Karnataka High Court
Suresh S/O Shivappa Bangari vs The Deputy Commissioner on 15 November, 2024
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
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NC: 2024:KHC-D:16745
WP No. 102265 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
WRIT PETITION NO. 102265 OF 2022 (KLR-RR/SUR)
BETWEEN:
SURESH S/O. SHIVAPPA BANGARI,
AGED ABOUT 52 YEARS, OCC: AGRICULTURE,
R/O. SUDAMBI-581106,
TQ: BYADAGI, DIST: HAVERI.
...PETITIONER
(BY SRI. S.G. KADADAKATTI &
SRI. LINGESH V. KATTEMANE, ADVOCATES)
AND:
1. THE DEPUTY COMMISSIONER,
HAVERI, DISTRICT: HAVERI-581110.
2. THE ASSISTANT COMMISSIONER,
HAVERI SUB-DIVISION, HAVERI-581110.
3. THE TAHASILDAR,
BYADAGI, DIST: HAVERI - 581106.
MALLIKARJUN 4. SMT. PREMILAVVA W/O. SHIVAPPA BANGARI,
RUDRAYYA
KALMATH AGED ABOUT 69 YEARS, OCC: HOUSEHOLD WORK,
R/O. SUDAMBI-581106, TQ: BYADAGI, DIST: HAVERI.
Location: HIGH
COURT OF
KARNATAKA
DHARWAD ...RESPONDENTS
BENCH
(BY SRI. JAIRAM SIDDI, HCGP FOR R1-R3;
R4-DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE
NATURE OF CERTIORARI BY QUASHING THE IMPUGNED ORDER
DATED 19.05.2022, PASSED BY THE DEPUTY COMMISSIONER
HAVERI IN CASE NO. RTS:RA:CR:3/2021-22 VIDE ANNEXURE-G BY
CONFIRMING THE ORDER DATED 19.04.2021 PASSED BY THE
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NC: 2024:KHC-D:16745
WP No. 102265 of 2022
ASSISTANT COMMISSIONER, HAVERI SUB-DIVISION HAVERI, IN
CASE NO. R.T.S/AP/83/2017 A VIDE ANNEXURE-F BY ALLOWING
THIS WRIT PETITION.
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR) Heard learned counsel for the petitioner and learned HCGP for respondents No.1 to 3.
2. Issuance of notice to respondent No.4 is dispensed as no relief is sought by the petitioner and this Court is not inclined to pass any adverse orders against the 4th respondent.
3. It is the contention of learned counsel for the petitioner that the petitioner became the owner of property by virtue of a registered Will dated 26.03.2015 bequeathed by one Fakirava W/o. Ningappa Kempannavar before the Sub-Registrar, Byadagi. Pursuant to the death of Smt. Fakiravva, the petitioner approached the Tahashildar to enter his name in the revenue records which was -3- NC: 2024:KHC-D:16745 WP No. 102265 of 2022 accordingly entered. This entry of name of petitioner in the revenue records was objected by respondent No.4 and after conducting an enquiry in the dispute, the Tahashildar entered the name of petitioner in the record of rights. Aggrieved by the order of the Tahashildar, same came to be challenged by 4th respondent before the 2nd respondent. The 2nd respondent-Assistant Commissioner after considering and hearing both parties set aside the order and ordered the entry of the name of respondent No.4 in the revenue records. This order again came to be challenged by the petitioner by preferring a revision petition before the 1st respondent-Deputy Commissioner, who confirmed the order of the Assistant Commissioner. Petitioner aggrieved by these two orders is before this Court.
4. It is the contention of learned counsel for the petitioner that as per the provisions of Section 128 of the Karnataka Land Revenue Act, 1961, the order passed by the Tahashildar is correct on the basis of a registered document. The order that is being set aside by the Assistant Commissioner and Deputy Commissioner is without any -4- NC: 2024:KHC-D:16745 WP No. 102265 of 2022 rhyme or reason. It is apparently seen that no doubt by virtue of the registered document changed the name in the revenue records in favour of the petitioner based on the registered Will. The orders of the Tahashildar was questioned before the Assistant Commissioner and the Deputy Commissioner, which reversed the order of the Tahashildar and thereafter petitioner has filed a suit seeking a relief of declaration on the basis of registered Will, which is pending adjudication and respondent No.4 is the contesting respondent. This being the state of affairs, it will not be proper and possible for the revenue authorities to decide the validity or otherwise of the registered Will and no such powers are also vested with the revenue authorities. Therefore, it would be the Civil Court which would have jurisdiction and powers to decide the validity of the Will, either to uphold it or reject. The orders passed by the Civil Court in the suit pending between the parties would decide the rights of the parties and the validity of the Will. The entry in the revenue records would be outcome of the said suit.
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NC: 2024:KHC-D:16745 WP No. 102265 of 2022
5. In my view gains support from the decision of the full bench in the case of C.N.Nagendra vs. The Special Deputy Commissioner, Bengalore District and Others, reported in ILR 2002 KAR 2750.
"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 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 -6- NC: 2024:KHC-D:16745 WP No. 102265 of 2022 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 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.
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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, the Revenue Courts have no -8- NC: 2024:KHC-D:16745 WP No. 102265 of 2022 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."
6. Under the circumstances, this petition is disposed of reserving liberty to the petitioner to obtain suitable orders from the Civil Court and the outcome of the decision in the Civil suit with regard to the registered Will decide the rights of the parties for entry of name in the revenue records.
Ordered accordingly.
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NC: 2024:KHC-D:16745 WP No. 102265 of 2022 It is made clear that this Court has not expressed any opinion with regard to the merits of the matter, more specifically with regard to the Will in question.
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(PRADEEP SINGH YERUR) JUDGE CKK CT-MCK List No.: 1 Sl No.: 20