Karnataka High Court
Mrs. Jahnavi vs Mr. K. M. Nirmal Kumar on 2 August, 2023
Author: S.G.Pandit
Bench: S.G.Pandit
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NC: 2023:KHC:26888
WP No. 3303 of 2023
C/W WP No. 3368 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MR JUSTICE S.G.PANDIT
WRIT PETITION NO. 3303 OF 2023 (GM-CPC)
C/W
WRIT PETITION NO. 3368 OF 2023 (GM-CPC)
IN WP NO. 3303/2023
BETWEEN:
1. MRS. CHITRA M
AGED ABOUT 55 YEARS
D/O MRS. SHAMBHAVI
4-46, "SAI KRIPA"
MAROLI VILLAGE, KULSHEKAR POST
MANGALORE - 575 005
2. MS. MEERA M.
AGED ABOUT 53 YEARS
D/O MRS. SHAMBHAVI,
Digitally signed 4-46, "SAI KRIPA"
by NANDINI B
G MAROLI VILLAGE, KULSHEKAR POST,
Location: HIGH
COURT OF MANGALORE - 575 005.
KARNATAKA
...PETITIONERS
(BY DR. S. ARUMUGHAM, ADVOCATE)
AND:
1. MR. K. M. MANOHAR KUMAR
AGED ABOUT 73 YEARS
S/O LATE MR. JARAPPA BHANDARY
AND LATE MRS. LEELA J BHANDARY
NO.399, "MANDARA"
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NC: 2023:KHC:26888
WP No. 3303 of 2023
C/W WP No. 3368 of 2023
ARYA SAMAJA ROAD
KODIALBAIL POST
MANGALORE - 575 003
2. MR. K. M. NIRMAL KUMAR
AGED ABOUT 78 YEARS
S/O LATE MR. K. J. BHANDARY
AND LATE MRS. LEELA J BHANDARY
RESIDING AT "SWATHI"
MAIN ROAD, ULLAL VILLAGE AND POST
MANGALORE - 575 020
...RESPONDENTS
(BY SRI M.SUDHAKAR PAI, ADVOCATE FOR R1;
SRI. G.RAVISHANKAR SHASTRY, ADVOCATE FOR R2)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 03.02.2023 ON I.A. II IN EX.CASE NO.79/2021
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, MANGALORE AT ANNXEXURE-G ETC.,
IN WP NO. 3368/2023
BETWEEN:
1. MRS. JAHNAVI
AGED ABOUT 85 YEARS
W/O LATE MR. VENKANNA
R/O D. NO. 4-46-1
MAROLI, KADRI VILLAGE
KULSHEKAR POST
MANGALORE - 575 005
2. MRS. JAYASHREE
AGED ABOUT 55 YEARS
D/O LATE MR. VENKANNA
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NC: 2023:KHC:26888
WP No. 3303 of 2023
C/W WP No. 3368 of 2023
R/O D. NO.4-46
MAROLI, KADRI VILLAGE
KULSHEKAR POST
MANGALORE - 575 005
...PETITIONERS
(BY DR. S. ARUMUGHAM, ADVOCATE)
AND:
1. MR. K. M. NIRMAL KUMAR
AGED ABOUT 78 YEARS
S/O LATE MR. K. J. BHANDARY
AND LATE MRS. LEELA J BHANDARY
RESIDING AT "SWATHI"
MAIN ROAD, ULLAL VILLAGE AND POST
MANGALORE - 575 020
2. MR. K. M. MANOHAR KUMAR
AGED ABOUT 73 YEARS
S/O LATE MR. JARAPPA BHANDARY
AND LATE MRS. LEELA J BHANDARY
NO.399, "MANDARA"
ARYA SAMAJA ROAD
KODIALBAIL POST
MANGALORE - 575 003
...RESPONDENTS
(BY SRI. G.RAVISHANKAR SHASTRY G, ADVOCATE FOR R1;
SRI. M.SUDHAKAR PAI, ADVOCATE FOR R2)
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER DATED 03.02.2023 ON I.A. II IN EX.CASE NO.82/2021
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, MANGALORE AT ANNXURE-G ETC.
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NC: 2023:KHC:26888
WP No. 3303 of 2023
C/W WP No. 3368 of 2023
THESE PETITIONS, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioners-obstructers in Execution Petition Nos.79/2021 and 82/2021 on the file of Principal Senior Civil Judge and CJM, Mangaluru, are before this Court under Article 227 of the Constitution of India, questioning the correctness and legality of order dated 03.02.2023 in both the writ petitions.
2. Heard learned counsel Dr.S.Arumugham for petitioners and learned counsel Sri M.Sudhakar Pai and Sri.Ravishankar Shastry for respondents in both the writ petitions.
3. Perused the writ petitions papers.
4. Respondents 1 and 2 filed O.S.No.213/2019 for partition among themselves. The said suit was decreed on 23.07.2021 and the same was put into execution in two Execution Petitions No.79/2021 and 82/2021 by respondents 1 and 2. In the said execution petitions, petitioners herein filed obstruction petition under Order XXI Rule 97 of CPC, contending that the mother of respondents herein one -5- NC: 2023:KHC:26888 WP No. 3303 of 2023 C/W WP No. 3368 of 2023 Smt.Leela J. Bhandary acquired property under grant of occupancy right dated 06.01.1981 by the Land Tribunal. It is the main contention of the petitioners that the granted land under the Land Reforms Act, could not have been bequeathed by Leela J. Bhandary in favour of respondents herein under Will dated 21.11.1989 and as the transfer is contrary to Section 61 of Karnataka Land Reforms Act 1961 (for short, 'the Act'), the decree itself is nullity and said decree could not have been put into execution. It is his submission that the mother of respondents-Leela J. Bhandary had initially executed Will dated 08.02.1986 in favour of late Sri Venkanna Bhandary and subsequently that Will was revoked and Will dated 21.11.1989 was executed bequeathing the property in favour of respondents 1 and 2 i.e. children of Leela J. Bhandary.
5. Learned counsel would submit that the property acquired through occupancy right under order dated 06.01.1981 could not have been transferred by way of Will and as such, Section 61 of the Act is attracted and the property vest with the State Government. Learned counsel would submit that the Executing Court failed to appreciate the contention of the petitioners and dismissed the obstruction application. -6-
NC: 2023:KHC:26888 WP No. 3303 of 2023 C/W WP No. 3368 of 2023 Learned counsel would submit that in terms of Section 61 of 1961 Act, no transfer is permissible either by way of sale, gift, exchange, mortgage, lease or assignment during non-alienation period. Thus, the transfer of property by way of Will is contrary to Section 61 of the Act. Thus, he prays for allowing the writ petitions and to dismiss the Execution Petitions, holding that the decree put into execution is null and void.
6. Per contra, learned counsel Sri M.Sudhakar Pai and Ravishankar Shastry G., for respondents would support the order passed by the Executing Court and they would submit that respondents are children of Smt.Leela J. Bhandary and even in the absence of Will, the property would devolve upon them. They would further submit that there is no bar to execute Will in favour of the persons who are entitled to the property on the death of Smt.Leela J. Bhandary. In that regard, they place reliance on the judgment of the Hon'ble Apex Court in the case of Jayamma vs. Maria Bai reported in (2004) 7 SCC 459 and also the judgment of Co-ordinate Bench of this Court in the case of Joseph Albert Lewis vs. Michael Roque Lewis and Others reported in ILR 2007 KAR 4174. Thus, they pray for dismissal of the writ petitions. -7-
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7. On hearing the learned counsel for the parties and on perusal of the writ petitions papers, only point that would arise for consideration is whether impugned order requires interference by this Court under Article 227 of the Constitution of India.
8. My answer to the above point is in the negative for the following reasons:
9. The relationship between the parties i.e. petitioners and respondents is not in dispute. Petitioners are children of sister of Leela J. Bhandary. Respondents herein are children of Leela J. Bhandary in whose favour the Land Tribunal granted occupancy right under order dated 06.01.1981 to the property in question. The occupancy right is granted in favour of Leela J. Bhandary and not to any other person. Initially, the said Leela J. Bhandary executed Will dated 08.02.1986 bequeathing property in favour of the mother of petitioners herein. The said Will was revoked and a Will dated 21.11.1989 was executed, bequeathing the property in favour of respondents 1 and 2 who are the children of Leela J. Bhandary. By virtue of revocation -8- NC: 2023:KHC:26888 WP No. 3303 of 2023 C/W WP No. 3368 of 2023 and execution of fresh Will, the earlier Will dated 08.02.1986 becomes invalid and could not be enforced.
10. The main contention of learned counsel for the petitioners is that the grantee i.e. Leela J. Bhandary could not have transferred the property by way of Will in favour of respondents 1 and 2. The said contention has no merit. The Hon'ble Apex Court in Jayamma's case (supra) has observed that any transfer of property in contravention of Section 61 of 1961 Act would vest in the State Government. But it has made clear by stating that the intention is to see that strangers, to the family of the tenant to come upon the land, is not allowed. The tenor of Section 61 of the Act is that except partition amongst the co-sharers, no transfer of the property, in any manner, is permissible. The relevant paragraphs 19 and 20 would read as follows:
"19. Sub-section (3) of Section 61 lays down that any transfer of land in contravention of sub-section (1) shall be invalid whereupon the same shall vest in the State Government free from all encumbrances. The legislative intent that the land should not be allowed to go into the hands of a stranger to the family is, therefore, manifest. Whereas in terms of Section 21, strangers to the family of the tenant to come upon the land is not -9- NC: 2023:KHC:26888 WP No. 3303 of 2023 C/W WP No. 3368 of 2023 allowed, the tenor of Section 61 is that except partition amongst the co-sharers, no transfer of the property, in any manner, is permissible.
20. When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that the same is invalid, and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act".
11. It is also held by the Hon'ble Apex Court in Jayamma's case (supra) "assignment" would also include a Will. But Will, within the family members, can not be held against the parties. In the instant case, the occupancy right granted in respect of land in question is transferred by way of Will to the children. Therefore, the tenor of Section 61 of 1961 Act would not attract to the facts of the present case.
12. Moreover, the petitioners have not challenged either the grant of occupancy right to the mother of respondents i.e. Leela J. Bhandary and they have also not challenged the decree of partition among respondents in OS.No.213/2019, moreover the property has been partitioned among the family members. The contention of the petitioners that in terms of Section 61, the land vest with the Government, cannot be accepted since
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NC: 2023:KHC:26888 WP No. 3303 of 2023 C/W WP No. 3368 of 2023 the transfer under Will to the children of the grantee. No ground is made out to interfere with the impugned order.
Accordingly, for the reasons discussed as above, writ petitions stand dismissed.
Sd/-
JUDGE MKM:
CT: BHK