Appreciation of records = earlier litation which attains finalty is binding on the parties to the lis - it can not be brushed aside by incorrect excuses = Tenanacy rights can be bequthed by way of will.= The appellant is entitled for occupancy rights over it.= on the concluded findings of civil court , the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully.
In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife.
The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights.
As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal.
In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.
So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.
the application filed by Timma for grant of occupancy rights in respect of the land in question is allowed. The Land Tribunal shall pass necessary formal orders for grant of occupancy rights in favour of the present appellants, who have acquired such rights as being successors of the rightful legatee of the original tenant.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 1300-1301 OF 2008
KANNA TIMMA KANAJI MADIWAL
(D) THROUGH LRS. …APPELLANT(S)
VS.
RAMACHANDRA TIMMAYA HEGDE
(D) THROUGH LRS. AND ORS. …RESPONDENT(S)
JUDGMENT
Dinesh Maheshwari, J.
1. In the foreground, these appeals are in challenge to the judgment and
orders dated 08.08.2001 and 06.12.2004, passed by the High Court of
Karnataka at Bangalore in L.R.R.P. No. 1 of 1996 and Review Petition No. 484
of 2002 respectively, arising out of an application filed by the father of the
appellant for grant of occupancy rights in respect of 4 parcels of agricultural
land1
situated at Bilagi Village, Siddapur Taluk, Uttara Kannada District,
Karnataka [‘the land in question’]. However, in the background is a labyrinth of
litigation/s, spreading well over half a century, as briefly summarised infra.
2. The relationship and respective position of the parties involved in the
matter may be noticed at the outset and as follows:
1 Bearing Survey No. 69/4 (measuring 1 acre 10 guntas), Survey No. 82/1 (measuring 1 acre 30
guntas), Survey No. 81 (measuring 30 guntas) and Survey No. 92 (measuring 2 guntas).
1
2.1. One Kanna Kulage of the village aforesaid had three sons namely,
Gutya, Timma and Ganappa. The appellant herein, Kanna2
, is son of Timma
and thus, nephew of Gutya. It is not in dispute that Ganappa had left the
family and nothing in his regard is now involved in this litigation. Gutya had
married Gauri but it is the case of the appellant that Gutya’s wife Smt. Gauri
left him; remarried one Jatya; and begot two children from her second
marriage with Jatya3
. The land in question originally belonged to the
respondents herein but admittedly, Gutya, paternal uncle of the appellant, was
inducted as tenant therein.
3. The relevant background aspects of the matter could now be noticed,
in brief, as follows:
3.1. It is the case of the appellant Kanna that due to the ill-health of his
uncle Gutya, the land in question was being cultivated by his father Timma
(brother of Gutya); and Timma was paying the rents to the respondents on
behalf of Gutya, whose health kept on deteriorating.
3.2. It is further the case of the appellant Kanna that on 13.02.1960,
Gutya executed a Will and got it registered, bequeathing all his properties in
favour of his brother Timma (father of the appellant). Gutya expired on
19.06.1963. After the demise of Gutya, the Tahsildar conducted an enquiry
and, on 08.07.1963, effected mutation entry No. 1080 in the name of Timma in
2 Kanna son of Timma having expired during this litigation, is now represented by his legal
representatives but, looking to the subject-matter and the issues involved, the discussion herein is
with reference to the original appellant Kanna.
3 This assertion that Smt. Gauri left Gutya and established matrimonial relations with Jatya is
supported by the appellant with reference to the findings returned in a civil suit filed by Timma for
declaration of his title and for injunction in respect of the land in question. The requisite details
pertaining to the said civil suit shall occur hereafter a little later.
2
relation to the land in question that had been in cultivatory possession of
Timma.
3.3. Later on, the said Smt. Gauri filed her objections to the mutation
entries made in favour of Timma but the said objections were overruled.
However, the Assistant Commissioner, in appeal, remanded the matter for
consideration afresh and, after such remand, the authority concerned, by its
order dated 18.05.1965, ordered that the mutation entry of the land in question
be made in the name of Smt. Gauri.
3.4. Having thus succeeded in getting the land in question mutated in her
favour, the said Smt. Gauri purportedly surrendered the tenancy rights in
favour of the respondents herein on 16.06.1965.
3.5. In the wake of the developments aforesaid, Timma filed a civil suit4
for
declaration of possessory title and injunction against Smt. Gauri with
reference to the Will of his brother Gutya, while also joining his other brother
Ganappa and the present respondents as defendants. In her written
statement, Smt. Gauri denied the execution of Will by Gutya and validity
thereof; and also denied that Timma was in possession of the land in question.
The respondents-landlords denied that Timma could have derived any right by
virtue of the Will executed by Gutya.
3.5.1. On 30.06.1969, the suit aforesaid was decreed by the Trial Court with
the findings, inter alia, that Smt. Gauri left the company of Gutya and
contacted marriage with Jatya; that after leaving the company of Gutya and
upon her re-marriage, Smt. Gauri was no longer an heir of Gutya and,
therefore, she was not entitled to inherit or surrender the tenancy rights of
Gutya in the land in question. The Trial Court also held that Timma was in
4 Original Suit No. 117 of 1965 in the Court of Munsiff, Sirsi.
3
lawful possession of the land in question and the Will dated 13.02.1960 was
validly executed by Gutya5
.
3.5.2. Assailing the decree aforesaid, appeals were preferred in the Court of
District Judge, Karwar by the respondents-landlords and Smt. Gauri6
. The
First Appellate Court reversed the decree of the Trial Court and remanded the
matter for reconsideration of the question as to who was the tenant after the
death of Gutya. This order of remand was challenged by Timma before the
High Court of Karnataka7
. The High Court, by its order dated 08.03.1977,
disapproved the order of remand and restored the matter to the file of First
Appellate Court for disposal on merits, after observing that the question
involved was not of ‘tenancy’ but the one relating to the ‘succession of Gutya’s
tenancy’.
5 The typed copy of this judgment dated 30.06.1969, placed on record as Annuxure P-1 carries
several obvious typographical errors but, for the purpose of reference, the operative part thereof (at
pp. 132-133 of the paper-book) is being extracted, verbatim, as under:-
“In view of my findings on the documentary and oral evidence in this case and in
view of the correct legal position according to me I hold that the power of the
deceased Gutya to will away his properties is unassailable. The plff. therefore, got
absolute title and possession in respect of the Malki properties and possessary title
in respect of lease hold items the moment Gutya died. I am also of the clear
opinion that the first deft. did not retained her character as widow of Gutya and
consequently acquired no titled or possession in respect of the suit properties.
Upon a careful assessment of the evidence in this case the first deft. has
impressed me as tool in the hands of owners of lease hold properties…. Therefore
a decree is passed in favour of the plff. and against the defts. in the following
terms.
I. The Malki title of the plff. to items 1 to 3 of the plaint is hereby declared on
the basis of Exh. P.1.
II. The possessary title of the plff. is hereby declared in respect of items 4 to 7 of the
plaint on the same basis.
III. An perpetual injunction is issued against all the defendants, their servants, agents
etc., from interfering with the peaceful possession and enjoyment of all the suit
properties.
IV. The suit of the plff. is decreed against all the defendants for costs. This decree for
costs is a joint and several decree.
V. The defendants will bear their own costs.” (sic)
6 Being RA No. 59 of 1973 and RA No. 60 of 1973.
7
In Misc. Appeal No. 5 of 1975
4
3.5.3. After remand, the appeal filed by the present respondents against the
decree of the Trial Court was transferred to the Court of Civil Judge, Sirsi8
.
Ultimately, the First Appellate Court dismissed the said appeal by way of the
judgment and decree dated 18.12.1990 while holding that the Will executed by
Gutya in favour of Timma was proved and the same was validity registered.
The First Appellate Court also confirmed the findings of the Trial Court that
Smt. Gauri had re-married and ceased to be the heir of Gutya. While referring
to the provisions contained in sub-section (1) of Section 27 of the Bombay
Tenancy and Agricultural Lands Act, 1948, [‘the Act of 1948’], the First
Appellate Court also observed that the said provision prohibited alienation of
leasehold land by a tenant but testamentary succession was not prohibited.9
3.5.4. The decree so passed by the First Appellate Court was challenged by
the present respondents by way of a second appeal10 that was considered and
dismissed by the High Court on 08.07.1998. The present respondents
attempted to challenge the judgment of the High Court in this Court but the
petition for Special Leave to Appeal11 was also dismissed on 26.02.2001.
8
renumbered as RA No. 43 of 1978
9 A passage from the said decision of the First Appellate Court (at pp. 198-199 of paper-book) could
also be usefully extracted as under:-
“21…..There is therefore, no substance in the contention of the learned
counsel for petitioner that the claim of respondent no. 5 based on testamentary
succession could not have been entertained by Tribunal as alleged acquisition of
lease was in violation of Sec. 21 of the Act. In the instant case, there is evidence to
show that deft. 1 Gouri remarried. There is no dispute regarding the tenancy as it is
admitted fact late Gutya was a tenant of lease hold properties. It has come in the
evidence that deft. 1 Gouri had left her husband’s house and started living in some
other village and led an unchaste life and subsequently she married one Jatya
through whom she begotten children, for which there is evidence. The very object
of prohibition u/s 27 is that after the death of tenant, the heirs of deceased tenant
shall be entitled to partition and sub division the land leased subject to the
conditions laid down. In the Will it is specifically stated that Gutya had no issues. It
is also not the case of Gouri that she has filed any application claiming tenancy
right before the competent authority after the alleged execution of the Will…..”
10 RSA No. 22 of 1991
11 SLP (C) No. 4770 of 2000
5
3.5.5. Hence, the net result of the civil suit aforesaid had been that the
findings came to be recorded conclusively that Smt. Gauri was not the heir of
Gutya; that Timma was the heir of Gutya; that Gutya had executed the Will in
favour of Timma bequeathing his rights in the land in question; and that Timma
was in possession of the land in question. These findings attained finality with
dismissal of appeals and the petition for Special Leave to Appeal in this Court.
3.6. The other line of proceedings commenced on 08.08.1974 with filing of
an application in Form No. 7 under Section 48-A of the Karnataka Land
Reforms Act, 1961 [‘the Act of 1961’] by Timma for grant of occupancy rights
in respect of the land in question before the Land Tribunal, Siddapur12. This
application was moved by Timma after the decree of the Trial Court in the
above-referred civil suit but during the period when the appeal against such
decree was pending. During the pendency of application before the Land
Tribunal and also the appeal proceedings relating to the aforesaid civil suit,
Timma expired and hence, his wife and children were brought on record as his
legal representatives.
3.6.1. On 22.09.1981, the Land Tribunal rejected the claim for grant of
occupancy rights in respect of the land in question while observing that the
appellant (son of Timma) had made a statement of admission that he was not
the tenant of the land in question.
3.6.2. The aforesaid order of the Land Tribunal was challenged by the
appellant Kanna, son of Timma, before the High Court by filing a writ petition
and, inter alia, disputing the purport of the statement alleged to have been
made by him before the Land Tribunal. During the pendency of the said writ
12 Case No. TNC-DSR-988-5563-4885-7524
6
petition, the Land Reforms Appellate Authority came to be established and
hence, the High Court transferred the matter to the said Appellate Authority.
The matter so transferred by the High Court was registered before the
Appellate Authority as an appeal against the order of Land Tribunal13
.
3.6.3. By its order dated 18.07.1988, the Appellate Authority dismissed the
said appeal of the appellant for non-prosecution. The appellant sought
restoration of the appeal and recall of the order of default dismissal by moving
an application under Rule 9 of the Karnataka Land Reforms Rules. The
application so moved by the appellant was dismissed by the Appellate
Authority on 26.12.1988, for want of sufficient reasons for absence of
advocate on the date of hearing as also for want of an application for
condonation of delay of one day in filing the application for recall.
3.6.4. Being aggrieved by such dismissal of the appeal and the application
for restoration, the appellant preferred a revision petition14 before the High
Court of Karnataka. The High Court proceeded to dismiss the petition so filed
by the appellant by its impugned order dated 08.08.2001, while rejecting the
claim of appellant on merits and while observing, inter alia, that: (a) Gutya was
the original tenant of the land in question before his demise in the year 1963;
(b) in the application in Form No. 7, Timma failed to plead about the
separation of Smt. Gauri from Gutya prior to his demise and, therefore, the
alleged disinheritance of Smt. Gauri could not be countenanced, meaning
thereby that she remained the legal heir of Gutya; (c) the assignment of
interest of tenancy by way of bequeath was barred under Section 21 of the Act
13 Appeal No. DAAA:AP:203/1986
14 L.R.R.P. No. 1 of 1996
7
of 1961 and, therefore, Timma could not succeed to Gutya’s land by virtue of
the Will executed in his favour; (d) Gutya and Timma had their respective
parcels of land and each of them was cultivating his own parcel; (e) if tenancy
was transferred in favour of Timma, it would amount to creation of fresh
tenancy, which would be in contravention of the provisions of the Act of 1961;
and (f) the appellant had made a statement before the Land Tribunal that he
was not a tenant in respect of the land in question. The relevant portion of the
order of the High Court reads as under:-
“……the petitioner herein cannot succeed to the tenancy
right of the deceased Gutya by virtue of the Will alleged to
have been executed by the deceased Gutya in favour of
his father Thimma, in the presence of the wife of the
deceased Gutya by name Gowri who is the legal heir of
the deceased to succeed to the tenancy rights of her
deceased husband. Further it is also the case of the
petitioner herein that when the deceased Gutya fell ill and
the father of the petitioner Thimma began to cultivate the
lands in respect of which the deceased Gutya was a
tenant, the father of the petitioner had started paying the
rent in respect of the said lands to the landlord and which
were duly accepted by him. Thus according to the
petitioner there was almost a fresh lease created in favour
of the father of the petitioner Thimma. But it has to be
stated that any tenancy created in contravention of Section
-5 of the Karnataka Land Reforms Act would be void and
therefore any possession pursuant to such fresh lease
would also be unlawful and such person is therefore not
entitled to the benefit of section-4 of the KLR Act. Even on
the ground also, the father of the petitioner was not
entitled to seek the registration of occupancy rights in
respect of the lands, of which the deceased Gutya was a
tenant. Therefore looking from any angle, neither the
petitioner nor his father Thimma could be entitled to seek
registration of occupancy rights in respect of the lands, of
which the deceased Gutya was a tenant. That apart, the
order of the Land Tribunal would clearly indicate that the
petitioner herein who gave his statement before the Land
Tribunal did not claim tenancy right in respect of the lands,
of which the deceased Gutya was a tenant. No doubt it
8
was sought to be contended on behalf of the petitioner that
there was no such statement made before the Land
Tribunal by the petitioner. But the order of the Land
Tribunal would clearly indicate that the petitioner did make
such a statement before the Land Tribunal. If the petitioner
wanted to establish the fact that the said observation
made by the Land Tribunal in its impugned order is
factually incorrect, he could have adduced additional
evidence before the Land Reforms Appellate Authority. But
he did not do so and on the other he allowed the appeal to
be dismissed for default. Therefore having given my
anxious consideration to the entire matter in issue, I find
no merit in this revision petition filed by the petitioner and it
is liable to be dismissed.”
3.6.5. The appellant attempted to challenge the aforesaid order dated
08.08.2001 in this Court by way of a petition for Special Leave to Appeal15
but, on 11.03.2002, the same was dismissed as withdrawn with liberty to the
appellant to file a review petition before the High Court. The appellant,
thereafter, filed a review petition16 before the High Court with an application
for condonation of delay. Even this review petition went through its own
meandering course inasmuch as the application for condonation of delay
was dismissed by the High Court on 01.08.2003 for want of satisfactory
reasons for not approaching the Court within reasonable time. Against this
order dated 01.08.2003, the appellant again approached this Court by way of
another petition for Special Leave to Appeal17 that was allowed on
09.07.2004; this Court condoned the delay and remitted the matter to High
Court for disposal on merits.
3.6.6. Ultimately, the said review petition and an application therein for
production of additional documents were considered on merits and the High
15 SLP (C) No. 3339 of 2002
16 Review Petition No. 484 of 2002
17 SLP (C) No. 23609-23610 of 2003
9
Court proceeded to dismiss the same by its order dated 06.12.2004 while
essentially reiterating its findings, as occurring in the order dated 08.08.2001,
and while observing that there was nothing of any error apparent on the face
of record. The High Court observed, inter alia, as under:-
“9. In the instant case, I find that there is no such error
apparent on the face of the record and the present review
Petition filed by the Petitioner is only an attempt to reargue
the matter, which is not permissible in review
jurisdiction…....In the case at hand, the deceased testator
Gutya could not have executed the Will in favour of a
person who could not be declared to be a tenant having
occupancy right and that further the person concerned
was not a tenant within the meaning of the Act on the
appointed day and hence he was clearly not eligible for
occupancy rights. It is needless to point out that the mere
possession of the lands will not be sufficient to confer the
status of occupancy of tenancy as the sine-qua-non for
obtaining the status of occupancy of tenancy rights is that
the person concerned must be a tenant on the appointed
day. It has to be stated that the tenancy continues
notwithstanding the death of the tenant in occupation of
certain lands and such (?) is held by the heirs of such
tenant on the same terms and conditions on which he had
held prior to his death and the heirs who can take the
property are those who are referable to in Section 21 of
the Karnataka Land Reforms Act and that in the instant
case, the person concerned being not an heir of the
deceased tenant and there being a spouse (wife) of the
deceased tenant living at the relevant time, could not
have obtained the status of the occupancy tenant [sic].
Obviously therefore, the person concerned did not seem to
have claimed tenancy rights in respect of the lands in
occupation of the deceased tenant Gutya. Under the
circumstances, therefore, I find no error apparent on the
face of the order which is now sought to be reviewed, so
as to call for correction by exercise of the review
jurisdiction.…...Considering the limited scope for review
under Order 47 Rule 1 of CPC, the additional evidence
sought to be adduced by the Petitioner by means of his
I.A. No. 1 cannot be permitted….”
10
3.7. The aforesaid orders dated 08.08.2001 and dated 06.12.2004, as
passed by the High Court of Karnataka in the revision petition and the review
petition filed by the appellant are the subject of challenge in these appeals.
However, the narration about the litigations between the parties would
remain incomplete if another proceeding in the form of a civil suit filed by the
present respondent No. 1 is not referred18. After passing of the aforesaid
order dated 08.08.2001 by the High Court, a civil suit was filed by the
respondent No. 1, seeking perpetual injunction against the appellant and his
brothers. An application seeking temporary injunction was also filed therein,
being IA No. 1. The Trial Court dismissed the said application for temporary
injunction by its order dated 17.04.2003 while holding that the defendants
(appellant and others) were in possession of the suit property.
4. In summation of the chronicle aforesaid, it could be noticed that in
essence, there had been two major lines of litigation concerning the parties:
One being the civil suit filed by Timma wherein the questions of validity of
Will of Gutya and possession of Timma over the land in question were gone
into. The suit was decreed with all material findings in favour of Timma and
the decree attained finality. The other line of litigation relates to the
application in Form No. 7 under Section 48-A of the Act of 1961 filed by
Timma for grant of occupancy rights in respect of the land in question. This
application, prosecuted by the appellant Kanna after demise of Timma, was
rejected; the appeal was dismissed; and the revision petition and the review
18 O.S. No. 209 of 2002 in the Court of Civil Judge (Jr.Dn.), Siddapur
11
petition before the High Court were also dismissed by the impugned orders
dated 08.08.2001 and 06.12.2004.
5. Assailing the impugned orders dated 08.08.2001 and 06.12.2004,
learned counsel for the appellant has strenuously argued that the High Court
has erred in law as also on facts in failing to consider the crucial aspect of
this matter that in the civil suit filed by Timma, categorical findings came to
be recorded to the effect: (a) that the Will dated 13.02.1960, executed by
Gutya in favour of Timma in respect of the land in question, was proved and
the Will was not invalid; (b) that Timma was the heir of Gutya by virtue of the
said Will and Smt. Gauri was not the heir of Gutya; and (c) that Timma was in
possession of the land in question. The learned counsel has emphasised on
the submission that the said findings rendered in the civil proceedings have
attained finality and are binding on the respondents, who were parties to the
said suit; and these concluded findings cannot be reopened in the present
proceedings for grant of occupancy rights. The learned counsel has relied on
various decisions including that in Ramchandra Dagdu Sonavane (Dead)
by Lrs and Ors v. Vithu Hira Mahar (Dead) by Lrs and Ors: (2009) 10
SCC 273 to submit that it is only the civil Courts which have jurisdiction to
decide the heirship right of an individual and the Land Tribunal lacks such
jurisdiction. Thus, according to the learned counsel, the rights available to
Timma, and after Timma to the appellant as his son, could not have been
denied in these proceedings.
5.1. The learned counsel has also contended that the High Court fell in
further error in holding that Section 21 of the Act of 1961 bars assignment of
12
tenancy rights by way of bequeath. The learned counsel has relied on the
decision of this Court in Sangappa Kalyanappa Bangi (Dead) through
LRs. v. Land Tribunal, Jamkhandi and Ors: (1998) 7 SCC 294 and
submitted that the scope and purport of Section 21 of the Act of 1961 stands
explained by this Court that a tenant cannot introduce a stranger to the land
by means of bequest but there is no bar in bequeathing tenancy rights by a
tenant to his heirs, who are related to him by ‘legitimate kinship’. The learned
counsel has yet further referred to the decision of this Court in Jayamma v.
Maria Bai (Dead) by proposed LRs. and Anr.: (2004) 7 SCC 459 and
submitted that the said decision re-affirms this position and does not in any
way differ or detract from the ratio of Sangappa (supra). Thus, according to
the learned counsel, rejection of Timma’s claim for occupancy rights on the
basis of the Will dated 13.02.1960 was wholly incorrect inasmuch as Timma
was not a stranger but was related to the tenant by legitimate kinship, being
his brother and hence, a Class II heir, in terms of the entry occurring in the
Schedule to the Hindu Succession Act, 1956. The learned counsel lastly
submitted that the Land Tribunal and the High Court have misconstrued the
statement made by appellant regarding his tenancy rights because what was
sought to be conveyed by him was this much that Timma was not the original
tenant of the land in question but had inherited the tenancy rights by virtue of
a Will; and in any event, there was no intention of the appellant to disown his
claim, which was being pursued relentlessly.
6. Per contra, learned counsel for the respondents has supported the
orders passed by the Land Tribunal and the High Court rejecting the claim
13
for grant of occupancy rights in favour of Timma and has submitted that in
view of the prohibition over assignment of tenancy rights by way of
bequeath, Timma could not have claimed nor could have exercised any
tenancy rights over the land in question on the basis of the Will of Gutya;
and the land in question stood reverted to the respondents after the demise
of Gutya. The learned counsel has referred to and relied upon the
observations of the High Court that disinheritance of Smt. Gauri from the
tenancy rights of her husband Gutya could not be countenanced and
transfer of the tenancy rights of Gutya in favour of Timma would amount to
creation of fresh tenancy rights in contravention of the provisions of the Act
of 1961. Learned counsel has also relied upon the observations that the
appellant made a statement before the Land Tribunal about himself being
not a tenant in respect of the land in question.
6.1. The learned counsel for the respondents has referred to the decision in
Jayamma (supra) to submit that the principles expounded therein, in relation
to Section 61 of the Act of 1961, do apply with equal force to the case at
hand; and bequeath of tenancy rights being prohibited, the High Court has
rightly rejected the claim made on the basis of the Will said to have been
executed by Gutya.
7. For what has been noticed hereinabove, the principal question calling
for determination is as to whether the High Court is right in holding that the
bequeath in question, by way of Will dated 13.02.1960 by Gutya in favour of
his brother Timma, is hit by statutory prohibition and no rights of tenancy
could be claimed on its basis?
14
8. Having given anxious consideration to the rival submissions and having
examined the record with reference to the law applicable, we are clearly of
the view that the answer to the question aforesaid could only be in the
negative and the impugned orders cannot be sustained.
9. For the purpose of the question aforesaid and in view of the rival
submissions, appropriate it would be to take note of the relevant statutory
provisions and the principles applicable to the present case.
9.1. As regards the applicable statutory provisions, it could be noticed that
the Will in question was executed on 13.02.1960 and the executant, Gutya,
the original tenant of the land in question, expired on 19.06.1963. At the
relevant point of time, the Act of 1961 had not come into force19 and the
tenancy in question was governed by the Bombay Tenancy and Agricultural
Lands Act, 1948. The provisions contained in sub-section (1) of Section 27
and Section 40 of the said Act of 1948 read as under:-
“27. Sub-division, sub-letting and assignment
prohibited.- (1) Save as otherwise provided in Section
32F no sub-division or sub-letting of the land held by a
tenant or assignment of any interest therein shall be valid:
Provided that nothing in this sub-section shall
prejudicially affect the rights of a permanent tenant :
Provided further that if the tenant dies,-
(i) if he is a member of a joint family, the surviving
members of the said family, and
(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-
(a) each sharer shall hold his share as a separate
tenant,
(b) the rent payable in respect of the land leased
shall be apportioned among the sharers, as the
19 It came into force as Mysore Land Reforms Act, 1961 w.e.f. 02.10.1965
15
case may be, according to the share allotted to
them,
(c) the area allotted to each sharer shall not be
less than the unit which the State Government
may, by general or special order, specify in this
behalf having regard to the productive capacity
and other circumstances relevant to the full and
efficient use of the land for agriculture,
(d) if such area is less than the unit referred to in
clause (c), the sharers shall be entitled to enjoy
the income jointly, but the land shall not be
divided by metes and bounds,
(e) if any question arises regarding the
apportionment of the rent payable by the
sharers, it shall be decided by the Mamlatdar,
whose, decision shall be final.
*** *** ***
40. Continuance to tenancy on death of tenant.-(1)
Where a tenant (other than a permanent tenant) dies, the
landlord shall be deemed to have continued the tenancy
on the same terms and conditions on which such tenant
was holding it at the time of his death, to such heir or heirs
of the deceased tenant as may be willing to continue the
tenancy.
(2) Where the tenancy is inherited by heirs other
than the widow of the deceased tenant, such widow shall
have a charge for maintenance on the profits of such
land.”
9.2. With advent of the Act of 1961, various enactments relating to the
agricultural land and tenancy, including the aforesaid Bombay Tenancy and
Agricultural Lands Act, 1948, came to be repealed for the purpose of the
territories governed by the Act of 1961. It is for these reasons that reference
has been made in these proceedings to the provisions of the Act of 1961.20
In the Act of 1961, the relevant provisions concerning the present case are
contained in sub-section (1) of Section 21 and Section 24, which are more or
20 However, the First Appellate Court dealing with the appeal arising out of the decree passed in civil
suit filed by Timma, in its judgment and decree dated 18.12.1990, indeed took into account the
provision applicable to the case at hand i.e., Section 27(1) of the Act of 1948.
16
less in pari materia the erstwhile provisions contained sub-section (1) of
Section 27 and Section 40 of the Act of 1948 and read as under:-
“21. 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:
Provided that nothing in this sub-section shall affect the
rights, if any, of a permanent tenant:
Provided further that if the tenant dies,—
(i) if he is a member of joint family, the surviving members
of the said family, and
(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—
(a) each sharer shall hold his share as a separate tenant;
(b) the rent payable in respect of the land leased shall be
apportioned among the sharers, as the case may be,
according to the share allotted to them;
(c) the area allotted to each sharer shall not be less than a
fragment;
(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;
(e) if any question arises regarding the apportionment of
the rent payable by the sharer it shall be decided by the
Tahsildar:
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.
*** *** ***
24. Rights of tenant to be heritable.- Where a tenant
dies the landlord shall be deemed to have continued the
tenancy to the heirs of such tenant on the same terms and
conditions on which such tenant was holding at the time of
his death.”21
21 The present Section 24 was substituted by Act No. 1 of 1974. Prior to its amendment, Section 24
read as under:
17
9.3. In view of the submissions made and for their relevance, the provisions
contained in Section 61(1) of the Act of 1961 could also be usefully extracted
as under:-
“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) or 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,
*** *** ***”
9.3.1. It may, however, be noticed that the prohibition contained in Section
21(1) and the restriction contained in Section 61(1) of the Act of 1961 operate
in different fields inasmuch as Section 21(1) occurs in Chapter II of the Act of
1961, making general provisions regarding the tenancy and rights and
obligations of a tenant of an agricultural land. Section 61, on the other hand,
occurs in Chapter III, dealing with conformant of ownership on tenants by
way of their registration as occupants. In other words, the restriction
envisaged by Section 61 of the Act of 1961 comes into operation after a
tenant has acquired occupancy rights whereas the prohibition contained in
“24. Right of tenants to be heritable. -(1) Where a tenant dies, the
landlord shall be deemed to have continued the tenancy-
(a) if such tenant was a member of an undivided Hindu family, to the
surviving members of the said family, and
(b) if such tenant was not a member of an undivided Hindu family, to his
heirs,
on the same terms and conditions on which such tenant was holding at
the time of his death.
(2) The interest of a permanent tenant in his holding shall on his death
pass by inheritance or survivorship in accordance with his personal law.”
18
Section 21 operates at the stage before acquisition of occupancy rights and
in relation to the tenancy simpliciter. This distinction in the fields of operation
of Section 21 and Section 61 of the Act of 1961 would be of assistance in
comprehension of the two cited decisions of this Court i.e., in the cases of
Sangappa and Jayamma (supra).
10. In Sangappa (supra), this Court has dealt with a situation where the
dispute related to testamentary disposition of interest in the tenanted land.
While observing that bequest under a Will was also covered within the ambit
of “assignment” under Section 21 of the Act of 1961, this Court held that such
bequest could only be to the heirs of the tenant and not to the strangers to the
family of tenant. This Court said, inter alia, as under:-
“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, would
be 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 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 a member
19
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 reference 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
provisions inasmuch as such assignment disposes of or
deals with the lease. When there is a disposition of rights
under a Will, though it 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.
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, 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 one
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 will also amount to an assignment and, therefore, be
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…..”
(underlining supplied for emphasis)
20
11. On the other hand, in Jayamma’s case (supra), the appellant had filed
an application under Section 276 of the Indian Succession Act, 1925 for grant
of letters of administration with a copy of Will annexed. The respondents,
being wife and children of the testator, denied the fact of execution of Will and
hence, the application was converted into a suit. Though the Trial Court
decreed the suit but the appeal was allowed by the High Court while holding
that the application in question was not maintainable in view of Section 61 of
the Act of 1961, for the subject-matter of the testament being agricultural land
with occupancy rights, which could not have been assigned. The appellant,
legatee under the Will in question, was a neighbour and had not been a
member of the testator’s family. In appeal before this Court, the decision in
Sangappa (supra) was referred. This Court distinguished the said decision as
being related to Section 21 of the Act of 1961 and there being stricter embargo
on transfer of land where the tenant had become occupant than the land held
by a tenant simpliciter. This apart, the appellant was found to be having no
legitimate kinship with the testator. It was also found that occupancy rights
were granted on 14.10.1981 and Will in question was executed on
20.02.1984; hence transfer was made within the period of 15 years from the
date of grant, which was prohibited by law. The appeal was, therefore,
dismissed by this Court while observing, inter alia, as under:-
“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
21
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.
*** *** ***
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.
*** *** ***
25. Apart from the fact that the interpretation was rendered
having regard to the language used in Section 21 of the
said Act which would not ipso facto apply to Section 61
thereof; as thereby a stricter statutory embargo has been
imposed on transfer or assignment, the contention of Mr
Bhat to the effect that the appellant was a relation of the
testator also does not appear to be correct……
26. The appellant, therefore, in view of the aforementioned
statement was not having any legitimate kinship with the
testator of the Will.
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.”
12. It is at once clear from the provisions and the decisions above referred
that in the scheme of the Act of 1948 as also the Act of 1961, when a person
had been inducted as tenant, heritable right comes into existence with certain
embargo over transferability of such tenancy. In other words, such tenancy
continues even after the demise of tenant. If the deceased tenant was a
member of joint family, then the surviving members of the joint family; and if
22
he was not a member of joint family, his heirs would be entitled to claim
partition subject to the conditions specified. However, the tenanted land
cannot be sub-let nor any interest therein could be assigned. In Sangappa
(supra), this Court has explained the object behind such embargo that
strangers to the family of tenant were not to be allowed to come upon the
tenanted land. Even disposition under a Will is held covered within the wide
sweep of the expression “assignment” for the purpose of the Act of 1961 but
with the significant, and rather pertinent, exception that such embargo does
not prevent a bequeath in favour of the heirs noticed in the said provisions.
This Court said in no uncertain terms that: ‘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 one who is related to the deceased
tenant by legitimate kinship’. This enunciation is neither curtailed nor whittled
down in Jayamma’s case (supra).
13. As noticed, the decision in Jayamma (supra) had been on the
interpretation of Section 61 of the Act of 1961, where stricter embargo is
envisaged, being related to a different provision that operates in a different
field and comes into effect after acquiring of occupancy rights. Moreover, in
Jayamma’s case, the legatee, a neighbour, was found to be having no
legitimate kinship with the testator; and the Will in question was executed
within the period of 15 years from the date of grant, which was prohibited by
law. Hence, the decision in Jayamma’s case has no adverse effect on the
claim in the present case for the obvious reasons that: (a) the present case
23
relates to the stage before acquisition of occupancy rights; and (b) the legatee
of the Will in question before us, Timma, had been none other than the brother
of the deceased tenant, Gutya; and the said legatee, being related to the
deceased tenant by legitimate kinship, had already been declared to be the
successor of the tenant in the civil suit in presence of all the relevant parties,
including the respondents, with categorical finding that the wife of tenant had
left and ceased to be his heir after having contacted other marriage.
14. On the admitted fact situation of the present case and on the concluded
findings, the net position obtainable is as follows: The deceased Gutya was
the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya
and, had she retained this status, she would have been his Class I heir, in
terms of the Schedule to the Hindu Succession Act, 1956. However, the
concluded findings in the civil suit filed by Timma (with the present respondent
being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted
second marriage with Jatya, and begot two children from such marriage. In
sequel to these findings and in view of the other evidence on record, it was
held in the said civil suit conclusively that Smt. Gauri was not the heir of
Gutya. It was also held conclusively that Timma was the heir of Gutya; that
Gutya had executed the Will in favour of Timma bequeathing his rights in the
land in question; and that Timma was in possession of the land in question.
These findings have attained finality with dismissal of appeals and ultimately,
with dismissal of the petition for Special Leave to Appeal in this Court.
Moreover, these findings bind the present respondent fair and square, for they
24
were parties to the said suit and in fact, only they had pursued the matter in
appeals, though unsuccessfully. In the face of these concluded findings, we
find absolutely no justification that the High Court proceeded in the impugned
orders on the premise that Smt. Gauri was the heir of Gutya for being his wife.
The effect of the abovementioned findings of the civil Court has been brushed
aside by the High Court with a few observations that the fact of existence of
the wife of Gutya was not mentioned in the application made by Timma for
grant of occupancy rights. As noticed, on the date of filing of such application,
the suit filed by Timma had already been decreed by the Trial Court with the
findings aforesaid, although the matter was pending in appeal. In any case,
the concluded and binding findings of the civil Courts did not lose their worth if
the fact about erstwhile wife of Gutya was not mentioned in the application
made by Timma for grant of occupancy rights; and the High Court could not
have treated such findings as nugatory or redundant.
14.1. So far the legal effect of the said Will by the tenant Gutya in favour of
his brother Timma is concerned, as noticed, Timma was definitely related to
Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the
embargo, whether that contained in Section 27(1) of the Act of 1948 or in
Section 21 of the Act of 1961. A fortiori, the application made by Timma in
Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in
respect of the land in question could not have been denied.
25
15. An observation made by the High Court, about the appellant having
made a statement before the Land Tribunal as if to give up his claim as tenant
of the land in question, has only been noted to be disapproved. It is noticed
that the Land Tribunal proceeded to reject the claim in relation to the land in
question by way of its order dated 22.09.1981 in a wholly cursory manner with
reference to the alleged statement made by the appellant but without
appreciating that the statement was required to be understood contextually
where certain parcels of land in which Timma was the tenant in his own right
were also being described. In that context, it was clarified that Timma was, as
such, not the tenant in relation to the land in question; meaning thereby that
Timma was not the original tenant. The statement was not incorrect because
Gutya was the original tenant qua the land in question. Such a bonafide
statement could not have operated against the claim of occupancy rights in
respect of the land in question, when the claim was essentially based on the
Will in favour of Timma and his cultivatory possession.
16. As noticed, the appeal against the aforesaid order of the Land Tribunal
was not decided on merits. Rather, the approach of the Appellate Authority
had been a bit too exacting where the appeal was dismissed in default and
then, the application for restoration was dismissed with a hyper-technical view
of the matter and for delay of one day in filing. In revision petition against the
order so passed by the Appellate Authority, the High Court, even without
having the benefit of a considered decision of the Appellate Authority, chose to
26
deal with the matter on merits and rejected the claim of the appellant on either
irrelevant considerations or while overlooking the effect of the findings in the
civil suit between the parties as also the ratio in Sangappa (supra). In our
view, while adopting such a course, of deciding the matter on merits without
having the finding of the Appellate Authority, it was moreover required of the
High Court to examine the record in proper perspective; and, for that matter,
the decisions rendered in the civil suit filed by Timma, which carried concluded
findings on the basic issues involved in the litigation, ought to have been
examined in requisite details.
17. The upshot of the discussion foregoing is that the impugned orders
cannot be sustained and it is beyond the pale of doubt that the application
filed by the appellant by Timma for grant of occupancy rights in respect of the
land in question deserves to be allowed.
18. Accordingly, and in view of the above, the impugned judgment and
orders dated 08.08.2001 and 06.12.2004 passed by the High Court of
Karnataka in LRRP No. 1 of 1996 and Review Petition No. 484 of 2002
respectively as also the impugned orders dated 18.07.1988 and 26.12.1998
passed by the Land Reforms Appellate Authority and dated 22.09.1981
passed by the Land Tribunal are set aside; and the application in question, as
filed by Timma for grant of occupancy rights in respect of the land in question
is allowed. The Land Tribunal shall pass necessary formal orders for grant of
occupancy rights in favour of the present appellants, who have acquired such
rights as being successors of the rightful legatee of the original tenant.
27
18.1. The appeals are allowed with the directions and requirements aforesaid.
No costs.
……………………………J
(A.M. KHANWILKAR) 1
……………………………J
(DINESH MAHESHWARI)
New Delhi
Dated: 27th September, 2019
28
