Karnataka High Court
Madiwalappa S/O Dyamappa Annigeri vs Madiwalappa S/O Yallappa Hattikatagi on 14 July, 2025
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2025:KHC-D:8785
RSA No. 5460 of 2013
C/W RSA No. 6005 of 2013
HC-KAR
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 14TH DAY OF JULY 2025
BEFORE
THE HON'BLE MR. JUSTICE M.G.S. KAMAL
RSA. NO.5460/2013 (DEC/INJ)
C/w. RSA.NO.6005/2013 (DEC/INJ)
IN RSA.NO.5460/2013:
BETWEEN:
1. SMT. LAXMAVVA DEAD BY HER LRS.,
1A. SMT. YELAWWA
W/O. MALLAPPA THIPPANNAVAR,
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O: KURUBARA ONI, M. NAGAR,
HDMC (KAMALAPUR) WARD, DHARWAD.
1B. SRI. MALLAPPA HANAMANTHAPPA KITTUR,
AGE: 54 YEARS, OCC:AGRICULTURE,
Digitally signed by
SAROJA R/O: KURUBARA ONI, M. NAGAR,
HANGARAKI
Location: High HDMC (KAMALAPUR) WARD, DHARWAD.
Court of
Karnataka,
Dharwad Bench,
Dharwad 1C. SRI. BHIMAPPA HANAMANTHAPPA KITTUR,
AGE: 45 YEARS, OCC:AGRICULTURE,
R/O: KURUBARA ONI, M. NAGAR,
HDMC (KAMALAPUR) WARD, DHARWAD.
1D. SMT. MALLAWWA D/O. HANAMANTHAPPA KITTUR,
AGE: 42 YEARS, OCC:AGRICULTURE,
R/O: KURUBARA ONI, M. NAGAR,
HDMC (KAMALAPUR) WARD, DHARWAD.
...APPELLANTS
(BY SRI. ANAND R. KOLLI, ADVOCATE)
-2-
NC: 2025:KHC-D:8785
RSA No. 5460 of 2013
C/W RSA No. 6005 of 2013
HC-KAR
AND:
MANJAPPA
S/O. BASAVANNEPPA TAVARAGONDI,
SINCE DECEASED BY HIS L.RS
1. SMT. SIDDAVVA W/O. BASAPPA MAYANNAVAR,
AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
R/O: AMMINABHAVI, TQ: DIST: DHARWAD.
2. SMT. SANTAVVA D/O. YALLAPPA HATTIKATAGI,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: AMMINABHAVI, TQ: DIST: DHARWAD.
3. SMT. BASAWWA W/O. BASAPPA LAGANNAVAR,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O: YADALLI, TQ: SAUNDATTI,
DIST: BELAGAVI.
4. SRI. MADIVALAPPA
S/O. YALLAPPA HATTIKATAGI,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: GADAG, NOW AT SOMAPUR,
TQ & DIST: DHARWAD.
5. SRI. BASAPPA S/O. YALLAPPA HATTIKATAGI,
AGE: 52 YEARS, OCC: AGRICULTURE,
R/O: GADAG, NOW AT SOMAPUR,
TQ & DIST: DHARWAD.
6. SRI. NAGAPPA S/O. YALLAPPA HATTIKATAGI,
AGE: 49 YEARS, OCC: AGRICULTURE,
R/O: GADAG, NOW AT SOMAPUR,
TQ & DIST: DHARWAD.
7. SRI. ADIVEPPA S/O. YALLAPPA HATTIKATAGI,
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O: GADAG, NOW AT: SOMAPUR,
TQ & DIST: DHARWAD.
8. SRI. RAMAPPA S/O. YALLAPPA HATTIKATAGI,
DEAD BY HIS LRS.,
-3-
NC: 2025:KHC-D:8785
RSA No. 5460 of 2013
C/W RSA No. 6005 of 2013
HC-KAR
8A. SMT. RATHANAVVA
W/O. LATE RAYAPPA @ RAMAPPA,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMAPUR, NOW RESIDING
AT: YADAHALLI VILLAGE, TQ: DHARWAD.
8B. SMT. SUNANDHA
W/O. LATE RAYAPPA @ RAMAPPA,
AGE: 35 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMAPUR, NOW RESIDING
AT: YADAHALLI VILLAGE, TQ: DHARWAD.
8C. SAVITA D/O. LATE RAYAPPA @ RAMAPPA,
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMAPUR, NOW RESIDING
AT: YADAHALLI VILLAGE, TQ: DHARWAD.
9. SANCHALAKA BHARATHI VISHWA SEVA SADAN
SOMAPUR, REPRESENTED BY
SRI. MALTESHWAR MALAGI,
AGE: 68 YEARS, OCC: RETIRED
R/O: GADAG, NOW AT SOMAPUR,
TQ & DIST: DHARWAD.
10. SIR. NINGAPPA S/O. DYAMAPPA ANNIGERI,
AGE: 34 YEARS, OCC: AGRICULTURE
R/O: SOMAPUR, TQ & DIST: DHARWAD.
11. SRI. ADIVEPPA S/O. DYAMAPPA ANNIGERI,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR, TQ & DIST: DHARWAD.
12. YALLAWWA W/O. HANAMANTAPPA KURUBAR,
SINCE DECEASED BY HIS LRS.
12A. TIRUKAPPA S/O. LATE HANUMANTA KURUBAR,
AGE: 60 YEARS, OCC: FORMER,
R/O: MANSUR VILLAGE,
TQ: DIST: DHARWAD.
12B. NAGAVVA W/O. MAHADEVAPPA ALAGAWADI,
AGE: 50 YEARS, OCC: AGRICULTURE,
-4-
NC: 2025:KHC-D:8785
RSA No. 5460 of 2013
C/W RSA No. 6005 of 2013
HC-KAR
R/O: NIGADI VILLAGE,
TQ & DIST: DHARWAD.
12C. MS. SIDDAVVA D/O. HANUMANTHAPPA KURUBAR,
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: MANSUR VILLAGE,
TQ & DIST: DHARWAD.
...RESPONDENTS
(BY SRI SHRIKANT T. PATIL, ADVOCATE FOR R1 TO R7 &
PROP R8 (A & B);
SRI. NAGARAJ C. KOLLORI, ADVOCATE FOR R10 & R11;
SRI. SABEEL AHMED, ADVOCATE FOR R9;
PROP R8(C), R12(A TO C) ARE SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE 1908 PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE IN R.A.148/2009 DATED
27.02.2013 INSOFAR AS ALLOTTING 1/4TH SHARE TO THE
APPELLANT AND DECLINING TO GRANT SHARE IN BLOCK NO.62
MEASURING 3 ACRES 25 GUNTAS PASSED BY THE FAST
COURT - I DHARWAD AND THE JUDGMENT AND DECREE DATED
15.11.1999 SUIT BEARING O.S.NO.795/1989 PASSED BY THE
PRINCIPAL CIVIL JUDGE COURT (JR. DN.) DHARWAD INSOFAR
AS DECLINING TO GRANT SHARE IN BLOCK NO.62 MEASURING
3 ACRES 25 GUNTAS IN THE INTEREST OF JUSTICE EQUITY.
IN RSA.NO.5460/2013:
BETWEEN:
1. MADIWALAPPA S/O. DYAMAPPA ANNIGERI,
AGE: 59 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR,
TQ & DIST: DHARWAD - 580 007.
2. NINGAPPA S/O. DYAMAPPA ANNIGERI,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR,
TQ & DIST: DHARWAD - 580 007.
3. ADIWEPPA S/O. DYAMAPPA ANNIGERI,
AGE: 55 YEARS, OCC: AGRICULTURE,
-5-
NC: 2025:KHC-D:8785
RSA No. 5460 of 2013
C/W RSA No. 6005 of 2013
HC-KAR
R/O: SOMAPUR,
TQ & DIST: DHARWAD - 580 007
...APPELLANTS
(BY SRI. S. B. DODDAGOUDAR &
SRI. S.G.NANDOOR, ADVOCATES)
AND:
1. MADIWALAPPA S/O. YALLAPPA HATTIKATAGI ,
AGE: 60 YEARS, OCC: AGRICULTURE,
NOW R/O: SOMAPUR,
TQ: DHARWAD - 580 007.
2. NAGAPPA S/O. YALLAPPA HATTIKATAGI,
AGE: 58 YEARS, OCC: AGRICULTURE,
NOW R/O.SOMAPUR, TQ: DHARWAD - 580 007.
3. MUDAKAPPA S/O. YALLAPPA HATTIKATAGI,
AGE: 56 YEARS, OCC: AGRICULTURE,
NOW R/O: SOMAPUR, TQ: DHARWAD - 580 007.
4. PARAPPA S/O. YALLAPPA HATTIKATAGI,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O: SOMAPUR, TQ: DHARWAD - 580 007.
5. LAXMAVVA W/O. HANAMANTHAPPA KITTUR,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMAPUR, TQ : DHARWAD - 580 007.
6. YALLAVVA W/O. HANAMANTHAPPA KURBAR ,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: SOMAPUR, DIST: DHARWAD - 580 007.
7. SANCHALKA BHARATHI VISHWA SEVA SADAN,
REPRESENTED BY SHRI. MALTESHWAR MALAGI,
R/O: SOMAPUR, TQ: DHARWAD.
...RESPONDENTS
(BY SRI. SHRIKANT T. PATIL, ADVOCATE FOR R1 TO R3;
SRI. MOHAMMED ABRAR S., ADVOCATE FOR
SRI SABEEL AHMED, ADVOCATE FOR R7;
V/O DATED: 30.03.2021 APPEAL AGAINST R5 IS ABATED;
NOTICE TO R6 IS HELD SUFFICIENT)
-6-
NC: 2025:KHC-D:8785
RSA No. 5460 of 2013
C/W RSA No. 6005 of 2013
HC-KAR
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, 1908 PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE PASSED IN R.A.147/2009
AND DATED 27.02.2013 ON THE COURT OF FAST TRACK - I,
DHARWAD, BY CONFIRMING THE JUDGMENT AND DECREE
PASSED IN O.S.NO.696/1989 DATED 15.11.1999 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE (JR. DN.) DHARWAD AND
O.S.NO.696/1989 BE PLEASE DECREED, SUCH OTHER ORDER
MAY BE PASSED AS THIS HON'BLE COURT DEEMS FIT IN THE
FACTS AND CIRCUMSTANCES OF THE CASE IN THE INTEREST
OF JUSTICE AND EQUITY.
THESE APPEALS, COMING ON FOR ORDERS THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)
1. These appeals are directed against the common judgment and decree dated 15.11.1999 passed in OS No.696/1989 (old O.S. No.64/1985) and in OS No.795/1989 (old O.S. No.218/1986) on the file of Principal Civil Judge (Jr.Dn.), Dharwad (for short, 'Trial Court') and the common judgment and order dated 27.02.2013 passed in regular appeals in RA Nos.147/2009 and 148/2009 on the file of Fast Track-I, Dharwad (for short, 'First Appellate Court').
-7-
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR
2. Subject matter of the aforesaid suits are the properties bearing Block No.31/2 measuring 3 acres 6 gutnas and Block No.62 measuring 9 acres 5 guntas both situated at Allapur also known as Somapur village, Dharwad Taluk.
3. Suit in OS No.696/1989 is filed by Dyamappa against his sisters Smt. Maritangewwa and Smt. Laxmavva and one Sri. Malateshwar Malagi who is stated to be a chairman of one Sanchalaka Bharati Vishwaseva Sadan, seeking relief of declaration to declare him having succeeded as a sharer to the aforesaid properties after the demise of his brother Kareppa and consequential relief of injunction, contending inter-alia that:
(a) The aforesaid properties were being cultivated as a tenant by one Adivappa who is father of the plaintiff, defendant Nos.1 and 2 and deceased Kareppa. Upon his demise, the plaintiff and his deceased brother Kareppa succeeded to the tenancy. That the Land Tribunal granted occupancy rights to the extent of 3 -8- NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR acres 7 guntas in Block No.31/2 in favour of the plaintiff and remaining extent of 3 acres 6 guntas in favour of his deceased brother Kareppa. Similarly occupancy rights in respect of Block No.62 were granted in favour of Kareppa. The said grant was made under the provisions of Karnataka Land Reforms Act, 1961. That grant certificate in Form No.10 was issued in respect of aforesaid properties with a condition of non alienation for a period of 15 years.
(b) That defendant Nos.1 and 2 who are the sisters of plaintiff and said Kareppa were married and have been staying separately. The said Kareppa passed away on 24.09.1984 without leaving behind any legal heirs.
His wife Gangawa pre-deceased him. Thus, except the plaintiff there are no other surviving co-parceners to the said Kareppa.
(c) That Kareppa had, on an earlier occasion, executed a Will dated 22.10.1974, bequeathing his property in favour of his wife Gangawwa and his sisters defendant -9- NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR Nos.1 and 2. However, by a subsequent Will dated 10.03.1983, he had bequeathed land measuring 3 acres 6 guntas in Block No.31/2 in favour of Maritangevva-defendant No.1 and by another Will dated 18.02.1984, he had bequeathed 3 acres 25 guntas of northern portion of Block No.62 in favour of defendant No.3. In the said Will dated 18.02.1984 there is a reference of he having three daughters, which is false. That the execution of Will dated 18.02.1984 was in violation of condition No.8 of the grant certificate. That the said bequeath in favour of defendant No.3 was illegal and hence sought for relief of declaration, declaring him to be the exclusive owner being sole surviving co-parcener and sought for consequential relief of permanent injunction.
4. Written statement has been filed by defendant Nos.1 and 3 denying the plaint averments. It is contended that after the demise of Adiveppa, his sons namely plaintiff and deceased Kareppa had entered into a partition. In
- 10 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR terms of which aforesaid properties namely land bearing Block No.31/2 measuring 3 acres 6 guntas and land bearing Block No.62 measuring 9 acres 5 guntas had been fallen to the share of deceased Kareppa. While land bearing Block No.31/2 measuring 3 acres 2 guntas and land measuring 7 acres 35 guntas of Block No.49/3 had been allotted to the share of plaintiff-Dyamappa. That the grant of occupancy rights were made in the name of the plaintiff and his deceased brother Kareppa in furtherance to the aforesaid partition that had been entered into between the parties. The deceased Kareppa, by Will dated 22.10.1974, bequeathed his properties equally amongst his wife Gangawwa, his sisters Maritangewwa, Laxmawwa (Defendants No.1 and 2). Kareppa was a supporter of education for the welfare of students. He therefore executed another Will dated 18.02.1984, bequeathing northern 3 acres 25 guntas of land in Block No.62 in favour of Sanchalaka Bharatiya Vishwaseva Sadan / defendant No.2 (Institution). Kareppa passed away on 24.09.1984. The institution has taken possession of 3 acres 25 guntas of
- 11 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR land as owner of the said extent pursuant to the said Will. Hence, on that basis sought for dismissal of the suit.
5. Suit in O.S.No.795/1989 (old No.218/1986) was filed by Smt.Laxmawwa originally against Maritangewwa and Sanchalaka Bharatiya Vishwaseva Sadan for relief of partition and separate possession of ½ share in land bearing Block No. 62, measuring 9 acres 5 guntas, and for declaration that the Will dated 18.02.1984, purportedly executed by the deceased Kareppa in favour of Sanchalaka Bharatiya Vishwaseva Sadan (2nd defendant) was illegal, and for consequential relief of injunction.
6. The averments made in the said plaint are similar to the averments made in O.S.No.169 of 1989 with regard to tenancy, grant of occupancy rights, and execution of Wills by the deceased Kareppa, except for alleging that the Will dated 18.02.1984 is a false and fabricated document created by the defendant No.2 / institution in collusion with the authorities. A written statement was filed
- 12 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR by the defendants in similar lines as the one filed in O.S.No.696/89.
7. Considering the pleadings, the trial court framed following issues in both the suits in O.S.No.696/89 and O.S.No.795/89:
"Issues in O.S.No.696/1989
1. Does plaintiff prove that he has succeeded to the suit lands as a surviving co- parcener?
2. Does he further prove the Wills executed by Kareppa are void?
3. Does he further prove his lawful possession on the date of suit?
4. Does he further prove the alleged obstruction?
5. Whether the valuation made and court fee paid is proper?
6. If plaintiff entitled to the reliefs sought?
7. What order or decree?
Addl.Issue:-
"Whether the suit for declaration that the two Wills are void is maintainable in this court"?Issues in O.S.No.795/1989
1. Whether the plaintiff proves that Will deed dated:
18-02-1984 executed by late Kariyappa is fictitious and by playing fraud upon him?
2. Whether the plaintiff is entitled for the share in the suit property? If so what is it; on the basis of Will deed dated:
22-10-1974 and 24-04-1984 by late Kariyappa?
- 13 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR
3. Whether the plaintiff proves that, she is in joint possession of suit property?
4. Whether the suit is bad for non - joinder of necessary parties?
5. Whether the defendant No.2 prove that late Kariyappa executed a Will deed dated: 18-02-1984 for the suit land to the extent of 3A-25G towards north in favour of defendant No.22
6. Whether the defendant No.1 proves that late Kariyappa executed a Will deed dated 09.06.1984 in her favour for suit land to the extent of remaining land 5A.20G?
7. Whether the suit is barred by res-judicate?
8. What order or decree?"
8. Common evidence was recorded in both the suits. Plaintiff Dyamppa examined himself as PW.1 and another witness Bhimappa Basappa Morbad as PW2. Eight witnesses were examined on behalf of the defendants as DW.1 to DW.8. The plaintiff exhibited 5 documents marked as Ex. P1-P5 and the defendants exhibited 17 documents marked as Ex. D1-D17.
9. On appreciation of the evidence, the Trial Court in O.S.No.696/1989, answered Issue Nos. 1 to 4, and 6 in the negative and Issue No.5 and 7, as well as the additional issue in the affirmative. In O.S. No.795/89, answered
- 14 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR Issues No.1, 4, 6, and 7 in the negative, Issue No.2 and 3 partly in the affirmative, and Issue No. 5 in the affirmative. Consequently, the Trial Court by judgment and decree dated 15.11.1999, dismissed the suit in O.S. No.696/1989 and partly decreed the suit in O.S. No.795/1989, holding that the plaintiff in O.S. No.795/1989 is entitled for half- share in land bearing Block No.62, measuring 5 acres 20 guntas, and in the house property bearing VPC No.335, but not entitled for partition or separate possession of 3 acres 25 guntas in Block No. 62 bequeathed by deceased Kareppa in favour of Sanchalatka Bharatiya Vishwa Seva Sadan, Somapur / defendant No.2.
10. Aggrieved by dismissal of O.S. No. 696/1989, Dyamappa since deceased represented by his LRs. preferred Regular Appeal No. 147/2009. While, Laxmawwa aggrieved by rejection of share in property bequeathed to Sanchalatka Bharatiya Vishwa Seva Sadan / defendant No.2, filed Regular Appeal No.148/2009. The First Appellate Court framed following common points for consideration
- 15 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR "1) Whether the defendant No.1 in O.S.No.696/1989 has proved the execution of the Will dated: 10-03-1983 by deceased Kareppa?
2) Whether the defendant No.2 in O.S.No. 696/1989 i.e., plaintiff in O.S.No.795/1989 has proved the execution of the Will dated: 22-10-1974?
3) Whether the defendant No.3 in O.S.No.696/1989 has proved the Will dated: 18-02-1984?
4) Whether the defendant No.1 has proved the Will dated: 09-06-1984?
5) Whether the plaintiff in O.S.696/1989 has proved that he has succeeded to the suit properties by way of survivorship?
6) Whether the defendants proved that there was a partition between the plaintiff in O.S.No.696/1989 and deceased Karерра?
7) Whether the judgment of the Trial Court erroneous and requires interference?
8) What order?"
11. On re-appreciation answered Point Nos. 1 to 5 in the negative, and Point Nos.6 and 7 in the positive. Consequently, by judgment dated 27.02.2013, dismissed the appeal in RA.No.147/2009 and partly allowed the appeal in R.A.No. 148/2009.
12. The First Appellate Court held that plaintiff in O.S.No.696/1989 and Defendants No. 1 and 2, and
- 16 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR defendant No.4 in O.S. No. 795/89 were entitled for 1/4th share each in the remaining properties of deceased Kareppa in Block No. 31/2 measuring 3 acres 6 guntas, Block No. 62 measuring 5 acres 20 guntas, and property bearing VPC No.337. It was held that in view of proof of Will dated 18.10.1984, bequeathing 3 acres 25 guntas in Block No. 62 in favour of Sanchalatka Bharatiya Vishwa Seva Sadan was valid and plaintiffs and Defendants 1 and 2 were not entitled to any share therein.
13. Being aggrieved by rejection of shares in 3 acres 25 guntas of land in Block No. 62 under Will dated 18.10.1984, Laxmawwa and legal representatives of Dyamappa filed the present R.S.A. Nos.5460/2013 and 6005/2013 respectively.
14. This Court by order dated 22.03.2017 admitted the appeals for consideration of following substantial questions of law in R.S.A.NO.5460/2013:
"Whether the courts below are justified in law in holding that the Will dated 18.02.1984 executed by
- 17 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR Kareppa in favour of Sanchalaka Bharatiya Vishwaseva Sadanis valid, despite there being a clear bar under Section 61 of Karnataka Land Reforms Act are assigning the interest by a tenant conferred with occupancy right in favour of third person?"
In R.S.A.NO.6005/2013:
" Whether the First Appellate Court, having held that the plaintiff in O.S.No.696/1989 namely, Dyamappa along would not succeed to the property of his brother Kareppa as Class II heir, committed an error in law in denying a share to him in the properties of Kareppa although the another Class II heir, namely, Laxmavva had been granted share by invalidating the two Wills executed by Kareppa in favour of Maritangavva on 9-6-1984 and 10-3-1983?"
15. Sri.Anand R Kolli, learned counsel appearing for Lakshmavva in RSA No. 5460/2013 as well as Sri.S.G.Nandur, learned counsel for legal representatives of Dyamappa in RSA No. 6005/2013, taking this Court through the records submitted that admittedly Kareppa was granted lands measuring 3 acres 6 guntas in Block No.31/2 and 9 acres 5 guntas in Block No.62, while Dyamappa was granted 3 acres 7 guntas in Block No.31/2 and 7 acres 35 guntas in Block No.49/3 and that they have been in
- 18 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR possession and enjoyment of the said portions peacefully. It is contended that the Will executed by Kareppa on 10.03.1983 bequeathing 3 acres 6 guntas of land in Block No.31/2 in favour of Maritangevva cannot be accepted as it was not proved for want of production of original Will. It is further contended that execution of the Will dated 18.10.1984 (Ex. D14) in favour of respondent No.3 / Institution contravenes the terms of the grant and the provisions of Section 61 of the Karnataka Land Reforms Act. It is submitted that land would revert to the estate of Kareppa and upon his demise, to be shared equally amongst his surviving siblings -- Dyamappa (in O.S.No. 696/1989), Laxmawwa (in O.S.No.789/1989), Maritangevva, Yellavva. It is further submitted that the First Appellate Court and the Trial Court have not adverted to the provisions of Section 61 of the Karnataka Land Reforms Act even while upholding the bequeath made in the name of Sanchalatka Bharatiya Vishwa Seva Sadan. Hence, he submits that the substantial question of law is required to
- 19 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR be answered in the affirmative granting equal share to the plaintiffs and defendants No.1 and 2.
16. Sri.Srikant.T.Patil, learned counsel appearing for respondent Nos.1 to 3 submits that he has no objection in the Court granting equal share in the properties belonging to deceased Kareppa in favour of Dyamapppa, Laxmawwa and Yellawwa. However, he submits bequeath made in favour of Sanchalatka Bharatiya Vishwa Seva Sadan is not only contrary to the terms of grant but also contrary and violation of the provisions of Section 61 of the Karnataka Land Reforms Act.
17. Sri.Sabeel Ahmed, learned counsel for appearing for the Sanchalatka Bharatiya Vishwa Seva Sadan on the other hand submits that provisions of Section 61 of the Karnataka Land Reforms Act are not applicable to the facts of present case inasmuch as 3 acres 2 guntas of northern portion of the land bearing block No.62 had been converted from agriculture to non agriculture purposes in terms of the order dated 14.8.1982 as per Ex.D.15. That since the said
- 20 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR portions of the land had lost its agriculture nature, the rigor of Section 61 of the Karnataka Land Reforms Act cannot be applied. He submits that the trial court and the first appellate court have committed no error in accepting the bequeath made by deceased Kareppa in favour of the institution to the said extent of land.
18. He further submits that the said order granting permission for change of land usage as per Ex.D.15 has remained intact till date as there has been no challenge to the said order by anyone, whomsoever. He also submits that ever since the year 1982 the said land is in possession and enjoyment of the institution, which has put up construction of school buildings and enclosed the same with the compound wall imparting education to the students. He submits that the said bequeath was in furtherance to the desire and wishes of the diseased Kareppa, who had bequeathed the said land in terms of Will dated 18.02.1984 as per Ex.D.15 proof of which has been made out by examine attesting witnesses D.W.5 to 8. He submits the
- 21 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR substantial question of law framed in RSA No.5460/2013 need to answered in the negative in favour of the institution. Hence, seeks for dismissal of appeal.
19. Heard and perused the records.
20. Original propositus - Adiveppa Annigeri having passed away leaving behind his 2 sons and 3 daughters namely Kareppa, Dyamappa (plaintiff in O.S.No.696/1989 and defendant No.3 in O.S.No.795/1989) and Maritangewwa (defendant No.2 in O.S.No.696/1989 and defendant No.1 in O.S.No.795/1989), Yellawwa (defendant No.4 in O.S.No.795/1989) and Lakmawwa (defendant No.2 in O.S.No.696/1989 and plaintiff in O.S.No.795/1989) is not in dispute. Land measuring 3 acres 6 guntas in block No.31/2 and 9 acres 5 guntas in block No.62 having been granted exclusively in favour of Kareppa and land measuring 3 acres 12 guntas in block No.31/2 and 7 acres 35 guntas in block No. 49/3 having been granted exclusively in the name of Dyamappa is also not in dispute. There is also no dispute of the fact that Kareppa had
- 22 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR originally executed a Will dated 22.10.1974 (Ex.D.13) bequeathing his properties in Block No.62 in favour of his wife and 2 sisters namely Maritangewwa and laxmawwa is also not in dispute. Wife of Kareppa namely Gangwwa having predeceased and Kareppa passed away without leaving any legal heirs is also not in dispute.
21. In the normal circumstances, upon the demise of Kareppa without leaving behind any heirs, his brother and sisters namely Dyamappa, Maritangewwa and Yelawwa and Laxmawwa falling in class-II of legal heir would have succeeded to his estate equally. However, the issue has arose in instant case in the light of two Wills dated 10.3.1983 (E.x.D.11) and 18.02.1984 (E.x.D.14) purported to have been executed by the deceased Kareappa. The case of Maritangewwa is that in terms of the Will dated 10.03.1983, 6 acres 6 guntas of land was bequeathed in her name exclusively, while in terms of Will dated 18.02.1984 she was given 5 acres 2 guntas in Sy.No.62 and the remaining 3 acres 25 guntas was bequeathed in favour
- 23 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR of Sanchalatka Bharatiya Vishwa Seva Sadan / defendant No.3.
22. The trial Court and the First Appellate Court have concurrently held that the Will dated 10.03.1983, produced as Ex.D.11 as not having been proved by Maritangewwa. As regards the Will dated 18.02.1984 produced at Exs.D.14, the trial Court and the First Appellate Court have held that the said Will have been duly proved. Accordingly, the First Appellate Court has proceeded to allot shares in 5 acres 20 guntas of land, forming part of Block No.62 to all siblings of the deceased Kareppa, while declining to grant share in respect of 3 acres 25 guntas of land, which was bequeathed in favour of Sanchalatka Bharatiya Vishwa Seva Sadan - defendant No.3. The trial Court and First Appellate Court have arrived at concurrent conclusions that though grant order had imposed condition of non-alienation, in the light of 3 acres 24 guntas of land having been permitted to be used for non-agricultural purposes as per Ex.D.15, as far back as in 1982, the prohibition contained under Section 61
- 24 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR of the Karnataka Land Reforms Act was not applicable. Thus, bequeath made in the name of the Sanchalatka Bharatiya Vishwa Seva Sadan - defendant No.3 has been upheld by both the trial court and the first appellate court.
23. The substantial question of law raised in the present appeals are required to be addressed, in the light of aforesaid admitted and disputed facts.
24. Section 61 of the Karnataka Land Reforms Act reads as under:
"Section 61 - Restriction on Transfer of Land of which Tenant has become Occupant- (1) Notwithstanding anything contained in any law, no land which the occupancy has been granted to any person under this Chapter shall, within fifteen years from the date of the final order passed by the Tribunal under Section (4)or sub - section (5), or sub -section (5-A)of section 48-A, be transferred by sale, gift, exchange, mortgage, lease, or assignment; but the land may be partitioned among members of the holder's joint family.
(2) Notwithstanding anything contained in sub-section (1), it shall be lawful for the occupant registered as such or his successor-in-title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a financial institution, a co-operative land development bank, a co-operative society or a company as defined in section 3 of the Companies Act, 1956 in which not less than fifty one percent of the paid-up share capital is held by the State Government or a Corporation owned or controlled by the Central Government or the State Government or both for development of land or
- 25 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR improvement of agricultural practices or for raising educational loan to prosecute the higher studies of the children of such person; and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in the payment of such loan. Explanation.- For the purpose of this sub-section, "Higher studies" means the further studies after Pre-university Examination or 12th Standard Examination conducted by CBSE or ICSE or any Diploma courses.
(3)Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of section 77."
25. The condition Nos.8 and 9 of the grant made in favour of Kareppa in respect of Block Nos.31/2 and 62 as per Ex.P4, read as under:
"8) Provided also that the failure to cultivate the land personally for three consecutive years shall entail eviction of the occupant unless condoned by the Tahsildar/Special Tahsildar for sufficient reasons and the land will be disposed of under Section 77 of Karnataka land Reforms Act, 1961"
"9) Provided also that the land of which the occupancy has been granted to any person shall not within 15 year from the date of the certificate under Section 55 is issued, be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land maybe partitioned among members of the holder's joint family subject to the condition that no fragment shall be created by any such partition. Any
- 26 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR transfer or partition of land in contravention on Land Reforms Law will be invalid. It shall be lawful for the occupant registered as such or his successor in title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government, a Schedule bank, a Co-Operative land Development bank or a company as defined in Section 3 of the companies Act. 1956 in which not less than fifty one per cent of the paid up share capital is held by the State Government or a Corporation owned or the State controlled by the Central Government or the State Government or both for development of land or Improvement of agricultural practices; and without prejudice to any other remedy provided by any law; in the event of his making default in payment of such loan in accordance with the terms and conditions or which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in the payment of such loan."
26. The trial Court and the First Appellate Court held that the said condition would not be applicable in the instant case merely because there was a change in the usage of the land, pursuant to the permission granted by the Tahsildar, vide Ex.D15. A perusal of Ex.D15 indicates that the change in land use was accorded by the Tahsildar, Dharwad District, on 14.08.1992, purportedly in exercise of powers under Section 95 to Karnataka Land Revenue Act.
- 27 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR
27. It is relevant at this juncture to refer sub-section (2) of Section 95 of the Karnataka Land Revenue Act, which reads as follows:
"95. Uses of agricultural land and the procedure for use of agricultural land for other purpose.
XXXXX (2) If any occupant of land assessed or held for the purpose of agriculture wishes to divert such land or any part thereof to any other purpose, he shall [notwithstanding anything contained in any law for the time being in force] [Inserted by Act 2 of 1991 w.e.f. 15.1.1965.] apply for permission to the Deputy Commissioner who may, subject to the provisions of this section and the rules made under this Act, refuse permission or grant it on such conditions as he may think fit."
28. A perusal of the aforesaid provision indicates that the power and jurisdiction to grant permission for the change of land use from agricultural to non-agricultural purposes vests with the Deputy Commissioner, and not with the Tahsildar. No other document has been produced, apart from Ex.D15, to support the contention that permission for the change of land use from agricultural to non-agricultural purposes was granted by the Deputy Commissioner, as contemplated under the provisions of Section 95 of the
- 28 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR Land Revenue Act. In the absence of the same, the grant of land usage purportedly by the Tahsildar as per Ex.D15 is one without authority of law. As such, Ex.D15 is of no avail.
29. The Apex Court, in the case of JAYAMMA VS. MARIA BAI (DEAD) BY PROPOSED LRS. AND ANOTHER1, while dealing with the very subject pertaining to bequeath / assignment of granted land under Will in favour of stranger in the light of provisions of Section 21 and 61 of the Karnataka Land Reforms Act, at paragraph Nos.24 to 27, it is held as under:
24. Having held so, the Bench, however, having regard to the phraseology used in Section 21 of the said Act proceeded to observe that the object of the law is not to allow strangers to the family of the tenant to come upon the land stating: (SCC p. 299, para 6) "We must take into consideration that when it is possible for the tenant to pass the property to those who may not necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord.
In that event, it must be taken that a devise under a Will will also amount to an assignment and, therefore, be not valid for the purpose of Section 21 of the Act. If Section 24 is read along 1 AIR 2004 SC 3957
- 29 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR with Section 21, it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in Shivanna [Shivanna v. Rachiah, (1977) 1 Kant LJ 146 (Short Notes Item 160)] and Dhareppa v. State of Karnataka [(1979) 1 Kant LJ 18] would not promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmakka Kom Venkanna Naik v. Land Tribunal [(1987) 2 Kant LJ 337] ."
It was further observed: (SCC p. 299, para 7) "It is no doubt true that the meaning attributed to an heir could be as suggested by the learned counsel for the appellants so as to include the descendant and other persons related by legitimate kinship or otherwise who may be covered by a Will, but the true question to be decided in this case is if a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to confine the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred."
25. Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would not ipso facto apply to Section 61 thereof; as thereby a stricter statutory embargo has been imposed on transfer or assignment, the contention of Mr Bhat to the effect that the appellant was a relation of the testator also does not appear to be correct. In her examination-in- chief itself, the appellant stated:
"I am the plaintiff. PW 3 Richard D'Souza is my son-in-law. He was residing at Kinnigoli and after marriage he is residing at Kateel. He was living in a house within a distance about 1/4 metre from
- 30 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR the house of the deceased Anthony Rebello. I was living in the house of my son-in-law. Anthony Rebello was living alone in his house. He is no more. I knew him for a period of about 1 year and 9 months prior to his death. I came to know him as I was living in the house of my son-in-law. Anthony Rebello came to my son-in-law's house and told him that he has no one to look after him and he is aged 82 years. During this 1 year and 9 months his wife or children had not come to see him. Anthony Rebello requested my son-in-law for assistance and therefore, I, my son-in-law were looking after him."
26. The appellant, therefore, in view of the aforementioned statement was not having any legitimate kinship with the testator of the Will.
27. On a fair construction of Section 61 of the Act, in our opinion, a transfer of agricultural land with occupancy right 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 the definition of "family" as contained in Section 2(12) and "joint family" as contained in Section 2(17) of the said Act."
30. It is clear that the Will dated 18.02.1984, which purports to vest rights albeit after the demise of Kareppa in favour of the Sanchalaka Bharatiya Vishwa Seva Sadan / defendant No.3 to the extent of 3 acres 25 guntas in block No.62, would amount to an assignment in contravention of Condition No.9 of the grant order, as well as the provisions of Section 61 of the Land Reforms Act. Further, as already
- 31 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR extracted hereinabove sub-section (3) of section 61 of the said Act mandates that any transfer or partition of the land in contravention sub-section (1) shall not only be invalid, but such land shall vest with the State Government free from all encumbrances and shall be disposed of in accordance with the provisions of section 67 of the said Act.
31. In view of the aforesaid discussion and analysis, since the northern portion of the land measuring 3 acres 25 guntas forming part of R.S. No.62 has been assigned or transferred in favour of Sanchalaka Bharatiya Vishwa Seva Sadan / defendant No.3, such transfer is clearly in contravention and violation of the provisions referred to hereinabove. Consequently, the statutory eventualities shall ensue, and the said extent of 3 acres 25 guntas of land shall stand vested with State Government, free from all encumbrances. The State Government shall be at liberty to dispose of the said land in the manner know to law.
32. As regards the remaining extent of land, namely 3 acres 6 Guntas in Sy.No.31/2 and 5 acres 20 guntas in
- 32 -
NC: 2025:KHC-D:8785 RSA No. 5460 of 2013 C/W RSA No. 6005 of 2013 HC-KAR Sy. No.62, in view of the consensus at Bar by the learned counsel appearing for the parties, the said land shall be shared equally amongst the legal heirs of Dyamappa (in O.S. No.696/1989), Laxmavva (in O.S. No.789/1989), Maritangevva and Yellavva, they being entitled to such share in their capacity as Class-II heirs of the deceased Kareppa.
33. The substantial questions of law framed in the appeals are thus answered accordingly.
34. With the above observations, the appeals are partly allowed and disposed of.
35. In light of the above disposal, the application filed for production of additional document is superfluous and unnecessary. Accordingly, the said application is rejected.
Sd/-
(M.G.S. KAMAL) JUDGE SMM - para 1 to 5 VB - para 5 to 25 VNP - para 26 to end CT-ASC / List No.: 1 Sl No.: 2