Karnataka High Court
Venkamma vs Kushala on 1 December, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 567 OF 2013 (PAR)
BETWEEN:
1. VENKAMMA
W/O. LATE. KUKKAPPA @ NARAYANA
GOWDA,
AGED ABOUT 59 YEARS,
SINCE DECEASED BY LRS.
A1(A) NANAPPA GOWDA
S/O LATE B NARAYANA GOWDA,
AGED 47 YEARS
R/AT GANADABETTA HOUSE,
MACHAR, UJIRE POST AND VILLAGE
BELTHANGADY TALUK, D.K. DISTRICT
PIN - 574 212.
SINCE DECEASED BY LRS A1(A)(I) TO
(III)
A1(A)(I) SMT. VARIJA
W/O. NANAPPA GOWDA
AGED 40 YEARS
A1(A)(II) RAKSHITH
S/O NARAPPA GOWDA
AGED 14 YEARS
A1(A)(III) RAKSHITHA
D/O NANAPPA GOWDA
AGED 9 YEARS
APPELLANT NO. 1(A) (II) AND (III) ARE MINORS
AND ARE REPRESENTED BY THEIR
NATURAL GUARDIAN MOTHER SMT. VARIJA
ALL ARE RESIDING
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GANGADABETTE HOUSE
MACHAR, UJIRE POST AND VILLAGE
BELTHANGADY TALUK
D.K. DISTRICT, PIN - 574 212
A1(B) SUBHALAXMI
W/O. SUNDARA GOWDA
AGED 45 YEARS
R/AT. THAUGTHIPAL HOUSE
DIDUPE, MALAVANTHIGE VILLAGE,
BELTHNAGADY TALUK,
D.K. DISTRICT, PIN - 574 212.
A1(C) MURALIDHARA
S/O. LATE. B. NARAYANA GOWDA
AGED 44 YEARS,
R/AT GANADABETTA HOUSE,
MACHAR, UJIRE POST AND VILLAGE,
BELTHANGADY TALUK,
D.K. DISTRICT, PIN - 574 212.
A1(D) USHA
W/O VISHNU,
AGED 43 YEARS,
R/AT SUDHA INDUSTRIES
THANDAMBAIL, SURATHKAL,
MANGALURU, D.K. DISTRICT,
PIN - 574 212.
2. CHITHRA
W/O. LATE. POOVAPPA GOWDA,
AGED 54 YEARS,
3. KOOSAMMA
W/O. BELIAPPA GOWDA,
AGED 47 YEARS,
ALL ARE RESIDING AT GANADABETTU,
UJIRE VILLAGE AND POST,
BELTHANGADY TALUK,
D.K. DISTRICT, PIN - 574 212.
... APPELLANTS
(BY MR: G. RAVISHANKAR SHASTRY, ADVOCATE FOR
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APPELLANT 1(A)(I), 1(B) TO 1(D) AND A2 & A3.
A-1(A)(II) AND (III) ARE MINORS REP BY A1(A)(I))
AND:
1. KUSHALA
W/O. SRI. K. BABU GOWDA,
AGED 63 YEARS,
R/O. MADDADKA HOUSE,
KUVETTU VILLAGE & POST,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 212.
2. NAGAMMA
W/O. MUTHAPPA GOWDA,
AGED 52 YEARS,
R/O. PUNDYAJE HOUSE,
ODILNALA VILLAGE,
BELTHANGADY TALUK,
D.K. DISTRICT - 574 212.
3. LALITHA W/O. GOPALA GOWDA,
AGED 50 YEARS,
R/O. MANIMARU HOUSE,
ILANTHILA VILLAGE & POST,
BELTHANGADY TALUK,
D.K.DISTRICT - 574 211.
... RESPONDENTS
(BY MR: P.M. SIDDAMALLAPA, ADVOCATE FOR R1
MR: PRAVEEN HEGDE, ADVOCATE FOR R2 & R3)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 6.11.2012 PASSED IN
R.A.NO.6/2008 ON THE FILE OF SENIOR CIVIL JUDGE AD JMFC,
BELTHANGADY, D.K., ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGEMENT AND DECREE DTD 1.12.2007 PASSED IN
OS.NO.34/2001 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC,
BELTHANGADY, D.K.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The defendants have preferred this second appeal being aggrieved by the impugned judgment and decree dated 06.11.2012 passed in R.A.No.6/2008 on the file of the learned Senior Civil Judge and JMFC, Belthangady, Dakshina Kannada (hereinafter referred to as 'the First Appellate Court' for brevity), wherein, the appeal preferred by the plaintiff- respondent No.1 herein was allowed with costs and judgment and decree dated 01.12.2007 passed by the learned Civil Judge (Jr.Dn) & JMFC, Belthangady, Dakshina Kannada (hereinafter referred to as 'the trial Court' for brevity) in O.S.No.34/2001 was set aside. The suit of the plaintiff was decreed with costs and it was held that the plaintiff is entitled for 1/6th share in the schedule property and a separate enquiry is ordered regarding future mesne profit.
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
3. Brief facts of the case are that the plaintiff filed the suit before the trial Court in O.S.No.34/2001 against defendant Nos.1 to 6 seeking partition of plaint schedule 5 properties i.e., 'A' schedule properties into seven equal shares by metes and bounds and to allot one such share to the plaintiff and for mesne profit and costs. The schedule 'A' properties appended to the plaint describes ten items of agricultural properties i.e., various sub-divisions in Sy.Nos.360 and 361.
4. It is contended by the plaintiff that defendant No.1 is widow of late Rukmayya Gowda. Plaintiff and defendant Nos.2 to 6 are their daughters. Rukmayya Gowda was registered as an occupant in respect of schedule properties as per the order passed by the Land Tribunal in LRY.No.312/74-75 and 315/74-75. The occupancy certificate was issued in Form No.10 in the name of Rukmayya Gowda. After his death, the plaintiff and defendant Nos.1 to 6 have inherited the plaint schedule properties and the plaintiff is entitled for 1/7th share in the same.
5. It is contended that defendant Nos.1 to 4 are in possession of suit schedule properties and when plaintiff demanded her 1/7th share from defendant Nos.1 to 4 by issuing notice dated 09.11.2000, they have issued a reply 6 taking untenable contentions that late Rukmayya Gowda had settled the schedule properties in their favour. It is contended by the plaintiff that late Rukmayya Gowda had no right to execute the settlement deed as the said properties were vested with the Government as on the date of execution of the settlement deed. The said document is concocted and it does not convey any right in favour of defendant Nos.1 to 4. The said document is not binding on the plaintiff. Therefore, plaintiff sought for partition and separate possession of her 1/7th share in the schedule properties.
6. Defendant Nos.2 to 4 have filed the written statement denying the contentions of the plaintiff. However, defendants admitted that occupancy right in respect of schedule properties was granted in favour of late Rukmayya Gowda by the Land Tribunal, Belthangady and Form No.10 was issued in his favour. The relationship between the parties is also admitted. However, the claim of the plaintiff that she is entitled for 1/7th share over the schedule properties is denied. The defendants in the written statement, admitted that the plaintiff got issued legal notice dated 09.11.2000 demanding for partition and separate possession of her share. 7 However, it is stated that a reply notice is addressed to the plaintiff.
7. It is contended that when late Rukmayya Gowda was in sound disposing state of mind, he executed the settlement deed/Will dated 15.09.1978 and settled the schedule properties in favour of defendant Nos.2 to 4. While executing the said deed, late Rukmayya Gowda had reserved himself the right to enjoy the schedule properties during his life time and to get the occupancy right over the same in his name. Accordingly, occupancy right was conferred on him. After the death of Rukmayya Gowda, as per terms of settlement deed, these defendants came in possession of the respective properties and RTCs in respect of the same was also changed in the names of defendant Nos.2 to 4. The contention of the plaintiff that Rukmayya Gowda had no right to execute the settlement deed as the properties were vested with the Government as on the date of execution of the settlement deed is denied. It is also contended that even though execution of the settlement deed by Rukmayya Gowda was within the knowledge of the plaintiff, she never challenged the same. Therefore, it is contended that there is 8 no cause of action for the suit and the plaintiff is not entitled for any relief. Accordingly, defendants prayed for dismissal of the suit.
8. On the basis of these pleadings, the Trial Court framed the following issues as under:
1. Whether the plaintiff proves that the suit properties were belong to Rukmayya Gowda and he died intestate and she and the defendants are the heirs of Rukmayya Gowda to succeed to the suit properties?
2. Whether the plaintiff proves that she is entitle for partition and separate possession of her 1/7th share in the suit properties?
3. Whether the plaintiff proves that the defendant 1 to 4 are in possession of suit property?
4. Whether the plaintiff proves that late Rukmayya Gowda had no right to execute the settlement deed and the defendants 1 to 4 have got up the said deed of the settlement?
5. Whether the plaintiff is entitle for the mesne profits?
6. Whether the plaintiff is entitle for the relief sought for in the suit?
7. To what order or decree?
9. Plaintiff examined herself as PW.1 and got marked Exs.P1 to P12 in support of her contention. Defendant No.3 9 examined herself as DW.1 and two more witnesses as Dws.2 and 3 and got marked Exs.D1 to D7 in support of their defence. The trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 6 in the negative and dismissed the suit of the plaintiff.
10. Being aggrieved by the impugned judgment and decree passed by the trial Court, the plaintiff preferred regular appeal in R.A.No.6/2008 before the First Appellate Court. The First Appellate Court after re-appreciating the materials on record, allowed the appeal and set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff with costs. It was held that the plaintiff is entitled for 1/6th share over the schedule properties and separate enquiry was ordered to determine the mesne profits.
11. Being aggrieved by the judgment and decree passed by the First Appellate Court, decreeing the suit of the plaintiff, defendant Nos.2 to 4 have preferred this second appeal. During the pendency of the appeal, appellant No.1 died and her legal representatives were brought on record. 10
12. The appeal was admitted vide order dated 01.12.2016 and following substantial questions of law were formulated for consideration:
(i) Whether the Lower Appellate Court has committed any serious legal error in holding that Ex.D1 is hit by Section-21 of the KLR Act by misconstruing the said document as a Settlement Deed;
(ii) Whether the Appellate Court has not considered the other findings of the trial Court on other issues and thereby committed serious legal error."
13. Heard Sri. G.Ravishankar Shastry, learned counsel for the appellants and Sri. P.M.Siddamallappa, learned counsel for respondent No.1 and Sri. Praveen Hegde, learned counsel for respondent Nos.2 and 3. Perused the materials on record including the Trial Court Records.
14. Learned counsel for the appellants contended that the relationship between the parties is not in dispute. It is also not in dispute that the schedule properties are the self- acquired properties of late Rukmayya Gowda, who is the father of plaintiff and defendant Nos.2 to 4. The occupancy right in respect of the schedule properties was conferred on 11 Rukmayya Gowda by the Land Tribunal, Belthangady and Form No.10 was also issued in his favour. Thus, Rukmayya Gowda has become owner in possession of the schedule properties. The said Rukmayya Gowda executed registered settlement deed dated 15.09.1978 as per Ex.D1 in favour of defendant Nos.2 to 4. The trial Court rightly held that even though Ex.D1 is styled as settlement deed, it is in fact the Will executed by Rukmayya Gowda, which came into effect after his death. But the First Appellate Court reversed the finding of the trial Court and held that Ex.D1 is the settlement deed and it is a void document as there is bar for settling the properties in favour of others. The First Appellate Court swayed away by the nomenclature of the document. Further, the First Appellate Court has not assigned any reason to hold Ex.D1 as settlement deed, except its nomenclature. The plaintiff has never challenged Ex.D1 which is a registered document. The trial Court has assigned valid reasons for holding Ex.D1 as Will. There is absolutely no discussion about the same in the impugned judgment and decree passed by the First Appellate Court.
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15. Learned counsel further contended that late Rukmayya Gowda assigned valid reasons for executing Ex.D1. He also assigned reasons as to why he has bequeathed the schedule properties in favour of defendant Nos.2 to 4. It is stated that plaintiff and defendant Nos.5 and 6 are the married daughters and that he has paid Rs.5,000/- to them. It was defendant Nos.2 to 4, who were unmarried and were residing with Rukmayya Gowda during his last days. The recital found in Ex.D1 discloses that it was the Will executed by Rukmayya Gowda reserving the properties in his favour till his death and expressing his desire to give effect to the document only after his death, in favour of defendant Nos.2 to 4 who remained unmarried and supported Rukmayya Gowda till his death. Therefore, Ex.D1 even though styled as settlement deed, is in fact the Will executed by Rukmayya Gowda and it came into effect after his death.
16. Learned counsel further contended that the defendants have proved the execution of Ex.D1 by examining the witnesses. The revenue records were not changed in the names of defendant Nos.2 to 4 during the life time of Rukmayya Gowda. It changed only after his death. The 13 plaintiff has never disputed the validity of Ex.D1. Since it is not a settlement deed and in fact it is a Will, the authority of Rukmayya Gowda to execute the same cannot be questioned. Learned counsel for the appellants further submitted that since Rukmayya Gowda reserved right over the properties till his death, the document was not acted upon till his death. Rukmayya Gowda died on 17.07.2000 and only thereafter, Ex.D1 came into effect. Even though the trial Court has appreciated the materials on record and arrived at a right conclusion, the First Appellate Court committed an error in decreeing the suit of the plaintiff as prayed for. The First Appellate Court committed an error in holding that Ex.D1 is a settlement deed without assigning any reason and it has ignored the clinching materials and oral evidence placed before the Court.
17. Learned counsel for the appellants places reliance on the decision in the case of KORAGAPPA GOWDA vs. JINNAPPA GOWDA AND OTHERS1, in support of his contention that Rukmayya Gowda had authority to execute 1 ILR 1998 KAR 436 14 the Will in favour of his daughters and it is not hit of by Section 61 of the Karnataka Land Reforms Act, 1961.
18. Learned counsel also placed reliance on the decision in the case of JOSEPH ALBERT LEWIS vs MICHAEL ROQUE LEWIS AND OTHERS2, to contend that transfer of agricultural land with occupancy rights is permissible only in favour of one of the heirs, who would be entitled to claim partition and not any other person.
19. Learned counsel further placed reliance on the decision of the Hon'ble Apex Court in the case of MATHAI SAMUEL VS. EAPEN EAPEN (DEAD) BY LRS3, in support of his contention that the intention of the executor of document is to be taken into consideration in deciding its nature and that the nomenclature will not decide its nature.
20. Learned counsel also placed reliance on the decision of the Hon'ble Apex Court in the case of PUZHAKKAL KUTTAPPU vs. C. BHARGAVI AND OTHERS4, in support of his contention that in construing the document relied on by the 2 ILR 2007 KAR 4174 3 LAWS(SC) 2012 11 30 4 (1977) 1 SCC 17 15 party, it is necessary to gather the intention with which document was executed, such intention is to be gathered from recitals found in the document along with surrounding circumstances.
21. He also placed reliance on the decision rendered by the Division Bench of this Court in the case of NIMBAVVA vs. CHANNAVEERAYYA5, to contend that the married daughters are excluded under the definition of "family" under the Karnataka Land Reforms Act, 1961, in view of Section 24 of the Act and to contend that plaintiff and defendant Nos.5 and 6 being the married daughters are not the members of the family. Therefore, learned counsel for the appellants prays for allowing the appeal by setting aside the judgment and decree passed by the First Appellate Court and to restore the judgment and decree passed by the trial Court and consequently dismiss the suit of the plaintiff with costs.
22. Per contra, learned counsel for respondent No.1- plaintiff opposing the appeal contended that even according to the plaintiff, Ex.D1 is the settlement deed. The nomenclature and recitals found therein goes to show that document is 5 LAWS (KAR) 2013 8 289 16 settlement deed and not a Will. Learned counsel has drawn the attention of the Court to the evidence of DW.1, during her cross-examination, to contend that she has categorically admitted that all the parties to the suit are having equal right over the schedule properties. As per Ex.D1, the plaintiff and defendant Nos.5 and 6 were excluded. There is absolutely no reason assigned as to why they were excluded. Admittedly, plaintiff and defendant Nos.2 to 6 are the children of late Rukmayya Gowda. Under such circumstances, they should inherit the schedule properties equally. The trial Court committed an error in dismissing the suit of the plaintiff without properly appreciating the oral and documentary evidence in proper manner. The First Appellate Court considered the materials on record and held that Ex.D1 is the settlement deed and the executant could not have executed the same. Under Ex.D1, the benefit is given only to three daughters depriving others. Therefore, the impugned judgment and decree passed by the First Appellate Court is to be sustained and the appeal is liable to be dismissed. 23. Learned counsel for respondent Nos.2 and 3 supported the contention taken by the learned counsel for 17 respondent No.1 and prayed for dismissal of the appeal. He further submitted that Ex.D1 is dated 15.09.1978 but it has not seen the light of the day till the year 2002. There is absolutely no explanation by defendant Nos.2 to 4 for suppressing the document. Moreover, Ex.D1 was not proved as Will. Therefore, the impugned judgment and decree passed by the First Appellate Court is to be sustained. Accordingly, he prays for dismissal of the appeal.
24. I have considered the materials on record including the trial Court records in the light of the arguments advanced by the learned counsel for both the parties.
25. The suit of the plaintiff for partition and separate possession of the schedule properties was dismissed by the trial Court. But the First Appellate Court by allowing the appeal set aside the judgment and decree passed by the trial Court and decreed the suit by allotting 1/6th share over the schedule properties in favour of the plaintiff. Thus, there is divergent finding of facts. The relationship between the parties is admitted and it is also admitted that late Rukmayya Gowda is the father of the plaintiff and defendant Nos.2 to 6 18 and husband of defendant No.1. It is also admitted that the schedule properties were the tenanted properties granted in favour of Rukmayya Gowda as per the order passed by the Land Tribunal, Belthangady by granting the occupancy right. As per the substantial questions of law formulated by this Court, the nature of the document-Ex.D1 is to be decided. It is also to be decided as to whether Ex.D1 is hit by Section 21 of the Karnataka Land Reforms Act, 1961 (for short 'KLR Act').
26. Ex.D1 is styled as settlement deed dated 15.09.1978 executed by Rukmayya Gowda bequeathing the schedule properties in favour of defendant No.2 to 4 excluding the plaintiff, defendant Nos.5 and 6. It is a registered document. It is the contention of the plaintiff that Rukmayya Gowda could not have executed the settlement deed in respect of the schedule properties as such transfer is hit by Section 21 of the KLR Act. The second contention raised by the plaintiff is that even if Ex.D1 is to be considered as a Will, it was executed under a suspicious circumstances as the executant excluded his wife defendant No.1 and his other daughters i.e., plaintiff and defendant Nos.5 and 6. 19 Therefore, Ex.D1 is to be excluded and equal partition is to be effected in respect of the schedule properties.
27. It is well settled proposition of law that the nomenclature of a document will not decide its nature. The intention of the party who executes the document will decide its character. Whether the document is a settlement deed or a Will is to be considered from the recitals found in the document, to find out the intention of the executant. A settlement is a transfer of the existing right over the property in favour of another and the donee is required to accept the same. Generally, such settlement or gift would take effect on execution and registration of the document.
28. As per Section 2(h) of the Indian Succession Act, Will is a testamentary disposition by the testator in respect of his property which will come into effect only after his death. The testator will have the right to revoke the Will during his life time. Therefore, the peculiar characteristics of a Will is that there must be a bequeath by the testator which should be in respect of his property; it should come into effect only after his death and the testator will have a right to revoke the 20 bequeath during his life time. Even though other characteristics of the Will, will be found in a settlement/gift deed, one of the peculiar characteristics of a Will is postponement of the bequeath till the death of the testator and reserving the right to revoke the Will during his life time.
29. In the case of MATHAI SAMUEL (supra) a similar question had arisen before the Honble Apex Court to interpret a document as to whether it is a settlement deed or a Will. The Hon'ble Apex Court referring to its earlier decisions, held in Paragraph No.11 as under:
"11. We have already indicated that exhibit A1 document has both the characteristics of a settlement and a testamentary disposition. Let us examine the basic and fundamental difference between a testamentary disposition and a settlement. Will is an instrument whereunder a person makes a disposition of his properties to take effect after his death and which is in its own nature ambulatory and revocable during his lifetime. It has three essentials:
1) It must be a legal declaration of the testator's intention;
2) That declaration must be with respect to his property; and
3) The desire of the testator that the said declaration should be effectuated after his death."21
Therefore, if a document satisfies these three essential characteristics, then the document is said to be a Will. On the other hand, if there was disposition of a property voluntarily without consideration by a person called donor, which was accepted by the person in whose favour the bequeath is done, called the donee, which would come into effect immediately. Therefore, the Hon'ble Apex Court held that the real and the only reliable test to find out whether the document is a Will or a Gift is to find out as to whether the disposition amounts to transfer of interest in the praesenti or it intents to transfer the interest in the property only on the death of the executant.
30. The above test is to be applied to Ex.D1, which is styled as settlement deed, to know its real character. Rukmayya Gowda admittedly had six daughters i.e., plaintiff and defendant Nos.2 to 6. Defendant No.1 is his wife. Ex.D1 is a registered document executed on 15.09.1978. The recitals found in this document disclose that the testator expressed his willingness to bequeath the schedule properties in favour of defendant Nos.2 and 3 who are already married and defendant No.4 who was still a minor aged 14 years and represented by her mother-defendant No.1. The document 22 also refers to the reasons for excluding the other daughters of Rukmayya Gowda from inheriting the schedule properties. It is stated that the plaintiff, defendant Nos.5 and 6 are the married daughters who are residing in their matrimonial house after their marriage. It is also stated that Rukmayya Gowda paid Rs.5,000/- to each of them. On the other hand, defendant Nos.2 and 3 even though they are also married, they are residing with Rukmayya Gowda in his house and defendant No.4 was still a minor. Therefore, the testator expressed his willingness to bequeath the schedule properties only in favour of defendant Nos.2 to 4 by excluding his other heirs. Moreover, three items in the schedule were equally divided between defendant Nos.2 to 4 and it is specifically stated that the properties should devolve on his daughters only after his death. It is reiterated by the testator repeatedly that defendant Nos.2 to 4 will not have right, title or interest over the schedule properties during his life time. Of course, he has stated that he has no right to revoke the settlement but the main characteristics of the Will that the bequeath should come into force only after the death of the testator is explicitly stated by Rukmayya Gowda. The reading of the 23 recitals of Ex.D1 makes it clear that the intention of the testator was to bequeath the schedule properties in favour of defendant Nos.2 to 4 only after his death. In other words, the intention of Rukmayya Gowda was clear from the recitals that he would enjoy the schedule properties during his life time. Therefore, only the nomenclature of Ex.D1 that it is settlement deed will not change its character as a settlement deed. One more reason to hold Ex.D1 as Will is that Exs.P3 to P9 are the record of rights in respect of the schedule properties which were mutated in the names of defendant Nos.2 to 4 only upon the death of Rukmayya Gowda as per MRSR.No.88/2000-01 dated 10.11.2000. It is not in dispute that Rukmayya Gowda died on 17.07.2000. Thus, the intention of the testator would give effect to Ex.D1 only after his death is complied. Hence, I am of the opinion that Ex.D1 is not a settlement deed but it is a Will executed by late Rukmayya Gowda in favour of defendant Nos.2 to 4 in respect of the schedule properties, expressing his willingness to give effect to the document only after his death.
31. When Ex.D1 is considered as a Will, it has to be considered as to whether execution of this document is 24 surrounded by any suspicious circumstances. As already stated, Rukmayya Gowda specifically stated that he is having six daughters and wife who are named therein. He states that his five daughters are already married but three of them are residing in their respective matrimonial houses, whereas, defendant Nos.2 and 3 are residing with him in his house along with their spouses. Defendant No.4 is a minor, aged 14 years and still under the care and custody of her mother- defendant No.1. It is also stated that Rukmayya Gowda had already paid cash of Rs.5,000/- to his other daughters in lieu of the properties. The reason assigned for bequeathing the schedule properties only in favour of defendant Nos.2 to 4 are explicitly stated and it sounds reason. I do not find any suspicious circumstance to doubt the genuinity of the document.
32. The next question arises as to whether the bequeath of schedule properties under Ex.D1 is hit by Sections 21 or 61 of the KLR Act. Section 21 of the KLR Act prohibits sub-division, sub-letting or assignment of any interest over the property. Section 61 of the KLR Act provides restriction on transfer of land of which tenant has become an 25 occupant. Admittedly, Rukmayya Gowda was the tenant who was conferred with occupancy right over the schedule properties. It is not in dispute that at the time of executing Ex.D1, Rukmayya Gowda was not yet conferred with the occupancy right but he had already submitted Form No.7, which was pending consideration before the Land Tribunal. There is reference to this position in Ex.D1. What is restricted under Section 61 of the KLR Act is transfer of the land by sale, gift, exchange, mortgage, lease or assignment. However, it is made clear that the land may be partitioned among members of the holder's joint family.
33. Now the question arises as to whether bequeathing the schedule properties in favour of defendant Nos.2 to 4 under Ex.D1 is hit by either Sections 21 or 61 of the KLR Act. Even though there is specific reference to various kinds of transfer such as sale, gift, exchange, mortgage, lease or assignment, there is no reference to the Will in the Sections. Similar question had arisen before this Court as well as before the Hon'ble Apex Court in the case of KORAGAPPA GOWDA (supra), the Court categorically held in paragraph No.10 as under:
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"10. Disposal of immoveable property by Will would not amount to a transfer within the meaning of Section 5 of the T.P. Act. This question came up before a Division Bench of the Madras High Court in MAHABOOB SIRFRAX VANTH SRI RAJAH PARTHASARATHY APPARAO ZAMINDAR OF BHADRACHALAM vs SRI RAJA VENKATADRI APPA RAO AND OTHERS. That was a case of the right of the testatrix to make a Will of a fund in Court which she had laid a claim. Commenting upon the nature of rights under the Will vis-a-vis Transfer of Property Act, it is held that:
"The Transfer of Property Act applies only to alienations inter vios and has no application to disposal of property by will."
Thus, disposal of immovable property by Will would not amount to transfer within the meaning of Section 5 of the Transfer of Property Act, 1882. Since the language of Section 61 of the KLR Act is very clear and unambiguous and since there is no restriction on transfer of land by way of a Will and since the disposition of property takes place posthumously after the death of the testator, which is different from the transfer under sale, gift, exchange, mortgage, lease or assignment, it was held that transfer of interest over the land by way of Will is not hit by Section 61 of the KLR Act. 27
34. Relying on the decision in the case of KORAGAPPA GOWDA (supra), this Court again in the case of C.C. DEVASIA 6 VS. THE KARNATAKA APPELLATE TRIBUNAL & ORS , recorded the finding that a Will cannot be said to be a transfer or an assignment since on the execution of the Will nothing passes on to the legatee and the testator can always revoke a Will and it comes into force only after the death of the testator.
35. In the case of JOSEPH ALBERT LEWIS (supra), this Court considering several other decisions of the Hon'ble Apex Court and this Court, held that the transfer of agricultural land by tenant with occupancy rights is permissible only in favour of one of the heirs, who would be entitled to claim partition of land and not others having regard to definition of the words - 'family' or 'joint family'. The Court considered the embargo on transfer of the right for a specified period, held that since even the partition is permitted under Section 61 of the KLR Act amongst the members of the joint family, it would not come in the way of bequeathing under Will in favour of a member of the joint family as defined under the KLR Act. The word 'family' is defined under KLR Act under 6 1998 SCC Online KAR 105 28 Section 2(12) to mean, the spouse, sons, unmarried daughters, divorce person, etc. In the present case, admittedly defendant Nos.2 and 3 were married daughters when the Will was executed but it is to be borne in mind that Rukmayya Gowda was not having any male issues. Plaintiff and defendant Nos.2 to 6 are his daughters. Even though defendant No.4 was minor when Ex.D1 was executed, as per the plaint averments, she is already married at the time of filing the suit. Defendant No.1, the wife of Rukmayya Gowda was aged 71 years at the time of filing the suit and she died during the pendency of the Regular Appeal. Under such circumstances, the right of defendant Nos.2 to 4 under the Will - Ex.D1 cannot be questioned simply because they are married daughters of Rukmayya Gowda. The intention of the legislator in creating an embargo on transfer of the tenanted property after conferment of occupancy right is to restrict the entry of strangers over the property. When Section 61 of KLR Act permits partition amongst the co-sharers, while restricting the transfer of property, bequeathing by way of a Will in favour of some of the sharers cannot be termed as a transfer. 29
36. The Hon'ble Apex Court in the case of JAYAMMA VS. MARIA BAI DEAD BY PROPOSED LRs AND ANOTHER7, made the fine distinction between the transfer by way of a Will to a person who is the member of the family and to a person who is not a member of the family to hold that the legislative intent to create an embargo on transfer of the land either under Section 21 or under Section 61 of the KLR Act is to guard that the land should not be allowed to go to the hands of a stranger to the family.
37. In view of the discussions held above, it is to be held that Ex.D1 is not a settlement deed as the nomenclature suggests. But it is a Will as to be made out from the intention of the testator. Since Ex.D1 was executed by Rukmayya Gowda in favour of three of his married daughters excluding the other three married daughters, is not hit by either Section 21 or Section 61 of the KLR Act.
38. The trial Court after considering the oral and documentary evidence placed before it, came to the conclusion that Ex.D1 is a Will and the plaintiff is not entitled for the relief of partition and separate possession of the 7 ILR 2004 KAR 3975 30 schedule properties. Accordingly, the suit was dismissed. The First Appellate Court on re-appreciation of the materials on record, came to the conclusion that Ex.D1 is not a Will but it is a settlement deed. To arrive at this conclusion, the only reasoning given by the First Appellate Court is as under:
"In the present case on perusal of Ex.D1, it clearly reveals that documents executed (Ex.D1) by late Rukmayya Gowda is Settlement Deed and it is not Will. Thus the same is hit by Section 21 of K.L.R Act."
39. There is no discussion with regard to the intention of the testator and there is no reference to the recitals found in Ex.D1 to form an opinion that it is a settlement deed and not a Will. Therefore, I am of the opinion that the finding recorded by the First Appellate Court is perverse, which call for interference by this Court. Thus, I am of the opinion that the substantial questions of law are to be answered in favour of the appellants and against the plaintiff-respondents. Accordingly, I proceed to following:
ORDER
(i) The appeal is allowed with costs.
(ii) The impugned judgment and decree dated 06.11.2012 passed in R.A.No.6/2008 on 31 the file of the learned Senior Civil Judge and JMFC, Belthangady, Dakshina Kannada, is hereby set aside.
(iii) The judgment and decree dated 01.12.2007 passed in O.S.No.34/2001 on the file of the learned Civil Judge (Jr.Dn) & JMFC, Belthangady, Dakshina Kannada is restored.
(iv) Registry is directed to send back the trial Court records along with copy of this judgment.
Sd/-
JUDGE SMJ