Karnataka High Court
Poovappa Moily vs Kutty Moily on 18 October, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
RSA NO.2312 OF 2006 (PAR)
BETWEEN:
POOVAPPA MOILY,
S/O RAMA MOILY,
AGED ABOUT 47 YEARS
RESIDING AT KADAMBU HOUSE,
VITTAL PADNOOR VILLAGE,
POST-KODNGAI,
BANTWAL TALUK
PIN CODE: 574 211. ... APPELLANT
(SRI A KESHAVA BHAT, ADVOCATE)
AND:
1. KUTTY MOILY
S/O RAMA MOILY
AGED ABOUT 52 YEARS
RESIDING AT KADAMBU HOUSE
VITTAL PADNOOR VILLAGE
POST-KODNBAI 574 211
BANTWAL TALUK.
NOTE: RESPONDENT NO.1 HAS DECEASED AND THE
APPELLANT AND RESPONDENTS 2(a) to 2(h)
RESPONDENTS NO.3 TO 20 ARE TREATED AS HIS LRS.
2. ANNU MOILY
SINCE DECEASED BY HIS LRS
2(a) SMT.PARVATHI,
WIFE OF LATE ANNU MOILY,
AGED 60 YEARS.
2
2(b) SMT.APPI,
AGED ABOUT 40 YEARS,
2(c) SMT.LAKSHMI,
AGED ABOUT 38 YEARS,
2(d) SRI GOPAL,
AGED ABOUT 36 YEARS,
2(e) SMT.SHARADA,
AGED ABOUT 34 YEARS,
2(g) SRI SRINIVASA,
AGED ABOUT 30 YEARS,
2(h) SMT.GEETHA,
AGED ABOUT 28 YEARS,
RESPONDENTS 2(b) to 2(h)
ARE THE CHILDREN
OF LATE ANNU MOILY,
ALL ARE RESIDENTS OF
PILILACHIL HOUSE,
KODANGAI POST,
BANTWAL TALUK, D.K.
3. SMT KAMALA
W/O SANKAPPA MOILY
AGED ABOUT 49 YEARS
4. SRI NARAYANA,
S/O SANKAPPA MOILY
AGED ABOUT 32 YEARS
5. SRI MONAPPA
S/O SANKAPPA MOILY
AGED ABOUT 30 YEARS
6. SMT GIRIJA
D/O LATE SANKAPPA MOILY
AGED ABOUT 28 YEARS
3
7. SMT INDIRA
D/O LATE SANKAPPA MOILY
AGED ABOUT 26 YEARS.
8. SRI THIMAPPA
S/O LATE SANKAPPA MOILY
AGED ABOUT 24 YEARS
9. SRI LINGAPPA
S/O LATE SANKAPPA MOILY
AGED ABOUT 22 YEARS
10. SMT CHANDRAVATHI
AGED ABOUT 18 YEARS
NO.3 TO 10 ARE
3-10, R/A KOLNAD VILLAGE
BANTWAL TALUK
D.K. 574211.
11. SMT DEVAKI @ GIRIJA
AGED ABOUT 50 YEARS
W/O APPAYYA DEVADIGA
RESIDING AT ARIKALLU
IN KADESHWALYA VILLAGE
BANTWAL TALUK 574 211
POST: KADESHWALYA, D.K.
12. SMT LAKSHMI
W/O AITHAPPA DEVADIGA
SINCE DECEASED BY LRs
VIDE COURT ORDER DATED: 03.08.2021.
12(a) SRI PURANDRA,
S/O AITHAPPA DEVADIGA
AGE MAJOR
12(b) SMT.SARSWATHI
D/O AITHAPPA DEVADIGA
AGE MAJOR
12(c) SMT.CHETANA,
4
D/O AITHAPPA DEVADIGA
AGE MAJOR
12(d) SMT.KAMAKSHI
D/O AITHAPPA DEVADIGA
AGE MAJOR
12(e) SMT.GEETHA
D/O AITHAPPA DEVADIGA
AGE MAJOR
RESPONDENTS 12(a) to 12(e)
ALL ARE RESIDENTS OF
KAREKODY HOUSE, MUDADI POST,
GUNDOOR VILLAGE,
BELTHANGADY TALUK, D.K.
13. SRI NARAYANA MOILY
S/O RAMA MOILY
AGED ABOUT 48 YEARS
RESIDING A KADAMBU HOUSE
VITTAL PADNOOR VILLAGE
POST KODNGAI
BANTWAL TALUK 574 211.
14. SMT SEETHA
D/O RAMA MOILY
MAJOR, RESIDING AT KADAMBU HOUSE
VITTAL PADNOOR VILLAGE
POST KODNGAI
BANTWAL TALUK 574 211.
15. SMT YAMUNA
W/O NARAYANA CONTRACTOR
MAJOR, NEAR KAVOOR HIGH SCHOOL
POT KAVOOR,
MANGALORE TALUK 575 001.
16. SMT MEENAKSHI,
D/O THIMMAPPA MOILY
AGED ABOUT 23 YEARS
RESIDING AT MARUGURI HOUSE
5
VITTAL PADNOOR VILLAGE
POST KODNGAI
BANTWAL TALUK 574 211.
17. SRI JANARDHANA THIMMAPPA MOILY
AGED ABOUT 21 YEARS
RESIDING AT MARUGURI HOUSE
VITTAL PADNOOR VILLAGE
POST KODNGAI,
BANTWAL TALUK 574 211.
18. SMT PUSHPA,
D/O THIMMAPPA MOILY
AGED ABOUT 21 YEARS
19. SRI HONNAPPA
S/O THIMMAPPA MOILY
AGED ABOUT 20 YEARS
20. SMT LALITHA
D/O THIMMAPPA MOILY
AGED ABOUT 18 YEARS
SL.NOS. 18 TO 20 ARE RESIDING AT
MARUGURI IN VITTAL PADNOOR VILLAGE
POST KODNGAI,
BANTWAL TALUK 574 211. ... RESPONDENTS
(BY SRI I THARANATH POOJARY, ADVOCATE FOR
R3, R10, R16-R20 AND R12 (A-E),
SRI KISHORE SHEETY, ADVOCATE R11,
R2(a),(b),(c),(d),(e),(f),(g),(h) - SERVED,
R13 TO R15 - SERVED
V/O/DT: 09.08.2021 APPELLANT AND RESPONDENT
ARE THE LRS OF DEED R1)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 22.4.2006 PASSED IN
R.A.NO.199/2004 ON THE FILE OF THE I ADDL. DISTRICT
JUDGE, D.K., MANGALORE, PARTLY ALLOWING THE
APPEAL AND MODIFYING THE JUDGEMENT AND DECREE
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DATED30.1.1996 PASSED IN OS.NO.431/1990 ON THE
FILE OF THE PRL.MUNSIFF, BANTWAL, D.K.
THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Keshava Bhat, the learned counsel for the appellants and Sri Tharanath Poojary, the learned Senior Counsel for respondents 3, 10, respondent 12 (a to e), 16-20 and Sri.Kishore Shetty for respondent No.11.
2. The fifth defendant in O.S. no. 431/1990 before the Munsiff Bantwal is in appeal challenging the decree for partition granted by the trial court which is modified by the first appellate court in R.A. no. 199/2004 on the file of District Judge Mangalore.
3. The suit was filed for partition and separate possession and the plaintiff sought for partition of 1/10th share in the suit schedule properties. The suit is filed by the brother against the brother, children of the deceased brothers and sisters. The genealogy is not in dispute. Pleadings reveal that the properties originally belonged to one Rama Moily who was the propositus and on his death, 7 the properties devolved on Balakka, his wife, and 6 sons and 4 daughters.
4. The suit is filed on the premise that after the death of Rama Moily, the tenancy was inherited by his wife Balakka and her children and later Balakka filed Form No.7 seeking occupancy rights. It is contended that on 03.09.1990, occupancy right is granted in the name of Balakka for and on behalf of the family members of Balakka. It is further contended the dispute arose among the family members after the demise of Balakka and as such, the plaintiff is constrained to file the suit for partition and separate possession.
5. The suit was contested by the 5th defendant, one of the sons of Balakka, who has produced a Will dated 20.10.1980 at Ex.D.1. The Will is unregistered. According to the 5th defendant, Balakka has executed a Will in respect of the entire suit schedule properties in his favour and in favour of the plaintiff. Accordingly, has sought dismissal of the suit.
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6. The rest of the defendants have supported the case of the plaintiff and have disputed the execution of the Will by Balakka.
7. There was no dispute over the fact that Balakka died on 03.11.1980 i.e., exactly one month after the execution of the alleged Will. The trial Court has framed the following issues:
"1. Whether the Civil Court's jurisdiction to decide the question whether the occupancy right conferred by the Land Tribunal under Section 45 of the Karnataka Land Reforms Act in the name of a member of a joint family, would be barred under Section 133 of the said Act?
2. Whether the courts below are justified in considering the question of whether the conferment of occupancy rights in respect of plaint A schedule in favour of the mother of the plaintiff ensured the benefit of the joint family, without framing any issue to that effect?
3. Whether the Lower Appellate Court justified in affirming the decree of the Trial Court without independently appreciating the evidence on record?9
4. Whether the courts below are justified in holding that the plaintiff is entitled to 1/10thshare in plaint A schedule properties?."
8. The trial Court has concluded that Balakka executed the Will in question. However, further held that under Section 61 of the Karnataka Land Reforms Act, 1961, execution of Will is impermissible and accordingly, decreed the suit holding that the plaintiff is entitled to 1/10th share. And declared 1/10th share for each of the remaining children of deceased Balakka.
9. The 5th defendant aggrieved by the said judgment and decree filed an appeal. The First Appellate Court has dismissed the appeal and has concluded that execution of the Will by Balakka is permissible to the extent of the share held by Balakka. 5th defendant who is claiming exclusive rights over the properties covered by the alleged Will of Balakka is in the Second Appeal before this Court.
10. Learned counsel Sri Keshava Bhat would raise the following contentions:
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(i) The Civil Court had no jurisdiction to pass the decree for partition as the properties were tenanted properties at one point in time, therefore, the decree is without jurisdiction.
(ii) The properties in question were the exclusive properties of the late Balakka and she was capable of executing the Will in respect of the entire properties.
(iii) The finding of the trial court and the first appellate court on the proof of execution of the Will by Balakka was not questioned by the plaintiff and other respondents as such the Will should be declared valid in respect of all the properties for which occupancy is granted.
11. Learned Senior counsel Sri Tharanath Poojary would urge the following points:
(i) That the properties in question were not the tenanted properties when the suit was filed. Occupancy rights were granted by the time the suit for partition was filed. Hence only the Civil court has the jurisdiction and the suit is maintainable.11
(ii) The properties being inherited by Balakka after the demise of her husband along with her children, the grant of occupancy in favour of Balakka should be construed as occupancy rights granted in favour of family members and as such, she had no right to execute the Will in respect of the entire properties.
(iii) The alleged execution of Will took place on 20.10.1980 before the expiry of 15 years from the date of grant of occupancy rights as contemplated under Section 61 of the Karnataka Land Reforms Act, 1961 which expressly barred the assignment and transfer of properties for 15 years.
iv) Though the findings of the First Appellate Court relating to the execution of the Will and validity of the Will to the extent of the share of Balaka, are not questioned by the present respondents by filing a separate appeal, under order XLI Rules 22 and 33 of Code of Civil Procedure, the respondent/appellant can certainly question the finding without their being cross objection or appeal by the respondents.
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v) The decree passed by the First Appellate Court would reveal that the entire suit has been decreed in favour of the contesting respondents and as such, there is no decree against the respondents to file a second appeal before this Court.
12. This Court has considered the rival contentions and also considered the impugned judgment and decree and also materials placed on record.
13. As far as the first contention of the appellant relating to the lack of jurisdiction of the court to entertain the suit, the same has to be rejected in limine. The suit is not filed to partition tenancy rights under the Karnataka Land Reforms Act. The suit is not filed to adjudicate the tenancy rights or nature of tenancy. The suit is filed claiming a share in the properties over which occupancy rights are granted. By the time the suit was filed the tenancy rights are already adjudicated by the Land Tribunal. Thus it is only the Civil court which has the jurisdiction to adjudicate the dispute. 13
14. The plaint averments would reveal that the properties in question were held by Rama Moily as a tenant. This aspect of the matter is not disputed by the contesting respondents. After his demise, the tenancy devolved on his wife Balakka and 10 children. Subsequently, Balakka, wife of Rama Moily filed Form No.7. This Form No.7 was not contested by any of the children, as there was no dispute in the family. The tribunal granted occupancy rights in terms of the order dated 13.09.1980. The contention of the learned counsel for the appellant that the properties should be treated as the exclusive properties of the grantee Balakka has no merit in view of the fact that there is no dispute over the fact that Rama Moily was the original tenant. After his demise, under Section 24 of the Karnataka Land Reforms Act, 1961 his wife and children become the heirs of the deceased Rama Moily and they are entitled to inherited tenancy rights as tenancy rights are inheritable. This being the position, though Balakka alone filed Form No.7 application and occupancy right was granted to Balakka, the grant of occupancy should be treated as a grant in 14 favour of Balakka and her 10 children. Under the circumstances, this Court is of the view that the grant of occupancy rights by the Land Tribunal in the name of Balakka should be construed as a grant in the name of her children as well as Balakka.
15. Defendant No.5 who had taken the contention that Balakka had the exclusive right to execute a Will in respect of these properties has not produced any document to show that Balakka in her capacity individual capacity acquired tenancy. As already noticed tenancy is inherited after the demise of her husband. Thus tenancy right held by Rama Moily would devolve not only on his wife Balakka but also on his children. Thus there is no difficulty in holding that grant of occupancy rights in the name of Balakka has to be construed as a grant in the name of all of the children of Balakka as well as Balakka.
16. Once Court concludes that the grant of occupancy rights is in favour of the entire family, the next question is, "Whether Balakka could have executed a Will 15 in respect of the entire property for which the answer is simple "no"?
17. Once it is held that the properties belonged to the joint family of Balakka, then Balakka could have executed a Will only to the extent of her share. There is no dispute that the properties devolve around the 11 members who are Class - 1 heirs after the demise of Rama Moily. Thus Balakka had a 1/11th share in the property. Both the trial Court as well as the Appellate Court have given a finding that the execution of the Will by Balakka is duly established. However, the trial Court has concluded that execution of the Will is impermissible in view of the bar contained under Section 61 of the Karnataka Land Reforms Act. The First Appellate Court thus held that the Will executed by Balakka is valid to the extent of her share in the properties. To this extent, the findings of the trial Court are set aside.
18. Learned counsel for the appellant would place reliance on the judgment of the Apex Court in JAYAMMA 16 vs MARIA BAI DEAD BY PROPOSED LRs AND ANOTHER reported in (2004)7 SCC 459.
19. Learned Senior counsel would also place reliance on the same judgment and submit that the decision referred above has no application to his case as the Judgment cannot be construed as the judgment declaring the ratio that the Will can be executed in respect of properties covered under Section 61 of the Karnataka Land Reforms Act. Learned Senior Counsel would submit that since the word 'assignment' found in Section 21 of the Act is interpreted to say that it also covers execution of the Will. The word "assignment" found in Section 61 should also be given the same interpretation and execution of Will is to be construed as a transfer of property which is prohibited under Section 61.
20. This Court has considered the ratio laid down in Jayamma's case supra. In the aforementioned case, the Hon'ble Apex Court was dealing with the question relating to the validity of the Will wherein the Will was executed before the expiry of 15 years contemplated under Section 17 61 of the Karnataka Land Reforms Act, and in that case, the Will was executed to a person who otherwise would not have inherited the property. By interpreting Section 61 of the Karnataka Land Reforms Act, as well as by referring to the judgment of the Supreme Court in SANGAPPA KALYANAPPA BANGI (DEAD) THROUGH LRs vs LAND TRIBUNAL, JAMKHANDI AND OTHERS reported in AIR 1998 SC 3229, the Apex Court has held that execution of Will outside the family is impermissible within the meaning of Section 61 of the KLR Act.
21. In this case admittedly, execution of the Will is in favour of two Class I heirs of deceased Balakka. The execution of Will is not to a stranger. The intention behind Section 61` is to ensure that the property over which occupancy right is granted remains with the family of the tenant. If Will is executed in favour of one of the heirs of the person in whose favour occupancy is granted then, such a testament will not violate Section 61 of the Act as the Will operates only after the demise of the testator. Said Will is in tune with the ratio laid down in the case of 18 Jayamma referred supra. Under the circumstances, this Court is of the view that the finding of the First Appellate Court that the Will is valid to the extent of Balakka's share in favour of Class-I heirs. However, it is clarified that Balakka had no right to execute the Will pertaining to a particular property in favour of a particular son. Since she had a 1/11th joint share in the suit properties, her Will is to be treated as valid to the extent of 1/11th share in favour of plaintiff and defendant no.5 jointly. Regarding computation share.
22. It is also forthcoming from the records that the original plaintiff who filed the suit for partition died during the pendency of the First Appeal. It is admitted that he had no Class-I heirs. His brothers and sisters in the original proceeding would be Class-II heirs. The 1/11th share held by him and in addition to that, the 1/22nd share ( ½ share in 1/11th share of Balakka acquired under the Will along with defendant no.5) inherited by him under the Will of Balakka, would equally devolve upon his Class
- II heirs viz., his brothers and sisters. 19
23. As stated above, in addition to his own 1/11th share, defendant No.5 is also entitled to share of plaintiff along with his sisters and brothers surviving at the time death of the plaintiff, and also 1/22nd share of Balakka (1/2 of 1/11th inherited under the Will of Balakka along with the plaintiff)
24. For the aforesaid reasons, since the plaintiff died intestate, without leaving any Class- heirs. His 1/11th share and 1/22nd share inherited under the Will of Balakka would devolve upon his Class - II heirs namely his brothers and sisters who survived him. Defendant No.5 in addition to his 1/11th share, would also inherit the 1/22 nd share from deceased Balakka.
25. Learned counsel for the appellant would submit that during the pendency of this appeal, he has entered into some settlement with some of the respondents. If such settlement is arrived at, the same shall be placed before the Final Decree Proceeding court and the Final Decree Court shall examine the claim of the present appellant relating to the alleged settlement. If such settlement is either admitted or established, then the final 20 decree court would take the same into account and treat the shares of those parties as surrendered in favour of the appellant.
26. At this juncture, learned counsel for the respondent would place reliance on the Judgment of the Hon'ble Apex Court in the case of M L SUBBARAYA SETTY AND OTHERS vs M L NAGAPPA SETTY AND OTHERS reported in AIR 2002 SC 2066 wherein in the aforementioned judgment, the Apex Court has held that the Court where Final Decree Proceeding is filed, same shall be expedited and it has to proceed on a day-to-day basis. The Final Decree Court shall bear this proposition in mind and shall proceed further.
27. Hence, the following:
ORDER
(i) Appeal is allowed in part.
(ii) The judgment and decree dated 22.04.2006 passed by the District Judge, Dakshina Kannada at Mangaluru in R.A.199/2004 and the judgment and decree dated 30-1-
1996 on the file of Principal Munsiff at Bantwal, Dakshina 21 Kannada in O.S. no.431/1990 are modified by holding that parties have a share in the suit properties in terms of paragraphs no. 22 to 24 of this judgment.
Sd/-
JUDGE BRN