Narasimha Vs Mahabaleshwar

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT & DECREE UNDER APPEAL DATED 04.02.2016 PASSED IN R.A.NO.43/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AT SIRSI AND JUDGMENT AND DECREE DATED 27.04.2013 PASSED IN O.S.NO.84/1991 ON

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THE FILE OF THE ADDITIONAL CIVIL JUDGE COURT AT SIRSI BE CONFIRMED BY ALLOWING THIS APPEAL.

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IN RSA NO 100458 OF 2020

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BETWEEN:

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VENKATRAMANA S/O. NARASIMHA HEGDE, AGE: 69 YEARS, OCC: AGRICULTURIST. R/O: SHASHIMANE & KOTAGIHALLI POST- PANCHALINGA, TQ: SIRSI, DIST: KARWAR-581403.

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2. GANAPATI

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S/O. NARASIMHA HEGDE, AGE: 64 YEARS, OCC: AGRICULTURIST, R/O: SHASHIMANE & KOTAGIHALLI POST- PANCHALINGA, TQ: SIRSI, DIST: KARWAR-581403.

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3. RAMACHANDRA

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S/O. NARASIMHA HEGDE, AGE: 59 YEARS, OCC: AGRICULTURIST, R/O: SHASHIMANE & KOTAGIHALLI POST- PANCHALINGA, TQ: SIRSI, DIST: KARWAR-581403.

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4. PRAKASH

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S/O. NARASIMHA HEGDE, AGE: 49 YEARS, OCC: AGRICULTURIST, R/O: SHASHIMANE & KOTAGIHALLI POST- PANCHALINGA, TQ: SIRSI, DIST: KARWAR-581403.

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...APPELLANTS

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(BY SRI. R.H. ANGADI. ADVOCATE)

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AND:

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MAHABALESHWAR S/O. VENKATRAMANA HEGDE, AGE: 91 YEARS, OCC: AGRICULTURIST, R/O: KOTTIGEHALLI, POST: BALEGADDE, TQ: SIRSI, DIST: KARWAR-581403.

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2. NARAYAN

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S/O. MAHABALESHWAR HEGDE, AGE: 62 YEARS, OCC: AGRICULTURIST, R/O: KOTTIGEHALLI, POST: BALEGADDE, TQ: SIRSI, DIST: KARWAR-581403.

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3. VIDYADHAR

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S/O. MAHABALESHWAR HEGDE, AGE: 59 YEARS, OCC: AGRICULTURIST, R/O: KOTTIGEHALLI, POST: BALEGADDE, TQ: SIRSI, DIST: KARWAR-581403.

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4. GURPAD

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S/O. MAHABALESHWAR HEGDE, AGE: 55 YEARS, OCC: AGRICULTURIST, R/O: KOTTIGEHALLI, POST: BALEGADDE, TQ: SIRSI, DIST: KARWAR-581403.

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5. SHRIPAD

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S/O. MAHABALESHWAR HEGDE, AGE: 49 YEARS, OCC: AGRICULTURIST, R/O: KOTTIGEHALLI, POST: BALEGADDE, TQ: SIRSI, DIST: KARWAR-581403.

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…RESPONDENTS

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(BY SRI. A.P. HEGDE JANMANE & SRI. SURESH S. BHAT, ADVOCATES FOR R2-R5; R2-R5 ARE LR’S OF DECEASED R1)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT & DECREE PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE U.K. KARWAR SITTING AT SIRSI IN R.A. NO.5011/2016 DATED 13/05/2020 DISMISSING THE APPEAL BY CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE

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SIRSI IN O.S.NO.132/1994 DATED 03/03/2016 DISMISSING THE SUIT FILED BY THE PLAINTIFF/APPELLANT, BY ALLOWING THE APPEAL, IT IS FURTHER PRAYED THAT THE SUIT OF THE APPELLANTS AT O.S.NO.132/1994 FILED BEFORE THE SENIOR CIVIL JUDGE SIRSI MAY KINDLY BE DECREED AS PRAYED BY ALLOWING THIS APPEAL WITH COST AND ETC.

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THIS APPEAL HAVING BEEN HEARD AND RESERVED ON 21.03.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, DELIVERED THE FOLLOWING:

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CORAM: THE HON'BLE MR. JUSTICE E.S. INDIRESH

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CAV JUDGMENT

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RSA No.100326/2016 is filed by the defendant Nos.2

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to 5, challenging the judgment and decree dated 04.02.2016 passed in RA No.43/2013 on the file of Senior Civil Judge, Sirsi (for short, hereinafter referred to as ‘First Appellate Court’), allowing the appeal and setting aside the judgment and decree dated 27.04.2013 passed in OS No.84/1991 on the file of Additional Civil Judge, Sirsi (for short, hereinafter referred to as ‘Trial Court’), dismissing the suit of the plaintiff.

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RSA No.100458/2020 is filed by the plaintiff Nos.1 to 4, challenging the judgment and decree dated 13.05.2020 passed in RA No.5011/2016 on the file of I

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Additional District and Sessions Judge, U.K. Karwar, sitting at Sirsi (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 03.03.2016 passed in OS No.132/1994 on the file of Senior Civil Judge, Sirsi (for short, hereinafter referred to as ‘Trial Court’), dismissing the suit of the plaintiffs.

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For the sake of convenience, the parties in these appeals shall be referred to in terms of their status and ranking before the Trial Court in OS No.84/1991.

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Facts in RSA No.100326/2016:

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It is the case of the plaintiffs that, the original

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propositus – Venkatramana had four children namely, Ganapati (died without leaving any issues), Narasimha (defendant No.1), Ramachandra (died as bachelor) and Mahabaleshwar (plaintiff). It is the case of the plaintiffs that, the original propositus - Venkatramana had five immovable properties namely, land bearing Sy.No.48/2 measuring 1 acre, Sy.No.62 measuring 38 guntas 8 annas, Sy.No.53/1 measuring 30 guntas 8 annas, Sy.No.61/2

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measuring 10 guntas and Sy.No.56/2 measuring 4 guntas and all the immovable properties are situate at Kottigehalli

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village in Sirsi Taluk.

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4.1. It is also stated that, the defendant Nos.2 to 5

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are the children of defendant No.1. There was a registered partition in the joint family properties consisting of children of late Venkatramana and as such, the suit schedule property was allotted to the share of Ramachandra Hegde (third son of Venkatramana). It is also stated that, the Ramachandra Hegde had health ailments and as such, the plaintiff was looking after the said Ramachandra Hegde and also cultivate the suit schedule properties belonging to the said Ramachandra Hegde. It is further stated that, the said Ramachandra Hegde died on 16.04.1990 without leaving behind any legal heirs as he was bachelor and therefore, the plaintiff and defendant No.1, being the Class-I heirs of deceased Ramachandra Hegde and accordingly, the plaintiff and defendant No.1 are entitled for half share each in the suit schedule properties.

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4.2. It is further averred in the plaint that, the plaintiff came to know that, the defendant Nos.2 to 5 got mutated the revenue records in respect of the suit schedule property based on the Will dated 14.08.1989 said to have been executed by deceased Ramachandra Hegde. Hence, it is the case of the plaintiff that, the suit schedule properties are the tenanted properties of late Ramachandra and therefore, the plaintiff and defendant No.1 are entitled for equal share in the suit schedule properties. Hence, the plaintiff has filed OS No.84/1991 against the defendants seeking relief of declaration with consequential relief of partition in respect of the suit schedule properties.

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After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendants that, Ramachandra got the suit schedule property as per registered partition dated 21.08.1989 and was separately enjoying the suit schedule property. It is also stated that the deceased Ramachandra was suffering

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from age old ailments and further executed Will dated 14.08.1989 bequeathing the suit schedule properties in favour of the defendant Nos.2 to 5 and therefore, the defendant Nos.2 to 5 are entitled for suit schedule properties. Hence, the defendants sought for dismissal of the suit.

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On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration.

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In order to establish their case, plaintiff has examined two witnesses as PW1 and PW2 and got marked 21 documents as Exs.P1 and P21. On the other hand, defendants have examined two witnesses as DW1 and DW2 and produced 21 documents as Exs.D1 to D21.

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The Trial Court, after considering the material on record, by its judgment and decree dated 27.04.2013 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No.43/2013 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record,

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by its judgment and decree dated 04.02.2016, allowed the appeal and set aside the judgment and decree passed by the Trial Court in OS No.84/1991. Being aggrieved by the same, the defendants/appellants have preferred RSA No.100326/2016.

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Facts in RSA No.100458/2020:

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It is the case of the plaintiffs that, the original propositus – Venkatramana had four children namely, Ganapati (died without leaving any issues), Narasimha (defendant No.1), Ramachandra (died without leaving behind any legal representatives) and Mahabaleshwar (plaintiff). It is the case of the plaintiffs that, the original propositus-Venkatramana had five immovable properties namely, land bearing Sy.No.48/2 measuring 1 acre, Sy.No.62 measuring 38 guntas 8 annas, Sy.No.53/1 measuring 30 guntas 8 annas, Sy.No.61/2 measuring 10 guntas and Sy.No.56/2measuring 4 guntas and all the immovable properties are situate at Kottigehalli village in Sirsi Taluk. It is also stated that, the plaintiff Nos. 1 to 4 are the children of defendant No.1. There was a registered

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partition in the joint family properties of children of late Venkatramana and as such, the suit schedule property was allotted to the share of Ramachandra (third son of Venkatramana). It is also stated that, the said Ramachandra was unmarried and had executed registered Will dated 14.08.1989 in favour of the plaintiffs bequeathing the suit schedule properties. It is the specific contention of the plaintiffs that, the suit schedule properties were the tenanted lands of deceased Ramachandra and therefore, the said Ramachandra was the absolute owner of the said properties. Hence, plaintiffs have filed OS No.132/2024 seeking relief of declaration that, the plaintiffs are the absolute owners of the suit schedule properties as per the Will dated 14.08.1989 and also sought for consequential relief of permanent injunction against the defendants.

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After service of summons, the defendant Nos.1 to 5 entered appearance and filed detailed written statement denying the averments made in the plaint.

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On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration.

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In order to establish their case, plaintiffs have examined one witness as PW1 and got marked 10 documents as Exs.P1 and P10. On the other hand, no oral and documentary evidence by the defendants.

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The Trial Court, after considering the material on record, by its judgment and decree dated 03.03.2016 dismissed the suit of the plaintiffs and being aggrieved by the same, the plaintiffs have preferred Regular Appeal in RA No.5011/2016 on the file of the First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 13.05.2020, dismissed the appeal, consequently, confirmed the judgment and decree passed by the Trial Court in OS No.132/1994. Being aggrieved by the same, the plaintiffs/appellants have preferred RSA No.100458/2020.

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This Court in RSA No.100326/2016 vide order dated 22.04.2016 formulated the following substantial question of law.

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“Whether the lower appellate Court was right in reversing the judgment of the trial court by holding that the testator had no legal right to execute the dispute Will in view of the bar contained in Section 61 of the Karnataka Land Reforms Act?”

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I have heard Sri R.H. Anagadi, learned counsel

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appearing for the appellants and Sri. A. P. Hegde, learned counsel appearing for the respondent

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Sri. R. H. Angadi, learned counsel appearing for the appellants argued that, it is not in dispute that the suit schedule properties are the joint family properties of original propositus – Venaktramana and his children (plaintiff and defendants). It is also argued that, there was a partition in the joint family of original propositus – Venkatramana and his children and suit schedule properties were fallen to the share of late Ramachandra, who died as bachelor. It is also argued that, the

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Ramachandra has left Will dated 14.08.1989, bequeathing the suit schedule properties in favour of the appellants as the father of the appellants and appellants were looking after the health of late Ramachandra and on account love and affection, the said Ramachandra has bequeathed the suit schedule properties in favour of the appellants. It is contended by the learned counsel appearing for the appellants that, the appellate court has committed an error in holding that, the said Ramachandra executed Will within 15 years from the date of the order of the Land Tribunal, bequeathing the suit property in favour of the appellants herein and same is hit by Section 61 of the Karnataka Land Reforms Act, 1961 (for short, hereinafter referred to as ‘Act, 1961’).

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16.1. He further contended that, the beneficiaries under the Will are the children of Narasimha (brother of late Ramachandra) and therefore, the appellants are the members/heirs of late Ramachandra and therefore, declaration of law made by the Hon’ble Supreme Court in

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the case of Jayamma Vs. Maria Bai and Another¹ , is

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not applicable to the case on hand. It is also contended by the learned counsel appearing for the appellants that, there is no impediment for grantee of the tenanted land to execute the Will in favour of the legacies and same is not prohibited under law and therefore, sought for interference of this Court holding that, the First Appellate Court has committed an error in holding that, Section 61 of the Act, 1961 is applicable to the case and therefore, sought for interference of this Court.

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In order to buttress his arguments, learned counsel appearing for the appellants places reliance on the judgment of the Hon’ble Supreme Court in the case of Sangappa Kalyanappa Bangi Vs. Land Tribunal and Others² and argued that, the appellants herein are not the strangers to deceased Ramachandra and were the brother’s children and therefore, Section 61 of the Act,

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1 (2004) 7 SCC 459

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2 (1998) 7 SCC 294

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1961 is not applicable to the facts on record and accordingly, sought for interference of this Court.

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Per contra, Sri. A. P. Hegde, learned counsel appearing for the respondents sought to justify the impugned judgment and decree passed by the First Appellate Court and contended that, the Land Tribunal has granted the suit schedule properties in favour of Ramachandra as per order dated 20.02.1976 and the said Ramachandra died on 16.04.1990 leaving behind a Will dated 14.08.1989, which is within the prohibition of 15 years from the date of grant, as per Section 61 of the Act, 1961 and accordingly, sought for dismissal of the appeals.

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Nextly, it is contended by the learned counsel appearing for the respondent that, the brother is a Class-II (entry II) as per the schedule to Hindu Succession Act, and therefore, the brother’s sons are stranger to the testator under Section 61 of the Act, 1961 and therefore, sought to justify the impugned judgment and decree passed by the First Appellate Court.

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In order to buttress his arguments, he refers to

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the judgment of this Court in Shivaputrappa

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Bharamappa Maneda Vs. The Head Quarters Assistant and Others³ and argued that, the finding recorded by the First Appellate Court is just and proper which does not requires interference in these appeals.

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In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the record. In order to ascertain the relationship between the parties as averred in the plaint, the genealogy reads as under:

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Vekatramana

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Ganapati Narasimha (deceased)

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Ramachandra Mahabaleshwar (died on 23.02.2007) (died on 16.04.1990) (plaintiff)

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Smt. Parvati 1. Venkatramana (D2) 1. Narayan (died) 2. Ganapati (D3) 2. Viyadhar 3. Ramachandra (D4) 3.Gurupada 4. Prakash (D5) 4. Shripad

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3 WP No.17807/2007 disposed off on 04.01.2008

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It is not in dispute that, the original propositus – Venkatramana had four children namely, Ganapati (died without leaving any issues), Narasimha (defendant No.1 in OS No.84/1991 and father of appellants herein), Ramachandra – bachelor (died leaving behind Will dated 14.08.1989) and Mahabaleshwar (plaintiff in OS No.84/1991). It is not in dispute that, the Land Tribunal, Sirsi by order dated 20.02.1976 granted suit schedule properties in favour of Ramachandra. The said Ramachandra executed Will on 14.08.1989 bequeathing the suit schedule properties in favour of the appellants herein. The said Ramachandra died on 16.04.1990. These facts are not disputed by either of the parties. It is the case of the plaintiff in OS No.84/1991 that, since, the suit schedule properties are granted properties and therefore, as per Section 61 of the Act, 1961, the brothers of late Ramachandra - Narasimha and Mahabaleshwar are entitled for equal share in the suit schedule properties and the appellants herein are, strangers to the family of late Ramachandra and therefore, contended that both the

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brothers of late Ramachandra are entitled for half share in the suit schedule properties. In this regard it is relevant to extract Section 61 of the Act, 1961 which reads as under:

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“61. Restriction on transfer of land of

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which tenant has become occupant.—

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(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 of the final order passed by the Tribunal under sub-section (4) or su -section (5) or sub-section (5A) of section 48A be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder’s joint family.[x x x x]

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(2)Notwithstanding anything contained in sub-section (1), it shall be lawful for the occupant registered as such or his successor-in-title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a financial institution, a co-operative land development bank, a co-operative society or a company as defined in section 3 of the Companies Act, 1956 in which not less than fifty one percent

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of the paid-up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both for development of land or improvement of agricultural practices or for raising educational loan to prosecute the higher studies of the children of such person; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in the payment of such loan.

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Explanation .- For the purpose of this subsection, “Higher studies” means the further studies after Pre-university Examination or 12th Standard Examination conducted by CBSE or ICSE or any Diploma courses.

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(3)Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77.”

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(Emphasis by me)

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The plain language of Section 61 of the Act,

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1961, envisages for restriction on transfer of land by the

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grantees. It is the tenor of the provision that, the grantees of land of which occupancy has been granted to the tenants are prohibited from transferring the tenanted land by sale, gift, exchange, mortgage, lease or assignment in favour of strangers other than the members of the joint family. Section 61(3) provides that any transfer of land in contravention of 61(1) is invalid.

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The Hon’ble Supreme Court in the case of Sangappa (supra) at paragraph Nos.5 to 7 held as follows:

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“ 5. This case gives rise to a difficult and doubtful question whether a devise under a Will would amount to an assignment of interest in the lands and, therefore, invalid under the provisions of Section 21 of the Land Reforms Act. What is prohibited under Section 21 of the Act is that there cannot be any sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Exceptions thereto are when the tenant dies, the surviving members of the joint family and if he is not a member of the joint family, his heirs shall be entitled to partition and sub-divide the land leased subject to certain conditions. Section 24 of the Act declares that when a tenant dies, the landlord is deemed to continue the tenancy to the heirs of such tenant on the same terms and conditions on which the tenant was holding at the time of his death. We have to

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read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those Who are referable to in Section 21. If he is member of the joint family then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition, Again as to who his heirs are will have to be determined not with references to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provision inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will though operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator. Therefore, though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature interpretation will have to be otherwise.

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6. If we bear in mind the purpose behind Section 21, it becomes clear that the object of the law is not to allow strangers to the family of the tenant to come upon the land. The tenanted land is not allowed to be sub-let, i.e. to pass to the hands of a stranger nor any kind of assignment taking place in respect of the lease held. If the tenant could assign his interest, strangers can come upon the land, and therefore, the expression 'assignment' will have to be given such meaning as to promote the object of the enactment. Therefore,

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the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or who is related to the deceased tenant by legitimate kinship. We must take into consideration that when it is possible for the tenant to pass the property to those who may not necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a 'Will, in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event, it must be taken that a devise under a will also amount to an assignment and, therefore, not valid for the purpose of Section 21 of the Act. If section 24 is read along with Section 21, it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in 1977(1) KLJ 146 (short notes item 160) and Dhareppa v. State of Karnataka and Others, reported in (1979) 1 KLJ .18, would not promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmiakka Kom Venkanna Naik v. The Land Tribunal and Others, (1987) 2 KLJ 337.

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7. However. Shri. Kulkarni drew our attention to a decision of this Court in Angurbala Mullick v. Debabrata Mullick, [1951] SCR 1125, to contend that an heir need not necessarily be natural descendant or one who is related by legitimate kinship, but others also and therefore if any interest in a property is devised to them, the same would not amount to assignment barred under Section 21 of the Act. It is no doubt true that the meaning attributed to an heir could be as suggested by the learned counsel for the appellants so as to include the descendant and

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other persons related by legitimate kinship or otherwise who may be covered by a Will, but the true question to be decided in this case is if there is a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to confine the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred. Thus it can be seen that; a broad definition of an heir would not be of much help. Hence the learned counsel for the appellant cannot derive any assistance from the Said decision.”

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(Emphasis by me)

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The Hon’ble Supreme Court in the above case

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held that, the deceased tenant can assign his rights only to the heirs or any descendants or those who are related by legitimate kinship under the law of succession. The assignment to strangers is barred under Section 61 of the Act, 1961.

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It is also relevant to follow the judgment of the Hon’ble Supreme Court in Jayamma (supra), paragraph Nos.8 to 22 and 27 held as follows:

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“ 8. The said Act was enacted for the purpose of enacting a uniform law relating to land reforms in the State of Karnataka. The expressions 'family' and 'joint family' have been defined in Sections 2(12) and 2(17) of the said Act to mean:

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"2(A)(12) "Family" means –

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(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;

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(b) in the case of an individual who has no spouse such individual and his or her minor sons and unmarried daughters;

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(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and

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(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;"

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"(17) "Joint family" means in the case of person governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence."

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9. Various restrictions have been imposed as regard sub-division or sub- letting of the land held by a tenant or assignment of any interest therein.

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10. Sections 21 (l), 61 (l) and 61 (3) of the said Act impose such restrictions which read as under :

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"21. Sub-division, sub-letting and assignment prohibited.-(l)No sub- division or sub-letting of the land held by a tenant

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or assignment of any interest therein shall be valid :

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Provided that nothing in this subsection 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 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 shall be entitled to partition and sub-divide the land leased subject to the following conditions :-

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(a) each sharer shall hold his share as a separate tenant;

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(b) the rent payable in respect of the land leased shall be apportioned among the shares as the case may be according to the share allotted to them;

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(c) the area allotted to each sharer shall not be less than a fragment;

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(d) if such area is less than a fragment the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds;

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(e) if any question arises regarding the apportionment of the rent payable by the sharer it shall be decided by the Tahsildar.

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Provided that if any question of law is involved the Tahsildar shall refer it to the court. On receipt of such reference the court, shall, after giving notice to the parties concerned, try the question as expeditiously as possible and record finding thereon and send the same to the Tahsildar. The Tahsildar shall then give the decision in accordance with the said finding.

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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 of the final order passed by the Tribunal under sub-section (4) of sub-section (5) or sub-section (5-A) of Section 48-A be transferred by sale, gift, exchange, mortgage lease or assignment; but the land may be partitioned among members of the holder's joint family.

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(2)

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(3) Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances, and shall be disposed in accordance with the provisions of Section 77."

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11. On a bare perusal of the aforementioned provisions it would appear that whereas Section 21 refers to sub-division, subletting of the land held by a tenant or assignment of any interest therein, Section 61 imposes a stricter restriction on transfer of land of which tenant has become occupant.

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12. The said provisions are further required to be read with the expressions 'family' and 'joint family' as contained in Section 2(12) and 2(17) of the Act.

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13. It is not in dispute that a tenant who has become an occupant cannot except on the grounds stated in the said Act, be evicted therefrom. Section 61 contains a non obstante clause. It is also not in dispute that although tenancy would be a heritable interest, the right of occupancy can be granted to an heir only if he is qualified therefor, that is there must be a cultivable land on the appointed day. However, all heirs cannot become occupant. Even a married daughter of the deceased tenant would not be granted such a right. The sine qua non for obtaining the status of occupancy of tenancy is that the person concerned must be a tenant on the appointed day.

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14. Section 213 of the Indian Succession Act provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of Competent jurisdiction inter alia, grants a letters of administration with a copy of the Will annexed.

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15. The Court empowered to grant a letter of administration although ordinarily may not go into the question of title in respect of property sought to be bequeathed by the testator the situation would be different where the authority of the testator to execute a Will in relation to the subject matter thereof is in question. When a statutory embargo exists on execution of a Will, the court shall not refuse to determine the question as regard validity thereof, as in terms of the provisions of a statute, the same would be void ab initio.

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16. We would discuss the construction of the provision of Section 61 of the said Act, a little later, but we have no hesitation in holding that in the event if it be held that the testator could not have executed the Will in favour of a person who

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could not e declared to be a tenant having occupancy right such a Will would be void ab initio and, therefore, non est in the eye of law. The court in such an event would not be determining a disputed question of title but would be considering the effect of the statute vis-a- vis the Will in question.

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17. The submission of Mr. Bhat for the forgoing reason cannot be accepted.

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18. As we have noticed hereinbefore that the statutory embargo on transfer of land is stricter in a case where the tenant has become occupant than a land held by a tenant simpliciter. We have also noticed that the embargo on transfer is not only by way of sale, gift, exchange, mortgage, lease but also by assignment. What is permitted under the law is partition of the land amongst the members of the family. Section 61 of the Act is to be read in its entirety.

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19. Sub-section (3) of Section 61 lays down that any transfer of land in contravention of subsection (1) shall be invalid whereupon the same shall vest in the State Government free from all encumbrances. The legislative intent that the land should not be allowed to go to the bands of a stranger to the family is, therefore, manifest. Whereas in terms of Section 21, strangers to the family of the tenant to come upon the land is not allowed, the tenor of Section 61 is that except partition amongst the co-sharers, no transfer of the property, in any manner, is permissible.

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20. When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that same is invalid and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act.

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21. It is not disputed that in view the purport and object the Legislature sought to achieve by enacting the said provision the expression 'assignment' would include a Will.

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22. In this case, there is also no dispute that grant of agricultural land with occupancy right in terms of the provisions of the said Act was made on 14.10.1981. The will in question having been executed on 20.2.1984; the transfer has been made within a period of fifteen years from the date of grant which is prohibited in law.

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27. On a fair construction of Section 61 of the Act, in our opinion a transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to the definition of 'family' as contained in Section 2(12) and 'joint family' as contained in Section 2(17) of the said Act.”

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27. Following the declaration of law made by the

¶217

Hon’ble Supreme Court in the aforementioned cases, any assignment of right by the tenant, including execution of the Will is prohibited if such assignment is made within 15 years from the date of grant of land under the Act, 1961. Undisputebly, in the present case, the Land Tribunal granted land to late Ramachandra on 20.02.1976 and the said Ramachandra died on 16.04.1990 leaving behind the Will dated 14.08.1989.

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In terms of the schedule to Hindu Succession

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Act, 1956 the brothers of Ramachandra – Narasimha (defendant No.1 in OS No.84/1991) and Mahabaleshwar (plaintiff in OS No.84/1991) alone have precedence over succession by the defendant Nos.2 to 5 in OS No.84/1991. It is to be noted that, though the appellants herein are nephews of late Ramachandra, however, they cannot be considered as legal heir to succeed to the estate of late Ramachandra as per the schedule to the Hindu Succession Act, 1956. It is made clear that, in the absence of any testament by Ramachandra and as per natural succession, Narasimha – defendant No.1 and Mahabaleshwar – plaintiff, who were the brothers of late Ramachandra shall succeed to the estate of late Ramachandra and therefore, in the event if bequeath has been made in favour of Narasimha or Mahabaleshwar then, such assignment / transfer through Will is valid however, in the present case since, the bequeath has been made as per Will dated 14.08.1989 in favour of the sons of Narasimha (appellants herein) and therefore, the bequeath made in favour of

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appellants herein is prohibited under Section 61 of the Act, 1961, and in this regard the arguments advanced by the learned counsel appearing for the respondent is just and proper. In this regard, it is relevant to extract paragraph No.4 in the case of Shivputrappa (supra) which reads as under:

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“ 4. Having regard to the admitted circumstance that the petitioner, could not claim to be member of a family of the deceased tenant and in terms of Section 61 of the Act, which in the view of the Supreme Court in Jayamma’s case supra, would permit a transfer of agricultural land with occupancy rights, only in favour of one of the heirs who would be entitled to claim petition of land and not others. While also taking Having taken note of the submission made by the learned counsel appearing for the of the observation in an earlier judgment, in Sangappa (supra), that the meaning attributed to an heir could include the descendant and other persons related by legitimate kinship or otherwise who may be covered by a will, the object of Section 21 being to confine the rights of tenancy only to those known under law as heirs, assignment to strangers was barred.”

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Applying the principles laid down by the Hon’ble Supreme Court to the case on hand as late Ramachandra had executed the Will in favour of the appellants herein who cannot be considered as legal heir to the late Ramachandra in the absence of Narasimha and Mahabaleshwar and therefore, the First Appellate Court after re-appreciating the material on record rightly arrived at a conclusion that, the appellants herein are not entitled for relief and same is hereby requires to be confirmed.

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Since, there is no perversity in the judgment and decree passed by the First Appellate Court and same is in accordance with the judgment of Hon’ble Supreme Court in the case of Jayamma (supra) and Sangappa (supra) and therefore, the finding recorded by the First Appellate Court is requires to be confirmed and the substantial question of law framed in RSA No.100326/2016 is in favour of the respondent herein. In view of arriving at the conclusion that, the appellants in RSA No.100326/2016 are not entitled for reliefs, consequently, same shall follow in RSA No.100458/2020.

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Accordingly, the appeals are require to be dismissed as devoid of merits. Hence, the appeals are dismissed.

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Sd/(E.S.INDIRESH) JUDGE

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SMM List No.: 1 Sl No.: 40

Narasimha v. Mahabaleshwar

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Narasimha v. Mahabaleshwar

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