Karnataka High Court
M Neelammanni vs The Deputy Commissioner on 9 March, 2020
Author: B.Veerappa
Bench: B. Veerappa
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2020
BEFORE
THE HON'BLE MR. JUSTICE B. VEERAPPA
WRIT PETITION No.29190/2011(KLR-RR/SUR)
BETWEEN:
1. M. NEELAMMANNI,
W/O LATE D. BASAVANNA
AGED ABOUT 58 YEARS,
OCC: HOUSEWIFE
2. B. NAGABSAVANNA,
S/O LATE D. BASAVANNA,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURIST
3. DEVAMMANNI
D/O LATE D. BASAVANNA
AGED ABOUT 36 YEARS,
OCC: HOUSEWIFE
ALL ARE RESIDENTS OF
RAMASAMUDRA VILLAGE,
CHAMARAJNAGAR TOWN,
CHAMARAJNAGAR DISTRICT.
...PETITIONERS
(BY SRI R. C. NAGARAJ, ADVOCATE)
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AND:
1. THE DEPUTY COMMISSIONER
CHAMARAJANAGAR DISTRICT
CHAMARAJANAGAR.
2. THE ASSISTANT COMMISSIONER
KOLLEGALA SUB DIVISION,
KOLLEGALA,
CHAMARAJANAGAR DISTRICT.
3. THE TAHSILDAR,
CHAMARAJANAGAR TALUK,
CHAMARAJANAGAR DISTRICT.
4. HEMALATHA
D/O RANGAPPA,
W/O RAJAGOPAL,
MAJOR, OCC: HOUSEWIFE,
R/O RAMASAMUDRA,
CHAMARAJANAGAR,
CHAMARAJANAGAR DISTRICT.
...RESPONDENTS
(BY SMT. M.C. NAGASHREE, AGA FOR R1 TO R3;
SRI BASAVANNA K.M., ADVOCATE FOR
SRI M.V. HIREMATH, ADVOCATE FOR R4)
****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
ORDER DATED 18.07.2011 PASSED BY THE 1ST RESPONDENT
DEPUTY COMMISSIONER, CHAMARAJANAGAR DISTRICT, IN R.A.
No.44/2008-09 AT ANNEXURE-A ETC.
THIS WRIT PETITION COMING ON FOR HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-
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ORDER
The petitioners who are the wife and children of late Sri D. Basavanna are before this Court for a writ of certiorari to quash the order dated 18.7.2011 passed by the Deputy Commissioner in R.A. No.44/2008-09 as per Annexure-A as well as the order dated 30.1.2009 passed by the 2nd respondent - Assistant Commissioner in R.A. No.182/2007-08 as per Annexure-B and also to quash the order dated 23.10.2007 passed by the 3rd respondent - Tahasildar in RRT No.224/05/06 as per Annexure-C.
2. It is the case of the petitioners that the land bearing Sy.No.117/2 measuring 1 acre 19 guntas and the land bearing Sy.No.84 measuring 2 acres 11 ½ guntas situated at Ramasamudra village, Kasaba Hobli, Chamarajanagar taluk, Chamarajanagar district ( hereinafter referred to as 'scheduled properties') belong 4 to the husband of the 1st petitioner and father of petitioner Nos.2 and 3 i.e., deceased Basavanna. Though the 4th respondent is noway concerned or related to the family of the petitioners and she is utter stranger to the deceased Basavanna, she filed an application before the Tahasildar for change of khatha to her name in respect of the schedule properties on the basis of the registered Will dated 15.6.2004 (Annexure-F) said to have been executed in her favour by the deceased Basavanna, the husband of the 1st petitioner and father of petitioner Nos.2 and 3. In response to the notice issued by the Tahasildar, the petitioners filed objections and disputed the very execution of the Will dated 15.6.2004 by the deceased Basavanna in favour of the 4th respondent and contended that the petitioners are the only legal heirs of the deceased Basavanna and the 4th respondent is noway concerned or related to the family of the deceased Basavana and the Will is created. The Tahasildar without considering the objections filed by the 5 petitioners, proceeded to pass the order dated 23.10.2007 directing to mutate the name of the 4th respondent in the khatha of the schedule properties, on the basis of the Will erroneously. The 2nd respondent - Assistant Commissioner proceeded to hold that the present petitioners have not produced any materials to show that the schedule properties are their ancestral properties and dismissed the appeal confirming the order passed by the Tahasildar. The same was reaffirmed by the Deputy Commissioner in the Revision Petition. Hence, the present writ petition is filed for the relief sought for.
3. I have heard the learned counsel for the parties to the lis.
4. Sri R.C. Nagaraj, learned counsel for the petitioners contended with vehemence that the entry made by the Tahasildar on the basis of the alleged disputed Will in 6 favour of the 4th respondent, which is confirmed by the Assistant Commissioner and reaffirmed by the Deputy Commissioner, are all erroneous and contrary to the material on record and cannot be sustained. He further contended that the alleged Will relied upon by the 4th respondent is not the source of title as contemplated under the provisions of Section 128 of the Karnataka Land Revenue Act, 1964 ('the Act' for short). The Tahasildar ought not to have mutated the name of the 4th respondent in khatha of the scheduled properties based on the alleged Will as the same was disputed by the present petitioners by filing objections. He would further contend that unfortunately the Assistant Commissioner and the Deputy Commissioner proceeded to dismiss the appeal and Revision respectively confirming the entry made in favour of the 4th respondent on the basis of the disputed Will alleged to have been executed by the deceased Basavanna, the husband of the 1st petitioner and father of the petitioner 7 Nos.2 and 3 and the same cannot be sustained. Therefore, he sought to allow the writ petition.
5. In support of his contentions, learned counsel for the petitioners relied upon the dictum of the Full Bench of this Court in the case of C.N. Nagendra Singh v. Special Deputy Commissioner, Bangalore and others reported in 2002 AIR - Kant.H.C.R. 1894 (paragraphs 7 to 10).
6. Per contra, Sri Basavanna K.M. , learned counsel for the 4th respondent sought to justify the impugned orders passed by the Tahasidlar, Assistant Commissioner and the Deputy Commissioner. He would contend that the Tahasildar by the order dated 23.10.2007 rightly directed to mutate the name of the 4th respondent in the khatha of the schedule properties and the same is rightly confirmed by the Assistant Commissioner in the Appeal and reaffirmed by the Deputy Commissioner in the Revision. He contended 8 that the 4th respondent got right, title and interest in respect of the schedule properties under the registered Will executed by the deceased Basavanna. He further contended that the petitioners are claiming that they are the legal representatives of the deceased Basavanna and they are disputing the registered Will executed by the deceased Basavanna and in that case, it is for them to approach the Civil Court for necessary reliefs. Therefore, he sought to dismiss the writ petition.
7. Smt. M.C. Nagashree, learned AGA sought to justify the impugned orders passed by the Tahasildar, Assistant Commissioner and the Deputy Commissioner.
8. Having heard the learned counsel for the parties, it is the case of the petitioners that they are the wife and children of the deceased Basavanna and they are the only legal representatives of the deceased Basavanna and the 9 schedule properties belong to the joint family. The 4th respondent claiming the schedule properties on the basis of the registered Will executed by the deceased Basavanna. Though the present petitioners disputed the alleged Will by filing objections, the Tahasildar proceeded to pass the impugned order to mutate the name of the 4th respondent in the khatha of the schedule properties based on the alleged registered Will. The same is confirmed by the Assistant Commissioner in the appeal and reaffirmed by the Deputy Commissioner in Revision Petition.
9. At this juncture, it is useful to refer the provisions of Section 128 of the Act, which reads as under:
"128. Acquisitions of rights to be reported.--(1) Any person acquiring by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent or revenue thereof, shall report orally or in writing his acquisition of such right to the 10 prescribed officer of the village within three months from the date of such acquisition, and the said officer shall at once give a written acknowledgment of the receipt of the report to the person making it:
Provided that where the person acquiring the right is a minor or otherwise disqualified, his guardian or other person having charge of his property shall make the report to the prescribed officer: Provided further that any person acquiring a right by virtue of a registered document shall be exempted from the obligation to report to the prescribed officer:
Provided also that any person reporting under this sub-section the acquisition by him of a right in partition in respect of the land shall annex with the report a sketch showing the metes and bounds and other prescribed particulars of such land and such person shall get the sketch prepared by a licensed surveyor.
Explanation I.--The rights mentioned above include a mortgage without possession but do not include an easement or a charge not amounting to a mortgage of the kind specified in section 100 of the Transfer of Property Act, 1882 (Central Act No. 4 of 1882). Explanation II.--A person in whose favour a mortgage is discharged or extinguished or a lease 11 determined acquires a right within the meaning of this section.
(2) Notwithstanding anything contained in sub-
section (1), the State Government may, by notification, appoint any Revenue Officer to whom a report under sub-section (1) may be made, in which case such officer shall give a written acknowledgment of the receipt of such report to the person making it, and forward the report to the prescribed officer of the village concerned. (3) If any person makes a report under sub-section (1) or sub-section (2),-
(a) after the period of three months but within the period of one year from the date of acquisition of the right, the report shall be received on payment of a penalty of two rupees;
(b) after a period of one year from the date of such acquisition, the report shall be received on payment of a penalty of not less than two rupees but not exceeding ten rupees, as may be ordered,--
(i) by the Tahsildar, in case the report is made under sub-section (1) to the prescribed officer, or
(ii) by the Revenue Officer, in case the report is made to such officer under sub-section (2). (4) No document by virtue of which any person acquires a right in any land as holder, occupant, 12 owner, mortgagee, landlord or tenant or assignee of the rent or revenue thereunder, shall be registered under the Indian Registration Act, 1908 (Central Act 12 of 1908), unless the person liable to pay the registration fee also pays to the registering authority such fees as may be prescribed for making the necessary entries in the record of rights and registers referred to in section 129; and on the registration of such a document, the registering authority shall make a report of the acquisition of the right to the prescribed officer."
10. The Full Bench of this Court in the case of C.N. Nagendra Singh v. Special Deputy Commissioner, Bangalore and others reported in 2002 AIR - Kant.H.C.R. 1894 while considering the provisions of Section 128 of the Act with regard to the Will, held at paragraphs 7,8,9 and 10 as under:
" 7. Section 127 of the Act deals with preparation of record of rights in the prescribed manner. Section 128 of the Act deals with report of acquisition of 13 rights and Section 129 deals with registration of mutations and register of disputed cases. If any person acquires by succession, survivorship, inheritance, partition, purchase, mortgage, gift, lease or otherwise, any right as holder, occupant, owner, mortgagee, landlord or tenant of the land or assignee of the rent of revenue thereof, he shall report orally or in writing his acquisition of such right to the prescribed officer who in turn shall enter in the register of mutations every such report made to him. If any objections are received to any such entry the prescribed officer shall also enter the particulars of the objections in a register of disputed cases and thereafter he shall enquire into the said objections and dispose of the same in such manner as may be prescribed. A bare perusal of Section 128 makes it clear that the name cannot be entered in the record of rights merely on the basis of Will. The above definition reveals that there is no mention of Will. So according to petitioner's Counsel even putting the Will before the Revenue Court, one has to get a declaration from a competent Court, that is letters of probate and thereafter he can get his name entered in the mutation register. That apart, even according to petitioner's Counsel the mutation entry will not confer any right. Then there is no purpose of 14 entering the petitioner's name. The argument cannot be accepted that the Revenue Officer can consider the Will, as he is not competent to decide the right under the Will. As per Section 135 a formal or a summary inquiry under this Act shall be judicial proceedings and not otherwise.
The cardinal principle of law is that if the language is simple and unambiguous, it is to be read with the clear intention of the legislation. Otherwise also, any addition/subtraction of a word is not permissible. Admittedly, the word 'Will' has deliberately not been used by the legislation and we cannot give a different meaning by adding the word 'Will'.
In view of the above discussion, mutation entry cannot be effected on the basis of the Will as suggested and argued.
8. Rule 43 of the Karnataka Land Revenue Rules deals with settlement of disputes. It states every case entered in the register of disputed cases shall be enquired into and decided by the Sheristedar or by any officer of the Revenue Department equal or superior in rank to him on an appointed day of which due notice shall be given to the parties concerned. It categorically states the proceedings of the enquiry shall be oral and held in the public and there shall be 15 no recording of statements and depositions. The only record shall be the decision of the officer holding the enquiry, in the register itself, which shall contain a brief summary of the facts elicited during the enquiry and the grounds for the decision. Of course an appeal is provided against such decision to the Assistant Commissioner in charge of the Sub-Division whose decision shall be final. Therefore, it becomes clear every Revenue Officer who is authorised to hold an enquiry in respect of disputed cases is a Revenue Court. The very fact he is prohibited from recording the statements and depositions of the parties makes it clear that no substantial rights of the parties in respect of the disputed property can be gone into by such Revenue Court. If title or right set up by one party to an immovable property is disputed by the other party such title to the property cannot be enquired into by the Revenue Courts much less any decision be rendered for any purpose whatsoever. In the first place the Revenue Court constituted under the Act can only go into questions of assessment, recovery of land revenue and land revenue administration and it has no jurisdiction to go into the question of title in respect of an immovable property which exclusively vests in the Civil Court.16
9. Considering Rule 43, when a person claims title to a property under a Will for the purpose of getting a mutation entry in the revenue records before any such entry is made the Revenue Court should prima facie be satisfied that the said document is genuine and valid even in the absence of any dispute as the said Will comes in the way of natural succession. By virtue of Section 128 when the owner of the land dies, the title to the said property passes on to the legal heir by succession or survivorship or inheritance and the property vests with such a legal heir without there being any document and purely based on the relationship of the deceased with the legal heir. A Will can come into operation only after the death of the executant. If a Will is set up to deprive, a legal heir who had acquired title to the property either by succession, survivorship or inheritance, the person claiming under the Will has to show better title. If the Will is disputed strict proof of Will as required under Sections 63 and 64 of the Succession Act is to be provided. When the Revenue Court is prevented from recording the statements of the parties and the depositions, the question of establishing the genuineness of the Will for any purpose whatsoever before the Revenue Court in an enquiry would not arise. Under these circumstances, 17 the Revenue Courts have no jurisdiction to go into the genuineness or validity of the Will or to the question of title in respect of the land in dispute. The decision of the Revenue Court has to be necessarily based on the undisputed facts. The Revenue Court cannot go into the disputed questions of relationship, status of the parties' title to the property or genuineness or otherwise of a document or challenge to the documents on the ground of fraud, undue influence, misrepresentation or mistake. As such, the petitioner cannot take advantage of Rule 43 in the case of a Will.
10. From the foregoing discussion it is clear that the Revenue Officer has no jurisdiction to enquire into and decide the dispute regarding the genuineness of a Will even for the limited purpose of making an entry in the mutation register as it falls exclusively within the jurisdiction of the Civil Court and we answer accordingly."
11. In view of the provisions of Section 128 of the Act and the dictum of the Full Bench of this Court stated supra, it makes it clear that the name of the 4th respondent cannot be mutated in the khatha of the schedule properties on the 18 basis of the alleged Will said to have been executed by the deceased Basavanna, who is the husband of the 1st petitioner and father of the petitioner Nos.2 and 3, that too when the said Will is disputed by the petitioners. The 4th respondent who is claiming the right under the Will has to approach the competent Civil Court to establish his case by adducing oral and documentary evidence. In view of the above, the impugned order passed by the Tahasildar directing to mutate the name of the 4th respondent in the khatha of the schedule properties on the basis of the Will, which is not a source of title under Section 128 of the Act, cannot be sustained. Unfortunately, the Assistant Commissioner confirmed the order passed by the Tahasildar in the appeal and the Deputy Commissioner reaffirmed the same in the Revision. Therefore, the impugned orders passed by the Assistant Commissioner in the appeal and the Deputy Commissioner in the Revision also cannot be sustained.
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12. For the reasons stated above, the writ petition is allowed. The impugned orders passed by the Tahasildar, Assistant Commissioner and the Deputy Commissioner as per Annexure-C dated 23.10.2007, Annexure-B dated 30.1.2009 and Annexure-A dated 18.7.2011 respectively are hereby quashed. However, liberty is reserved to the 4th respondent to approach the competent Civil Court to establish her rights based on the 'Will' and if any suit is filed, the decree to be passed by the Civil Court based on the Will, is binding on both the parties as well as the revenue authorities.
Ordered accordingly.
Sd/-
JUDGE Gss/-