JUDGMENT - F.I. REBELLO, J.:---This petition involves interpretation of section 43-1B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the B.T. A.L. (Act) as to (a) when does a person cease to be a member of the Joint Family and (b) if there is a part partition of the property where the landlord is a member of the Armed Forces, whether he is entitled to avail of the benefit under section 43-1B of the Bombay Tenancy Act. 2.The petitioners admittedly are the original tenants and the respondent is the landlord. Though in some earlier proceedings, the respondent landlord had challenged the relationship of landlord and tenant, this controversy, however, does not survive in view of the orders passed in those proceedings. Suffice it to say that the respondent-landlord has now acknowledged the petitioners as tenants and moved an application under section 43-1B of the Bombay Tenancy Act against the petitioners herein. The subject matter of the property is agricultural land bearing Regular Survey No. 178 (Gat No. 607) at village Badhani, Taluka Karvir, District Kolhapur admeasuring 8 Acres 18 Gunthas (3 Hectares 27 Areas). The respondent herein had moved an application on 29th June, 1991 after having issued a notice dated 15th April, 1991. Informing the petitioners that their tenancy had been terminated. The said application was numbered as Tenancy Case No. 2 of 1991. The Tahsildar by his order dated 12th October, 1992 held that the applicant is not a member of any joint family and that the suit land is not joint family property and consequently held that the applicant holds the suit land as a sole owner. 3.The matter had been referred to the Tahsildar pursuant to a writ petition filed by the petitioners before this Court being Writ Petitions No. 1899 of 1992 which was preferred against an order passed by the Additional Commissioner, Pune, who had allowed the application of the respondent herein and had refused (sic referred) the matter to the Tahsildar for enquiry into the share of the respondent in the joint family property as sought for by the respondent. This Court by its order dated 1st July, 1992 relying on the judgment of the Apex Court reported in the case of (Balkrishna Somnath v. Sadu Devram Koli)1, reported in 77 T.L.R. 77 directed that reference to be made to the Tahsildar and that the Tahsildar to decide it within a time frame. Subsequent to the matter being decided by the Tahsildar, the Collector of Kolhapur by his order dated 5th December, 1992 was pleased to allow the application of the respondent and held that the tenancy stands terminated and the possession of Gat No. 607 (Old Survey No. 178, of village Badhani, Taluka Karvir, Dist. Kolhapur should be restored to the applicant-landlord by evicting the opponents-tenants. The petitioners being aggrieved by the said order had preferred a Revision Application being Revision Application No. Ten. Kop. 141. The Additional Commissioner, Pune held that the orders of the authorities below are based on facts on record and supported by the provisions of the B.T. A.L. Act and that he found no illegality or impropriety in the order of the Collector and accordingly dismissed the revision application. Hence, this petition. 4.Some relevant facts may now be set out for the purpose of deciding the issue which arises in this matter. The land which the respondent claims, was initially a part of the joint family property. There were two partitions effected, one on 18th March, 1957 between the father of the respondent and the uncle of the respondent and thereafter a second partition was effected on 25th March, 1957 between the father of the respondent on the one hand and respondent on the other. It is pursuant to this partition that the respondent claims independent right in the property from 25th March, 1957. It has also come on record that in so far as the properties are concerned, there has been part partition of the joint properties and that other properties atleast on the date of the application moved by the respondent, continued being the properties of the family. These facts are being narrated as they would be relevant of the purpose of deciding the issues in controversy. 5.Shri Joshi, the learned Counsel for the petitioner has argued that the orders of the Tahsildar, Collector and the Additional Commissioner should be set aside as in terms of the order of remand of this Court they were bound to hold an enquiry as directed. 5.Shri Joshi, the learned Counsel for the petitioner has argued that the orders of the Tahsildar, Collector and the Additional Commissioner should be set aside as in terms of the order of remand of this Court they were bound to hold an enquiry as directed. That no such enquiry is held and on the contrary the authorities below have proceeded on the footing that the property in question was not a part of the joint family property and that the respondent was an independent landlord of the said property and as such section 43-1B was not attracted. He argued that the finding of the authorities below are perverse and contrary to the provisions of law. He invites my attention to the judgment the Apex Court in the case of Balkrishna Somnath v. Sadu Devram Koli (supra) where the Court has interpreted the definition of joint family in so far as section 32-F of the B.T. A.L. Act is concerned. He contended that the same interpretation accepted by the Apex Court in respect of the joint family should also be adopted in so far as section 43-1B of the Act is concerned as that would be in harmony with the object of the Act. He further points out that initially even the members of the Armed Forces were included under section 32-F and that it is only sometime in the year 1964 pursuant to the Tenancy and Agricultural Lands Laws (Amendments) Act, 1964 that that members of the armed forces have been excluded from the purview of section 32-F and a separate chapter has been provided for recovery of possession of tenanted land by the members of the armed forces. It is his submission, therefore, that looking to the nature of section 32-F, the past history and even the mischief that the amendment seeks to avoid the interpretation of the definition of joint family should be the same. He points out that if this is accepted, the case of the respondent clearly falls within the purview of section 43-1B and the authorities had to consider the case of the respondent by holding that this case falls under Section 43-1B of the Act. The reasoning of the authorities holding otherwise is perverse and consequently the orders and liable to be quashed and set aside. The reasoning of the authorities holding otherwise is perverse and consequently the orders and liable to be quashed and set aside. 6.Shri Rane, the learned Counsel arguing on behalf of the respondents contended that the provisions of section 32-F should not be referred to as Chapter III-AA is an independent chapter by itself and in fact if one looks to the language of section 43-1B it starts with a non obstante clause namely, 'notwithstanding anything contained in the foregoing provisions of this Act'. He argues that this would indicate that section 32-F or the provisions in the earlier chapters would not be applicable. He further points out that this view is further fortified if one looks at the provisions of section 43-1D(3) wherein no reference whatsoever is made to section 32-F, and as such the authorities below were right in holding that the provisions of section 43-1B of the Act would not apply as partition had been effected way back in the year 1957 and since then the respondent was the landlord in his own right. The petitioners had moved applications against the respondent claiming right against him as to landlord and under the circumstances the authorities were right in holding that this was not a joint family property and consequently the provisions of section 43-1B would not be attracted. In the alternative he submits that the Apex Court was interpreting joint family under section 32-F and that the interpretation should not be adopted while considering the language of sub-section (1)(b) of section 43-1B. If the said interpretation is accepted he contends that the entire purpose of providing a separate chapter in respect of armed forces would be defeated. He submits that there are limitations is section 32-F of the Act which limitations are not found in section 43-1B. Under these circumstances the authorities were right in holding that the provisions of sub-section (1)(b) of section 43-1B were not attracted. He relies on the judgment of the Single Judge of this Court in the case of (Mannappa Rana Patil v. Narsingrao Ganpatrao Dalvi)2, reported in 1992 Mah. Law Journal, 1037 and the judgment of the Division Bench of this Court in the case of (Bhimrao Tatoba Sawant and anr. v. Heramb Anant Patwardhan and ors.)3, reported in A.I.R. 1986 Bom. He relies on the judgment of the Single Judge of this Court in the case of (Mannappa Rana Patil v. Narsingrao Ganpatrao Dalvi)2, reported in 1992 Mah. Law Journal, 1037 and the judgment of the Division Bench of this Court in the case of (Bhimrao Tatoba Sawant and anr. v. Heramb Anant Patwardhan and ors.)3, reported in A.I.R. 1986 Bom. 408 to point out that in so far as the provisions of section 43-1B are concerned, the date of purchase is not when the tenant is deemed to have purchased the land, but the actual date when the sale proceedings had taken place. 7.For the purpose of determining the issues which arise in the petition it would be relevant to examine certain provisions of the B.T. A.L. Act, 1948. Joint family has been defined under section 2(7A) of the Act to mean an undivided Hindu Family, and in the case of other persons a group of unit the members of which are by custom joint in estate or residence. In the instant case admittedly the respondent professes Hindu faith and from the record it is seen that in fact there was a joint family amongst whom two partitions were effected, one on 18th March, 1957 and the other on 25th March, 1957. Section 32-F is the provision whereby certain categories of landlords were given benefit of recovery of possession of land if they fell within the parameters laid down under section 32-F. This included a minor, widow, a person subject to any mental or physical disability or a serving member of the Armed Forces. In terms of section 32-F (1) (a) a cut off date has been provided for whereby such disabled person could take advantage of applying for recovery of possession. There is a provision to section 32-F (1) (a) whereby if the properties belong to the joint family then the provisions of section 32-F (1) (a) would not be attracted unless there was a partition of the joint family properties on or before 31st March, 1958 and the share of such disabled person was separated by metes and bounds. This was introduced by Act 38 of 1957 which came into force with effect from 1st August, 1956. This was introduced by Act 38 of 1957 which came into force with effect from 1st August, 1956. By virtue of the said amendment such disabled persons were given an opportunity of getting a partition effected on or before 31st March, 1958 and getting their shares separated to claim the benefit under section 32-F. 8.By Act 9 of 1964, Chapter III-A was introduced. By the introduction of this chapter a separate chapter has been provided for the serving members of the armed forces for a specified period of time. The most important section in this Chapter is section 43-1B. Whereas under section 32-F there is a limitation provided for, sub-section (1) (b) of section 43-1B provides two conditions. A member of the armed forces who was an independent landlord could move under sub-section (1) (a) of section 43-1B and those who are members of a joint family under section 43-1B. The chapter also provided for transfer of pending proceedings to Collector from the Tahsildar whereas in case of other disabled categories of landlord covered under section 32-F the regular procedure of appeals, etc., is followed. In so far as the members of the armed forces are concerned, a different procedure is provided for. The right under section 43-1B was subject to the embargo created by sub-section (1)(b) of section 43-1B. This right could be exercised only if the tenant had not purchased the land. In that event a landlord who was a member of the armed forces could take advantage of the provisions of sub-section (1)(b) of section 43-1B by moving an application for possession. 9.As already pointed out, the application by the respondent was moved on 29th June, 1991. The respondent claims as landlord pursuant to the date of partition dated 25-3-1957. The petitioners themselves recognised the respondent landlord as their landlord as they only filed applications against him and not against the joint family. The question, therefore, is whether the authorities below who have held in favour of the respondent by holding that he was a landlord in his own right and that the question of joint family did not arise are right in the reasoning adopted by them and whether the view below can be supported and/or is in consistent with the provisions of sections which have been quoted above. 10.At what stage a member of the joint family can apply under section 32-F of the Act came up for consideration before the Apex Court in the case Balkrishna Somnath v. Sadu Devram Koli (supra). That was a case under section 32-F(1)(a) of the Act. Two cases were decided by the Supreme Court by one common judgment. From the facts of both the cases it is clear that there was a part partition of the property within the cut-off date i.e. 31st March, 1958. Certain other properties belonging to the joint family were not partitioned. In both the cases right was claimed based on the part partition which was effected. The Court held that for a disabled person under section 32-F to take advantage there must be a complete division of the joint family property and part partition would not give to the disabled person the right to move under that section. After considering the various aspects of law the Apex Court has observed as under :- "Therefore, the imperative condition for the operation of the proviso is that there should be a total separation and so far as a disabled member is concerned, It must cover all the joint family properties." (emphasis supplied). In other words in so far as section 32-F is concerned, the Apex Court has made it absolutely clear that part partition can give no right to a disabled person. In order to avail of the right the partition must be total. 11.The question, therefore, is whether section 43-1B, (1)(b) has to be interpreted in a like manner as interpreted by the Apex Court while considering section 32-F, and/or a different view is possible. As pointed out earlier Chapter III-AA has been especially introduced for the benefit of the members and retired members of the armed forces. Whereas in section 32-F there is a limitation carved out that the partition of the land and possession should be completed by 31st March, 1958, in so far as section 43-1B is concerned there is no such time limit. The only limitation is that he must be a member of the armed forces or must be a retired member in which case the application shall be moved within two years of his retirement. 12.Can, therefore, the respondent claim a right in terms of sub-section (1)(a) or (1)(b) of section 43-1B for resumption of possession. The only limitation is that he must be a member of the armed forces or must be a retired member in which case the application shall be moved within two years of his retirement. 12.Can, therefore, the respondent claim a right in terms of sub-section (1)(a) or (1)(b) of section 43-1B for resumption of possession. Admittedly, the petitioner would be a member of the joint family in terms of the interpretation to section 32-F, as on the date of the application there was no total partition of the properties. While deciding the two cases under section 32-F Apex Court had rejected the claim of the landlords under section 32-F as there was no total partition of the properties. The question is whether there is a similar bar under sub-section (1)(b) of section 43-1B of the Bombay Tenancy Agricultural Lands Act. For that purpose we will have to examine the scope and effect of section 43-1B as introduced by Act 9 of 1964. Was there a purpose in excluding the members of Armed Forces from the provisions of section 32-F and providing for a separate Chapter. The Chapter as introduced permits a member of the Armed Forces any time during the period of the tenure of his office or within 2 years of his retirement or the extended period as provided for under the circumstances in the section, to move an application for recovery of possession of the land upto certain limits, whereas, in so far as section 32-F is concerned, such a benefit could be availed of only upto 31st March, 1958. The other dis-enabling factor is the procedure which the disabled person under section 32-F has to follow and the procedure provided for in the new chapter in so far as members of the Armed Forces are concerned wherein a shorter and faster procedure is provided for. The provisions of this chapter are applicable as long as the tenant has not actually purchased the land. There was some debate as to what is meant by actual purchase. The said matter has been settled by a pronouncement of the Division Bench of this Court in the case of Bhimrao Tatoba Sawant and another v. Heramb Anant Patwardhan and others, reported in A.I.R. 1986, Bom. 408. The Division Bench while considering section 43-1B of Chapter III-AA interpreted the expression "deemed purchase". The said matter has been settled by a pronouncement of the Division Bench of this Court in the case of Bhimrao Tatoba Sawant and another v. Heramb Anant Patwardhan and others, reported in A.I.R. 1986, Bom. 408. The Division Bench while considering section 43-1B of Chapter III-AA interpreted the expression "deemed purchase". The Division Bench held that the words "purchased by the tenant" will have to be interpreted in such a manner that the intention of the Legislature to give additional benefit to the landlords belonging to the Armed Forces is implemented. The Division Bench further observed that this would be permissible if there is no violence to the language used by the Legislature and the meaning of the phrase "purchased by the tenant" can be properly understood as not to cover deemed to have been purchased by the tenant". They, therefore, held that it would only apply if the tenant in fact had purchased the land and not if it fell within the expression "deemed to have purchased". The crucial question, however, is as to whether the reasoning adopted by the Apex Court and the conclusions that fall from the case of Balkrishna Somnath v. Sadu Devram Koli, have also to be necessarily inferred and/or implied while interpreting 'joint family'. There is a marked distinction in the language used in section 32-F and section 43-1B. In section 32-F the expression used is the share of such person in the joint family has been separated by metes and bounds. In section 43-1B on the other hand the expression used is to the extent of his share in the land held by the joint family. That such a distinction is material was itself noticed by the Apex Court while considering the case of Balkrishna Somnath (supra). The Apex Court was considering the effect of proviso to section 32-F. The Apex Court observed as under :- "The proviso clearly states that the disabled person's share in the joint family 'must have been separated by metes and bounds'. Separation from the joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that extent is not separated from the joint family. National division or division in status also may not be enough because the Act insists on separation 'by metes and bounds'. Separation from the joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that extent is not separated from the joint family. National division or division in status also may not be enough because the Act insists on separation 'by metes and bounds'. Ordinarily "metes and bounds" are appropriate to real property, meaning, as the phrase does, "the boundary lines of land, with their terminal points and angles". In the context, the thrust of the expression is that the division must be more than notional but actual, concrete, clearly demarcated. The ineptness and involved structure and some ambiguity notwithstanding the sense of the sentence is clear. The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part. What is more, the section uses the expressions "the share of such person in the Joint Family", "the share of such that person in the land", "the share of that person in the entire joint family property". Thus it is reasonable to hold that when the expression used is "the share of such person in the joint family", it is not confined to the share in the land only. It merely means his share " in the entire joint family"." Thus the Apex Court itself in the case of Balkrishna Somnath (supra) arrived at the conclusion on the expression used in the said section which was the disabled person's share in the joint family property and not share in the land. In section 43-1B, the expression used is share in the land. Therefore, clearly the reasoning adopted by the Apex Court while interpreting section 32-F cannot be followed considering the language in so far as section 43-1B is concerned. 13.In fact a Single Judge of this Court in the case of Mannappa Rana Patil v. Narsingrao Ganpatrao Dalavi and others, reported in 1992 Maharashtra Law Journal, 1037 was considering the relevant date for determining the share of a member of the Armed Forces in the joint family property. After considering the provisions of sections 43-1B, 43-1D and 43-E the learned Single Judge held that what would be the relevant is the date on which the application is made and the relevant date cannot be determined with reference to actual separation of his share by metes and bounds. After considering the provisions of sections 43-1B, 43-1D and 43-E the learned Single Judge held that what would be the relevant is the date on which the application is made and the relevant date cannot be determined with reference to actual separation of his share by metes and bounds. The learned Single Judge held that it would be left to the Mamlatdar to determine the share of the member of the Armed Forces and in so far as that case is concerned directed the petitioner therein to move an application for getting his share separated with a further observation that the order regarding resumption must follow to the extent of his share. In other words what the learned Single Judge has said is that in so far as a member of Armed Forces is concerned, there may not be actual division of the land by metes and bounds on the date of the application, but the right of a member of the Armed Forces to claim resumption even if there was no separation by metes and bounds would be as on the date of his application to get his share determined and his share would be separated by the Mamlatdar. 14.Otherwise one cannot understand the need or necessity for providing a separate chapter. Take an illustration, a member of the Armed Forces may be serving in a remote part of the country and is unable to leave his place to move an application and even if he moves an application he is not in a position to pursue the legal proceedings for partition of the property by metes and bounds in a Civil Court. In so far as Civil Court is concerned, that may go on for years together. Can it be then said that because the member of the Armed Forces was not in a position to get his share determined that the benefit of the chapter should not be given to him. Take another illustration where the member of the family may agree to a separation, but may at the last moment back out. Can the rights of resumption be denied merely because the member of the joint family was not diligent enough to have taken steps to file the proceedings in the Civil Court for partition of his property to get it separated by metes and bounds. Can the rights of resumption be denied merely because the member of the joint family was not diligent enough to have taken steps to file the proceedings in the Civil Court for partition of his property to get it separated by metes and bounds. That would defeat the very purpose of Chapter III-A which has been introduced with the sole intention to give benefit to the members of the Armed Forces. Considering the aforesaid, I am of the considered view as held by the learned Single Judge in the case of Mannappa Rana Patil (supra) that what has to be determined is the share which the member of the Armed Forces is claiming in the land of the joint family, whether there has been a total partition or part partition after the Amendment Act came into force. 15.In the case of a total partition having been effected before the amendment came into force, one can see no reason as to why in such a case a member of the Armed Forces cannot be treated separately as a landlord and his case excluded from sub-section (1) (b) of section 43-1B and included under sub-section (1)(a) of section 43-1B. 16.It is only in the event that there has been no total partition of the land, before the Amendment Act came into force that sub-section (1)(b) of section 43-1B would come into play. In the instant case admittedly Inam land of the joint family had not been partitioned and it has been partitioned after application filed by the respondent landlord. There was, therefore, no total partition of the land belonging to the joint family, though some land of the joint family was partitioned and was being enjoyed separately. Said part partition would not result in the joint family ceasing to be a joint family. All that would happen is that a member of the Armed Forces would in law as a member of the joint family be entitled to apply to the Mamlatdar for resumption of possession of land in which event the Mamlatdar will decide whether the land which is already separate or which has to be separated by metes and bounds can be resumed by the landlord bearing in mind the other predicates of the sections in the objectives. The Authorities below were wrong in holding that the respondent was an independent landlord and not a member of the joint family. The Authorities below were wrong in holding that the respondent was an independent landlord and not a member of the joint family. 17.In view of the above, my findings are as under :- (a) A person will cease to be a member of the joint family for the purposes of section 43(1B) of B.T. A.L. Act when he applies to the Mamlatdar for resumption of his share in the joint family property; and (b) Even in the case of part partition unlike section 32-F the member of the Armed Forces is entitled to maintain an application under section 43(1B) of the B.T. A.L. Act. 18.It may be mentioned that this Court by its order dated 1st July, 1991 in Writ Petition No. 1899 of 1992 had directed the Tahsildar to decide the reference in so far as the share of the respondent is concerned. The Tahsildar, declined to answer it. The Tahsildar, therefore, clearly erred in law in not answering the issue. The Tahsildar to examine the claim of the respondent qua his share in the joint family property and accordingly decide his application. 19.Considering that much time has passed consequent to various litigations that have arisen in this matter, it will be in the fitness of things that the Tahsildar is directed to dispose of the matter within one year from today. Needless to say that the Tahsildar will give opportunity to both parties to lead evidence in the matter. 20.Hence, the order of the Tahsildar, Taluka Karvir, Dist. Kolhapur in Tenancy Case (Reference) No. 11 of 1992, the order of the Collector, Kolhapur dated 5th December, 1992 in T.N.C. Case No. 2/91 and the order of the Additional Commissioner, Pune, Division, Pune in Revision Application No. TNC/KOP/146 dated 9th February, 1993 are quashed and set aside. The matter is remanded to the Tahsildar, Taluka Karvir, Dist. Kolhapur to dispose it of in accordance with law and in the light of the observations made above as expeditiously as possible and at any rate within one year from today. There shall be no order as to costs. *********