Dismissed

Sri.N.Poovappa v. Smt.Shashikala

Karnataka HC15 Feb 2022RSA/1402/2013

Case brief

AI extract

What is this about?

In a regular second appeal regarding a partition suit, the High Court of Karnataka held that Section 61 of the Karnataka Land Reforms Act barred the decedent from bequeathing occupancy rights via a Will executed within fifteen years of the grant, dismissing the appeal and confirming lower court decrees.

What did the court decide?

Regular Second Appeal No.1402/2013 dismissed; judgments and decrees of the lower courts confirmed.

Sri.N.Poovappa Vs Smt.Shashikala — Succession and Inheritance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL REGULAR SECOND APPEAL NO.1402 OF 2013

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BETWEEN:

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SRI N. POOVAPPA S/O AITHA MOOLYA

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(SINCE DEAD BY LR'S)

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1(A) KALYANI W/O POOVAPPA N AGED 65 YEARS

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1(B) DAYANANDA S/O POOVAPPA N AGED 49 YEARS R/AT PRAJNA KAUSHAL NEAR NEDUMANE ADYAR POST MANGALORE TALUK, D.K.

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1(C) GANESH S/O POOVAPPA N AGED 47 YEARS R/AT NADUMANE ADYAR POST MANGALORE TALUK D.K. - 575 009

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1(D) KARUNAKAR S/O POOVAPPA N AGED 45 YEARS

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R/AT NADUMANE ADYAR POST MANGALORE TALUK D.K. - 575 009

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1(E) DEVIKA D/O POOVAPPA N AGED 43 YEARS W/O GOPAL NEAR AK SERVICE STATION PUTTUR D.K. DISTRICT - 574 201

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1(F) NAVEENA S/O POOVAPPA N AGED 41 YEARS R/AT NADUMANE ADYAR POST MANGALORE TALUK D.K. - 575 009

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1(G) KAVITHA D/O POOVAPPA N AGED 39 YEARS R/AT NADUMANE ADYAR POST MANGALORE TALUK D.K. - 575 009

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1(H) MOHAN S/O POOVAPPA N AGED 37 YEARS R/AT NADUMANE ADYAR POST MANGALORE TALUK D.K. - 575 009

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1(I) YOGESH S/O POOVAPPA N AGED 32 YEARS R/AT NADUMANE ADYAR POST MANGALORE TALUK D.K. - 575 009

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... APPELLANTS

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(BY SRI G. RAVISHANKAR SHASTRY, ADVOCATE)

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AND:

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SMT. SHASHIKALA W/O SANJEEV AGED ABOUT 63 YEARS R/AT TANDOLIGE HOUSE JAPPINAMOGARU VILLAGE & POST MANGALORE TALUK D.K. DISTRICT - 575 012

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REVATHI D/O NARAYANA MOOLYA W/O SEETHARAM KULAL MAJOR R/AT BOLWAR PUTUR D.K. - 574 201

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…RESPONDENTS

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(BY SRI VIJAY KRISHNA BHAT M., ADVOCATE).

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THIS APPEAL IS FILED UNDER SECTION 100 R/W ORDER XLII OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGEMENT & DECREE DTD 14.03.2013 PASSED IN R.A.NO.193/2000 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., MANGALORE D.K., DISMISSING THE APPEAL AND

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CONFIRMING THE JUDGMENT AND DECREE DTD 06.09.2000 PASSED IN O.S.NO.1449/1991 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE (JUNIOR DIVISION) MANGALORE.

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THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The present regular second appeal is filed by the appellant/plaintiff No.2 aggrieved by the concurrent findings rendered in the judgment and decree dated 06/09/2000 in O.S.No.1449/1991 by the II Additional Civil Judge (Junior Division) Mangalore, D.K. (for short hereinafter referred to as 'the Trial Court') and the judgment and decree dated 14/03/2013 in RA.No.193/2000 by the III Additional Senior Judge, Mangalore, D.K. (for short hereinafter referred to as 'the first appellate court').

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The parties are referred to as per their original rankings before the trial court.

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Originally the suit in OS.No.1449/1991 was filed by one Narayana Moolya, the plaintiff against his son and daughter namely, Sanjiva and Revathi, the defendant Nos.1 and 2, seeking partition of plaint 'A' schedule property and for allotment of his share. During pendency of the said suit, Narayana Moolya died and thereafter, the present appellant-N.Poovappa was impleaded as supplemental plaintiff No.2 on the basis of a registered Will executed by Narayana Moolya in his favour.

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The case of the plaintiff was that the suit 'A' schedule property consisting 3 items of immovable properties in Sy.No.40 measuring 1 acre 10 guntas, Sy.No.40 measuring 1 acre 10 guntas and Sy.No.111 measuring 1 acre together with residential house, a bunk shop, 6 coconut trees and 3 jack fruit trees were acquired by the plaintiff and his wife deceased-Smt.

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Bhavani jointly in terms of a registered Mulgeni Deed dated 18/07/1961. That with the advent of Karnataka Land Reforms Act (for short hereinafter referred to as 'the Act') they had filed a declaration and occupancy rights were granted in their favour as per the order dated 27/07/1979 passed in LRT.No.364/1979-80 and accordingly occupancy patta certificate was issued on 23/11/1979. That Smt. Bhavani, the wife of plaintiff and mother of the defendant Nos.1 and 2 passed away subsequent to the grant of occupancy right. Since the occupancy right was jointly granted in favour of plaintiff and his wife, the plaintiff claimed his half share in the suit schedule property and a share in the remaining half portion of the property belonging to his deceased wife-Smt. Bhavani. That during the pendency of the said suit, the original plaintiffNarayana Moolya also passed away and thereafter the present appellant Poovappa was added as

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supplemental plaintiff No.2 based on a Registered Will dated 28/08/1992 executed by original plaintiff Narayana Moolya bequeathing his rights in the suit schedule property. Thus, the said Poovappa, the plaintiff No.2 claimed 4 shares out of 6 shares in the suit schedule property.

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The defendant No.1 filed written statement which was adopted by the defendant No.2, wherein the grant of occupancy rights in favour of their father Narayana Moolya, the plaintiff No.1 and their motherSmt. Bhavani was admitted. It was contended that the suit schedule property was acquired by their mother on Mulgeni rights although plaintiff's name was included. It was contended that their mother Smt. Bhavani was paying Mulgeni rent. That suit schedule property was non-agricultural property. However, on the ill-advise the plaintiff No.1 and his

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wife Smt. Bhavani, had filed declaration before the Land Tribunal which granted occupancy right in their joint names. The said Poovappa, the plaintiff No.2 herein had instigated the plaintiff No.1 to file the suit for partition. The mother of the defendants had spent Rs.50,000/- for construction of a residential house which is presently occupied by the defendant No.1 and his wife and children. The defendant No.2, who is a married visits and stays in the said house. On impleadment of the plaintiff No.2 based on the Will executed by plaintiff No.1, the defendants filed additional written statement denying the due execution of the registered Will dated 28/08/1992 as the same is fraudulent and got up document. That plaintiff No.2 is a postman and a scheming litigant and had obtained signature of the plaintiff No.1 without his knowledge and also denied the share of the plaintiff No.2 in the suit schedule property. That upon death

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of their mother, the defendants succeeded to her half share in the suit schedule property and remaining half share of the deceased plaintiff No.1 as legal heirs in accordance with law. That there is bar under the statute for transferring the rights in the property by way of Will. Hence, sought for dismissal of the suit.

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6. The Trial Court based on the pleadings framed the following issues and additional issues:

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(1) Whether the plaintiff proves that he has got half share in the plaint schedule properties?

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(2) Whether he is entitled for partition and separate possession of his share?

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(3) What order or decree?

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ADDITIONAL ISSUES

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(1) Whether the 2nd plaintiff proves that he has got right over the suit schedule property by virtue of Will executed by deceased 1st plaintiff and he is entitled to claim the share of deceased 1st plaintiff?

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(2) Whether the bequeath by Will alleged to have been made by the deceased 1st plaintiff - Narayana Moolya in favour of the supplemental 2nd plaintiff M.Poovapa in respect of deceased 1st plaintiff's 1/2 share in the plaint schedule occupancy right properties is prima facie in contravention of the provisions of the Karnataka Land Reforms Act, 1961?

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(3) If so, what is the course left open to the civil court

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The Trial Court recorded the evidence. The plaintiff No.2 examined himself as P.W.1 and 3 additional witnesses have been examined as PWs.2 to 4 and exhibited 10 documents as per Ex.P1 to Ex.P10. On the other hand, the defendant No.1 examined himself as DW.1 and exhibited 14 documents as Exs.D1 to D14. On appreciation of evidence, the Trial Court, by its judgment and decree dated 06/09/2000 dismissed the suit.

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Aggrieved by the same, plaintiff No.2 filed regular appeal in RA.No.193/2000 before the first appellate court. Considering the grounds urged in the appeal memo, the first appellate court framed the following points for its consideration.

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(1) Whether the findings of the lower court that Section 61 of the Karnataka Land Reforms Act is applicable to the case on hand and that deceased 1st plaintiff had no

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bequeathable interest in the schedule property is against the principles of law?

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(2) Whether the judgment and decree of the trial court needs interference?

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(3) What order?

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On re-consideration of oral and

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documentary evidence, the first appellate court, by its judgment and decree dated 14/03/2013 dismissed the appeal and consequently confirmed the judgment and decree passed by the Trial Court. Being aggrieved with the aforesaid concurrent findings, the plaintiff No.2 is before this Court in this regular second appeal.

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Sri G.Ravishankar Shastry, learned counsel for the appellant/plaintiff No.2 reiterating the grounds urged in the appeal memorandum submitted;

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(i) That though the trial court has held that the appellant/plaintiff No.2 had proved

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due execution of registered Will dated 28/08/1992, however, erroneously dismissed the suit on the premise that the execution of said Will was prohibited under Section 61 of the Act.

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(ii) That the trial court and the first appellate court have failed to appreciate that what was bequeathed under the registered Will was not the granted land but the rights that would be adjudicated in the suit filed by the deceased Narayana Moolya, the plaintiff No.1. Since the appellant/plaintiff No.2 has stepped into the shoes of Narayana Moolya - plaintiff No.1 as his legal heir by virtue of the Will, the rights that were to be adjudicated in favour of plaintiff No.1/Narayana Moolya

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ought to have granted in favour of appellant/plaintiff No.2.

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(iii) That since admittedly Narayana Moolya

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plaintiff No.1 and his wife Smt. Bhavani acquired title under the Registered Mulageni Deed dated 18/07/1961 and the lands were non-agricultural nature and Form No.7 was filed on the ill advise the courts below ought to have held that the prohibition of Section 61 of the Act was not applicable in the facts and circumstances of the matter and should have moulded the relief in favour of the appellant/plaintiff No.2.

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(iv) That the bar contained in Section 61 of the Act is not applicable to the facts and circumstances of the case as Narayana Moolya - plaintiff No.1 and Smt. Bhavani

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being protected permanent tenants were entitled to Sub divide, Sub letting and assigning the rights in terms of Proviso Section 21 of the Act.

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Hence, he submits that the appeal involves substantial question of law requiring consideration.

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On the other hand, Sri Vijay Krishna Bhat M., learned counsel for the respondents/defendants justifying the concurrent findings rendered in the judgments and decree passed by the courts below submitted;

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(i) That since the occupancy rights were granted in respect of subject property in favour of plaintiff No.1 and his wife, there is a bar under Section 61 of the Act prohibiting creation of any rights in any

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manner for a period of 15 years from the date of the grant.

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(ii) That the grant has been made by order dated 27/07/1979-80, no rights could have been created in respect of the property for a period of 15 years i.e., up to 1984. However, the execution of Registered Will dated 28/08/1992 being within the prohibited period cannot confer any vested right in favour of the appellant/plaintiff No.2.

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As such, he submits that no substantial question of law arises in this matter requiring consideration. Hence, sought for dismissal of the appeal.

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Heard the learned counsel for the parties.

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The undisputed fact is that the subject property was acquired by Narayana Moolya, the plaintiff No.1 and his wife-Smt. Bhavani in terms of Registered Mulgeni Deed dated 18/07/1961. It is also not in dispute that the said plaintiff No.1 and his wife had filed declaration in Form No.7 in LRT No.364/1979-80 and in terms of the order dated 27/07/1979 occupancy rights were granted in their favour and occupancy patta certificate was also issued on 23/11/1979.

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Section 61 of the Act provides as under.

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"61-Restriction on transfer of land of which tenant has become occupant :- (1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this Chapter shall, within Fifteen years from the date the certificate under Section 55 is issued be transferred by sale, gift, exchange, mortgage, lease or assignment ; but the land may by partitioned among members of the holder's joint family subject to condition that no fragment shall be created by any such partition;"

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Thus, in terms of aforesaid provision of the

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Act, Narayana Moolya - plaintiff No.1 could not have created any right, title and interest in respect of his share of the property. Therefore, even if the Will dated 28/08/1992 being proved to have been executed, would not confer any right, title and interest in favour of appellant/plaintiff No.2.

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Learned counsel for the appellant/plaintiff No.2 also referred Section 21 of the Act, which provides as under:

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“ "Sub-division, sub-letting and assignment prohibited. - (1) No sub- division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid:

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Provided that nothing in this sub-section shall affect the rights, if any, of a permanent tenant:

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Provided further that if the tenant dies,-

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(i) if he is a member of a joint family, the surviving members of the said family, and

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(ii) if he is not a member of a joint family, his heirs."

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Section 21 of the Act refers to creation of right by a tenant. Section 61 of the Act as extracted hereinabove refers to creation of right by a tenant after becoming occupant. Thus, the Proviso Section 21 has no bearing after confirmation of occupancy rights in favour of Narayana Moolya/plaintiff No.1 and his wife. The said Section and Proviso Section are of no avail. In that view of the matter, the appellant/plaintiff No.2 would not derive any right, share and interest in the subject property.

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Upon the death of Smt.Bhavani, the wife of plaintiff No.1 and mother of defendant Nos.1 and 2 and upon the death of plaintiff No.1 during pendency of the suit, defendant Nos.1 and 2 being their son and daughter are the class-I heirs and would succeed to the entire estate of Smt. Bhavani and plaintiff No.1Narayana Moolya. The appellant/plaintiff No.2,

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therefore, has no locus-standi to represent and prosecute the suit on behalf of deceased plaintiff No.1 claiming to be a legatee under the Will.

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The concurrent reasoning given by the trial

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court and the first appellate court do not warrant any interference and in that view of the matter, no substantial question of law is involved in this appeal requiring consideration. In the result, the following.

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ORDER

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i) Regular Second Appeal No.1402/2013 filed by the appellant/plaintiff No.2 is dismissed.

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ii) The judgment and decree dated 06/09/2000 passed in OS.No.1449/1991 by the trial court and the judgment and decree dated

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14/03/2013 passed in RA.No.193/2000 by the first appellate court are confirmed.

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Sd/JUDGE

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Mkm

Sri.N.Poovappa v. Smt.Shashikala

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Sri.N.Poovappa v. Smt.Shashikala

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