Karnataka High Court
Ravu Babaji Berad vs Maruthi Krishna Naik on 5 July, 1990
Equivalent citations: ILR1992KAR877, 1991(4)KARLJ225
JUDGMENT K.A. Swami, J.
1. This Second Appeal is preferred against the Judgment and Decree dated 9.12.1976 passed in R.A.No. 279/1972 by the Principal Civil Judge, Chikodi, confirming the Judgment and decree dated 11.9.1968 passed by the Munsiff, Chikodi, in O.S.No.59/1965.
2. The appellants are the defendants. The respondents are the plaintiffs.
3. The respondents filed the aforesaid suit for a declaration that they have become the owners of the Schedule A and B properties and have also come to possess leasehold right in C schedule properties and further they have come to possess the same right which the deceased testator Dadu Babaji Berad alias Naik (hereinafter referred to as 'Dadu') enjoyed in D schedule properties.
4. All the properties are the agricultural lands. It is not in dispute in this case that agricultural lands comprised in Schedule A and B were owned by the testator Dadu. It is also not in dispute that Dadu was in possession of lands described in schedule C as protected tenant under the provisions of Bombay Tenancy And Agricultural Lands Act. 1949 (hereinafter referred to as the B.T. and A. L. Act). As far as the properties described in Schedule D are concerned it is the case of the plaintiffs that Dadu was in possession of those properties as a protected tenant; but, subsequently he entered into an Agreement of Sale with the landlords and as such he was in possession of those lands as intending purchaser; therefore the plaintiffs claimed that they were entitled to the same right as Dadu had left a Will in their favour. The case of the plaintiffs was that Dadu executed a registered Will dated 28.9.1964 and he died on 12.12.1964. Under the will which is cmarked as Ex.p-98 Dadu bequeathed all the rights he had in the suit properties described in Schedules A, B, C and D. The plaintiffs had also prayed for permanent injunction against the defendants.
5. The defendants contested the suit and interalia contended that Dadu did not execute the will; that even otherwise it was not open to him to transfer the lands described in Schedule A to D during his life time, therefore, he could not bequeath those properties having regard to the provisions contained in Section 27 of the B.T. and A.L. Act and Section 7 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act (hereafter referred to as the Bombay Fragmentation Act) and also Section 57 read with Schedule III of the Indian Succession Act.
6. The Courts below have held that due execution of the will is proved. The finding recorded by the Courts below regarding due execution of the will is supported by the evidence on record and we are of the view that the said finding does not suffer from any illegality so as to call for interference in a Second Appeal under Section 100 of the C.P.C. The Courts below have also further held that Section 57 of Schedule III of the Indian Succession Act have stood modified by reason of Section 30 of the Hindu Succession Act, 1956 and as such there was no bar for Dadu to bequeath the tenancy rights; that the will did not amount to a transfer therefore the bar contained in Section 7 of the Bombay Fragmentation Act was not attracted. As such the will in so far it related to the fragments was not void. Accordingly, the trial Court decreed the suit and the lower Court affirmed it.
7. The Second Appeal is referred to a Division Bench on the ground that it involves a question as to whether a tenant governed by the B.T. and A. L. Act could execute a Will in respect of the tenancy right in the presence of a bar contained in Section 27 of the B.T. and A.L. Act, for transferring the tenancy right.
8. As the Second Appeal is referred to a Division Bench the other questions involved in the Appeal are also required to be gone into.
9. Sri Shastry, learned Counsel appearing for the appellants has advanced the following contentions:
That Section 27 of the B.T. and A.L. Act prohibited transfer of tenancy right and as such Dadu could not transfer the tenancy right during his life time, hence, the bar contained under Section 57 and Schedule III of the Indian Succession Act did affect the right of Dadu to bequeath the tenancy right; that Section 30 of the Hindu Succession Act did not in any way confer a right which a Hindu did not possess to transfer the property; that Section 30 conferred a right upon a Hindu to dispose of by Will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act or any of the law for the time being in force and applicable to Hindus; that explanation to Section 30 enabled a male Hindu to Will away his interest in Mithekshara Coparcenary property notwithstanding the fact that there was no actual division in the family. It is further contended that Section 7 of the Bombay Fragmentation Act also placed an embargo on the right of Dadu to transfer the fragments, therefore, Section 57 and Schedule III of the Indian Succession Act were also attracted to the case of bequeathing a fragment. Hence, it is submitted that the lands comprised in Schedules A to C in question being fragments the Will was void in respect of those properties. Regarding Schedule D properties it was contended that even according to the case of the plaintiffs Dadu was in possession of those properties as a permanent tenant. A mere fact that subsequently there was an agreement of sale in his favour it did not have the effect of wiping out a tenancy as long as there was no actual deed of transfer executed in his favour.
10. These contentions are refuted by Sri Visweswara, learned Counsel appearing for the respondents/plaintiffs. It is contended by him that Section 57 and Schedule III will not apply to a case where there is no complete embargo on the right of the owner to transfer the properties; if the embargo is limited to certain circumstances it could not be said that there was no right of transfer in the testator, hence, he could not bequeath the properties as he could transfer them during his life time.
11. As far as bequeathing of tenancy right is concerned it is submitted that there is no such bar contained in Section 27 of the B.T. and A.L. Act. Therefore, the tenancy right could be willed away just as any other right.
12. Having regard to these rival contentions, the points that arise for consideration are as follows:
1. Whether the enancy right in an agricultural land governed by B.T. and A.L. Act could be bequeathed under a will?
2. Whether the provisions of Section 57 and Schedule III of the Indian Succession Act are applicable to a case where the tenancy right is bequeathed under the will?
3. Whether the provisions contained in Section 7 of the Bombay Fragmentation Act read with Section 57 and Schedule III of the Indian Succession Act created a bar for bequeathing the fragments under a will?
4. What is the nature of right enjoyed by Dadu in 'D' Schedule properties on the date of his death?Point Nos. 1 & 2
13. Section 27 of the B.T. and A.L. Act, as applicable to the Bombay Karnataka area was as follows:
"27.(1) No sub-division or sub-letting of the land held by a tenant assignment of any interest therein shall be valid:
Provided further that if the tenant dies:-
(i) if he is member of a joint family, the surviving members of the said family, and
(ii) if he is not a member of a joint family, his heirs, shall be entitled to partition and sub-divide the land leased subject to the following conditions:-
(a) each sharer shall hold his share as a separate tenant,
(b) the rent payable in respect of the land leased shall be apportioned among the sharers, as the case may be, according to the share allotted to them,
(c) the area alloted to each sharer shall not be less than the unit which the State Government may, by general or special order, specify in this behalf having regard to the productive capacity and other circumstances relevant to the full and efficient use of the land for agriculture.
(d) if such area is less than the unit referred to in Clause (c), the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds,
(e) if any question arises regarding the apportionment of the rent payable by the sharers, it shall be decided by the Mamlatdar, whose decision shall be final."
It is also relevant to notice Section 40 of the B.T. and A.L. Act which read thus:
"40(1) Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy.
(2) Where the tenancy is inherited by heirs other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land."
A reading of both the provisions together makes it clear that it is not permissible to bequeath the tenancy right except the right of a permanent tenant. Second proviso to Section 27(1) specifically provides as to what should happen to the tenancy right on the death of a tenant. It specifically states that if the tenant were to be a member of the joint family at the time of his death, the tenancy right held by him should go to the surviving members of the joint family and if he was not a member of a joint family then to his heirs. It also provides for division of the tenancy right among the heirs of the deceased and apprtionment of the rent payable by each of the sharers according to the shares allotted to them.
14. Section 40, as reproduced above, further makes it clear that on the death of a tenant other than a permanent tenant the landlord should be deemed to have continued the tenancy in the same terms and conditions on which such tenant was holding at the time of his death to such heir or heirs of the decesed tenant as may be willing to continue the tenancy. Sub-section (2) thereof further makes it clear that if the tenancy rights were inherited by the heirs other than the widow of the deceased tenant such widow should have a charge for maintenance on the profits of such land. Thus a reading of Sections 27 and 40 of the B.T. and A.L. Act together and keeping in view the object of the Act as stated in the preamble of the Act, it leaves no doubt that the tenancy right other than the right of a permanent tenant on the death of tenant should devolve only as per the second proviso to Section 27. Any other interpretation would make Section.40 and also second proviso under Section 27 of the B.T. and A.L. Act otiose, in as much as it would be open to a tenant to dispose of the tenancy right by a will. In that event the question of surviving members of the joint family if the tenant were to be a joint family and the heirs of the tenant if he ware to be an individual, succeeding to the tenancy would be defeated. Similarly, the obligation on the part of the landlord to continue the tenancy on the death of tenant with the heirs of his deceased tenant would also become ineffective and inoperative. An interpretation which defeats the very object and purpose of enactment should be avoided. It is also relevant to notice that as per the provisions contained in B.T. and A.L. Act once a tenancy right is created it could come to an end only in accordance with the provisions contained therein and it continues in the manner provided thereunder. The tenancy right of a tenant under the B.T. & A.L. Act is a creature of statute. Therefore, it is strictly governed by provisions of the statute. Therefore, even when a tenant dies, the devolution of tenancy right is governed by the Statute i.e., B.T. & A.L. Act and not by a personal law or as common law. According to the provisions of the B.T. & A.L. Act, the heirs of the deceased tenant would be entitled to succeed to the interest of the deceased tenant as per the second proviso to Section 27. Hence, we are of the view that the right of a tenant other than the permanent tenant under B.T. & A.L. Act cannot be bequeathed under a will. Similarly, the provisions contained in Sections 21 & 24 of the Karnataka Land Reforms Act are in pari materia with those contained in Section 27(1) and Section 40 of the B.T. and A.L. Act.
15. A Division Bench of this Court in TIMMAKKA KOM VENKANNA NAIK v. LAND TRIBUNAL, while considering the provisions of Karnataka Land Reforms Act has taken a view that it is not permissible for tenant to will away his interest or a portion thereof. The relevant portion of the Judgment is as follows:
" We are inclined to agree with this proposition. It is clear that under Section 21(1) there is a bar against sub-division or sub-letting of the land held by tenant or assignment of any interest thereunder. Any assignment contrary to the said bar is invalid. (Of course, there is an exception in the case of a permanent tenant). This bar cannot be overcome by a tenant by creating a will. What he cannot do during his life time cannot be held to be capable of being done immediately after his death. Second proviso to Section 21(1) highlights this aspect by conferring certain rights only on the surviving members of the family or on his heirs. If a tenant can will away his interest or a portion thereof, then the second proviso also will be nullified by enabling the legatee to have the land partitioned in his favour. Section 24 of the Act states that "where a tenant died, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death." This statutory provision is also against the concept of bequeathing the tenant's interest by will, statute has peremptorily provided the sucession which cannot be defeated by the tenant by bequeathing his interest.
16. It is also relevant to notice that Section 57 and Schedule III of the Indian Sucession Act also contain a provision to the effect that the provisions contained in Part VI which are set out in Schedule III of the Act shall subject to the restrictions and modifications specified therein apply to Hindu wills and codicils made after 1-1-1927. One of the restrictions imposed by Clause 1 Schedule III of the Indian Succession Act is to the following effect:
"Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which, but for the application of these sections, he could not deprive them by will."
The other clauses of Schedule Ml are not relevant for our purpose. Therefore, Clause 1 of Schedule III read with Section 57 it is clear that a Hindu who did not have any right to alienate the property during his life time could not bequeath such property under a will. In the instant case we have already pointed out that Dadu could not have alienated the tenancy right during his life time having regard to the provisions contained in Section 27 read with Section 40 of the B.T. and A.L. Act as those provisions excluded disposition of such right under a will. That being so, he could not have willed away the tenancy right in some of the lands in question. Hence, the will Ex.P.98 in so far it related to tenancy right was void and it did not and could not convey any right, title and interest to the plaintiffs.
17. However, the learned Counsel for the appellants has placed reliance on a Division Bench Decision of this Court in SUBHASH HIRASINGH RAJPUT v. SUNDARABAI GANGAPPA RAJAPUT AND ORS., W.P. No. 971 of 1969 DD 25-10-1971 In that case, the question arose as to the correctness of the mutation entries made on the basis of the will executed by the deceased tenant. The Deputy Commissioner held that the tenancy right could not be willed away. Therefore, the mutation entries could not be made pursuant to the will. This Court interfered with that order and held thus:
"The Deputy Commissioner states that it is well established in law that the tenancy rights cannot be willed. This view is patently erroneous. Section 27 of the B.T. & A.L. Act nowhere prohibits testamentary succession. What is prohibited is subletting of the land held by a tenant or assignment of any interest therein. In other words alienation of any land by tenant is prohibited by Sub-section (1) of Section 27 of the Act. Succession may be testamentary or intestate. Testamentary succession is secured by execution of a will and it does not amount to an assignment of interest by a tenant.
Ordinarily we would not have interfered under our writ jurisdiction in a matter relating to entries in the Record of Rights as the parties have the right to civil suit. In the instant case, the Deputy Commissioner has stated that it is well established in law that Section 27 prohibits testamentary succession. That error cannot be allowed to stand uncorrected. Therefore, we allow this Writ Petition, set aside the orders of the Assistant Commissioner and the Deputy Commissioner and remit the matter to the Assistant Commissioner concerned to dispose of the appeal on merits.
We have not expressed any opinion on the truth and validity of the will set up by the petitioner."
It may be relevant to notice that in that case, it was not at all brought to the notice of the Court, the second proviso to Section 27(1) and also Section 40 of the B.T. & A.L. Act and also the principle of law that whenever a statute creates a right and further states that such right should devolve in a particular manner and mode, it is that manner and mode alone that would govern the manner and mode of succession and disposition of that right and also the restriction imposed on the power of right to will away in the provisions contained in Section 57 and Schedule III of the Idian Sucession Act. Whereas in a later Decision in Timmakka's case another Division Bench went into the matter and took into consideration the Second Proviso to Section 21 and Section 24 of the Karnataka Land Reforms Act, which as already pointed out are in pari materia with Section 27 (2) and Section 40 of the B.T. & A.L Act, and held that it was not open to bequeath the tenancy right. Therefore, we are of the view that the Decision in Subhash's case is a Decision per incuriam as it is rendered without noticing the relevant provisions of law as pointed out above. Hence the said Decision cannot be considered to lay down a binding precedent to the effect that the tenancy right other than the right of permanent tenant can be willed away. The decision in SHIVANNA v. RACHIAH, C.R.P. No. 319 of 1976 DD 29-3-1977 is rendered by a Single Judge of this Court holding that a tenancy right can be willed away. This Decision is rendered under the Karnataka Land Reforms Act with reference to the provisions contained in Sections 5/21 and 24. The reasoning of the learned Single Judge is as follows;
"The petitioner examined the attestors to the will and the learned Munsiff came to the conclusion that the will has been proved. But he dismissed the application on the ground that bequeathing of properties by testamentary disposition is prohibited by Sections 5 and 21 of the Karnataka Land Reforms Act. This view of the learned Munsiff is patently erroneous. Section 5 of the Act prohibits creation of any lease after the date of the commencement of the Act. Section 21 prohibits assignment of an intertest in a leasehold land. If a tenant bequeaths his property by a will, that does not amount to assignment of his interest. Assignment of an interest is a transfer made inter vivos. A testamentary disposition, on the other hand, comes into effect on the death of the testator; it is not an act inter vivos. Section 24 of the Act categorically states that rights of tenants are heritable. Therefore, there is no prohibition against a tenant disposing of his interest by testamentary disposition. There is no provision laying down that a tenant's property can pass on his death only by intestate succession."
In the light of the Decision in Thimmakka's case and the view expressed by us above, the Decision in Shivanna's case cannot be approved. It is accordingly overruled.
18. For the reasons stated above, Point Nos. 1 and 2 are answered as follows:
The tenancy rights other than the permanent tenancy right cannot be willed away under the provisions of the B.T. & A.L. Act. The provisions of Section 57 and Clause (1) Schedule-Ill of the Indian Sucession Act are also attracted to such a case, because there is a bar for transfer of tenancy or bequeathing the tenancy right under a will.
POINT NO.3
19. In this case, it has been held by the learned appellate Judge that the lands are fragments and they are also notified as per Section 6 of the Bombay Fragmentation Act. However, the learned appellate Judge has held that bequeathing of the properties does not amount to a transfer, therefore, Section 7 of the Bombay Fragmentation Act is not attracted. The learned District Judge has also relied upon Section 30 of the Indian Succession Act. Section 7 of the Bombay Fragmentation Act reads thus:
"(1) No person shall transfer any fragment in respect of which a notice has been given under Sub-section (2) of Section 6 (except to the owner of) a contiguous survey number or recognised sub-division of a survey number:
Provided that the holder of such fragment may mortgage or transfer it to the State Government or a Land Mortgage Bank or any other co-operative society as security for any loan advanced to him by the State Government or such bank or society, as the case may be.
2) Notwithstanding anything contained in any law for the time being in force, or in any instrument or agreement, no such fragment shall be leased to any person other than a person cultivating any land which is contiguous to the fragement."
There is no doubt that Section 7 of the Bombay Fragmentation Act prohibits transfer of a fragment to any other person except to the owner of the contiguous survey number or recognised sub-division of a survey number or transferring it to the State Government or mortgaging it to the Land Mortgage Bank or any other Co-operative Society as security for any loan advanced to him by the State Government or such bank or society. Thus, it is clear that there is no complete bar for transfer of a fragment by the owner of a fragment. Therefore, it is permissible to transfer a fragment to the owner of a contiguous survey number or recognised sub-division of a survey number and also to others as stated in the proviso to Sub-section (1) of Section 7 of the Bombay Fragmentation Act. Therefore, it follows that the restriction imposed on the right to transfer was not a complete restriction or a complete bar so as to take away the right to transfer a fragment by the owner of a fragment. It was only a restriction on the right to transfer in as much as a fragment could be transferred only to the owner of a contiguous survey number or recognised sub-division of a survey number and other persons mentioned in the proviso. Therefore, the right to transfer was not completely taken away from the owner. Clause (1) of Schedule-III of the Indian Succession Act reads thus:
" (1) Nothing therein contained shall authorise a testator to bequeath property which he could not have alienated inter vivos, or to deprive any persons of any right of maintenance of which but for the application of these sections, he could not deprive them by will."
From the aforesaid clause, it is clear that the testator is not authorised, and he is not competent, to bequeath the property which he could not have alienated during his life time. Therefore, the aforesaid clause will be attracted only if the testator had no right to alienate inter vivos during his life-time. We have already pointed out that Section 7 of the Bombay Fragmentation Act did not completely take away the right to transfer. On the contrary it only placed a restriction on the right to transfer which cannot be interpreted or construed as taking away the right to transfer the fragment Hence, the bar contained in Clause (1) of Schedule-III of the Indian Succession Act was not attracted to the will in question in so far it related to the properties other than the tenancy lands. We are of the view that it is the settled position of law that bequeath under a will cannot be construed to be a transfer of property as defined under the Transfer of Property Act. Transfer of Property means an act by which a living person conveys property in present or in future to one or more other living persons or to himself or one's living persons. As the will comes into effect only on the death of the testator, it cannot be construed to be a transfer by living person. Therefore, the words 'living person' occurring in Section 5 of the Transfer of Property Act excludes from the purview of the Transfer of Property Act a bequeath by will. We may also point out that Clause (1) or Schedule III of the Indian Succession Act imposes a restriction on the right to will away the property by the testator. It has to be strictly construed as otherwise it would undermine the right to will away the properties which Hindus and other persons enjoy under the common law. Section 30 of the Hindu Succession Act has not been correctly construed by the learned Civil Judge. It is not correct to read that Section 30 of the Hindu Succession Act has the effect of amending Section 57 and Schedule-III of the Indian Successon Act and also Section 7 of the Bombay Fragmentation Act. What all it says is that a Hindu may dispose of by will or other testamentary disposition any property which is capable of being so disposed of by him in accordance with the provisions of the Indian Succession Act, 1925 or any other law for the time being in force and applicable to Hindus. Explanation thereto enables a male Hindu to dispose of by will his undivided interest in the Mithakshara coparcenery property. Therefore, it is clear that Section 30 of the Hindu Succession Act, 1956 only enables a male Hindu to dispose of his undivided interest in a Mithakshara coprcenery property. It does not in any way affect the provisions contained in Section 57 and Schedule III of the Indian Succession Act except to the extent of enabling an undivided member of Hindu Joint family to will away his undivided interest in the Mithakshara coparcenery property. Therefore, we are of the view that Section 30 of the Hindu Succession Act, 1956 cannot be read either modifying Section 7 of the Bombay Fragmentation Act or affecting Section 57 and Schedule-III of the Indian Succession Act excent to the extent explained in the Explanation thereto. Accordingly Point No. 3 is answered in the negative.
POINT NO. 420. It is contended on behalf of the appellants that Schedule-D property was enjoyed by Dadu as tenant. The fact that subsequently he agreed to purchase the same and the agreement of sale came into existence did not in any way wipe out the tenancy right as there was no deed transferring the right, title and interest of the landlord in favour of Dadu. Under the provisions of the B.T. & A.L. Act, the tenancy could be put to an end either by surrender before the Tahsitdar or by termination of it in accordance with the provisions contained therein and on obtaining possession by the land-owner and also by sale of the land by the landlord to the tenant was not prohibited. No other mode was permissible. Therefore, as long as there was no transfer of the tenanted lands comprised in Schedule-D in favour of Dadu by the landlord, the fact that Dadu had agreed to purchase the lands did not in any way alter or affect the tenancy right and such an agreement of sale did not have the effect of effacing the tenancy (See MALLAVPPA BHIMANNA v. LAND TRIBUNAL, SINDAGI AND ORS., 1979(2) KLJ 218). Therefore, it follows that Dadu continued to be the tenant of the lands comprised in Schedule-D as such he could not have bequeathed the tenancy right under will. Hence Point No. 4 is answered as follows:
"Dadu, irrespective of agreement of sale in his favour, was in possession of the lands described in Schedule D as tenant."
21. For the reasons stated above, this Appeal has to be allowed in part. The suit filed by the plaintiff has to be dismissed in so far as it relates to the properties comprised in Schedules-C and D.
22. Accordingly, we allow the Appeal in part, set aside the judgment and decree of the Courts below in so far as they relate to the properties comprised in Schedules C and D and dismiss the suit to that extent and confirm the Judgment and decree of the Courts below in so far as they relate to the properties comprised in Schedules-A and B.