JUDGMENT - Joshi V.V., J.: - Mainabai widow of Chhotelal Jain was the original petitioner who filed this writ petition under Article 227 of the Constitution. She died during the pendency of this petition and the present petitioner was brought on record as her heir and legal representative. Mainabai, a widow was the owner of survey No.3/2, area 13 acres 7 gunthas and survey No. 1, area 15 acres 30 gunthas of village Kadwi in Murtizapur taluqa of Akola district. The respondent is the tenant cultivating these fields. Mainabai widow of Chbotelal Jain sent a notice in writing dated 9-1-1967 to the respondent claiming to terminate the tenancy of the respondent on the ground that the widow required the lands for her personal cultivation. This notice recited; “please, therefore, take notice that your tenancy is terminated by this notice. I will start proceedings for possession of the suit fields according to law and you will be responsible for all costs and consequences.” This notice was served on the respondent on 13-1-1967. Thereafter, on 16-5-1968 Mainabai filed an application before the Special Tahsildar, Murtizapur for possession of the suit fields. In this application, mainabai stated; “The cause of action for the present suit has, therefore, arisen when the opponents tenancy is terminated on 13-1-1967". The respondent, who appeared in the trial Court, opposed the application specifically taking one of the contentions that it was denied that the notice was legal and effective and denying that his tenancy had been terminated as alleged. After recording the evidence, the Special Tahsildar, Murtizapur by his order dated 31-3.1972, allowed the: application of Mainabai and ordered the respondent to place her in possession of the suit fields, holding that all the necessary conditions under section 38 of the Bombay Tenancy and Agricultural Lands(Vidarbha Region) Act, 1958,(hereinafter referred to as the Tenancy Act), had been fulfilled. The respondent preferred an appeal to the Sub. Divisional Officer, Murtizapur, who having found all other, points in favour of Mainabai, allowed the appeal and dismissed her application on the sole ground that the notice dated 9-1-1967 sent by Mainabai to the res pondent terminating his tenancy was not a valid notice under section 106 of the Transfer of Property Act, relying Oil the observations of this Court in (Ratan v. M. R. T.)l 1972 Mh.L.J. Note 70. Mainabai then preferred a revision application to the Maharashtra Revenue Tribunal, but the Maharashtra Revlmue. Tribunal, by its order dated 28-6-1974 dismissed the revision application. In this writ petition filed under Article 227 of the Constitution, Mainabai challenged the orders of the Sub-Divisional Officer, Murtizapur and Maharashtra Revenue Tribunal. 2. The sole point that arises for determination in this petition is whether the notice dated 9-1-1967 was a valid notice terminating the tenancy of the respondent. In (Telsing v. Shamsunissa)2 1971 Mh. L.J. Note 38. Chandurkar J. held: “A widow is entitled to terminate the tenancy of a tenant after the date prescribed under section 38(1) if she wants to resume the land during her life-time. There is no express provision in the tenancy Act providing for a notice in the case of a widow see king to resume land after 31-3-1961. The effect of section 5 of the Tenancy Act is that the provisions relating to the leases of immovable property in Chapter V of the Transfer of Property Act governing leases of agricultural lands in so far as those provisions are not inconsistent with the provisions of the Tenancy Act will become applicable in such a case.” It was further observed : “There is nothing in section 106 of the Transfer of Property Act which is inconsistent with any Of the provisions of the Tenancy Act even though the Tenancy Act is a local law and the provisions regarding service of notice in section 106 of the Transfer of Property Act will become applicable in the case of a widow, who wants to terminate the tenancy of her tenant and claim possession after 31st March 1961.” This view was again reiterated by Chandurkar J. in Ratan v. M. R. T. 3. Mr. S. N. Kherdekar has been at pains to convince me that this view of Chandurkar J. is erroneous and this Mr. Kherdekar endeavours to prove on the authority and observations in(Zadba Sadasheo v. Mah. Rev. Tribul1al)3 1964 Mh.L.J. 559. “Zadbas case was in respect Of a notice issued under section 39(1) of the Tenancy Act and in that case, a Division Bench of this Court observed: that the provisions of section 106 of the Transfer of Property Act applied only in the absence of a local law. Rev. Tribul1al)3 1964 Mh.L.J. 559. “Zadbas case was in respect Of a notice issued under section 39(1) of the Tenancy Act and in that case, a Division Bench of this Court observed: that the provisions of section 106 of the Transfer of Property Act applied only in the absence of a local law. They further observed that section 39 of the Bombay Tenancy and Agricultural Lands(V. R.) Act, 1958 was a local law. The fun observations in that case relevant for the purposes of this case are contained in paragraph 4 of the reported judgment, which are as follows: “4. The sub-section as it originally stood or in its amended form does not prescribe any period of notice. It only states that the tenancy may be terminated by giving to the tenant a notice in writing and making an application for possession. Section 5 of the Tenancy Act states that the provisions of Chapter V of the Transfer of Property Act, 1882, shall, in so far as they are not inconsistent with the provisions of the Tenancy Act, apply to the tenancies and leases of lands, to which this Act applies. Section 106 of the Transfer of Property Act states that in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy. Mr. Manohar has contended that section 106 of the Transfer of Property Act applies in the present case in regard to the period of notice, as subsection(l) of section 39 of the Tenancy Act does not provide for any period of notice, and that consequently the opponent should have given six months notice to the petitioner for terminating his tenancy. As no such notice was given, he has argued that the notice given by the opponent is invalid. There is no force in this argument. The provisions of section 106 of the Transfer of Property Act apply only in the absence of any local law. The relevant local law, sub-section(1) of section 39 does not provide for any period of notice. All that it requires is that the tenant should be given a notice in writing. There is no force in this argument. The provisions of section 106 of the Transfer of Property Act apply only in the absence of any local law. The relevant local law, sub-section(1) of section 39 does not provide for any period of notice. All that it requires is that the tenant should be given a notice in writing. That requirement has been complied with.” I find that these observations in Zadbar; case were actually discussed and distinguished by Chandurkar J. in Ratan v. M. R. T.(cited supra). I have before me the full judgment of Chandurkar J. in Ratan v. M. R. T. and this is what has been said there in respect 01 the observations in Zadbas case: “The learned counsel for the respondent No.4, however, sought to rely on a Division Bench decision of this Court in Zadba Sadasheo v. Maharashtra Revenue Tribunal in which the Division Bench has held that in a case where a lease is terminated under section 39 of the Tenancy Act, the provisions of section 106 of the Transfer of Property Act are not attracted because section 39 was a local law and it did not prescribe any notice. 1 fail to see how this decision IS of any assistance to the respondent No.4. The period of notice is expressly provided in section 39 in a case which is governed by that section. As I have pointed out in Telsings case(cit, supra), where a widow wants to terminate the tenancy of her tenant beyond the period prescribed under section 38 of the Tenancy Act, there is no provision in the Tenancy Act dealing with the manner in which the tenancy is to be terminated. Therefore, in view of the provisions of section 5 of the Tenancy Act, the provisions of section 106 of the Transfer of Property Act will be attracted. Therefore, in view of the provisions of section 5 of the Tenancy Act, the provisions of section 106 of the Transfer of Property Act will be attracted. The notice in the instant case calling upon the tenant to deliver possession forth with is obviously not in accordance with section 106 of the Transfer of Property Act, It is no doubt - true that none of the Revenue Authorities has applied its mind to this question, but the legality of the notice is a question of law which could be permitted to be raised even at this stage.” It may be observed that the case of Zadba Sadasheo v. Maharashtra Revenue: Tribunal concerned a notice of the termination of tenancy under section 39(1) of the Tenancy Act. As observed in that case section 39(1) specifically provided that the termination of the tenancy should be effected by giving the tenant a notice in writing, no period of time for the notice being prescribed in the provision, and by making an application for possession under section 36(2) of the Tenancy Act. There was then a specific manner of termination of tenancy provided under section 39(l) of the Tenancy Act and therefore, in view of this specific provision, section 106 of the Transfer of Property Act could not be applied by reason of the provisions of section 5 of the Tenancy Act, because that would lead to an inconsistency, the provisions of section 106 of the Transfer of Property Act being in consistent with the specific provisions under section 39(1) of the Tenancy Act. Now, in the case of a widow seeking to terminate the tenancy of her tenant for personal cultivation beyond the dates prescribed under section 38(1) it would seem, no specific mode of termination of tenancy is provided for any where under the Tenancy Act. Here, Mr. Kherdekar argued that the right of a widow to terminate the tenancy of her tenant during her life time and beyond the date prescribed under section 38(1) of the Tenancy Act must of necessity, be implied to arise under the very provisions of section 38(1) of the Tenancy Act, because that right of the widow is circumscribed by certain conditions laid down in other sub-clauses of section 38. Therefore, Mr. Therefore, Mr. Kherdekar wants to infer that even the manner of termination of the Tenancy to be resorted to by such a widow in such an action, must be read under the provisions of section 38(2), either by necessary implication or an the principle of analogy. It is difficult to accept this contention of Mr. Kherdekar, because section 38(2) deals with a different right altogether. It deals with the right of a minor or a landlord under disability or if that landlord is a widow, then her successor in title, to terminate the tenancy of the tenant on the ground of personal cultivation after the cessation of the disability, which in the case of widow landlord would be necessarily after her death. It is true, in those cases all that is necessary is to give a notice to the tenant and to make an application under section 36(2) of the Tenancy Act. However, in those cases, there is a imitation prescribed for the landlord or her successor acting within one year from the date on which the right arises. It would be wrong to read in sub-section(2) of section 38, either by necessary complication or an the principle of analogy, the manner prescribed for the termination of the tenancy of her tenant by a widow during her life time and beyond the date prescribed under section 38(1) of the Tenancy Act. The very idea that this argument requires the reading of such a manner of termination of the tenancy, either by necessary implication or by principle of analogy, by itself cancedes that there is no express provision prescribed regarding the manner of termination of tenancy. That at once brings into application the provisions of section 5, thereby the provision of Chapter V of the Transfer of Property Act and, therefore, the provisions of section 106 of ? the Transfer of Property Act, as the only manner in which such a tenancy could be terminated. 4. It was contended by Mr. Kherdekar that the respondent was a statutory tenant and to a statutory tenant, the provision of section 106 of the Transfer of Property Act could not be applicable. For this proposition, Mr. Kherdekar placed reliance on the observations of the Supreme Court in(Sardari Lal Vishwa Nath v. Pritam Singh)4 A.I.R.1978S.C.1518. 4. It was contended by Mr. Kherdekar that the respondent was a statutory tenant and to a statutory tenant, the provision of section 106 of the Transfer of Property Act could not be applicable. For this proposition, Mr. Kherdekar placed reliance on the observations of the Supreme Court in(Sardari Lal Vishwa Nath v. Pritam Singh)4 A.I.R.1978S.C.1518. That was a case of a statutory tenant under the provisions of section 13 of the East Punjab Urban Rent Restriction Act(3 of 1949). These observations could hardly have any application to a case under the Tenancy Act, particularly in view of the specific provisions of section 5 of the said Act making the provisions of Chapter V of the Transfer of Property Act, 1882, applicable in so far as they are not inconsistent with the provisions of the Tenancy Act, to the tenancies and leases of lands to which the Tenancy Act applied. 5. Heavy reliance was again placed by Mr. Kherdekar on the observations in(Jagannath v. Vasant)5 A.I.R. 1953Bom. 332, a Division Bench decision of this Court in which it was observed in para 2 of that judgment: “Mr. Chitale has relied on section 106, Transfer of Property Act which raises the presumption in the case of a lease of immovable property for agricultural purposes that it is a lease from year to year, terminable, on the part of either lessor or lessee, by six months notice expiring with the end of a year of the tenancy. But this presumption only arises in the absence of a contract or local law or usage to the contrary, and the Tenancy Act clearly displaces this presumption by making it impossible for the landlord to terminate the tenancy either of a protected or nonprotected tenant by giving a six months notice expiring at the end of the year.” Now these observations would not be applicable to the present case where, not only the presumption under section 106 is not displaced by reason of the impossibility of the landlord to terminate the tenancy, but actually there is a right in the widow to terminate the tenancy of the tenant during her life time, if she needs the land for her own personal cultivation. 6. Another point urged by Mr. 6. Another point urged by Mr. Kherdekar was that under the Tenancy Act the termination of the tenancy is not by merely a notice served on the tenant but finally by reason of the order passed by tile Revenue Officer on the application made by the landlord for possession of the land under section 36(2) of the Tenancy Act. For this purpose, Mr. Kherdekar placed reliance on the observations in(Harikisan v. Krishnaji)6 1976Mh. L. J. 537, a Full Bench decision and also on the observations of Masodkar J. in(Sitaram v. Amru Chelaram)7 1976Mh. L. J. 303. There is no dispute with these propositions of law. Even in the case of a widow, although it is necessary to terminate the tenancy of the tenant by valid notice as required under section 106 of the Transfer of Property Act: still she would not be entitled to possession unless, thereafter, she files an application for possession under section 36(2) of the Tenancy Act and the Tahsildar passes orders for possession on the said application from which date alone, the tenancy could be treated to be effectively terminated. But that would make no difference to the requirement of a valid notice under section 106 of the Transfer of Property Act for termination of the tenancy of the tenant as a first step in this scheme for obtaining possession by the widow of the land for personal cultivation. 7. Mr. Kherdekar relied on the observations in(Pundalik v. Mamraj)8 1969Mh. L. J. Note 33. In that case the plaintiff bad served a notice on 11-2-1960 terminating the tenancy of the defendant and asking him to quit and deliver possession at the end of the month of tenancy which would be after the expiry of 15 days from the date of service of notice. The tenancy month was found to commence from 15th of each calendar month. The Suit was filed on 11-3-1960 and defendant contended that it was liable to be dismissed as premature. Plaintiff amended the plaint to state that if plaintiffs suit was found to be premature on the date of filing of the same, the claim for possession matured on 14.3.1960 during pendency and plaintiff was entitled to a decree tor possession. The Suit was filed on 11-3-1960 and defendant contended that it was liable to be dismissed as premature. Plaintiff amended the plaint to state that if plaintiffs suit was found to be premature on the date of filing of the same, the claim for possession matured on 14.3.1960 during pendency and plaintiff was entitled to a decree tor possession. It was held that “the only right which defendant could claim was a right to continue in possession during which his tenancy was not validly terminated and thereafter until he was evicted in due course of law; that after 15-3-1960 defendants possession ceased to be that of a tenant and was the possession of one whole tenancy had been validly terminated; that the suit could not be dismissed as premature or on the ground of illegality of notice; that a decree for possession could be passed after 15-3-1960; that no prejudice could be caused to defendant and that it was not necessary for plaintiff to .withdraw the suit and file a fresh one.” These observations were also relied upon by Chandurkar J. in(Rajasabai wd/o Gangaram Pise and another v. Rama Tukaram Beldar)9 Spl. Civil Appln. No. 973 of 1970, decided on 6-4-1972,. In that case, Chandurkar J. observed :- “It is then contended that as held in TeIsinghs case, the requirement of notice was governed by the provisions of the general law and, therefore, a notice of six months was necessary and the same Dot having been given, the land holders were not entitled to possession. Now the notice, in the instant case, does not terminate the tenancy with effect from any particular date. Such a notice has to be liberally construed. No objection to the insufficiency of the notice was taken. The notice was given on 3-6-1968. During the pendency of this litigation, by virtue of this notice, the tenancy stood terminated with effect from December 1968. In any case, a landholder is not entitled to possession merely by issuing notice to the tenant, and even under section 39A, two requirements, which are set out for terminating the tenancy, are that the landlord must give a notice and make an application for possession. In any case, a landholder is not entitled to possession merely by issuing notice to the tenant, and even under section 39A, two requirements, which are set out for terminating the tenancy, are that the landlord must give a notice and make an application for possession. Thus, termination is brought about only after an application for possession is made and an order is passed by the Tahsildar on that application and if by the time the application for ,- possession comes to be finally decided the notice expires and the respondent was not entitled to continue in possession his lease having been terminated, there is no question of any prejudice being caused to the tenant. The notice was given on 3-6-1968 and it is now almost four years that the tenant has continued in possession which he was really not entitled to, after the notice became operative. It was not contended before the Tahsildar that the application having been filed within six months was not maintainable. Such an objection is being taken for the first time at the time of arguments. The tenants possession during the period before the Notice expired had not been disturbed and I fail to see why in such a case an effective order for possession cannot now be passed in favour of the landlord(See Pundlik v. Mamraj).” The present was not a case of a premature application for possession. The main defect in the present case was the invalidity of the notice dated 9,1-1967 received by the tenant on 13-1-1967. The notice in the present case specifically mentioned that the tenancy was terminated by the notice. In the application for possession filed before the Special Tahsildar, Murtizapur, Mainabai specifically mentioned that the cause of action for the present suit has, therefore, arisen when the opponents tenancy is terminated on 13-1-1967". Unlike the facts in Rajasahebs case, cited above, the objection to the validity and legality of the notice was specifically taken at the very outset by the respondent in his written statement before the Special Tahsildar, Murtizapur. That was the main contention in all the Courts below. Therefore, on the facts of the present case the observations either in Pundlik v. Mamraj or those in Rajasabais case, cited above, would not be applicable. 8. Mr. That was the main contention in all the Courts below. Therefore, on the facts of the present case the observations either in Pundlik v. Mamraj or those in Rajasabais case, cited above, would not be applicable. 8. Mr. Kherdekar also contended that since section 5 of the Tenancy Act made the whole of Chapter V of the Transfer of Property Act applicable to tenancies and leases under the Tenancy Act, section 117 contained in Chapter V of the Transfer of Property Act, 1882 would also be applicable. Now section 117 of the Transfer of Property Act is as follows: “117. None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette, “declare all or any of such provisions to be so applicable in the case of all or any of such leases together with, or subject to, those of the local law, if any, for the time being in force. Such notification shall not take effect until the expiry of six months from the date of its publication.” Now, Mr. Kherdekar contends that there has been no notification by the State Government published in the Official Gazette as was necessary for making the provisions of Chapter V of the Transfer of Property Act applicable to leases and tenancies under the Tenancy Act. Now, I do not see how that would make any difference. If the State Government could, by publishing the notification under section 117 of the Transfer of Property Act, make the provisions of Chapter V of the Transfer of Property Act applicable to the tenancies and leases of lands under the Tenancies Act, I fail to see how the same purpose could not also be achieved by enacting section 5 in the Tenancy Act. After all the whole of Tenancy Act including section 5 must necessarily have been published in the Official Gazette.” The enactment of section 5 in the Tenancy Act, it would seem to me, rests on even a higher level than the publication of a notification by the State Government under section 117 of the Transfer of Property Act. 9. Finally, Mr. Kherdekar contended that the petitioner may be permitted to withdraw the whole proceeding, including Mainabais initial application for possession under section 36(2) of the Tenancy Act. 9. Finally, Mr. Kherdekar contended that the petitioner may be permitted to withdraw the whole proceeding, including Mainabais initial application for possession under section 36(2) of the Tenancy Act. I am afraid, that again is something that cannot be permitted. The present writ petition under Article 227 cannot be considered a continuation of the original proceedings started in the Court of the Special Tahsildar, Murtizapur. In that sense, the original proceeding cannot be said to be pending before me in this writ petition, and therefore, it would not be permissible in this petition to allow the petitioner to withdraw the whole proceeding even including Mainabais initial application for possession under section 36(2) of the Tenancy Act. This request of Mr. Kherdekar cannot, therefore, be granted. Of course, the petitioner would be entitled to withdraw this petition itself if he were so to desire, but that is not what Mr. Kherdekar wanted. 10. In my view, there is no substance in this writ petition. Rule is, therefore, discharged with costs. Petition dismissed. -----