JUDGMENT-The question which arises in this petition is whether a tenant of a widow who had exercised her right of resumption of land for personal cultivation under section 38 (1) of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, hereafter referred to as the Tenancy Act, is entitled to become an owner under the provisions of sect ion 49A during the lifetime of the widow or whether even in such a case the ownership cannot vest in him during the life-time of a widow in respect of the land remaining with him in view of the provision of section 49A (3) of the Tenancy Act. The petitioner is the owner of field survey number 12, area 15 acres, 13 gunthas, situated at village Sagwan, taluq Chikhali district Buldana. This field was cultivated by the respondent as a tenant. The petitioner had started proceedings under section 38 (1) read with section 36 of the Tenancy Act against the respondent and in these proceedings the petitioner obtained possession of 10 acres 27 gunthas of land on 5-3-1965 and 5 acres 4 gunthas remained in possession of the respondent. The Agricultural Lands Tribunal took suo motu proceedings for transfer of statutory ownership with regard to the whole field on 24-3-1964. The tenant filed a statement before the Agricultural Lands Tribunal that he had cultivated field survey number 12, area 15 acres ) 3 gunthas, on 1-4-1961 and prior to that and even thereafter and that he was willing to pay the said price by instalments as may be fixed by the Lands Tribunal. In these proceedings later the respondent himself filed a copy of the possession receipt to show that 10 acres. 27 gunthas of land were resumed by the petitioner and he later restricted his claim to ownership only with regard to the remaining land. The petitioner raised an objection before the Lands Tribunal that since she was a widow and her success or had a right to recover possession from the tenant after her death, proceedings under section 46 of the Tenancy Act were not maintainable. The Lands Tribunal recorded the statement of the tenant and held that the tenant was entitled to purchase the land remaining with him and fixed Rs. 382-90 as purchase price of the field. 2. The petitioner appealed against this order. The Lands Tribunal recorded the statement of the tenant and held that the tenant was entitled to purchase the land remaining with him and fixed Rs. 382-90 as purchase price of the field. 2. The petitioner appealed against this order. The Sub-Divisional Officer, Buldana, who decided the appeal held that since the petitioner had already exercised her right of resumption for personal cultivation and obtained possession there could be no postponement of the respondents right to purchase the land. He, therefore, rejected the appeal. 3. The petitioner then filed a revision application before the Maharashtra Revenue Tribunal which also has been rejected. The petitioner has now filed this petition challenging these orders 4 The learned counsel appearing on behalf of the petitioner contends that in view of the provisions of section 49A (3) of the Tenancy Act during the life time of the widow the tenant was not entitled to purchase the land which remained with him after the decision of the application under section 38 filed by the widow and that the date on which the tenant can get ownership rights must be determined in the instant case solely with reference to the provisions of section 49A (3). In order to appreciate this contention it is first necessary to refer to the scheme of the relevant provisions of the Tenancy Act dealing with the right of a tenant to purchase land and compulsory transfer of ownership of land to the tenants. 5. The right of a tenant to purchase land is given to him by section 41 of the Tenancy Act which is as follows: "41 (1). Notwithstanding anything to the contrary in any law, usage or contract but subject to the provisions of sections 42 to 44 (both inclusive) a tenant other than an occupancy tenancy shall, in the case of land held by him as a tenant be entitled to purchase from the landlord the land held by him as a tenant and cultivated by him personally. (2) Where the landlord is of the following category, namely:(a) a minor, (b) a widow, (c) (deleted) (d) a person subject to any physical or mental disability, such tenant shall be entitled to purchase the landlords interest under this section after the expiry of two years from the date on which (i) the landlord of category (a) attains majority, (ii) (deleted) (iii) the landlord of category (d) ceases to be subject to such disability, and (iv) the interest of the landlord of category (b) in the land ceases to exist: Provided that where land is held by the tenant under two or more joint landlords, this sub-section shall not apply if at least one joint landlord is outside the categories specified in clauses (a), (b) and (d) of this sub-section: Provided further that where a person of any such category is a member of a joint family this sub-section shall not apply, if at least one member of the joint family is outside such categories, unless the share of such person in the joint family has been separated by metes and bounds before the prescribed date and the Tahsildar on inquiry is satisfied that the share of such person in the land is separated having regard to the area, assessment, classification and value of the land in the same proportion as the share of that person in the entire joint family property and not in larger proportion. (3) Nothing in section 91 shall affect the right of a tenant to purchase under this section the land held by him on lease." Under this section a tenant other than an occupancy tenant has been given a right to purchase land held by him as a tenant if he is cultivating that land personally. Sub-section (2) of section 41 is a special provision made in respect of tenants of landlords who may be referred to as disabled landlords such as a minor, a widow and a person subject to any physical or mental disability. Sub-section (2) of section 41 is a special provision made in respect of tenants of landlords who may be referred to as disabled landlords such as a minor, a widow and a person subject to any physical or mental disability. Though section 41 gives a right of purchase of the land held by the tenant and cultivated by him personally, the exercise of this right is postponed in the case of lands which are held by the disabled landlords and he is entitled to purchase the landlords interest after the expiry of two years from the date on which a minor attains majority or in the case of a widow after the expiry of two years from the date on which her interest in the land ceases to exist and in the case of a person subject to any physical or mental disability after the expiry of two years from the date on which the landlord ceases to be subject to such disability. The right under section 41 of the Tenancy Act is made subject to the conditions provided in section 42. The conditions were that if the tenant does not hold and cultivate personally any land, as a tenure-holder, the purchase of the land by him shall be limited to the extent of three family holdings; and if the tenant held and cultivated personally any land as a tenure holder the purchase of the land by him was limited to such area as will be sufficient to make up the area of the land held by him as a tenure-holder to the extent of three family holdings. There was one more condition in section 42 which was contained in clause (c) of that section and that condition was that the extent of the land remaining with the landlord after the purchase of the land by the tenant whether to cultivate personally or otherwise shall not be less than one family bolding. It may be stated that this clause was deleted by Act No.2 of 1962 by which also section 49-A was added in the Tenancy Act. It may be stated that this clause was deleted by Act No.2 of 1962 by which also section 49-A was added in the Tenancy Act. Section 43 deals with an offer to be made by the tenant and the determination of the purchase price by the Lands Tribunal and with other ancillary provisions and section 44 provided for the application of the purchase price towards the satisfaction of any encumbrances subsisting on the land on the date of the application made by the tenant for the determination of the; reasonable price. The right given to the tenant under section 41 could be exercised by him even before 1-4-1961 if he was entitled to purchase the land held by him. The next relevant provision is to be found in section 46 which deals with compulsory transfer of ownership of land to the tenants. The material part of this section is as follows: "46 (1). The next relevant provision is to be found in section 46 which deals with compulsory transfer of ownership of land to the tenants. The material part of this section is as follows: "46 (1). Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, decree, contract or grant to the contrary, with effect or and from the first day of April 1961, the ownership of all lands held by tenants which they are entitled to purchase from their landlords under any of the provisions of this Chapter shall stand transferred to and vest in, such tenants and from such date such tenants shall be deemed to be the full owners of such lands: Provided that if on such date any such tenant is of the following category, namely:(a) a minor, (b) a widow, (c) a serving member of the armed forces, or (d) a person subject to any physical or mental disability, the ownership of the land shall stand transferred-- (i) to the tenant on the expiry of one year from the date on which the tenant of category (a) attains majority, the tenant of category (c) ceases to serve in such force, the tenant of category (d) ceased to be subject to such disability; and (ii) in the case of a widow to her successor-in-title on the expiry of one year from the date on which the widows interest in the land ceases to exist: Under section 46 (1) of the Tenancy Act a general provision was made that with effect from the 1st day of April 1961 the ownership of all lands held by the tenants which they were entitled to purchase from the landlords under any of the provisions of Chapter III shall stand transferred to and vest in such tenants and with effect from 1-4-1961 such tenants were deemed to be the full owners of such lands. It may be stated that before a tenant could claim the right to become the owner by virtue of this provision for compulsory transfer of ownership of land he had first to show that he was entitled to purchase the land from his landlord. It may be stated that before a tenant could claim the right to become the owner by virtue of this provision for compulsory transfer of ownership of land he had first to show that he was entitled to purchase the land from his landlord. This entitlement is to be found in section 41 (1) and it is obvious that only a tenant who on the first day of April 1961 was entitled to purchase the land which was cultivated by him was entitled to claim a right to compulsory transfer of ownership under section 46 of the Tenancy Act. In view of the provisions of section 41 (2) a tenant of a disabled landlord was not entitled to purchase the land on 1-4-1961 because such right of purchase was deferred, and therefore, the provisions of section 46 (1) must be held to relate only to the tenants of landlords who are outside the category in Section 41 (2) and of course subject to the conditions in section 42. Even section 46 (1) did not give a right of purchase to all the tenants, because the proviso to sub section (1) of section 46 provides that in the case of a tenant who is a minor, or a widow, or a serving member of the armed forces, or a person subject to any physical or mental disability transfer of ownership is postponed to different points of time as provided in that proviso. Thus section 46 (1) operates in favour of only a specified class of tenants who do not fall under the proviso to section 46 (1) and who are entitled to purchase land under section 41 (1) subject to provisions of sections 42 to 44 of the Tenancy Act A reference may also be made to the second proviso to section 46 (1) under which the date with effect from which the ownership of the land becomes transferred is the date on which a proceeding under sections 19,20,21, 36 or as if it is pending on 1-4 1961 in respect of such land is finally decided and the tenant retains possession of the land in accordance with the decision in such proceeding. Thus the position before section 49A of the Tenancy Act was introduced by Act No.2 of 1962 was that a tenant who was neither a minor nor a widow nor a surviving member of the armed forces nor a person subject to any physical or mental disability holding land from a landlord who was not a disabled landlord as specified in section 41 (2) was entitled to claim the statutory ri6hts of compulsory ownership in respect of a land which was held by him as a tenant and which he was entitled to purchase subject to the provisions of sections 42 to 44 of the Tenancy Act. 6. It is now necessary to refer to section 49A of the Tenancy Act which came into force on 1st March 1962. Sub-sections (1), (2) and (3) of this section which are only material are in the following words: "49A (1). 6. It is now necessary to refer to section 49A of the Tenancy Act which came into force on 1st March 1962. Sub-sections (1), (2) and (3) of this section which are only material are in the following words: "49A (1). Notwithstanding anything contained in section 41 or 46, or any custom, usage, decree, contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day of April 1963 the ownership of all land held by a tenant (being land which is not transferred to the tenant under section 46 or which is not purchased by him under section 41 or 50) shall stand transferred to and vest in, such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land, if such land is cultivated by him personally, and (i) the landlord has not given notice of the termination of tenancy in accordance with the provisions of sub-section (I) of section 38 or section 39 or sub-section (2) of section 39A ; or (ii) the landlord has given such notice but has not made an application thereafter under section 36 for possession as required by those sections; or (iii) the landlord being a landlord not belonging to any of the categories specified in sub-section (2) of section 38 has not terminated the tenancy on any of the grounds specified in section 19; or has so terminated the tenancy but has not applied to the Tahsildar on or before the 31st day of March 1963 under section 36 for possession of the land: Provided that, where the landlord has made such application for possession, then the tenant shall, on the date on which the application is finally decided, be deemed to be the full owner of the land which he is entitled to retain in possession after such decision. 2 (a). 2 (a). Where a tenant, who is evicted from the land before the 1st day of April 1963, and is not in possession thereof on that date, has made or makes an application for possession of the land within the period specified in sub-section (I) of section 36 then, if the application is allowed by the Tahsildar, or in appeal by the Collector or, as the case may be, in revision by the Maharashtra Revenue Tribunal, he shall be deemed to be the full owner of the land on the date on which the final order allowing the application is made. (b) Where such tenant has not made the application within the aforesaid period or any application made by him is finally rejected under this Act, and the land is held by any other person as tenant on the date of expiry of the said period or on the date of final rejection of the application then, such other person shall be deemed to be the full owner of the land on the date of expiry of the period, or as the case may be, on the date of the final rejection of the application. (3) Where the landlord, belonging to any of the categories specified in sub-section (2) of section 38, has not given notice of termination of tenancy in accordance with the said sub-section (2) or sub-section (3) of section 39A or has given such notice but has not made an application thereafter under section 36 for possession, such tenant shall be deemed to be the full owner of the land held by him on the expiry of the period specified in sub-section (3) of section 39A : Provided that, where the tenancy is terminated and application for possession is made in accordance with the provisions of sub-section (2) of section 38 or sub-section (3) of section 39A, the tenant shall, on the date on which such application is finally decided, be deemed to be the full owner of the land which he is entitled to retain in possession after such decision." The opening words "notwithstanding anything contained in sections 41 or 46" in this section are significant. Under this section the ownership of all land held by tenant being land which is not transferred to the tenant under section 46 or which is not purchased by him under section 41 or section 50 of the Tenancy Act stands transferred to and vests in the tenant with effect from first day of April 1963 and from this date he is deemed to be the full owner of such land if such land is cultivated by him personally. Clauses (1), (2) and (3) in section 49A refer to the conditions which have to be satisfied before a tenant can claim that the land which is cultivated by him pus on ally stands transferred to him under section 49A. He is entitled to become the owner under section 49A if firstly the landlord has not given notice of termination in accordance with the provisions of sub-section (1) of section 38 or section 39 or section 39A (2); or secondly, if the landlord has given such notice but has not made an application thereafter under section 36 for possession; or thirdly, the landlord being a landlord not belonging to any of the categories in sub-section (2) of section 38 has not terminated the tenancy on any of the grounds in section 19, or has so terminated the tenancy but has not applied to the Tahsildar on or before the 31st day of March 1963 under section 36 for possession of the land. All these 3 clauses indicate that before the tenant can claim the rights of statutory ownership under section 49A with effect from the 1st day of April 1963 it has to be ascertained whether the landlord has exercised his right under section 38 (I) or section 39 or section 39A and whether he has terminated the tenancy on any of the grounds specified in section 19 and if so whether he had or had not applied to the Tahsildar on or before 31-3-1963 for possession. In other words, what is contemplated by this section is that if on or before 31-3-1963 a landlord has not taken any steps to terminate the tenancy of a tenant and to obtain possession from the tenant either under section 38 (1) or section 39 or section 39A (2) which relate to the tight of resumption for personal cultivation, or under section 19 which relates to the right of the landlord to terminate the tenancy on the various grounds specified therein the land is available for being transferred to the tenant with effect from 1-4-1963. In a case, however, where an application for possession made by the landlord is pending on 1-4-1963 under the proviso to section 49A (1) the date of statutory transfer of ownership is postponed and ownership vests in the tenant on the date on which the application for possession is finally decided. The proviso to section 49:\ (I), therefore, is very clear that in a case where an application for possession made by a landlord either in the exercise of the right of resumption for personal cultivation or in the exercise of the right to terminate the tenancy under section 19 of the Tenancy Act is pending on 1-4-1963, the tenant shall be deemed to be a full owner of the land which he is entitled to retain in possession after the decision of the landlords application. This ownership vests on the date on which the application is finally decided. 7 In the instant case the petitioner has admittedly taken proceedings for resumption of the land for personal cultivation and she had obtained 10 acres 27 gunthas of land and the remaining land had remained with the tenant. The proceeding for resumption for personal cultivation filed by the petitioner, who is no doubt a widow, was obviously in the exercise of her right for resumption given to her under section 38 (1) and if she has exercised her right under section 38 (1) she is a landlord whose case falls within the proviso to section 49A (1) of the Tenancy Act. No doubt she was a widow and fell within the category of disabled landlords in section 38 (2), but merely because she is a disabled landlord she was not prevented from exercising her right under section 38 (1) of the Tenancy Act. No doubt she was a widow and fell within the category of disabled landlords in section 38 (2), but merely because she is a disabled landlord she was not prevented from exercising her right under section 38 (1) of the Tenancy Act. The only effect of section 38 (2) is to extend the period within which the right which is given under section 38 (1) could be exercised. While under section 38 (1) the right to resume land for personal cultivation had to be exercised by giving a notice on or before 15-2-1961 and by making an application for possession on or before 31-3-1961 such notice could be given and such an application could be made within the extended time as specified in section 38 (2) (A) and (B) of the Tenancy Act by successor-in-title of the widow but this extension of time is itself subject to the condition that disabled landlord has not given a notice and has not made an application as required by subsection (1) of section 38. Subsection (2) of section 38 reads as under;_ "38 (2). Where the landlord is of the following category, namely: (a) a minor, (b) a widow, (c) (deleted) (d) a person subject to any physical or mental disability, then, if he has not given a notice and made an application as required by sub-section (1), such notice may be given and such application may be made- (A) by the landlord within one year from the date on which(i) in the case of category (a) he attains majority; (ii) (deleted). (iii) in the case of category (d) he ceases to be subject to such physical or mental disability; and (B) in the case of a widow by the successor-in-title within one year from the date on which the widows interest in the land ceases to exist: Provided that where a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in that sub-section unless the ,share of such person in the joint family has been separated by metes and bounds before the prescribed date and the Tahsildar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property and not in a larger proportion: Provided further that where land is held by two or more joint landlords, the provision of this sub-section shall not apply: if at least one joint holder is outside the categories specified in clauses (a) to (d) of this sub-section." (Underlining is mine). It is, therefore, clear from the words underlined above that if a disabled landlord has already taken steps under section 38 (1) to terminate the tenancy and to obtain possession neither the disabled landlord nor the successor of a widow is entitled to the benefit of the extended period provided by sub-section (2) of section 30, 8. It is, therefore, clear from the words underlined above that if a disabled landlord has already taken steps under section 38 (1) to terminate the tenancy and to obtain possession neither the disabled landlord nor the successor of a widow is entitled to the benefit of the extended period provided by sub-section (2) of section 30, 8. It is, however, contended at this stage that in view of the provisions of sub-section (3) of section 49A of the Tenancy Act the only enquiry which the Agricultural Lands Tribunal is entitled to make where a tenant of a widow claims that he is entitled to the compulsory transfer of ownership is whether 3 landlord belonging to the category specified in sub-section (2) of section 38 has or has not given a notice of termination of tenancy in accordance with section 38 (2) or section 39A (3) or whether he has given such notice and has not made an application thereafter under section 36 of the Tenancy Act for possession and if on enquiry it is found that no notice under section 38 (2) or 39A (3) has been given, according to the learned counsel, the tenant can be deemed to be the full owner only on the expiry of the period specified in section 39A (3). In other words, the contention is that even though the widow has herself taken steps under section 38 (1) during the lifetime of the widow a person who would succeed to her interest and who would be entitled to give a notice under section 38 (2) could not have given such a notice, and therefore, the vesting of ownership must automatically stand postponed under the provisions of section 49A (3) of the Tenancy Act. It is strenuously contended that whether such a notice could be given by the successor of a widow or whether he would be competent to give a notice in view of the action already taken by the widow under section 38 (1) of the Tenancy Act is an irrelevant circumstance an enquiry into which is not called for in the proceedings before the Agricultural Lands Tribunal. It is not possible to accept this contention. 9. It is not possible to accept this contention. 9. As already stated by me, the pre-requisite for invoking the provisions of section 38 (2) of the Tenancy Act is that a disabled landlord during his or her disability has not given a notice under section 38 (1) and if notice has been given under section 38 (1) by the disabled landlord there is no occasion for invoking the provision of section 38 (2) of the Tenancy Act. In the instant case the tenant claimed rights of compulsory ownership on the ground that the disabled landlord had taken steps to resume a part of the land and it was, therefore, incumbent on the Agricultural Lands Tribunal to enquire into this question and any finding on the question whether a right under section 38 (1) had been exercised or not would naturally result in a further finding that the right to serve a notice within the period prescribed in section 38 (2) could not be exercised by the successor-in-interest of the widow. An enquiry into the question whether a notice under section 38 (2) has been given or not, as contemplated by section 49A (3) of the Act, necessarily implies an enquiry into the question whether such a notice could be been or not and if admittedly the right under section 38 (1) has already been exercised by the widow there could be no occasion for the service of notice under the provisions of section 38 (2) of the Tenancy Act. 10. The instant case falls within the provisions of section 49 (1) because though the widow was a disabled landlord she was still a landlord who was entitled to exercise a right under section 38 (1) and she having chosen to apply for possession under section 38 thereby preventing her successor-in title from availing of the right under section 38 (2) under the proviso to section 49A (1) of the Tenancy Act the ownership of the land must stand transferred to the tenant on the date on which her application which was pending on 1-4-1963 was finally decided and he was, therefore, entitled to become the full owner of the field which ultimately remained in his possession with effect from 5-3-196. 11. 11. It is then contended by the learned counsel for the petitioner that the provisions of section 49A of the Tenancy Act were intended to operate only in the case of the landlords owning less than one family holding whose tenants could not claim a right of compulsory transfer of ownership, in view of the provisions of section 41 (2) read with section 42 (c) of the Tenancy Act. In my view, it is not possible to read section 49A in the manner contended by the learned counsel for the petitioner. There is nothing in section 49A to restrict its operation only to a case of a landlord whose tenant was not entitled to purchase land in view of the provisions of section 42 (c). As already stated the right to purchase a land given by section 41 was subject to the provisions of sections 42 to 44 and one of the conditions in section 42 (c) was that the extent of the land remaining with the landlord after the purchase of the land by the tenant whether to cultivate personally or otherwise shall not be less than one family holding. This clause was however deleted by the same enactment by which section 49A was added. The class of tenants who were not originally entitled to purchase the land cultivated by them in view of the provisions of section 42 (c) of the Act were, by virtue of the deletion of clause (c) from section 42, entitled to purchase the land cultivated by them, but I fail to see why this can be said to be the only class of tenants who are contemplated by section 49A. The non obstante clause in section 49A and the words "(being land which is not transferred to the tenant under section 46 or which is not purchased by him under section 41 or 50)" are significant. No doubt by virtue of section 41 (2) the tenant of the disabled landlord was not entitled to purchase the land held by him from the disabled landlord, but as a result of the non obstante clause even this fetter which was created by sub-section (2) has been removed. No doubt by virtue of section 41 (2) the tenant of the disabled landlord was not entitled to purchase the land held by him from the disabled landlord, but as a result of the non obstante clause even this fetter which was created by sub-section (2) has been removed. Similarly the effect of the non obstante clause with reference to section 46 is that section 49A was to operate even in the case of the tenants of the description given in the proviso to section 46 (1) who were not entitled to a compulsory transfer of ownership under section 46. Section 49A thus is an overriding provision dealing with lands in respect of which section 46 did not operate or in respect of which a tenant had not exercised his right of purchase under section 41 or section 46 and subject to the provisions contained in section 49A itself the tenant of a widow, who had exercised her right under section 38 (1) would be entitled to a statutory transfer of ownership under section 49A in respect of the land which has remained with him after the final decision of the application for resumption of land under section 38 (1) filed by the widow. The Revenue authorities were, therefore, justified in holding that the respondent was entitled to become an owner of 5 acres 4 gunthas land which remained with him. 12. There is thus no substance in this petition and the petition is rejected with costs. Petition dismissed.