Karnataka High Court
Smt. Shankarawwa, W/O Kotrappa And ... vs The Land Tribunal, By Its Secretary, The ... on 28 August, 2006
Equivalent citations: AIR 2007 (NOC) 122 (KAR.), 2006 (6) AIR KANT HCR 416, 2007 A I H C 205, (2007) 2 KANT LJ 181
Author: Ram Mohan Reddy
Bench: Ram Mohan Reddy
ORDER Ram Mohan Reddy, J.
1. One Basappa Wanageri died leaving behind his widow Parvathavva, two sons viz., Kotrappa and Virupanna together constituting a Hindu Undivided Family. Kotrappa had two wives of which 1st wife Chadramma, since deceased, had a son Basavantappa, who died, leaving behind his widow Nootanamma, the 3rd respondent herein. The 2nd wife Shankarawwa, the 1st petitioner, had a son by name Manjunath, the 2nd petitioner, given in adoption to Virupanna. Kotrappa filed form No. 11 under Section 66 of the Karnataka Land Reforms Act, 1961, for short the Act, declaring 24 acres 36 guntas of 'B' class land as the total holding of the HUP. The Land Tribunal, by order dated 9.10.1981 Annexure B, as an assumption that what was declared was 26 acres 36 guntas of 'A' class land, equivalent to 145.10 acres of 'D' class land, determined 37 acres 10 guntas of 'D' class land to be excess of the ceiling limit. This order when called in question in W.P.40070/1993, was quashed by order dated 10th October, 2001 Annexure C and the proceeding remitted for fresh disposal in accordance with law, after extending an opportunity to the parties to adduce evidence, if any. The Land Tribunal, on remand, recorded the statements of the 2nd petitioner, the adopted son of Virupanna and that of the 3rd respondent, Nootanamma. The Tribunal without an enquiry afresh into the actual extent of the holding and its classification, redeployed the determination made in its earlier order which was quashed i.e. the total holding of the joint family as 26 acres 36 guntas of 'A' class land, on conversion equivalent to 145.10 acres of 'D' class land. Applying a notional partition, apportioned the properties into two shares of 72 acres 25 guntas, each, of which one share assigned to Koturappa, his mother Parvathavva and son Basavanthappa, together was held to be within the ceiling limit, while the other share assigned to Virupanna, after deducting 54 acres, being the ceiling limit for an individual, determined 18 acres 25 guntas as excess, by order dated 29.5.2002 Annexure 'G'. Hence this writ petition.
2. Ceiling on land is provided for in Chapter IV of the Act, the relevant provisions are sub Sections (2) and (4) of Section 63, which read thus:
(2) The ceiling area for a person who is not a member of a family or who has no family or for a family shall be ten unite;
Provided that in the case of a family consisting of more than five members the ceiling area shall be ten units plus an additional extent of two units for every member in excess of five, so however that the ceiling area shall not exceed twenty units in the aggregate.
(4) In calculating the extent of land held by a person who is not a member of a family but is a member of a joint family and also in calculating, the extent of land held by a member of a family who is also a member of a joint family, the share of such member in the lands held by a joint family shall be taken into account and aggregated with the lands, if any, held by him separately and for this purpose such share shall be deemed to be the extent of land which would be allotted to such person had there been a partition of the lands held by the joint family.
3. The term 'Joint Family' is defined in sub Section (17) of Section 2A of the Act to mean persons governed by Hindu Law an undivided family and in case of other persons, a group or unit the member of which or by custom, joint in estate or residence. The term 'family' is defined in sub Section (12) of Section 2A, thus:
12. "Family" means.-
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and
(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;
4. The parties admittedly being Hindus, constituting a joint undivided family, succession is governed by the Hindu Succession Act, 1956, for short Succession Act, For the purpose of this case, it is sufficient to notice the distribution of the properties among heirs in class 1 of the schedule as set out in Section 10 of the Act, which reads thus:
10. Distribution of Property among heirs in Class I of the Schedule.- The property of an intestate shall be divided among the heirs in Class I of the Schedule in accordance with the following rules:
Rule. 1.- The intestate's widow, or if there axe more widows than one, all the widows together, shall take one share.
Rule.2.- The surviving sons and daughters and the mother of the intestate shall each take one share, Rule.3.- The heirs in the branch of each pre-deceased son or each pre-deceased daughter of the intestate shall take between them one share.
Rule.4.- The distribution of the share referred to in Rule 3-
(i) among the heirs in the branch of the predeceased son shall be so made that his widow (or widows together) and the surviving sons and daughters get equal portions; and the branch of his predeceased sons gets the same portion;
(ii) among the heirs in the branch of the predeceased daughter shall be so made that the surviving sons and daughters get equal portions.
5. Section 66 provides for filing of declaration of holding in the prescribed form No. 11, the determination of which is by converting all categories of lands in to any one category in accordance with the formula set out therein. Rule 24 of the Karnataka Land Reforms Rules, 1974, for short Rules, prescribes an enquiry by the Tribunal into the correctness of the particulars furnished in the declaration.
6. Having regard to the provisions of Section 63 and Rule 24 of the Rules, on the filing of a declaration under Section 66 in Form No. 11, the Tahsildar, by himself or through any officer not below the rank of Revenue Inspector is required to verify the correctness of the particulars mentioned in the declaration with reference to the entries in the Record of Rights and local enquiry and inspection as may be necessary. The Tribunal, in the enquiry into the declaration is required to extend a reasonable opportunity of hearing to the declarant to adduce evidence in support of the declaration, the categorization and the conversion of the various categories of land into one category or its equivalent into D class lands.
7. In the admitted facts of this case, the propositus Basappa Wonageri having died intestate, leaving behind, his widow Parvathavva, and two sons Koturappa and Virupanna, constituting a Hindu Undivided Family, the succession to the properties governed by Section 10 of the Succession Act, the widow, and two sons, being heirs in class 1 of the schedule, take simultaneously, to an extent of one share each. Thus, at a notional partition reckoning the relevant date as 24.01.1971 as set out in sub Section (4) of Section 66 of the Act, for the purpose of determining the ceiling area under Section 63, the total holding of 26 acres, 36 guntas of 'B' class land was required to be converted to its equivalent in D class land, and appointed into three shares, entitling the widow Parvathawa and her two sons to a share each. In view of the definition of the term 'family' for the purpose of calculating the ceiling area of land under Sub-section (4) of Section 63 of the Act, the widow being an individual having no spouse living, is entitled to a separate share allotted to her, had there being a partition held by the joint femily. Koturappa's two sons by name Basavanthappa, Manjunath and his wife the 1st petitioner being members of his family, were also entitled to additional units of land as set out in the proviso to sub Section (2) of the Act supra.
8. An examination of the order impugned discloses that the Tribunal reckoned 26 acres 36 guntas as A class, instead of 'B' class land and converted its equivalent into 145 acres 10 guntas of D class land, by referring to its earlier order which was quashed. The order makes no reference to the report of the Tahsildar over the enquiry into the correctness of the particulars of the declaration of 26 acres 36 guntas of 'B' class land, was correct, in the absence of the said report the Tribunal appears to have assumed that what was declared was 26 acres 36 guntas of 'A' class land and in terms of Section 63 of the Act converted its equivalent into 145 acres 10 guntas of D class lands. The order impugned suffers from the vice of perversity of approach occasioning serious prejudice to the petitioners, and miscarriage of justice.
9. The Tribunal, next committed a grave error in apportioning the properties of the deceased Basappa Wonageri, into two shares, at a notional partition, by considering the widow Parvathawa as a member of the family of Koturappa. Parvathawa, as noted supra, in her own right and standing and by operation of Section 10 of the Succession Act, was entitled to a share in the properties left behind by her husband. So also in view of the definition of the term 'family' under the Act Parvathawwa was entitled to a share in the matter of determining the holding of land by a joint family for the purpose of ceiling limit. The declarant indisputably had two sons Basavanthappa and Manjunath, of whom Manjunath's adoption and his having attained majority, on the relevant date, not established, nevertheless, in view of the proviso to sub Section (2) of Section 63 of the Act the family of Koturappa was entitled to additional units of land while determining the ceiling limit
10. Looked from any angle, the order of the Land Tribunal bristles with infirmities, having taken into consideration irrelevant material eschewing relevant material. On the material available on record it is established that the findings and conclusions arrived at arc irrational, unreasonable and perverse, substantiated to be based on no evidence and violated on account of perversity of approach calling for a different conclusion and interfere in the verdict.
In the result, the writ petition is allowed. The order dated 29.5.2002 Annexure G of the Land Tribunal is quashed and the proceeding remitted for consideration afresh, of the declaration in form No. 11, opportunity of hearing to the petitioners and 3rd respondent, and pass orders thereon in the light of the observations made supra, in any event, within a period of six months from the date of receipt of a certified copy of this order.