TMI Blog1970 (9) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, Bombay Act No. XCIX of 1958 (herein after referred to as the Act) for termination of tenancy of the tenant and for directing him to surrender possession of the entire lands comprised in field survey No. 56. Later on she amended her application and prayed in the alternative that if for any reason she was found not entitled to get possession of the entire lands, she may be allowed to recover half of the lands in the possession of the tenant and that in respect of that half, in the eastern portion 13 acres and 38 gunthas may be allotted to her. The tenant resisted the claim of the landlord on various. (,rounds. He pleaded that the father and mother of the landlord had fallen out very long ago and that the landlord was a minor, was being looked after and protected by her another Smt. Chandrabhagabai and the mother was managing the suit properties on behalf of her minor daughter. In the course of such management the suit properties were being leased in his favour from time to time beginning from 1951-52 and as such he has been in possession as tenant from April, 1951. Though the original leases granted by the mother were oral, for the year 1956-57 he had executed a kabuliyat in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfirmed by the Sub-Divisional Officer, Darwha in the appeal filed by the tenant. The Maharashtra Revenue Tribunal, whose revisional jurisdiction was invoked by the tenant also substantially confirmed the findings of the two subordinate authorities. All these three orders were challenged by the tenant before the High Court in the writ petition under Art. 227 of the Constitution. The High Court, in its order under appeal, has accepted the findings of facts regarding the date of birth of the landlord; the date of her attaining majority as well as the legal validity of the notice issued by her on March 31, 1962. The High Court also accepted the finding recorded by the Revenue Tribunal that the father and mother had fallen out and were living separate and that the father was not looking after the interests of- his minor daughter and that, on the other hand, the landlord was living under the care and protection of her mother Smt. Chandrabhagabai, who was also managing the suit properties on her behalf. The High Court also found that the tenant has been in possession of the lands on the basis of the lease granted in his favour by the mother from 1951 onwards. But the High Court differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant raised three contentions : (i) the High Court in exercising jurisdiction under Art. 227 of the Constitution has functioned in this case as a Court of Appeal and interfered with the concurrent findings of facts recorded by the three revenue tribunals and such exercise of jurisdiction is not warranted by the decisions of this Court. (ii) the High Court's view that the lease executed by the mother on behalf of the appellant on February 12, 1956, as guardian of the appellant is valid in law, is erroneous : (iii) the High Court's view that the application filed by the appellant before the Naib Tahsildar on March 30, 1963 is barred by limitation and as such the application under s. 39 is not maintainable, is again erroneous. On the other hand, Mr. Danial A. Latifi, learned counsel appearing for the tenant respondent has urged that the High Court has not exceeded its jurisdiction under Art. 227, but has strictly limited its inquiry to find out whether the subordinate tribunals have functioned within the limits of their jurisdiction. All the findings of facts recorded by those tribunals have been accepted by the High Court. The High Court has only differed on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relief that could be granted to the appellant under the Act depends upon the question whether the tenancy in this case has been created not earlier than the first day of April, 1957. There is no controversy that- the appellant was not owning lands exceeding a family holding. If the tenancy in favour of the tenant in this case is one created not earlier than the first day of April, 1957 and if the other conditions mentioned in s. 39 are satisfied, relief could be granted to the appellant under that section. We have already referred to the facts that the appellant's application was under s. 36 read with s. 3 9. In order to find out whether the lease in this case is one created not earlier than the first day of April, 1957 , it is really necessary to inquire about the legal effect of the lease executed by the mother as guardian of the appellant on February 12, 1956 for the year 1956-57. If that lease is valid and binding on the appellant, the result will be that s. 39 will not be attracted. Therefore, we will first consider +he question as to the legal effect of the lease granted by the mother, which is the subject of the second contention raised by Mr. Sanghi. Mr. San,-h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nship Act, 1956 (Act 32 of 1956) the mother is the natural guardian after the father. The above Act came into force on August 25, 1956 and under s. 6 the natural guardians of a Hindu minor in respect of the minor's person as well as the minor's property are the father and after him the mother. The position in the Hindu Law before this enactment was also the same. That is why we have stated that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian, But on the facts found above the mother was rightly treated by the High Court as the natural guardian. It has also been found by the High Court and all the revenue tribunals that the mother was protecting the appellant and looking after her interest and was also managing the suit lands by leasing them to the tenant. There is no evidence to establish that the transaction of lease is in any way an imprudent one or not in the interest of the minor appellant. It has also been found that the lease in favour of the tenant has begun from 1951. Though the lease for some years was oral, for the year 1956-57 a written lease deed was executed on February 12, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions are not to be found in s. 39(1). Therefore, the fact that the appellant attained majority on July 6, 1962 and had filed the application within one year of her attaining majority, is of no avail. The High Court declined to accept the contention on behalf of the appellant that the words but subject to the provisions of sub-section (2) occuring in s. 39(1) referred to the enabling provisions in favour of the minor contained in sub-section 2 of section 38. At any rate, as one of the ingredients for attracting s. 39, namely, the tenancy having been created after April 1, 1957, is not present in this case and as such S. 39 stands eliminated, we do not think it necessary to express any opinion on the construction placed by the High Court on s. 39(1) regarding other aspects. The High Court has rightly pointed out that the revenue tribunals have only proceeded to grant relief to the appellant on the basis that s. 39 is applicable. However, the High Court, even after holding that s. 39 does not apply, has shown consideration to the appellant when it has treated her application as one under s. 36 read with s. 38. Applying s. 38, the appellant would not be entitled to the possession ..... X X X X Extracts X X X X X X X X Extracts X X X X
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