Karnataka High Court
K. Achutha Pai vs Joseph Tauro And Ors. on 19 March, 2003
Equivalent citations: ILR2003KAR3268, 2003(5)KARLJ399, 2003 AIR - KANT. H. C. R. 2299, 2003 AIHC 3780, (2003) 5 KANT LJ 399, (2003) 4 ICC 761
Author: S.B. Majage
Bench: S.B. Majage
JUDGMENT Majage, J.
1. This appeal by the appellant/plaintiff is directed against the judgment and decree passed in O.S.No. 5/1997 on the file of the Court of District Judge, D.K., Mangalore, by which he has been refused letter of administration.
2. For the sake of convenience, the parties will be referred hereinafter as shown in the impugned judgment and decree i.e., plaintiff and defendants.
3. Brief facts giving rise to the present appeal are: plaintiff filed an application under Section 276 of the Indian Succession Act registered as P and SC No. 26/1996 for grant of letter of administration in connection with Will dated 4.2.1987 executed by deceased Charistine Tauro with regard to 23 cents of land in Sy.No. 410/1 of Karkala Kasaba village in his favour. Disputing the Will, it was opposed by the defendants, ie., children of said deceased. As the claim of plaintiff became contentious, an order was passed for converting the said proceedings into original suit as provided under Section 295 of the said Act. Accordingly, suit came to be registered on 17.1.1997.
A) It is the case of plaintiff that the suit property belonged to the deceased as she was registered as occupant on 24.6.1986 after conferring occupancy rights. Her three children. - defendants were residing away from her. So, he was looking after her and her husband and as such, she executed and registered her last Will for the suit property on 4.2.1987 in his (Plaintiff's) favour and died on 4.9.1991 and consequently, he claimed letter of administration.
B) The defendants contested the case. According to them, the deceased had executed her last Will and testament on 25.6.1991 in their favour, which was duly registered before the Sub-Registrar at Karkala and after her death, a suit was filed by Canara Bank, Karkalla, against them for recovery of loan and a decree was passed in that suit (O.S.No. 219/1993) and even that decretal debt was also paid by them on 9.2.1995 and consequently, execution of Will by her on 4.2.1987 cannot be believed. Even otherwise, it is their case that the deceased was not in sound disposing state of mind at the time of alleged Will dated 4.2.1987 in favour of plaintiff, who is an utter stranger to family and not even their caste man and, said Will has been got up by plaintiff, misusing his knowledge about her solitude and denied that he looked after the deceased and, at any rate, the land, for which she was conferred occupancy rights with certificate of registration issued on 24.6.1986 under the Karnataka Land Reforms Act, could not have been bequeathed by her in favour of plaintiff - a stranger and thus, requested to reject the claim of the plaintiff.
C) The plaintiff filed a rejoinder clarifying that out of the properties of the deceased, suit property only had been bequeathed in his favour on 4.2.1987 and remaining property held by her was bequeathed under the Will dated 25.6.1991 to defendants and that is different from the Will made in his favour and there was no necessity for the deceased to borrow any loan from the Canara Bank when he was looking after the deceased and assisting her.
D) However, after Trial, the Trial Court held that execution of the will deed in favour of plaintiff by the deceased in sound disposing state of mind is proved but, on the ground that the deceased could not have made Will in respect of the suit property in view of the provisions contained in Karnataka Land Reforms Act (hereinafter referred as 'Act'), dismissed the suit. Aggrieved by it, the plaintiff alone has approached this Court by way of present appeal and not the defendants challenging the finding recorded against them about execution of Will by the deceased in favour of plaintiff.
4. The point for consideration is:
"Whether a land, occupancy rights of which have been conferred on a tenant under the Act, could be willed in favour of a stranger within the prohibited period provided under Section 61 of the Act?"
5. So it is necessary to extract Section 61(1) of the Act, which reads as under:-
Section 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 (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." (underline supplied) Plain reading of said provision makes it clear that for the land specified above, transfer in any of the modes referred in it or assignment is prohibited for a period of 15 years from the date of final order.
6. However, it is submitted for the plaintiff that there is no prohibition for transfer of such land by making Will because the words used in the said provision are "sale, gift, exchange, mortgage, lease or assignment" and not "Will" and strongly relied on three decisions of this Court reported in KORAGAPPA GOWDA vs GINNAPPA GOWDA, ILR 1998 KAR 136, C.C.DEVASIA vs K.A.T. & OTHERS, and an unreported decision in the case of LAZARUS FERNANDES vs S. GERALD FERNANDES AND OTHERS, M.F.A. No. 2738/1996.
7. As against this, the learned Counsel for the defendants relied on a decision of the Supreme Court in the case of SANGAPPA KALYANAPPA BANGI vs LAND TRIBUNAL, JAMKHANDI AND OTHERS, ILR 1999 Kar 863 (SC) in support of the view taken by the trial Court in dismissing the suit though, admittedly, the word "Will" is not found in Section 61(1) of the Act.
8. It is true that in the case of Koragappa Gowda (supra), a learned Single Judge of this Court has held that there is no prohibition under Section 61 of the Act for transferring a land, occupancy of which has been granted to a tenant, by Will. The other two decisions relied on by the learned Counsel for the plaintiff have followed the said earlier decision in the case of Koragappa Gowda. However, all the said three decisions of this Court where rendered earlier to the decision of the Supreme Court in the case of Sangappa Bangi (supra) and as such, in none of them, the decision in the case of Sangappa Bangi (supra) could be considered. So, what requires to be seen is, whether the view taken by the Supreme Court in the case of Sangappa Bangi (supra) applies to this case and requires to be followed, or the consistent view taken by this Court in the three decisions relied on for the plaintiff has to be adopted.
9. It is submitted for the plaintiff that the decision in the case of Sangappa Bangi (Supra) is a decision rendered under Section 21 of the Act and not under Section 61 of the Act whereas, the decisions of this Court relied on for him are rendered under Section 61 of the Act and as such, it has no application to the case on hand. On the other hand, it is submitted for the defendants that the said distinction tried to be made out for the plaintiff is of no help to the plaintiff when seen the provision contained in Section 21(1) of the Act with the provision contained in Section 61(1) of the act since there is no much difference and, at any rate, the object behind such prohibition under Section 21(1) and also under Section 61(1) of the Act is to see that a tenanted land should remain with a tenant at least for 15 years even after such a land is granted to him by conferring occupancy rights and as such, it cannot be held that a person, who is registered as occupant under the Act, could make Will with regard to such land, that too, in favour of a stranger.
10. As noted already, in the case of Koragappa Gowda (supra), this Court has specifically held that bequest of land under a Will does not amount to "transfer", and that view has been followed subsequently by two other learned Judges of this Court.
11. But, at this juncture, it may not be out of place to note that in the case of Sangappa Bangi (supra), the Supreme Court has approved a Division Bench decision of this Court in the case of THIMMAKKA vs LAND TRIBUNAL, 1987 (2) KLJ 337, in which, following the decision of the Supreme Court in the case of BHAVARLAL LABHCHAND SHAH vs KANAIYALAL NATHALAL INTAWALA, and a Division bench decision of Bombay High Court in the case of Dr. ANANT TRIMBAK SABNIS vs VASANT PRATAP PANDIT, , it is categorically held that a tenant cannot bequeath his right of occupation by Will. However, decision in the case of Thimmakka (supra) was not considered in the two reported decisions of this Court relied on for plaintiff whereas, it came to be distinguished in the unreported decision of this Court in the case of Lazarus Fernandes (Supra).
12. That apart, Section 15(1) considered by the Bombay High Court was similar to Section 21(1) of the Act considered in the case of Thimmakka (Supra). Further, in the case of Bhavarlal (supra), the Supreme Court has observed as under:-
"12. In Dr. Anant Trimbak Sabnis vs Vasant Pratap Pandit, the High Court of Bombay has in the light of Section 15(1) of the Act taken the view and in our opinion rightly that the words 'to assign or transfer in any other manner his interest therein' in Section 15(1) of the Act had the effect of prohibiting the disposition of the tenancy right by a Will in the absence of a contract to the contrary."
Not only that, thereafter, it has extracted para Nos. 12 to 14 of that judgment and specifically held that:-
"13. The above reasons given by the Bombay High Court in Support of its decision are perfectly justified in the context of the object and the scheme of the Act. The language of the statute also lends itself to the same construction."
13. So, it will be useful to refer the decision in the case of Dr. Anant Sabnis (supra), wherein the words "assign" and "transfer" have been considered as under:-
"7. The words 'assign' and 'transfer' are not defined in the Rent Act. The dictionary meaning of the words should, therefore, prevail unless the context and setting suggest any expansion or modification. In the Murrey's Dictionary, the word 'assign' is indicated to mean 'to transfer or formally to make over to another.' According to Wharton's Law Laxicon, 14th Edition, the word 'assign' denotes `generally to transfer property especially personal estate or set over a right to another'. In its generic sense, thus, the words 'assign' or 'transfer' include every kind of transfer of property from one to the other......."
8. It is true that the word 'transfer' ordinarily is not understood to cover any testamentary disposition. Rather, it is understood to convey transfer inter vivos, i.e., as an act by which a living person gives away property in present or future to one or more other living persons. This is because of its such conception in the Transfer of Property Act itself. Sections 2(d) and 5 of the said Act expressly restrict its connotation excluding testamentary dispositions, successions and other forms of transfer by operation of law. In fact, the Act does not deal with these aspects of transfer, notwithstanding the same involving passing of the property from one to the other. There does not appear to be any reason why such a restricted conception of the word 'transfer' under the Transfer of Property Act should be imported in the Rent Act, in the absence of any indication to the effect in the act itself. Any such legislative intent is ordinarily indicated by incorporating definitions in the T.P. Act, in such enactments. Section 2(21) of B.T. & A.L. Act of 1948 is an illustration in point.
9. Importing of such restricted connotation will not be justified merely because the Rent Act also deals with some aspects of the "Leases" with which the T.P. Act deals. Even if the Rent Act is assumed to be dealing with the Laws of Property in this sense, legislature had to alter the age-old conceptions and notions of the rights and obligations of the landlord and tenants while enacting it, to meet a certain situation. This makes those conceptions and definitions inappropriate and also a misfit under the scheme of the Rent Act. It is true that the bequest becomes effective only after the death of the testator and is liable to be revoked at any time. This by itself however, cannot make it anything but transfer. Even the restricted concept of 'transfer' inter vivos in Section 5 of the T.P.Act contemplated its becoming effective at some future date in a given case. Bequest does result in the passing of the property from the testator to the legatee. It is no doubt different in its nature from the sale, mortgage, lease or gift. It is none-the less, a transfer in its generic sense.
10. In the case of Oriental M.P.W. vs Bhaskar reported in (1959) 61 Bom LR 1045, this Court had occasion to consider whether prohibition against assignment of the Director's office under Section 312 of the Indian Companies Act includes prohibition against disposal of such office under a Will. Answer turned on whether the word 'assignment' in Section 312 includes 'disposal of the office under a Will'. The two learned Judges of the Division Bench differed and the case was referred to the third learned Judge. It was held that the word 'assign' does include such disposition by a Will. It is true, the construction turned mainly on the scheme of the Act and the learned Judges did also note how the word conveys restricted meaning when used in the context of law of property. This case is still an authority to hold that the words 'assign' and 'transfer' in the given context can include testamentary disposition. We have already explained why restricted conception of 'transfer' under the Law of Property can have no relevance here. The observations by S.T. Desai J. at page 1053, saying-".... It has not been disputed and could not be disputed by Mr. Maneksha that the meaning of the expression 'transfer' includes a transfer by an act inter vivos as well as by a testamentary disposition or direction." - are indeed revealing in this context.
11. The underlying object of Section 15 also militates against legislature having intended to import such a restricted concept of the words therein......
12. .........
13. Bequest of tenancy rights in this context stands of the same footing as any other transfer by sub-lease, sale, assignment, gift, volition of the tenant in inducting uncontemplated strangers in the premises and thrusting them on the landlord, being the common element of these dispositions. It makes little difference to the invasion on the landlord's right whether such uncontemplated stranger is so inducted by the tenant for gain or just as a favour - invasion in either case having no nexus with the object underlying these protections. It is difficult to imagine why the legislature could have intended to exclude such bequests from the sweep of the prohibited assignments and transfers under Section 15, when bequest is pregnant with the same evils as other transfers......
14. ........
15. .........
16. ..... The acquisition of any property by the legatee involves broadly three stages, namely:-
(1) the act of making the Will, (2) the death of the testator on which the bequest becomes effective and (3) delivery of possession to the legatee. While volition of the testator figures only at the first stage, the process of law does intervene at the remaining two stages in cases where obtaining of the probate from Court and investing the Executor with powers to administer the estate, is indispensable. It is so indispensable under the Indian Succession act only in Presidency towns of Bombay, Calcutta and Madras and not elsewhere. Right of the legatee even there, none-the-less springs from the first voluntary act of making of the Will, though, it becomes effective and is implemented at the second and third stages. These second and third stages do not make it any the less voluntary, nor such transfer or acquisition, an operation of law. Process of law, if and when intervenes, operates merely so effectuate the Will, as in other cases of disputes, resultant proceedings, decrees and orders........." (underline supplied).
14. The word "tenant" defined under the Act was also considered in the said decision and having found that it does not include a legatee, observed that even that also supports its view. The said interpretation made by Bombay High Court and approved by the Supreme Court in the case of Bhavarlal, certainly supports the stand of the defendants in the present case.
15. Of course, in the case of Devasia (supra), a learned Single Judge of this Court has relied on decision of the Supreme Court in the case of STATE OF WEST BENGAL vs KAILASH CHANDRA KAPOOR, and noted that even the Supreme Court held that normally a transfer is between two living persons during life whereas, Will takes effect after demise of the testator and transfer in that perspective becomes incongruous and as such, though an assignment may be prohibited, but a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended under the prohibition clause of the lease considered in the said case.
16. For this, firstly, it may be noted that decision in the case of Bhavarlal (supra) and also the decision in the case of Anant Sabnis (supra) have been referred to by the Supreme Court in the case of Kailash Chandra Kapur (supra), and the view taken in those decisions and referred to already was neither disapproved nor held not correct. In fact, there cannot be any dispute that in the case of Will, disposition of property takes place posthumously after the death of testator whereas, in the case of sale, gift, exchange, mortgage, lease, there is transfer eo instanti but, the question is, whether the Will comes within the ambit of the word "transfer" or "assignment", or not. Of course, in the case of Koragappa Gowda (supra), learned Single Judge of this Court held that a Will is not a transfer by sale, gift, exchange, mortgage, lease or assignment.
17. Howerver what is pertinent to note is that in the case of Kailash Chandra Kapur (supra), relied on by the learned Single Judge in the case of Devasia (supra), what has been observed is as under:-
".... As far as testamentary succession is concerned, this Court had considered that question in Bhavarlal case. In that case, Section 5(11) of the Bombay Rent Act defines the tenant and Clause (c) defines the "restricted tenancy rights" in favour of the family members of the tenant. In that context, the question arose in that case whether a tenant can bequeath a Will in favour of a stranger? Considering the ratio in Gian Devi case and the object of the Act, this Court had held that the tenant cannot by a Will bequeath leasehold right in favour of strangers and induct the stranger as tenant of the demised premises against the will of the landlord and the landlord is not bound by such a bequest to recognize the legatee as a tenant....." (underline supplied) Further, after considering clause 12 of the grant in question, the Supreme Court has observed as under:
"..... Similarly, Clause (12) deals with the case of lessee dying after executing a Will. Thereunder, there is no such restrictive covenant contained for bequeath in favour of a stranger. The word "person" has not been expressly specified whether it relates to the heirs of the lessee..... In the light of the language used therein, it is difficult to accept the contention of Shri V.R. Reddy, that the word "person" should be construed with reference to the heirs or bequest should be considered to be a transfer. Transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. Though, as indicated earlier, the assignment may be prohibited and the Government intended to be so, a bequest in favour of a stranger by way of testamentary disposition does not appear to be intended, in view of the permissive language used in Clause (12) of the covenants. We find no express prohibition as at present under the terms of the lease."
However, ultimately, the Supreme Court has held as under:
".... If any such transfer is made contrary to the policy, obviously, it would be defeating the public purpose. But it would be open to the Government to regulate by appropriate covenants in the lease deed or appropriate statutory orders as per law or to make a law in this behalf. But so long as that is not done and in the light of the permissive language used in clause (12) of the lease deed, it cannot be said that the bequest in favour of strangers inducting a stranger into the demised premises or the building erected thereon is not governed by the provisions of the regulation or that prior permission should be required in that behalf." (Underline supplied)
18. It may also be not noted that in the case of Kailash Chandra Kapur (supra), the Supreme Court had no occasion to disagree with its earlier decision in the case of Bhavarlal since there was a specific covenant under the grant for bequest and as such, in the facts and circumstances of that case held that Will as not prohibited. However, in the case on hand, it is not so in that, there is no such word, which can be taken to hold that Will in favour of stranger is also permitted under Section 61 of the act. In this connection, the words "transfer" and "assign", as interpreted in the case of Vasant Trimbak Sabnis (supra) and referred to already require to be kept in mind.
19. That apart, in the later decision i.e., in the case of Sangappa Bangi (supra), the Supreme Court has clearly held as under:-
"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 recognition of the right of the legatee there under 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." (underline supplied)
20. In the said decision itself, the Supreme Court has further observed that:-
"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 open 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 determent 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." (underline supplied)
21. In view of the above, there can be no other interpretation except to hold that a tenant cannot will his interest in tenanted property.
22. However, as noted already, the learned Counsel for the plaintiff tried to distinguish the said decision on the ground that said decision was rendered under Section 21 of the Act whereas, in the present case, Section 61 of the Act is involved. So, whether what has been observed and held with reference to Section 21 of the Act applies even to Section 61(1) of the Act or not, requires to be considered.
23. For that purpose, it is necessary to note what is contained in Section 21(1) of the Act:
Section 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 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) ........
(b) .......
(c) .......
(d) ........
(e) .......
24. Though said provision and Section 61(1) do not contain same words, the object/intention behind them is almost same and that is crystal clear. Further, what is contained in Section 21(2) is found in Section 61(3) of the Act. Though the effect of sub-division or assignment is not specifically provided in Section 21 of the Act, that is specifially provided in Section 61(2) of the Act. Thus, when kept in mind the provisions contained in the said two sections, there is no much difference except that one deals with sub-division or sub-letting or assignment earlier to conferring the occupancy rights (on a tenant) whereas, the other deals with transfer or assignment of such land after a tenant is granted occupancy rights and registered as occupant. It may also be noted that though Section 21(1) does not contain the word "transfer" found in Section 61(1) of the Act, still, in view of the word "assignment", it has been held by the Supreme Court in the case of Sangappa Bangi (supra), that will also amounts to an assignment and is prohibited.
25. In fact, in the case of MOHD. ALIAS HODIYA BEARY vs ASST. COMMISSIONER, PUTTUR AND OTHERS, 1993 (3) K.L.J. 331, while considering a deed of power of attorney, a Division Bench of this Court has held that a power of attorney deed can be construed as one assigning the rights attracting Section 61 of the Act. So also, in the case of ABDUL HAMEED AND OTHERS vs STATE OF KARNATAKA AND OTHERS, , a learned Single Judge of this Court has held that an agreement of sale made within the prohibited period of 15 years is also attracted by Section 61 of the Act, though agreement of sale is not mentioned in it. The ratio decidendi in both the said decisions is that "what one cannot do directly (on account of prohibition in law), cannot be done indirectly." For that, it can be added that what one cannot do during his lifetime, can't do after his death. Further, what is prohibited under Section 61(1) of the Act is transfer or assignment of land (registered in favour of a tenant under the Act) for a period of 15 years. It has nothing to do with life or death of tenant in whose favour land is registered. To interpret in any other way will defeat the purpose, for which such prohibition is imposed under said provision of law. However, neither the said aspects of the matter nor any of the said decisions has been considered by the three learned Single Judges in the three judgments relied on for the plaintiff and as such, they are judgments per incuriam.
26. So, when kept in mind the period of 15 years during which transfer or assignment is prohibited under Section 61(1) of the Act besides the object behind said provision of law, it can be said that "will" is also attracted by Section 61(1) of the Act, if it is made within the prohibited period. To hold so, the observations made by the Supreme Court in the case of Sangappa Bangi (supra) and also in the case of Bhavarlal (supra) besides the decision in the case of Dr. Anant Trimbak Sabnis (supra) referred to already lend support.
27. If not held so and a restrictive meaning is given to the words "transfer" and "assignment" found in Section 61(1) of the Act, then a clever tenant or a person, who wants to have the land of a tenant granted with occupancy rights and registered as occupant, can by will or some such other document defeat the object, with which the said provision Section 61(1) has been enacted.
28. Lastly, it may not be out of place to note that in two out of the three decisions relied on for the plaintiff, 'Wll' was not in favour of a stranger whereas, in the present case, the Will is admittedly in favour of a stranger to family. In the third decision (Devasia case), it appears that the Will was in favour of a stranger, but it followed decisions out of which, decision in the case of Dareppa (supra) has been overruled by the Supreme Court in the case of Sangappa Bangi (supra) and the view taken in the case of Koragappa Gowda is against the Division Bench decision in the case of Mohammed alias Hodiya Beary (supra) and Single Judge decision in the case of Abdul Hameed (supra) and also in the case of Sangappa Bangi (supra) besides Bhavarlal (supra) decided by the Supreme Court whereas, the decision in the case of Kailash Chandra Kapur (supra) relied on in the case of Devasia does not support it on facts as, in that case, view taken in the case of Bhavarlal (supra) was not dissented. All these aspects of the matter also cannot be lost sight. So also, the words "transfer" and "assign" as interpreted in the case of Dr. Anant Sabnis (supra), and approved by the Supreme Court, and not as interpreted by this Court in the case of Koragappa Gowda (supra) followed by other two decisions of this Court, as that will be in consonance with the Division Bench decision in the case of Mohammed (supra) and Thimmakka (supra) and approved by the Supreme Court besides decision of learned Single Judge in the case of Abdul Hameed (supra).
29. Hence, the Will made in favour of plaintiff within the prohibited period of 15 years from the date of grant of occupancy rights and invalid in view of Section 61(3) of the Act and as such, no infirmity can be found in the impugned judgment and decree passed by the Trial Court in negativing the claim of plaintiff based on such a Will. Accordingly, the point raised for consideration is answered in negative. No other point has been raised nor canvassed for consideration.
In the result, the appeal is dismissed.