Mrs Sunil C Shetty Vs Shyamala S Nayak

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 16.04.2013 PASSED IN R.A.NO.33/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, UDUPI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 25.02.2010 PASSED IN OS.NO.49/1994 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE, UDUPI.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 16.04.2013 passed in R.A. No.33/2010 by the Fast Track Court, Udupi and the judgment and decree dated 25.02.2010 passed in O.S.No.49/1994 by the learned Principal Civil Judge, (Sr.Dn.), Udupi.

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For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were Defendants No.14(a) to (c). Respondent No.1 was the plaintiff, and the other respondents were the other defendants.

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Brief facts leading to the filing of this appeal are as follows:

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The plaintiff has filed a suit against the defendants for partition and separate possession. It is the case of the plaintiff that the plaintiff and defendants No.1 to 13 are

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the members of a Hindu joint family, and the suitscheduled properties are the joint family properties of the plaintiffs and defendants No.1 to 13. It is contended that the suit schedule ‘A’ to ‘C’ properties belonged to one H. Ramachandra Rao, who died on 18.12.1988, leaving behind his wife, i.e., Defendant No.1 and his children, i.e., the plaintiff and defendants No.2 to 13, as his legal heirs. A major portion of the immovable properties were held by him on occupancy rights. It is contended that after the death of the said Ramachandra Rao, defendants No.1 to 10 were managing the affairs of the suit schedule properties and without the knowledge of the plaintiff, they had entered into some kind of secret agreement for cultivation of ‘B’ schedule properties with defendant No.14, who had a close friendship with late Ramachandra Rao. Hence, the plaintiff issued a legal notice, calling upon the defendants to effect partition. It is contended that defendants No.1 to 10 agreed for partition. However, defendant No.14 issued a reply notice, stating that the late

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Ramachandra Rao had bequeathed the suit schedule ‘B’ properties in favour of Defendant No.14, by executing a registered Will dated 31.12.1985, and also, he has perfected his title by adverse possession. It is contended that the late Ramachandra Rao did not execute any Will, as alleged by Defendant No.14. Therefore, the plaintiff filed a suit for partition and separate possession of her legitimate share, i.e., a 1/14^th share in the suit-scheduled properties. Hence, on these grounds, prays to decree the suit.

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After the service of the summons, Defendants No.3 to 5, 11 and 12 remained unrepresented; hence, they have been placed ex parte . Other defendants appeared through their counsel. Defendants No.6, 7, and 9 filed a memo stating that they adopt the contentions of the plaintiff.

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Defendant No.14 filed a written statement denying the plaint averments. It is contended that the suit filed by

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the plaintiff is not maintainable. This Defendant is cultivating the suit ‘B’ schedule properties as his khas possession, and he has perfected his title by way of adverse possession. It is also contended that the deceased, Ramachandra Rao, had executed a registered Will dated 31.12.1985 in his favour, bequeathing the suit ‘’B schedule properties. He also executed another Will on the same day, bequeathing other suit schedule properties, in favour of his wife and children. It is further contended that this Defendant has effected vast improvements in the

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‘B’ schedule properties, and it cost more than Rs.6,00,000/-, and the plaintiff and other defendants have no right, title, or interest in the suit ‘B’ schedule properties. It is stated that the suit is bad for the nonjoinder of necessary parties. Hence, prays to dismiss the suit regarding the suit ‘B’ schedule properties.

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The Trial Court, based on the pleadings of the parties, framed the following issues and additional issues.

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“1. Whether the plaintiff proves that Plaint 'B' Late. Schedule properties belonged to Late H. Ramachandra Rao and as such are liable to be divided?

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Whether the 14th defendant proves that he and his wife's family have been in possession of the 'B' Schedule Properties on their own right and the claim of late H. Ramachandra Rao and his family members is barred by law of limitation and adverse possession?

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Whether the 14th defendant proves that late H. Ramachandra Rao was working as Agent of 14th defendant and his wife's family?

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Whether late Ramachandra Rao had executed any registered will dated: 3112-1985 in respect of 'B' Schedule properties in his favour and whether it is true, valid and binding?

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Whether the 14th defendant and his wife's family have effected any and what improvements in the 'B' Schedule properties?

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Whether late H. Ramachandra Rao had acquiesed in the right, title and interest of the 14th defendant in plaint 'B' Schedule properties?

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What is the correct description of 'A to C' Schedule properties?

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What is the correct income of 'A and B' Schedule properties?

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To what income plaintiff is entitled and from what date?

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To what share plaintiff is entitled?

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To what relief?

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Additional Issue:

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Whether the suit has been properly valued for the purpose of Court fee and jurisdiction.?

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Whether the suit is bad for non joinder of (a) Smt. Indira and (b) Smt.Sharada being the daughters of the since deceased Padmavathi?”

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The plaintiff, to substantiate her case, filed her affidavit In-lieu of her chief examination as PW1 and

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marked 31 documents as Exs.P1 to P31. In rebuttal, the defendants examined five witnesses as DW.1 to DW.5 and marked 105 documents as Exs.D1 to D105. The trial Court, after recording the evidence, hearing both sides, and assessing the verbal and documentary evidence of the parties, answered issue Nos.1 and 3 in the affirmative, issues no 2,4,6 and additional issue No.2 in the negative, issue No.5, 8 and 9 as left open during the Final Decree Proceedings, issue No.7 as shown in the plaint schedule, issue No.10 as a 1/10^th share, additional issue No.1, as already answered on 01.05.2000, and issue No.11, as per the final order. Consequently, the Trial Court decreed the plaintiff’s suit with costs, and it is ordered and decreed that the plaintiff is entitled to a share in the plaint ‘A’ to ‘C’ schedule properties by metes and bounds and also possession of her share in the suit schedule properties. It is also ordered that there shall be a separate enquiry under Order XX Rule 12 of the CPC about the income of Plaint ‘A’ to ‘C’, schedule properties.

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Defendants No.14(a) to (c), aggrieved by the

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judgment and the decree passed by the trial Court, preferred an appeal in R.A.No.33/2010 on the file of the

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Fast Track Court, Udupi.

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The First Appellate Court, after hearing the parties,

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has framed the following points for consideration:

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(i) Whether the impugned judgment passed by the trial Court is perverse. Capricious, vexatious and not maintainable on facts and in law?

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(ii) whether interference of this Court is required?

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(iii) what order?

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The First Appellate Court, after hearing on the parties

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and reassessing the verbal and documentary evidence, answered point Nos.1 to 2 in the negative, and point No.3

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as per the final order. Consequently, the appeal was dismissed. The judgment and decree dated 25.02.2010

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passed in O.S. No.49/1994 by the Principal Senior Civil Judge, Udupi, was confirmed. Defendants Nos.14(a) to (c), aggrieved by the judgments and decrees passed by the Courts below, have filed this Regular Second Appeal.

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This Court, admitted this second appeal to consider the following substantial questions of law:

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“1. Whether in the facts and circumstances of the case, the Courts below having held that the Will dated 31.12.1985 executed by Sri. H. Ramachandra Rao in favour of Sri. Chandrahasa Shetty, the husband of the first respondent is valid, was justified in granting share to the respondents No.1 to 5 in suit schedule properties?’.

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Whether the Courts below have properly considered the effect of Section 61 of the Karnataka Land reforms Act ?”

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Heard the arguments of the learned counsel Sri. Bipin Hegde for defendant Nos.14(a) to (c) and the learned senior counsel Sri. Uday Holla for the plaintiff.

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Learned counsel for defendant Nos.14(a) to (c), submits that the deceased Ramachandra Rao had executed a Will dated 31.12.1985 in favour of Defendant No.14, bequeathing the suit ‘B’ schedule properties and hence, Defendant No.14 and after his demise, his Legal Representatives are in continues and exclusive possession and enjoyment of the suit B schedule properties. The Courts below, considering Section 61 of the Karnataka Land Reforms Act, held that the Will dated 31.12.1985, is not valid, and failed to understand the law that the Will is not a transfer of title. He further submits that the suit ‘B’ schedule properties were the granted lands of the Late Ramachandra Rao, and the married daughters have no share in the granted lands of the father as they do not fall under the definition of “family” as provided under Section 2(12) of the Karnataka Land Reforms Act. The Courts below, without considering the said aspect, allotted the share to the plaintiff. To buttress his arguments, he referred to the judgment of the Hon’ble Apex Court in the

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case of S . Rathina @ Kuppamuttu and Ors. Vs. L. S. Mariyappan and Ors. , reported in AIR 2007 SC 2134 . He also referred to the judgment of the division bench of this Court in the case of Nimbavva and ors. vs. Chennaveerayya and ors ., reported in (2015) 1 KCCR 205 . He further placed reliance on the judgments of the coordinate benches of this Court in the cases: C.C. Devasia vs. The Karnataka Appellate Tribunal and ors ., reported in ILR 1998 KAR 2473 and Koragappa Gowda vs. Jinnappa Gowda and ors ., reported in ILR 1998 KAR 436 . It is submitted that the Courts below have held that the execution of a Will by the Late Ramachandra Rao, in favour of a stranger to the family, is not valid. The Courts below have committed a mistake in holding that Defendant No.14 is a stranger to the family, by overseeing the admissions of PW-1. The Courts below, without properly appreciating the evidence on record and understanding the law, erred in passing the impugned judgements. The judgements passed by both Courts below

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are not justified. Therefore, the impugned judgments call for the interference. Hence, on these grounds, prays to allow the appeal.

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Per contra , the learned senior counsel for the plaintiff submits that the suit schedule B properties belong to the late Ramachandra Rao. After his demise, the plaintiff, and defendants No.1 to 13 became the absolute owners of the suit schedule properties, and no partition was effected between them. The Will dated 31.12.1985, allegedly executed by the late Ramachandra Rao, regarding the suit schedule ‘B’ properties, in favour of defendant No.14, is not valid under Section 61 of the Karnataka Land Reforms Act. It is submitted that the suit schedule ‘B’ properties are the granted lands, and as per Section 61 of the Karnataka Land Reforms Act, the granted lands cannot be alienated in favour of a person other than a family member. Defendant No.14 is a stranger to the plaintiff’s family, and the alleged Will is in favour of a stranger. Further, it is submitted that even married daughters fall

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under the definition of “Family“ as per subsequent developments in the judicial interpretation by this Hon’ble Court.

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14.1 To buttress his arguments, he relied upon the judgement of the Hon’ble Apex Court in the case of Jayamma v. Maria Bai dead by LR.s and another , reported in (2004) 7 SCC 459 . He also referred to the judgment of the division bench of this Court in the case of S. Krishnamma Choudhary v. State of Karnataka and others , reported in (2010) 5 Kant LJ 569 (DB) . Furthermore, he referred to the judgment of the Coordinate Bench of this Court in the case of Joseph Albert Lewis v. Michael Roque Lewis and others , reported in

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ILR 2007 KAR 4174 . It is further submitted that the Courts below, by considering the fact that the plaintiff, being the daughter of the late Ramachandra Rao, is entitled to a share in the suit schedule properties, have rightly passed the impugned judgements. Therefore, the judgements of the Courts below are just and proper and

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do not call for any interference. Hence, on these grounds,

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prays to dismiss the appeal.

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Perused the records and considered the submissions of learned counsel for the parties.

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REG.SUBSTANTIAL QUESTIONS OF LAW NO.1 TO 2:

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Substantial questions of law Nos.1 to 2 are interlinked and are discussed together to avoid repetition of facts.

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Admittedly, there is no dispute that the plaintiff is the daughter of the late Ramachandra Rao, and the plaintiff and defendants Nos.1 to 13 are members of a Hindu joint family. The plaintiff claims that the suit schedule properties belong to the late Ramachandra Rao, and the major portion of the immovable properties were held by him through an occupancy right. After the demise of Ramachandra Rao, the plaintiff, and defendants No.1 to 13 became the absolute owners of the suit properties, and there has been no partition among the family members of

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the plaintiff. To substantiate her case, the plaintiff examined herself as PW-1 and reiterated the plaint averments in the affidavit filed in lieu of examination-inchief. She also deposed that the Will executed by the late Ramanchandra Rao in favour of defendant No.14 regarding

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B schedule properties, is void and not binding on the plaintiff. Further, the plaintiff, to substantiate her case, produced the documents. Exs.P-1 to P-28 are the RTC extracts for 1993-94, regarding the suit schedule ‘B’ and ‘A’ properties, which disclose that the suit schedule ‘B’ properties are in the name of defendant No.1, the wife of late Ramachandra Rao and ‘A’ schedule properties are in the name of the late Ramachandra Rao. Ex.P-29 is the caveat copy; Ex.P-30 is the notice dated 14.01.1993, issued by the plaintiff, calling the defendants to execute partition. Ex.P-31 is the reply notice dated 26.01.1993, issued by Defendant No.14.

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During the cross-examination of PW-1, Defendant

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No.14 suggested to PW-1 that there was a close

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relationship between the late Ramachandra Rao and Defendant No.14 and the said suggestion was denied by PW-1. It also denied that a Will in favour of the legal heirs of the Late Ramachandra Rao was executed by him regarding other suit schedule properties. Further, it is also denied that and the late Ramachandra Rao executed a will dated 31.12.1985 and defendant No.14 effected the developments in the suit ‘B’ schedule properties.

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On the other hand, though defendant No.14 did not enter the witness box, he has examined 5 witnesses, including the attesting witnesses of the alleged Will dated 31.12.1985, who have reiterated the written statement averments in the examination in chief. Furthermore, he produced 105 documents to prove his defence, where EX.D-3 is the Registered Will dated 31.12.1985, where late Ramachandra Rao has executed a Will in favour of Defendant No.14, regarding the suit schedule B properties. EX.D-4 is another Registered Will dated 31.12.1985, executed by Ramachandra Rao, in favour of his family

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members regarding the other suit schedule properties. EX.D-5 to EX.D-23, EXs.D-27 to 28, EX.D-47 and EXs.D97 to 101 are the letters, written by Ramachandra Rao to Defendant No.14. EXs.D-41 to 42 and EXs.D-44 to 45 are the general and special power of attorneys, executed by defendant No.14 and the late Ramachandra Rao, jointly, in favour of one A. Vasanth Nayak, Suchitra V. Nayak, Sumathi R. Nayak and A. Ramesh Nayak, respectively. EX.D-71 is the land grant order dated 25.09.1980, in favour of the late Ramachandra Rao. EX.D-72 is the Form No.10; EX.D-73 is the rectification order. EX.D-74 is the B Extract. EX.D-75 is the order of the Assistant Commissioner, regarding the transfer of the B schedule properties in the name of Defendant No.14 by virtue of the registered Will dated 31.12.1985, and the said claim was granted by the Assistant Commissioner. EX.D. 76 is an appeal before the Deputy Commissioner against EX.D. 75, in which the Deputy Commissioner held that the matter is of a civil nature and should be resolved in the Civil Court.

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EXs.D-77 to 96 are the RTC extracts regarding the B schedule properties for 1999-2000, which disclose the name of Defendant no 14 in column No.9. EX.D-102 is the GPA, EX.D-103 is the accounts of Defendant No.14 maintained by late Ramachandra Rao, EX.D-104 is Form No.74 and EX.D-105 is the Indian Gas Connection Book.

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During the cross-examination DW-5, he admitted that the late Ramachandra Rao and his children were residing together; they were looking after him, and he does not know the reason why the late Ramachandra Rao executed a Will in favour of the 14^th Defendant, excluding his children.

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From the perusal of the entire evidence on record, it is the case of the plaintiff that the suit schedule ‘A’ and ‘B’ properties belonged to the deceased Ramachandra Rao, who had obtained the said properties through occupancy rights, as per the Land Tribunal order dated 25.09.1980. The Will dated 31.12.1985, executed by the late

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Ramachandra Rao, regarding ‘B’ schedule properties, excluding his Legal Representatives, in favour of defendant No.14, is not valid and binding on the shares of the plaintiff. Though the plaintiff admitted regarding the friendship between the late Ramachandra Rao and defendant No.14 in her plaint, PW1 denied the same during the cross-examination. Furthermore, defendant No.14 has claimed that he is the absolute owner of the suit schedule B properties by virtue of the said registered Will, and he has also perfected his title through adverse possession. Though both pleas are contrary to each other, Defendant No.14 has not made any attempt to prove his title by way of adverse possession; however, he produced EX.D-3, i.e., the Registered Will dated 31.12.1985 and examined the attesting witnesses to prove the same, where the attesting witnesses admitted the execution of the said registered Will. But the Will is surrounded by the suspicious circumstances like disinheritance of natural heirs.

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Defendant No.14 has not shown why testator had bequeathed the suit B schedule properties in his favour. Defendant No.14 has not produced any records to establish the mental status of the testator.

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In the case on hand, the plaintiff has disputed the execution and also challenged the Will on the ground of existence of suspicious circumstances, which would make the same unreliable and not worthy for proceeding further. There can be no doubt about the manner in which the execution of a Will is to be proved. In the light of the decision, in the case of MOTURU NALINI KANTH VS. GAINADI

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KALIPRASAD (DEAD THROUGH LRS ) reported in 2023 SCC

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ONLINE SC 1488 . The Hon’ble Apex Court held that mere registration of a Will would not attach to it a stamp of validity and it must be proved in terms of the legal mandate under the provisions of Section 63 of the Indian Succession Act and Section 68 of Indian Evidence Act. It is

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necessary to examine Section 63 of the Indian Succession

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Act, 1925.

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“63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, '[or an airman so employed or engaged.] or a mariner at sea, shall execute his Will according to the following rules:-

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(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

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(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

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(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than

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one witness be present at the same time, and no particular form of attestation shall be necessary.”

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Section 68 of the Indian Evidence Act makes it clear

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that at least one attesting witness has to be examined to prove the execution of a Will. Defendant No.14 examined the attesting witness i.e., DW.1. Therefore, the question is whether the attesting witness deposed to the effect that the Will in question was executed in accordance with SubSections (a) to (c) of Section 63 of the Indian Succession Act, 1925. From the perusal of the judgment passed by the trial Court, the trial Court not discussed much about the execution of the Will and the First Appellate Court, without recording its finding regarding the validity of the Will, recorded its finding that the alleged Will is contrary/ in violation of Section 61 of the Karnataka Land Reforms Act.

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To prove whether defendant No.14 had removed the suspicious circumstances surrounded the Will, defendant No.14 has not led any evidence regarding the health of the

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testator, disinheritance of natural heirs. Defendant No.14

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is a stranger to the family of the testator. The burden of

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proving the Will is on defendant No.14.

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The Supreme Court in the case of MEERA PRADHAN

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VS. KAMLA PRADHAN , in Civil Appeal No.3351/2014, disposed of on 21/03/2023, articulated pivotal guidelines to ascertain and establish the validity of Will, which are as

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i. The testator signed the Will out of his own free will.

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ii. At the time of execution, he had a sound state of mind.

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iii. He was aware of the contents of the Will.

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iv. The Will was not executed under any suspicious circumstances.

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The perusal of the entire evidence on record

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discloses that the Suit schedule ‘B’ properties are granted lands, in favour of the late Ramachandra Rao, by the Land

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Tribunal vide order dated 25.09.1980. The Will was executed in 1985, and Ramachandra Rao died in 1988. Section 61 of the Karnataka Land Reforms Act, 1961 states as follows:

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“61. Restriction on transfer of land of 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 subsection (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.

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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 cooperative land development bank, a co-

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operative society or a company as defined in section 3 of the Companies Act, 1956 in which not less than fifty one per 1962: KAR. ACT 10 Land Reforms 83 cent 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

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contravention of sub-section (1) shall be

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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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Therefore, no land of which the occupancy right has been granted to any person, be transferred to a person other than a family members of the grantee within 15 years, and if it is transferred, is invalid in the eyes of law. The Hon’ble Apex Court, in the case of Jayamma vs

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Maria Bai Dead By Proposed Lrs. And Anr ., reported in AIR 2004 SC 3957 , had an occasion to interpret the term “ family ” in the preview of section 61 of the Karnataka Land Reforms Act, where it held as follows:

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“28. 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

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family' as contained in Section 2(17) of the said Act.”

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(emphasis supplied)

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In the present case, the late Ramachandra Rao was a

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tenant, and in 1980, the occupancy right was granted to him regarding the suit schedule immovable properties. He had executed a registered Will in 1985, bequeathing the Schedule ‘B’ properties in favour of Defendant No.14. Ramachandra Rao died in 1988. The Will was executed in non-alienation period. Though the learned counsel for defendant No.14 contended that the Will is not a transfer, the said testamentary right was created in favour of a stranger to the family. Section 61 of the Karnataka Land Reforms Act strictly prohibits the transfer of the granted land to any person other than a family member, within the

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non-alienation period. The registered Will dated 31.12.1985 was executed in favour of defendant No.14, who is not a family member of the late Ramachandra Rao, but is a stranger to the family of Ramachandra Rao. Though defendant No.14 has produced the bundle of

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documents to show the relationship between him and the late Ramachandra Rao, defendant No.14 failed to establish his relationship with late Ramachandra Rao as his family member, as explained by the Hon’ble Apex Court in Jayamma’s case (referred to supra). The Coordinate Bench of this Court in the case of Joseph Albert Lewis S/o Thimothy Lewis vs Michael Roque Lewis S/o Thimothy Lewis , reported in 2008 (1) KANT LJ 599 , relying upon the Hon’ble Apex Court judgement in the case of Jayamma (referred to supra), has held that,

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“10. …The partition referred to therein would have to be understood as right of partition available to a member of the joint family as defined under the Act either by birth or having regard to the nature of occupancy right granted. Therefore, the right of partition permitted under Section 61 and the permissibility of executing a WILL in favour of one of the heirs entitled to claim partition of the land and not others as enunciated by the Hon'ble Supreme Court would have to be understood in the context that the validity

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of the WILL would depend on such heir having a right to seek for partition even during the lifetime of the testator and the validity of the WILL cannot be decided by considering the right to partition after the death of the testator since even otherwise on non-testamentary succession all heirs would be entitled to succeed to the estate of the deceased and seek for partition even if they do not fell within the definition of 'family' or 'joint family' as contemplated under Section 2(12) and 2(17) of the Act respectively but if the respective succession Act provides for the same, and if they answer the definition of heir and fall within the order of succession contemplated therein. This would have to be understood in such manner because the Hon'ble Supreme Court has used the expression "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 definition of 'family' or 'joint family'. Hence, for testamentary disposition of the land with occupancy right within the period of embargo the recipient heir must be a

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member of the joint family as defined in the Act, who is entitled to claim such right in the land with occupancy right. This would be further clear, since even the partition permitted under Section 61 of the Act is only among the holder's joint family, which means that the right over the property by the members of the joint family is recognised and in such event even though the grant is made in favour of one of the members of the family, the other members who are part of the joint family become entitled to the property. That being so, a WILL would become valid only if the legatee/beneficiary establishes that he is a member of the joint family as defined… “

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(emphasis supplied)

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Though defendant No.14 has proved the execution of

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Will dated 31.12.1985, he could not establish the validity of the said Will as required under Section 61 of the Karnataka Land Reforms Act. The trial Court has rightly held that “merely because, deceased Ramachandra Rao and 14th defendant lived like brothers and they could not

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become brothers and they are not family members and

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14^th defendant is not the legal heir of deceased Ramachandra Rao.”

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Further, the learned counsel for defendant No.14 contends that the plaintiff, being a married daughter, does not fall under the definition of “Family” as per section 2(12) of the Karnataka Land Reforms Act and is not entitled to a share in the ‘B’ schedule properties of the late Ramachandra Rao. The division bench of this Court in the case Aravind S/o. Narasimha Kamat v. Sunanda W/o. Janardhan Shanbhag in RFA No.100149/2014 ,

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decided on 13.01.2020 , has held as follows:

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“26. In the case on hand, the property in question was admittedly cultivated by Sri Narasimha Venkatesh Kamat as a tenant and he filed an 28 application seeking grant of occupancy rights and the occupancy rights were indeed granted to Sri Narasimha Venkatesh Kamat. Thus the lands that vested in the Government were divested in favour of Sri Narasimha Venkatesh Kamat thus creating a fresh

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right, title and interest and therefore, these lands became the absolute properties of Sri Narasimha Venkatesh Kamat. He having died intestate on 01.04.1989, there cannot be any doubt that his successors, who are the plaintiffs and the Defendant Nos.1 to 6 are entitled to an undivided 1/9th share in the suit schedule properties by operation of Section 8 of the Hindu Succession Act. The Defendant Nos.2 and 3 / appellants herein were unable to show any provision in the KLR Act that determined the succession of the lands in question after the death of Sri Narasimha Venkatesh Kamat. As a matter of fact, there is no provision delineating the mode of succession to the lands that are conferred on tenants under the KLR Act and the only substantive provision that 29 determines succession to such properties is section 8 of the Hindu Succession Act, 1956, which is a central legislation.”

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(emphasis supplied)

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The contention that the plaintiff being the married daughter is not entitled to a share in the suit schedule ‘B’

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properties of the late Ramachandra Rao as those properties are granted properties, is not maintainable in view of the Aravind's case (referred to supra ) and the judgement of the Division Bench of this Court in the case of Kamalavva and others v. Shivappa and others , in RFA No.100189/2020 , disposed of on 31.05.2023 . The judgments of the Division Bench of this Court, squarely applicable to the present case. The trial Court has rightly passed the judgment by granting a share to the plaintiff in the entire suit schedule properties.

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The First Appellate Court, after re-appreciating the entire evidence on record, has rightly confirmed the judgment passed by the trial Court.

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In view of the above discussion, I’m of the view that both Courts below have properly considered Section 61 of the Karnataka Land Reforms Act and granted share to the plaintiff in the suit schedule properties along with suit schedule B properties, and therefore, I concur with the

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