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2014 DIGILAW 2495 (BOM)

Shankar Ranuji Kanwade v. Bhausaheb Dagadu Ambre

2014-12-18

R.V.GHUGE

body2014
JUDGMENT R.V. Ghuge, J. 1. By order dated 26-6-1992, this Court heard the matter and issued Rule. The contentions of the petitioners can be summarized as under:-- (a) The deceased Shankar (original petitioner) was the adopted son of deceased Reubai who was owner of the suit land bearing Survey No. 32 having area 3.86 acres, Survey No. 32 having area 2.57 acres, Survey No. 34/4 having area of 2.41 acres, Survey No. 35/2 having area of 5.23 acres and Survey No. 64 having area of 1.26 acres. (b) The total area is admeasuring 15.33 acres situated in village Lingdev Tq. Akole, District: Ahmednagar is said to be the ancestral property of the petitioner. (c) The original landlord Kushaba had two sons Viz. Nagu and Ranu. (d) Both Nagu and Ranu have died prior to 1932. (e) Anabai was the widow of Nagu and after his death she was his sole legal heir. (f) The deceased Ranu left behind three daughters Viz. Housabai, Thamabai and Mamtabai. (g) Dagdu was the husband of Housabai and son in law of Reubai. (h) Dagdu died in 1962. (i) The deceased Dagdu and Housabai had a son viz. Bhausaheb and three daughters. (j) Reubai died on 6-1-1964 and Shankar Ranuji Kanawade (minor) became her legal heir as an adopted son. (k) Taking undue advantage of Reubai's ignorance and being a widow, Dagdu succeeded in getting his name recorded as a tenant in respect of suit land. (l) Later on he became the deemed purchaser of the suit land as per section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (Tenancy Act hereinafter). (m) The deceased Shankar Ranoji had therefore filed Civil Suit bearing No. 33/60 on 25-6-1960 in the Civil Court which made a reference regarding tenancy to the Tenancy Court. (n) The Civil Court held Shankar as being the legal heir since he was the adopted son of Reubai. (o) Dagdu's heirs preferred an appeal for challenging the conclusion of the Civil Court. (p) The Judgment and decree of the Civil Court was confirmed in appeal. (q) Dagadu was never the tenant of the suit land and could not have claimed tenancy being the son-in-law of Reubai and brother in law of Shankar. (r) The suit lands were grass lands and the provisions of Tenancy Act were not applicable. (s) Since Reubai was a widow, the tillers day 1-4-1957 would stand postponed. (q) Dagadu was never the tenant of the suit land and could not have claimed tenancy being the son-in-law of Reubai and brother in law of Shankar. (r) The suit lands were grass lands and the provisions of Tenancy Act were not applicable. (s) Since Reubai was a widow, the tillers day 1-4-1957 would stand postponed. (t) In the tenancy reference made by the Civil Court, arising out of Shankar's suit, the Tahsildar sent back the reference since the issue as to whether adopted son Shankar was the absolute owner of the suit land had cropped up. (u) The Civil Court had thus held that Shankar had become sole owner of the suit land and therefore, the deceased Dagdu and his heirs had no legal right to purchase the said lands under section 32-G of the Tenancy Act. (v) The deceased Shankar had therefore preferred an appeal before the Additional Tahsildar bearing No. TNC Case No. 1/97 Lingdev 32-P. (w) After due enquiry, it was concluded on 25-7-1983 that the possession of the suit land be given to Shankar and the respondents herein be evicted. (x) The respondents challenged the order of the Additional Tahsildar dated 25-7-1983 before the Sub Divisional Officer, Sangamner division, Sangamner bearing Tenancy Appeal No. 56/1983. (y) The S.D.O. Sangamner dismissed the appeal of the respondents and confirmed the judgment and order of the lower Court vide his judgment dated 11-10-1989. (z) The respondents preferred a revision before the Maharashtra Revenue Tribunal Pune bearing No. MRT/AH/X/7/1989 (TNC-13-282-89). (aa) The MRT by its Judgment and order dated 4-3-1991 allowed the revision of the respondents. (bb) Since Reubai was a widow before the introduction of the Tenancy Act, the tiller's day 1-4-1957 shall be deemed to be postponed during the lifetime of the widow. (cc) Till the death of Reubai, no tenant can initiate proceedings for purchasing the land. (dd) During the lifetime of the widow and till her death, no tenant can be a deemed purchaser. (ee) Within one year from the date of her death, her successor can resume the land for personal cultivation. If this does not so happen, the tenant can make an application for seeking to purchase the land within one year thereafter. (ff) Son-in-law does not get the right to purchase the land. (ee) Within one year from the date of her death, her successor can resume the land for personal cultivation. If this does not so happen, the tenant can make an application for seeking to purchase the land within one year thereafter. (ff) Son-in-law does not get the right to purchase the land. (gg) Impugned judgment of the MRT dated 4-3-1991 and its order in review dated 11-2-1992 deserves to be quashed and set aside. (hh) The petitioners preferred a review application which was dismissed by the MRT by its order dated 11-2-1992. 2. Learned Advocate for the respondent has argued at length and his submissions can be summarized as follows:-- (a) Smt. Reubai Ranuji Kanawade is the original owner and possessor of the suit properties. (b) On tillers day, which is 1-4-1957, the grandfather of the present legal heir Dagadu (now deceased) was the tenant of the suit property. (c) By order dated 11-8-1961 in TNC Case No. 8/1960 as well as vide the order in Appeal No. 1638/1969, he has been duly declared by the concerned Revenue Authorities as a deemed purchaser under section 32-G of the Bombay Tenancy Act. (d) The adopted son of Reubai namely Shankar, despite having participated in the tenancy proceedings, directly filed RCS No. 33/1960 on 25-6-1960 seeking declaration of his title over the suit properties before the trial Court. (e) RCS No. 33/1960 was allowed and the suit was decreed on 30-3-1967. (f) The father of the present respondent namely Dagadu preferred an appeal before the District Court, which came to be dismissed. (g) Shankar filed TNC Case No. 1/1977 before the Additional Tahsildar, Akole, which was allowed on 25-7-1983. (h) Since the same was allowed, Dagadu preferred the TNC Appeal No. 56/1983 before the learned S.D.O. Sangamner and the said appeal was also dismissed on 11-12-1989. (i) The above said order was challenged in Revision No. 7/1989 before the MRT and the same was allowed on 4-3-1991. (j) The Review Petition No. 2/1999 filed under section 322 of the MLRC Code 1966 was dismissed on 11-2-1992. (k) Dagadu died in 1962 and the landlady Reubai died in 1964. (l) Legal representatives of Dagadu would therefore acquire the right to purchase as per section 32-Gof The Bombay Tenancy Act. (j) The Review Petition No. 2/1999 filed under section 322 of the MLRC Code 1966 was dismissed on 11-2-1992. (k) Dagadu died in 1962 and the landlady Reubai died in 1964. (l) Legal representatives of Dagadu would therefore acquire the right to purchase as per section 32-Gof The Bombay Tenancy Act. (m) Shankar does not have the locus-standi to raise a dispute regarding right of tenancy, since the title of the concerned land had been vested with Dagadu and therefore inherited by the present respondents as the LRs of Dagadu. (n) The issue of tenancy cannot be reopened as it has been decided once and for all between the parties and the title already vested in Dagadu. (o) Sons and daughters of Dagadu, on his death, would be the legal heirs to the property. (p) The respondents are in the lawful possession of the suit property all throughout. (q) Reubai, being the absolute owner of the suit property, could create a valid tenancy on the basis of a lease in favour of Dagadu, who was managing her affairs and was also her son-in-law. (r) As regards right/title to the suit land is concerned, the question of ownership was carried right up to the High Court and was held in favour of Reubai. (s) On account of acquired rights by purchasing the suit properties under section 32-G of the Tenancy Act, the petitioner cannot seek adjudication of the question of tenancy as the title is already vested in Dagadu and thereafter in the present respondents who are legal heirs of the deceased Dagadu. (t) The orders of the authority below were rightly set aside by the MRT vide its judgment dated 4-3-1991 and its order on the review application dated 11-2-1992. 3. I have heard the learned Advocates for the respective sides and have gone through the petition paper book and the judgments cited. 4. This Court, in the matter of Khashaba Dadu Borate vs. Yashwant Dadu Borate, 1997 Vol. 99(3) Bom.L.R. 274, has considered the scope of section 32-G of the Bombay Tenancy Act, 1948. It was concluded that a widow can initiate a proceeding under section 32-G. The expression 'Widow' would only represent the physical state and would not affect her rights in respect of a land. 99(3) Bom.L.R. 274, has considered the scope of section 32-G of the Bombay Tenancy Act, 1948. It was concluded that a widow can initiate a proceeding under section 32-G. The expression 'Widow' would only represent the physical state and would not affect her rights in respect of a land. There is no provision under the Act, which would take away the widow's right to make an application for fixation of the price and sale of the land to the tenants. 5. In the Khashaba judgment (supra), the conclusions drawn by this Court in paragraph Nos. 4, 5 and 6 are as follows:-- "4. The learned Counsel appearing for the petitioner first submits that learned Member of M.R.T. has committed an error in holding that the application filed on behalf of widow landlady under section 32-Gwas not maintainable. He submits that landlady widow was having a right to initiate the proceedings under section 32-G and such a right cannot be said to have been taken away by any of the provisions of Bombay Tenancy Act. In support of his contention he has relied upon two judgments of Division Benches of this Court reported in i) Bai Jiviben vs. Bombay Revenue Tribunal 61 B.L.R 1475 and ii) Nago Dattu Mahajan vs. Smt. Yashudabai 61 B.L.R 475. In the case of Bai Jiviben (cited supra) it came to be held that sub-section (1) of section 31 gives a right to every landlord to terminate the tenancy of the land if he requires the same bona fides for personal cultivation. It was held that there is nothing in this sub-section which states that this right shall not be available to a widow or that it cannot be exercised by her. Section 31(1) gives a similar right to the widow as in the case of any other landlord. Section 31(3) gives right to successor in interest but it does not in any way restrict the rights which the widow herself possesses. In the case of Nago Dutta (cited supra) the question arose whether both the provision i.e. Section 31(1) and section 31(iii) can be availed or not. It was held that section 31(3) is an enabling provision designed for the benefit of disabled landlords such as widows etc. It was further observed as follows... In the case of Nago Dutta (cited supra) the question arose whether both the provision i.e. Section 31(1) and section 31(iii) can be availed or not. It was held that section 31(3) is an enabling provision designed for the benefit of disabled landlords such as widows etc. It was further observed as follows... Such landlord thus have a choice to avail of either of these two provisions for resumption, i.e. section 31(1) and section 31(3), exercise of which depending on the circumstances in which each of them finds himself. No landlord, however, can avail of both the provisions, section 31 having been designed to afford only one last opportunity of resumption. Any such landlord thus cannot seek resumption under section 31(3) again if he or she has availed of the right under section 31(1). A widow landlady possesses right which are possessed by any other landlord and they are not taken away by any of the provisions. Expression widow only represents the physical state of landlady. It was nothing to do with her rights which a landlady possesses in respect of the lands. If a landlady became a widow prior to 1-4-1957, then she is a widow for the purpose of Bombay Tenancy Act. There is nothing in the Act which takes away her right to make an application under section 32-G for fixation of price and sell the land under Bombay Tenancy Act to a tenant. Section 31(3) makes a special provision for a disabled landlord like a widow. But other rights as a landlord are preserved. There is no embargo on her right to initiate the proceedings under section 32-G of B.T. and A.L. Act. Therefore, the learned Member was not right in holding that the proceeding under section 32-G were nullity as they were initiated by the widow landlady. 5. Now the second question is whether the petitioner is exclusive tenant of the lands or even the petitioner and respondent No. 1 can be said to be both the tenants of the same. It is to be noted that division has taken place between the brothers in 1946. The learned Counsel for the petitioner relied upon the judgment of this Court in Khashaba Dadu Borate vs. Shankar Dadu Borate Special Civil Application No. 364 of 1964 and 2 others with Special Civil Applications No. 363 of 1964, dated 17th/18th February, 1965. It is to be noted that division has taken place between the brothers in 1946. The learned Counsel for the petitioner relied upon the judgment of this Court in Khashaba Dadu Borate vs. Shankar Dadu Borate Special Civil Application No. 364 of 1964 and 2 others with Special Civil Applications No. 363 of 1964, dated 17th/18th February, 1965. It was between the petitioner and respondent No. 2 and relating to another land i.e. Survey No. 39 belonging to the same landlady. In the said case it was the case of the petitioner that there was a registered lease deed between the original landlord Balla Ganesh Kanhere on the one hand and the petitioner and another person by name Bapu Pandit Nanaware and Khashaba Dadu Mali. It was dated 29-11-1943. Proceedings were initiated by the petitioner under section 70(b) of B.T. and A.L. Act for a declaration that he was alone tenant of the suit land covered under the said lease deed. It was contended by respondents 1 and 2 that the petitioner was not the exclusive tenant, but the tenancy right belonged to the petitioner and respondent Nos. 1 and 2. This matter came to this Court and the Court extensively dealt with the contentions raised by the parties and came to the conclusion that the petitioner alone was the tenant of the said land. 6. The learned Counsel for the petitioner pointed out that the registered lease deed in respect of the lands involved in this petition was also executed on the same day i.e. 29-11-1943. It was also between the original landlord Balla Ganesh Kanhere on the one hand and the petitioner and Babu Pandu Nanaware on the other hand. He further pointed out that these lands are adjacent to the lands covered by the registered lease dealt with in the Special Civil Application No. 364 of 1964 and Special Civil Application No. 363 of 1964. He pointed out that these lands are adjoining, but as they are situated in separate village, they are separately numbered and there is separate lease between the same parties. No doubt the reasoning given in Special Civil Application No. 363 of 1964 can very well be adopted in the present case. However, the difficulty is because the Additional Tahasildar and A.L.T. Satara while deciding the application has made reference to 3 aspects viz. No doubt the reasoning given in Special Civil Application No. 363 of 1964 can very well be adopted in the present case. However, the difficulty is because the Additional Tahasildar and A.L.T. Satara while deciding the application has made reference to 3 aspects viz. i) there was mutation number 2340, 2454 in respect of these lands where the names of 3 brothers were shown as having l/3rd share, ii) the landlady i.e. Saraswatibai accepted that all 3 brothers were tenants and iii) the petitioner himself in his statement admitted on 2-3-1973 that all 3 brothers having 1/3rd share in the tenancy rights. The Additional Tahasildar and A.L.T. Satara considered these aspects and came to the conclusion that all the brothers were having 1/3rd share in these lands and they are liable to pay 1/3rd purchase price. However, the appellate Court has not taken into consideration all these aspect and came to the conclusion that petitioner alone was the tenant, as in the year 1965 he was alone shown as tenant in record of rights. Nothing else was considered. He was a fact finding authority and was expected to consider all the relevant facts i.e. admissions of parties, fact of separation between brothers, the registered lease in favour of petitioner and the effect of the judgment of this Court between the brothers, cultivation of lands, etc. The reasoning given was obviously no reasoning at all and the finding was perverse. Further when I called upon both the sides to point out the statement of the petitioner dated 2-3-1972 by which the petitioner allegedly admitted that the tenancy rights belong to all 3 brothers in 1/3rd share each, they could not point out the said statement.........." 6. Section 32F of The Maharashtra Tenancy and Agricultural Lands Act, 1948 reads as under:-- "Section 32F. Section 32F of The Maharashtra Tenancy and Agricultural Lands Act, 1948 reads as under:-- "Section 32F. Right of tenant to purchase where landlord is minor, etc.--(1) Notwithstanding anything contained in the preceding sections:-- (a) where the landlord is a minor or a widow or a person subject to any mental or physical disability * * * * the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31[and for enabling the tenant to exercise the right of purchase, section 31:] 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 this sub-section unless before the 31st day of March, 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and the 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. (b) where the tenant is a minor or a widow or a person to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause (a), the right to purchase land under section 32 may be exercised:-- (i) by the minor within one year from the date on which he attains majority; (ii) by the successor-in-title of the widow within one year from the date on which her interest in the land ceases to exists; (iii) within one year from the date on which the mental or physical disability of the tenant ceases to exists; (iv) within one year from the date on which the tenant ceases to be a serving member of the armed forces: 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 this sub-section unless before the 31st day of March 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar 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. (1A) A tenant desirous of exercising the right conferred on him under sub-section (1) shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub-section:] Provided that, if a tenant holding land from a landlord (who was a minor and has attained majority before the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act, 1969) (Mah. XLIX of 1969) has not given intimation as required by this sub-section but being in possession of the land on such commencement is desirous of exercising the right conferred upon him under sub-section (1), he may give such intimation within a period of two years from the commencement of that Act. (2) The provisions of section 32 to SECTION 32-E (both inclusive) and section 32-G to SECTION 32-R (both inclusive) shall, so far as may be applicable, apply to such purchase." 7. (2) The provisions of section 32 to SECTION 32-E (both inclusive) and section 32-G to SECTION 32-R (both inclusive) shall, so far as may be applicable, apply to such purchase." 7. Section 32-G of the Maharashtra Tenancy and Agricultural Lands Act reads as under:-- Section 32-G. Tribunal to issue notices and determine price of land to be paid by tenants--(1) As soon as may be after the tillers day the Tribunal shall publish or cause to be published a public notice in the prescribed form in each village within its jurisdiction calling upon:-- (a) all tenants who under section 32 are deemed to have purchased the lands, (b) all landlords of such lands, and (c) all other possession interested therein, to appear it on the date specified in the notice. The tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other persons calling upon each other to appear before it on the date specified in the public notice. (2) The Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as tenant. (3) Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective: Provided that, if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same. (4) If a tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and the landlord and all other persons interested in such land to be heard and after holding an inquiry, determine the purchase price of such land in accordance with the provisions of section 32-H and of sub-section (3) of section 63A: Provided that, where the purchase price in accordance with the provisions of section 32-His mutually agreed upon by the landlord and the tenant, the Tribunal after satisfying itself in such manner as may be prescribed that the tenants consent to the agreement is voluntary may make an order determining the purchase price and providing for its payment in accordance with such agreement. (5) In the case of a tenant who is deemed to have purchased the land on the postponed date the Tribunal shall, as soon as may be, after such date determine the price of the land. (6) If any land which by or under the provisions of any Land Tenures Abolition Acts referred to in Schedule III to this Act, is re-granted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the re-grant and such person shall as a tenant be deemed to have purchased the land under this section, as if the condition that it was not transferable was not the condition of re-grant. This proviso was added by Bom. 38 of 1957, section 15." 8. In the matter of Jagu Tukaram Waghmale vs. Dnyandeo Bala Waghmale and another, 1998(1) All MR 967, this Court, while considering the scope of section 32-G of the Bombay Tenancy Act, concluded that the proceedings, which have settled in favour of the tenant, would render him a deemed purchaser of the land. The authorities under the Act, cannot declare the order passed under section 32-G as illegal and upset the rights conferred on the tenant. In the present case, the issue of tenancy is concluded in favour of Dagadu by order dt. 11-8-1961 in the TNC Case No. 8/1960 as well as the order in Appeal No. 1638/1969 and has been declared a deemed purchaser under section 32-G. 9. In the present case, the issue of tenancy is concluded in favour of Dagadu by order dt. 11-8-1961 in the TNC Case No. 8/1960 as well as the order in Appeal No. 1638/1969 and has been declared a deemed purchaser under section 32-G. 9. The genealogy as regards Kushaba and his two sons Ranu and Nagu can be usefully referred to and the same are as follows:-- Kushaba ---------------------------------------------------------- l l Rane Nagu Wife Reubai wife Anabai ---------------------------------------------------------------------------------------- l l l l Shankar Housabai Thamabai Mamatabai ------------------------------------------------------------------ l l l Kondabai Shakuntalabai Bhikubai 10. The two sons of Kushaba namely Ranu and Nagu have both died prior to 1932. Aanabai is the widow of Nagu and was the sole surviving heir. It is nobody's case that she was survived by any son or daughter. Ranu and his wife Reubai had adopted one son Shankar and had three biological daughters namely Housabai, Thamabai and Mamtabai. Housabai had three daughters Kondabai, Shakuntalabai and Bhikubai. Dagadu was the husband of Housabai and therefore the son-in-law of Reubai. He was looking after the affairs concerning the suit land. He died on 29-4-1962. 11. It emerges from the record that after the death of Dagadu, his wife Housabai is shown to have a son namely Bhausaheb and three daughters. Reubai died on 6-1-1964 and had adopted Shankar Ranoji as her son and her legal heir. Shankar was a minor when Reubai held the suit land after the passing away of Dagadu. 12. The civil proceedings initiated by Shankar Ranoji resulted in a reference being made to the Tenancy Court. In the civil suit, Shankar was held to be the absolute owner by order dated 30-3-1967. 13. It appears from the section 32-G proceedings that Reubai had admitted that the deceased Dagadu was the tenant of the suit property and the price of the suit land came to be fixed as he became the deemed purchaser of the suit property. Insofar as the civil proceedings regarding ownership of the land was concerned, the same has attained finality under orders of this Court by which Reubai was held to be in possession and enjoyment of the suit property and had become the absolute owner of the properties as per the provisions of the Hindu Succession Act, 1956. 14. Insofar as the civil proceedings regarding ownership of the land was concerned, the same has attained finality under orders of this Court by which Reubai was held to be in possession and enjoyment of the suit property and had become the absolute owner of the properties as per the provisions of the Hindu Succession Act, 1956. 14. In the light of the above said factual matrix, I am in agreement with the conclusions drawn by the MRT that the legal heirs of the deceased Dagadu would acquire the right to purchase the suit property under section 32-G. 15. As per the record, Reubai has entered into an agreement of lease for creating a valid lease so as to confer the tenancy rights in the legal heirs of Dagadu. Reubai was admittedly a widow on 1-4-1957 and as such, the tillers day would stand postponed. Reubai, had become the absolute owner of the property and therefore had a right to create a valid tenancy on the strength of a lease-deed in favour of Dagadu. 16. In the case of Gyandeo Duraji Pirange vs. Pandurang Jyoti Pirange, 1994(2) Mh.L.J. 1174 , the learned Division Bench of this Court has gone into the issue of creating tenancy on the basis of an agreement between the landlady and the person who claimed to be a tenant. Paragraphs Nos. 13, 14, 15, 16 and 17 of the Gyandeo Duraji's judgment (supra), have a clear bearing on this case. The said paragraphs read as follows:-- "13. In Syed Ashrafs case (cited supra), the dispute was as to whether the nephew of the landlord, where parties were Muslims, was entitled to claim that he was a tenant under the provisions of the Hyderabad Tenancy Act. In this case also, there was a reference to the tenancy Court, to ascertain as to whether the nephew of the landlord were cultivating the land as tenants. It was observed that the cultivation by nephew will have to be accepted and treated as cultivation for and on behalf of uncle irrespective of the character of the jointness of the family, the parties were Muslims and obviously were not governed by the principles of Hindu Law. It was observed that the cultivation by nephew will have to be accepted and treated as cultivation for and on behalf of uncle irrespective of the character of the jointness of the family, the parties were Muslims and obviously were not governed by the principles of Hindu Law. Again, in considering the application of the provisions of section 5 of the said Act, reliance was placed on the decision of the Supreme Court, Sudalaimuthu Chettiar vs. Palaniyandavan to the effect that it is necessary to establish that someone is contributing his physical labour in the cultivation of land and that someone is a member of his family. In the said case, it is observed that a son-in-law can be regarded as a member of the family because the word "family" is not to be construed in a narrow sense or meaning, only a member of the Hindu Joint Family, because the Act applies to all tenants irrespective of the personal laws. It is observed that a person can be properly regarded as being a member of his wife's family and not merely of his father's family. This Court had also no document of lease before it and was considering the application of the provisions of section 5 of the said Act where the parties were governed by the Muslim Law. It was held that there cannot be a claim in favour of the nephews for advantage of their occupation as a deemed tenancy. 14. In our judgment, the decisions in Nilavabai's case and Syd. Ashrafs case do not govern the situation. As already observed, the question that is required to be considered in this petition is the application of section 4A of the said Act. This is because there is a written document of lease dated February 17, 1969. Section 4A of the Act clearly enacts that the provisions of Chapter V dealing with lease under the Transfer of Property Act, 1882, shall apply insofar as the said provisions are not inconsistent with the provisions of Hyderabad Tenancy and Agricultural Lands Act, 1950, to tenancies and leases of land to which the Agricultural Tenancy Act applies. Under the Transfer of Property Act, a transfer means an act conveying property by a living person to another living person. Under the Transfer of Property Act, a transfer means an act conveying property by a living person to another living person. Chapter V of the said Act defines a lease to be a transfer of a right to enjoy property in consideration of price paid or promised either in terms of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. What is required to be considered is as to whether there is a property conveyed under the document for consideration. Consideration may be of a kind as defined in section105 of the Transfer of Property Act. It is essentially an agreement as in this petition there is a document dated February 17, 1969. In regard to this document, what is required to be considered is as to whether the said document is inconsistent with any of the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950. If such an agreement is not inconsistent, then it would be a document valid in law creating relationship under the said document of lease. 15. Illustratively, but not exhaustively, occasions can be contemplated whereunder in spite of relationship connecting the parties to the lease even to the extent of they being the members of a family either a continuing Hindu joint family or a separated one, there are factors and occasions which would necessitate on clear understanding the formation of such relationship. The landlord may be unable to exercise his rights of ownership either he being at a far distance from the land in question, or he being unable to do agricultural jobs by reasons of his old age, infirmity or difficulties of similar character. It cannot be ignored that the relationship is a basic factor for the genesis of an implicit faith and if for conveying property, a relation is chosen with full open eyes, it will have to be accepted for its legal consequences. It would be a transfer by the transferor in favour of the transferee. What is required to be considered is not the relationship but satisfaction of the conditions of the relationship as emerged in section 105 of the Transfer of Property Act and a further satisfaction that such relationship is not inconsistent with the provisions of this Act. 16. It would be a transfer by the transferor in favour of the transferee. What is required to be considered is not the relationship but satisfaction of the conditions of the relationship as emerged in section 105 of the Transfer of Property Act and a further satisfaction that such relationship is not inconsistent with the provisions of this Act. 16. In reaching conclusions with regard to the above two aspects, examination of the document would be necessary and equally well, the examination of the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950, would be equally necessary. 17. Before dealing with these two aspects, reference would be necessary to the decision in Kishan Naikwade 's case (supra). In the said case, the plaintiff was a nephew of the owner of the land and claimed to be a tenant under an agreement of lease and for the said purpose, approached the Civil Court with a suit for declaration and perpetual injunction. In the said suit, the issue regarding tenancy was referred under section 99A of the Hyderabad Tenancy Act. There was written agreement of lease. The learned single Judge of this Court (Chapalgaonker, J.) has tersely observed that a near relation in possession of land cannot be deemed to be a tenant under the deeming provision of section 5 of the Tenancy Act. He proceeded to observe that this does not, however, mean that if a nephew or a similar relative can in no circumstances enter into contract of tenancy with other relation. A person can claim to be a contractual tenant under an agreement of lease and this position will have to be considered not in the context of the provisions of section 5 of the Tenancy Act, but independently thereof, depending on the nature of the document. Nilavabai's case as well as Syd. Ashraf's case are considered by the learned single Judge to reach conclusion that no tenancy can be spelt out under the provisions of section 5 of the Hyderabad Tenancy Act. 18. The question of the document of agreement of lease not being inconsistent with any provisions of Hyderabad Tenancy Act is also considered by the learned single Judge, again to reach the conclusion that there is no provision of the Hyderabad Tenancy Act prohibiting the execution of an agreement of lease under the Transfer of Property Act." 17. 18. The question of the document of agreement of lease not being inconsistent with any provisions of Hyderabad Tenancy Act is also considered by the learned single Judge, again to reach the conclusion that there is no provision of the Hyderabad Tenancy Act prohibiting the execution of an agreement of lease under the Transfer of Property Act." 17. The learned Division Bench, thus, considered the aspect of an agreement having been signed between the landlady and the tenant. In the said judgment, the learned Division Bench upheld the view of the Single Judge in the case of Kishan Dasharath Naikwade vs. Asarabai w/o Babu Naikwade, 1991(1) Mh.L.J. 68 . The learned Single Judge had concluded that a nephew or a similar relative can enter into a contract of tenancy with another relative under a lease agreement. This aspect was to be scrutinized not in the context of section 5 of the Hyderabad Tenancy Act, but independent thereof. 18. While considering the view of the Single Judge in Kishan Dashrath's case (supra), the learned Division Bench in the Gyandeo Duraji's judgment (supra), has observed in paragraph Nos. 18 to 22 as follows:-- "18. The question of the document of agreement of lease not being inconsistent with any provisions of Hyderabad Tenancy Act is also considered by the learned single Judge, again to reach the conclusion that there is no provision of the Hyderabad Tenancy Act prohibiting the execution of an agreement of lease under the Transfer of Property Act. 19. The document in question is dated February 17, 1969. It is obtained by the present petitioner-defendant from Jyoti Pandurang Pirange. There is no dispute that Jyoti is the owner of the land in question, which is specifically described in the document. By the document, the land is given on crop share basis. It is mentioned in the document that the expenses of cultivation which are specified therein, are to be undertaken by the petitioner-defendant at his expenses and the agricultural produce is to be shared equally between the parties. It is also specified that there is no objection to take steps regarding the entry of the name of the petitioner-defendant in the relevant record of rights as a tenant. The reason in the document is also mentioned and it is the old age of Jyoti Pirange resulting into inability to look after and cultivate the lands. It is also specified that there is no objection to take steps regarding the entry of the name of the petitioner-defendant in the relevant record of rights as a tenant. The reason in the document is also mentioned and it is the old age of Jyoti Pirange resulting into inability to look after and cultivate the lands. It is added there that his wife is also old and it is, therefore, the document is executed by conveying the property in the land on equal crop share basis. The document is attested by witnesses and as stated hereinbefore the fact finding authorities have accepted the document as legally proved. 20. The provisions of the Hyderabad Tenancy and Agricultural Lands Act, will have to be scanned to find out as to whether there is any inconsistency. Chapter III of the said Act deals with the general provisions relating to tenants, beginning with sections 4A and 5. The said Chapter provides for the powers and jurisdiction of the Tahsildar to decide questions whether a person is tenant and prescribes the quantum of rent, rights and liabilities in regard thereto, together with the provisions of termination of tenancy. Chapter TV deals with the recognition and legal rights of the tenants protected under the provisions of the Act. The Chapter deals with the persons who have already acquired the status of a tenant on a particular date as specified declaring them to be the protected tenants and thereafter deals with their rights and liabilities. Added Chapter IV-A recognises the right of protected tenants as well as ordinary tenants and other land-holders and provides for the procedure to be followed by the Agricultural Lands Tribunal in determining the price of the land to be paid by the tenants who are statutory purchasers of the land in question. The Chapter also provides for the mode of transfer of ownership and allied questions. Equally well, Chapter IV-B deals with the rights of the landlords or landholders in the event of the land being required by them for personal cultivation. There is also a provision in the Chapter IV-C in regard to the serving members of the Armed Forces in relation to agricultural lands, with reference to serving members of the Armed Forces either in their capacity as owners of the lands or tenants in any capacity. Chapter V deals with restrictions on transfer to non-agriculturists. There is also a provision in the Chapter IV-C in regard to the serving members of the Armed Forces in relation to agricultural lands, with reference to serving members of the Armed Forces either in their capacity as owners of the lands or tenants in any capacity. Chapter V deals with restrictions on transfer to non-agriculturists. Chapter VI deals with the situations under non-cultivation, improper cultivation or there being surplus land over the economic holding. Chapters VII and VIII are deleted. Chapter IX provides for the procedural framework, powers of the tenancy authorities and appellate remedies. Chapter X deals with the offences under the Act, whereas the Chapter XI deals with miscellaneous statutory provisions. It is in this Chapter XI, there is a provision for summary eviction, Validation of alienations made before December 1, 1957, disposal of land where alienation is invalidated, ending with the provisions of sections 99 and 99A. Section 99 bars the jurisdiction of the Civil Court to settle, decide or deal with any question that is required to be decided by the authorities under the said Act and section99A enacts the necessity of a reference. The perusal of the provisions of the Hyderabad Tenancy and Agricultural Lands Act, 1950, make it more than clear that there is no prohibition to enter into a document creating lease by the parties who are relations. Therefore, in our judgment, independently also, tenancy can be created and in regard to this, the provisions of section 5 of the Tenancy Act will have to be ignored. As stated above, the issue that is referred to by the Civil Court to the tenancy Court is as follows: "Whether the defendant proves that he is a tenant of the suit land by virtue of the sale deed on that date, i.e. 17-2-1969?" In the light of the above discussion, in our judgment, there is no hesitation to answer the same issue in favour of the petitioner-defendant. In this context, as discussed above, the decisions in Nilavabai's case and Syd. Ashrafs case do not govern the situation and need no disturbance. The decision in Kishan Naikwade's case takes the right view in law. The learned single Judge, however, has recast the issue. In this context, as discussed above, the decisions in Nilavabai's case and Syd. Ashrafs case do not govern the situation and need no disturbance. The decision in Kishan Naikwade's case takes the right view in law. The learned single Judge, however, has recast the issue. In the said case, the issue that was framed was as follows:-- "Whether the plaintiff proves that he was cultivating the suit land on the strength of this document entered with deceased Babu?" and the issue that is recast is as follows:-- "Whether the plaintiff proves that he is cultivating the suit land on the strength of agreement of tenancy entered into with deceased Babu?" 21. In this petition, as we have stated above, the issue is clearly framed in the proper perspective. It is not necessary to recast the same. In the light of the above reasoning, the issue will have to be answered and we answer accordingly in favour of the petitioner-defendant. 22. For the above reasons, the petition stands allowed. Rule is made absolute and the issue as-framed by the Civil Court is hereby ordered to be decided in favour of the petitioner-defendant. There shall be no order as to costs. Order accordingly." 19. In the instant case, it has come on record that the widow Reubai has conceded that Dagadu was the tenant and she had created tenancy rights in his favour on the basis of a lease. Such a lease is not barred by law in the light of the judgment of the learned Division Bench in the case of Gyandeo Duraji (supra). 20. Moreover, even if Shankar is to be presumed to be the successor-in-title of Reubai, the tenancy created by Reubai in favour of her son-in-law Dagadu cannot be held to be invalidated. So also, there is nothing on record to indicate that the legal heir of Reubai, namely, Shankar had intimated to the legal heirs of the tenant Dagadu as regards termination of tenancy within one year from the date of the death of Reubai. 21. It is nobody's case that the heirs of the landlady Reubai had given any intimation to the heirs of Dagadu about her death. As such, as a successor of Reubai, there is nothing on record to show that the heirs of Reubai had sought resumption of the land for personal cultivation. 21. It is nobody's case that the heirs of the landlady Reubai had given any intimation to the heirs of Dagadu about her death. As such, as a successor of Reubai, there is nothing on record to show that the heirs of Reubai had sought resumption of the land for personal cultivation. Section 32F(1)(b)(ii) requires that the successor-in-title of the widow, within one year from the date on which her interest in the land ceases to exist, shall have to exercise the right to purchase the land under section 32. 22. Shankar had claimed to be the successor-in-title of the widow Reubai who had passed away on 6-1-1964. Record reveals that Shankar Ranoji has, for the first time, raised the issue of tenancy in 1977. Though in the civil proceedings, RCS No. 33/1960 had referred the issue of tenancy to the Tenancy Court, it was concluded that Shankar was the legal heir of Reubai. Tenancy issue was not decided and which was raised by Shankar through TNC Case No. 1/1977 only in 1977. 23. The Apex Court in the case of Appa Narsappa Magadum (dead) through L.Rs. vs. Akkubai Ganpati Nimbalkar and others, AIR 1999 SC 1963 has held in paragraph Nos. 2 to 4 as under:-- "2. As landlady - Shevantibai was a widow, the deemed date of statutory purchase by the appellant - tenant was postponed. It is not in dispute that his right to purchase the land was for that reason governed by the provisions of section 32F of the Bombay Tenancy and Agricultural Lands Act, 1947. Shevantibai died on 8-12-1965. The appellant thereafter on 15-6-1968 gave an intimation to the heirs of Shevantibai that he was interested in purchasing the land under section 32F of the Act. On 9-7-1968, the legal representatives of Shevantibai applied under section 32F of the Act for a declaration that as the tenant had not complied with the requirements of section 32F the sale has become ineffective and therefore the possession of land may be restored to them as their holding was less than the ceiling area. The Tehsildar granted that application. Aggrieved by that order, the appellant filed an appeal to the Sub-Divisional Officer who allowed it and remanded the case for deciding it under section 32-G of the Act. The Tehsildar granted that application. Aggrieved by that order, the appellant filed an appeal to the Sub-Divisional Officer who allowed it and remanded the case for deciding it under section 32-G of the Act. Therefore, the heirs of Shevantibai filed a Revision Petition before the Maharashtra Revenue Tribunal and contended that since the tenant had failed to exercise his right under section 32F within the stipulated period, the purchase had become ineffective and, therefore, the Sub-Divisional officer was in error in allowing the appeal and sending the matter back to the Tehsildar for deciding the same under section 32-G. The Tribunal accepted this contention and allowed the Revision Application and restored the order passed by the Tehsildar. The High Court in the Writ Petition filed by the appellant confirmed the order passed by the Tribunal. 3. Even if we agree with the contention raised on behalf of the appellant that in spite of the earlier decision of the High Court, it was open to the appellant to contend that he was a tenant and had right to purchase the land under section 32F of the Act, it is difficult to appreciate how the impugned order passed by the High Court is wrong. Section 32F provides that in the case where the landlord is a widow, the tenants shall have right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31. The landlady died on 8-12-1965. Her successors-in-interest could have filed an application for termination of tenancy within one year from 8-12-1965 as her interest in the land ceased to exist from that date. Therefore, the tenant ought to have exercised his right under section 32F before 8-12-1966. Admittedly, the appellant did not comply with this requirement of section 32F. The intimation contemplated by section 32F(1)(a) was given by him long after one year had passed. It was given for the first time on 15-6-1968. It was after his right to purchase the land had come to an end. 4. It was submitted by the learned counsel that this being a welfare legislation enacted for the benefit of tenants should be construed in a liberal manner. It was given for the first time on 15-6-1968. It was after his right to purchase the land had come to an end. 4. It was submitted by the learned counsel that this being a welfare legislation enacted for the benefit of tenants should be construed in a liberal manner. He also submitted that the heirs of the landlady had not given any intimation to the appellant about her death and therefore he could not have known who were the heirs of the landlady and given intimation to them. He submitted that the period of one year should be counted from the date of the knowledge of the tenant. We cannot accept this submission because language of the sections 32F and 31 is quite clear and the period of one year will have to be counted in accordance with the said provisions and not from the date of the knowledge of the tenant. The provision of law being clear, we cannot in such a case relied on the basis of equity." 24. The decision of the High Court to dismiss the Writ Petition was, therefore, upheld and the possession of the land was directed to be handed over. 25. In the light of the above, I am of the view that the impugned judgment of the MRT dated 4-3-1991 and its judgment on the review application delivered on 11-2-1992 cannot be termed as being perverse or erroneous. This petition is devoid of merits and is therefore dismissed. Rule is, therefore, discharged with no order as to costs.