated separately; co-sharers cannot question that right. | The court relied on this authority to support the proposition that the motive or reasons for seeking partition have no bearing on the legal validity of a partition; partition is a right and courts should not examine the conscience or motives of the partitioning coparcener for validity. |
| Jankibai Ramchandra Lagoo v. Namu Motiram Goye (Special Civil Application No. 3048 of 1958, Unrep., 4 Sep. 1959) | Observation that if a partition is made only to enable a landlord to obtain possession from a tenant, that fact "might in certain cases reflect on his bona fides." | The court explained these observations must be read together with the proposition that the Tenancy Act does not prevent partition; the remark was held to be limited — bona fides remains a question of fact to be decided case-by-case and does not establish an automatic rule against partitions made near the relevant dates. |
Court's Reasoning and Analysis
The court began by rejecting the Revenue Tribunal's apparent view that partition must be compelled by "necessity" (i.e., that a compelling circumstance is required to make a partition valid). The court explained the legal nature of partition in Hindu law: partition effects severance of joint status when the shares of coparceners are defined; an actual physical division by metes and bounds is not essential. Once shares are defined, the property ceases to be joint and coparceners hold the properties as tenants-in-common.
Key legal points the court articulated and applied to the facts:
- Every member of an undivided Hindu family has an indefeasible right to demand partition of his share at any time; the law does not require a showing of necessity or compelling circumstances for partition to be valid.
- The motive or reasons for effecting a partition have no bearing on its validity; a court cannot examine a coparcener's reasons for separation to deny the effect of partition once shares are defined.
- Partition need not be evidenced by a written document; a clear and definite intention to sever joint status is sufficient. If a written document exists, it ordinarily constitutes strong evidence of partition and places the burden on the party alleging continued joint status to disprove it.
- A partition may be partial with respect to persons or property; it is not necessary that all properties be divided.
- The Tenancy Act does not abrogate or restrict the right to partition under Hindu law. Statutory provisions (e.g., the date in sub-s. (2) of s. 31 and related provisos) show the Legislature intended partitions effected before certain dates to have ordinary legal effect for Tenancy Act purposes.
- Although timing of a partition (for example, after amendments or shortly before notices under s. 31) does not, by itself, render it invalid as an evasion, there is scope to treat a partition as an evasion where only a "show" of partition is made. Thus, if in substance no partition has taken place, it may be treated as a sham intended to evade the Tenancy Act.
- Where a tenant disputes the factum of partition, it is within the competence of the Tenancy Court (in proceedings under s. 29 read with s. 31) to inquire into whether a partition was genuinely effected. This is because the Tenancy Court must determine whether the applicant is the landlord and whether the income of the land would be the principal source of the applicant's maintenance; those questions require resolution of whether the family remains joint or is severed.
- The court expressly rejected Mr. Merchant's contention that only a civil Court can decide genuineness of partition: a Tenancy Court must decide that question when it is material to the tenant/landlord issues before it.
The court also qualified earlier language from its own prior opinion in Jankibai (quoted in the judgment) to emphasize that a remark that a partition "might in certain cases reflect on his bona fides" is not a categorical disapproval of all partitions effected for the purpose of obtaining possession; rather bona fides is a fact-specific inquiry and the manner of partition may be a relevant circumstance.
Applying the legal principles to the facts of this case, the court noted that the partition deed in the present case was dated December 20, 1956, allocating about 12½ acres to the petitioner out of roughly 420 acres. The tenants alleged the partition was fictitious. Neither the Mamlatdar nor the Deputy Collector made a clear finding on the genuineness of the partition. Because that factual question remained unresolved, the court concluded the matter must be remanded for determination of whether the partition was genuine or sham and whether the family continued to be joint.
Holding and Implications
Holding: The court confirmed the Revenue Tribunal's orders remanding the applications to the Mamlatdar for fresh inquiry into the factum and genuineness of the partition. The court directed that the applications be disposed of in light of the observations in its judgment. The rule in each application was discharged. No order as to costs was made.
Implications:
- Direct effect on the parties: the applications are remanded to the Mamlatdar for a fresh inquiry specifically into whether the partition was genuine; until that question is decided, the Mamlatdar should proceed in accordance with the guidance given in the judgment.
- Legal clarification provided by the court: (a) partition under Hindu law does not require proof of necessity or bona fide motive to be valid; (b) a Tenancy Court is competent to inquire into the genuineness of a partition where the tenant raises that issue in proceedings under s. 29 read with s. 31; and (c) a partition will be treated as a sham (and thus potentially an evasion of the Tenancy Act) if it exists in form only and not in substance.
- Statutory interaction: the court observed that certain provisions and provisos of the Tenancy Act (for example, dates and special protections for minors, widows, disabled persons and serving armed forces members) indicate the Legislature intended partitions effected before specified cut-off dates to have ordinary legal effect in the context of the Act.
- No broader categorical rule rejecting partitions effected near statutory cut-off dates was adopted; bona fides remains a fact-specific inquiry and timing alone does not automatically invalidate a partition.
Chainani, C.J:— The petitioner in these four applications had made applications to the Mamlatdar for obtaining possession of the lands from his tenants, who are the first opponents in applications Nos. 104, 105 and 106 and first and second opponents in application No. 107. The petitioner was a member of a joint Hindu family, which owned about 420 acres. On December 20, 1956, a partition is said to have been effected. In that partition about 12 acres and 19 gunthas of land are said to have fallen to the share of the petitioner. The lands, which fell to his share, include the lands of which the opponents are the tenants. In the applications made to the Mamlatdar, the Mamlatdar ultimately passed orders directing that possession of half of the lands should be handed over to the petitioner. These orders were confirmed by the Deputy Collector. They were set aside by the Revenue Tribunal, which has remanded the matters to the Mamlatdar for fresh inquiry. The orders of remand are being challenged before us.
2. The Revenue Tribunal has in its judgment observed:—
“By creating partition, it may be that a landlord may create an artificial necessity, which cannot be held to be a real or genuine necessity. If, therefore, a partition is made without such necessity, it will have to be presumed that it was made to oust the tenant and that there was no bona fide requirement. Partitions which are made with such object would also affect the question of the income of the lands being the principal source of income for the maintenance of the applicant. If, therefore, a partition is not bona fide and fails to prove the condition of the requirement for personal cultivation, the income of such lands cannot be said to be the income which would be the source of maintenance for the applicant landlord. … The burden lay on him to prove that the partition which has been effected does not affect the condition of bona fide requirement for personal cultivation.”
3. The Revenue Tribunal, therefore, appears to have been of the view that in order that there may be a valid partition, there must be compelling circumstances, which make it necessary for the members of the family to separate from one another. This view is not correct. It is not necessary in law that any necessity for making a partition should exist. Since questions regarding partitions have arisen in many cases, both in applications made under s. 29 and under s. 88C of the Tenancy Act, we consider it necessary to state what the correct position in law is. In Hindu law partition means severance of joint status. It consists in defining the shares of the coparceners in the joint property and actual division of the property by metes and bounds is not necessary. Once the shares are defined, the partition is complete. The property ceases to be joint immediately the snares are defined and thenceforth the paries hold the properties as tenants-in-common, see Mulla's Hindu Law, 1959 ed. pp. 492-493. Every member of an undivided Hindu family has an indefeasible right to demand a partition of his own share and he may assert his right at any time he chooses. Partition does not give him a title or create a title in him; it only enables him to obtain what is his own in a definite and specific form. It is not necessary that any necessity should exist or that there should be any circumstances which compel him to ask for separation. He may ask for separation for any reason he deems proper. But whatever be the reasons, on account of which he wants severance, his right to obtain and posses the share, to which he is entitled cannot be denied. The other members of the family must submit to it, whether they like it or not.
“…neither the co-sharers can question it, nor can the Court examine his conscience to find out whether his reasons for separation were well founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others.” Girja Bai v. Sadashiv Dhundiraj.1
4. The motive or the reasons, on account of which partition is effected, have, therefore, no bearing on its validity. It is also not necessary that there should be a document in writing. All that is necessary is that there should be a clear and definite indication of an intention to effect severance of the joint status. A declaration of such an intention amounts to a valid separation, though it is not perfected by an actual division of the estate by metes and bounds. If there is a written document, that will ordinarily be sufficient and strong evidence of partition and the subsequent acts of parties will not control its legal effect. The burden will then lie on the person, who alleges that the family still continued to be joint, to prove that fact. A partition may also be partial, either in respect of persons making it or in respect of property and it is not necessary for a valid partition that all properties should be divided.
5. The Tenancy Act does not take away or restrict the right given by law to members of an undivided Hindu family to effect a partition. Sub-section (2) of s. 31 specifies March 31, 1957, as the last date, before which a landlord, who wants possession of his land either for personal cultivation or for any non-agricultural purpose, must make an application to the Mamlatdar. Sub-section (3) extends this date in cases in which the landlord is a minor, a widow or a person subject to mental or physical disability, or a serving member of the armed forces. The proviso to this sub-section states that this sub-sec. ion shall not apply, if a person of such category is a member of a joint family, unless the share of such person in the joint family has been separated by metes and bounds before March 31, 1958, and unless such person has got his proper share and not a larger one in the entire joint family property. Similar provisions have been made in the proviso to cl. (a) in sub-s. (1) of s. 32F and in the proviso in sub-s. (4) of s. 33A recently added to the Act. By these provisions the Legislature has, therefore, conferred benefits on persons, falling in the above categories, in whose cases partition had been made before March 31, 1958. It is therefore, clear that the Legislature intended that partition should have its ordinary legal effect even for purposes of the Tenancy Act.
6. Section 31 also gives a last chance to the landlords to obtain possession of their lands on the ground that they require them for personal cultivation or for non-agricultural purposes. As except in the special cases referred to in sub-s. (3) of s. 31, this right could not be exercised after March 31, 1957, a partition cannot be said to be not bona fide or made in order to evade the provisions of the Tenancy Act, merely because it was made after August 1, 1956, when the amendments made in the Act in 1956 came into force or because it was made shortly before notices were given under sub-s. (1) of s. 31 to the tenants terminating their tenancies. There would, however, be evasion of the provisions of the Tenancy Act, if only a show of partition is made, that is, if a partition is alleged when in fact it has not taken place. Consequently, in any case in which the tenant disputes the factum of partition, it will be necessary for the Tenancy Court to inquire into the matter and determine whether the partition was genuine and whether the members of the landlord's family had really separated or whether it was only a sham transaction which had not been acted upon and whether the members of the family still continued to be joint. This will ordinarily be the scope of the inquiry in an application made under s. 29 read with s. 31, in which the landlord relies on a partition. As pointed out above, a Court including a Tenancy Court, is not concerned with the reasons on account of which partition is effected. It is, therefore, not necessary for the landlord to prove that the partition was made bona fide. All that is necessary for the Tenancy Court to find is whether the partition had really taken place.
7. Mr. Merchant has contended that a Tenancy Court is not competent to inquire into the question whether the partition was genuine. This question acceding to him can only be agitated in a civil Court. There is no substance in this argument. In an application made under s. 29 read with s. 31, it is necessary for the Tenancy Court to determine in cases of dispute whether the applicant is the landlord of the land, of which he is claiming possession and also whether the income from that land will be the principal source of his maintenance. For the purpose of determining these questions, it will be necessary for the Court to decide whether the partition had really been effected, for if notwithstanding the alleged partition, the family still continued to be joint, the joint family will be the owner of the land and the income of the joint family and not of the applicant will have to be considered for the purpose of ascertaining whether the income from the land would be the principal source of maintenance of the landlord. A Tenancy Court must, therefore, inquire into the question and decide whether there had in fact been a partition, if the tenant raises a dispute about it.
8. Our attention has been invited to the following observations made in my judgment in Jankibai Ramchandra Lagoo v. Namu Motiram Goye . 1959 Special Civil Application No. 3048 of 1958, decided by Chainani, C.J and V.S Desai, J., on September 4, 1959 Unrep...
“…If a partition is made only in order to enable the landlord to obtain possession of his land from the tenant, it might in certain cases reflect on his bona fides.”
9. These observations must be read along with the earlier passage in the same judgment, in which it was pointed out that the
“…Tenancy Act does not prevent members of a joint Hindu family from effecting a partition at any time they choose to do so.”
10. It is also clear from the words “it might in certain cases reflect on his bona fides” that what we intended to convey was that in some cases, the fact that the partition had been made with the sole object of enabling the members of the joint family to obtain possession of their lands from their tenants, might justify an inference that the requirement of the landlord was not bona fide. The above observations cannot, therefore, be relied upon in support of the argument that in every such case the finding on the question of bona fides should be against the landlord. The question of bona fides must be decided in each case having regard to the circumstances of that case, one of which may be the manner in which partition is effected. If it is made in an unusual manner, it may have a bearing on the question of bona fides. For instance, if all the properties yielding substantial income, such as the lands in personal cultivation of the family, are allotted to one coparcener A and only the lands in possession of tenants to another coparcener B, so as to enable B to contend that it is necessary for him to have additional income, it may be possible to hold that B is not in real need of any addition to his income and that consequently the demand for the lands in possession of the tenants is not bona fide.
11. So far as the present case is concerned, the partition deed was executed on December 20, 1956. The joint family owned about 420 acres, out of which only about 12½ acres were allotted to the petitioner. The tenants have contended that the partition was fictitious. Neither the Mamlatdar nor the Deputy Collector has recorded a clear finding on this question, whether the partition was genuine or fictitious. The matters must, therefore, go back for the purpose of this question being decided.
12. We, therefore, confirm the orders made by the Revenue Tribunal remanding the applications made by the petitioner to the Mamlatdar, but direct that these applications should be disposed of in the light of the observations contained in this judgment.
13. The rule in each application is, therefore, discharged.
14. No orders as to costs.
15. Rules discharged.
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