Karnataka High Court
Smt. Akkayamma W/O Venkatanarasaiah, ... vs State Of Karnataka By Its Secretary To ... on 22 September, 2006
Equivalent citations: 2006(6)KARLJ416, AIR 2007 (NOC) 125 (KAR.), 2007 A I H C 202 2006 (6) AIR KAR R 412, 2006 (6) AIR KAR R 412, 2006 (6) AIR KANT HCR 412, 2007 A I H C 202, (2007) 1 HINDULR 442, (2006) 6 KANT LJ 416, (2007) 2 ICC 459
Author: V. Jagannathan
Bench: V. Jagannathan
ORDER V. Jagannathan, J.
Page 0970
1. This is the third round of litigation before this Court between the parties in respect of a claim for occupancy rights which had its beginning three decades ago.
Page 0971
2. One Rangaiah of Kallunayakanahalli Village, Nelamantala Taluk, and his daughter Smt. Akkayamma (petitioner in W.P.No. 38796/1998) filed a joint application for grant of occupancy rights in respect of 1 acre 20 guntas of land in S.No. 1/1 of Kallunayakanahalli Village. Rangaiah's son one K.R. Rangaswamaiah (petitioner in W.P.No. 8718/1999) also joined the fray by filing an application for occupancy rights in respect of the very same land. The order passed by the Land Tribunal first in favour of Akkayamma led to a writ petition being filed before this Court and after remand on the second occasion, the Land Tribunal passed an order in favour of Rangaswamaiah and again the matter reached this court only to be remanded and, after the said remand, the Land Tribunal, Nelamangala, passed the impugned order dated 17.10.1998 declaring Rangaiah entitled to occupancy rights as tenant and, as both Rangaiah and his daughter Smt Akkayamma were dead, the Tribunal further ordered that all the children of Rangaiah are entitled to occupancy rights and as far as Akkayamma is concerned, following her death, her husband Venkatanarasaiah is entitled to be declared as tenant in respect of her share. It is this order of the Land Tribunal that that has given rise to the two writ petitions - one by Rangaiah's son Rangaswamaiah, whose claim was rejected, and the other by Venkatanarasaiah, husband of deceased Akkayamma. Hence, common order is passed.
3. Heard the learned counsel for the parties.
4. Sri A.V. Gangadharappa, learned Counsel for the petitioner in W.P.No. 8718/1999, contended that the order of the Land Tribunal is almost flawless but for its decision to declare Akkayamma's husband Venkatanarasaiah entitled to the tenancy rights belonging to Akkayamma and, in this connection, my attention was drawn to Section 15 of the Hindu Succession Act (in short 'the Act') to submit that Akkayamma inherited her rights from her deceased father and, therefore, following her death, the property inherited by her will devolve upon the heirs of her father, but not upon her husband. The provision of Sub-section (2) of Section 15 of the Act was referred to in this regard. Hence, it was submitted that the said part of the order of the Land Tribunal is liable to be set aside. It was further contended that Akkayamma was not the absolute owner in possession of the subject land and hence, the question of Section 14 of the Act coming into operation will not arise. In support of his submissions, the learned counsel placed reliance on the decisions in the cases of Bhagat Ram (Dead) v. Teja Singh , V. Dandapani Chettiajr v. Balasubramanian Chettiar (Dead) By L.Rs. , and Bhagat Ram v. Teja Singh .
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5. On the other hand, Sri B.T. Parthasarathi, learned senior counsel for the petitioner in W.P.No. 38796/1998, contended that the Land Tribunal was in error in not granting occupancy rights in respect of the entire extent of 1.20 acres of land to Akkayamma and, as Akkayamma had become the absolute owner of the subject land by virtue of she being in possession of the same, following her death, her rights in the properly will devolve upon her husband and not upon the heirs of her father. In support of the said submission, the learned senior counsel placed reliance on a decision in the case of M.V. Chockalingam Pillai v. Alamelu Ammal .
6. In the light of the contentions urged, the first point that arises for consideration is whether the order of the Land Tribunal declaring Rangaiah entitled to occupancy rights and not his daughter Akkayamma suffers from any illegality. It is a settled position in law that insofar as determination of occupancy rights is concerned, the Land Tribunal is the only fact finding body and this Court exercises supervisory jurisdiction over the Land Tribunal's orders. Therefore, viewed from this angle, I am of the considered opinion that the Land Tribunal has left no stone unturned in examining all the aspects of the matter concerning the claim made by the father, daughter and the son for occupancy rights and, after careful examination of the material placed before it, it has recorded a positive finding on facts that Rangaiah was the only person entitled to occupancy rights and this finding was based on examination of the revenue records. The Tribunal has observed that right from 1968-69 onwards till 1975-76, Rangaiah was in cultivation of the subject land and neither his son Rangaswamaiah nor his daughter Akkayamma was able to produce any records to the contrary. The Tribunal has observed that the names of Rangaswamaiah and Akkayamma did not figure in any of the revenue records. Apart from the above, it is also observed that it was Rangaiah, who was cultivating the subject land and was found doing so even as on 1.3.1974 and, as such, without any hesitation, it could be said that it was Rangaiah, who was the person entitled to occupancy rights.
7. As far as Akkayamma is concerned, the Tribunal has observed that she was assisting her father Rangaiah and she was not cultivating the subject land as tenant independently at any point of time. It is also not in dispute that at no point of time, had Rangaiah surrendered his tenancy rights in favour of his daughter Akkayamma and there are no documents to show that Akkayamma had taken possession of the subject land from her father. Incidentally, it is to be mentioned that there is a bar for subletting or parting with possession of the tenanted lands under the Land Reforms Act. Such being the material placed before the Land Tribunal, the finding that it was only Rangaiah, who was in cultivation of the subject land and not his daughter Akkayamma or his son Rangaswamaiah, therefore, cannot be termed as erroneous or, for that matter, a perverse finding. Since the Land Tribunal is the final authority on facts, this Court exercising the powers under Article 227 cannot upset the said finding unless it is shown that the Page 0973 finding recorded by the Land Tribunal suffers from any error of law requiring interference at the hands of this Court
8. Coming to the contention urged by the learned senior counsel Sri B.T. Parthasarathi that Akkayamma was also in possession of the subject land and that she was cultivating the said land and, therefore, she became the absolute owner of the property is concerned, having regard to the material placed before the Tribunal and the specific finding given by it to the effect that Akkayamma was only assisting her father and that she was not in possession of the subject land, the said contention does not appeal to me as having any force behind it. As far as reference made to Section 14 of the Act is concerned, it is no longer res integra that the property possessed by a female Hindu, whether acquired before or after commencement of the Act, shall be held by her as full owner thereof and not as a limited owner.
9. Section 14 of the Act came in for interpretation before the Apex Court in a number of cases and in order to attract the provisions of Section 14, it has to be established that a female Hindu must have had a right to the possession of that property and secondly, she must be in possession of that property either actually or constructively.
10. In the case of Mangal Singh v. Smt. Rattno AIR 1967 SC 1786, the Supreme Court has observed thus:
The expression 'possessed by' is not intended to apply to a case of mere possession without title.
11. The word 'acquired' came for interpretation in another decision of the Apex Court in the case of Eramma v. Veerupana and the observations made therein are as under:
The word 'acquired' used in the explanation and also in Sub-section (2) of Section 14 clearly indicates that the object of the section is to make a Hindu female a full owner of the property which she had already acquired or which she acquires after the enforcement of the Act. It does not in any way confer a title on the female Hindu where she did not in fact possess any vestige of title. It, therefore, means that if a female is merely in possession without having any sort of right in it, she cannot be said to have possessed of the property within the meaning of this section.
12. It, therefore, becomes clear from the above decisions that, if a female is merely in possession without any sort of right in it, she cannot be said to have possessed of the property within the meaning of this section. The learned author Mayne, in his classic work "Mayne's Treatise on Hindu Law & Usage" - 14th Edition, referring to the word 'possession' in Section 14, has this to say:
The expression used is "possessed by a female Hindu" and not "in the possession of the female Hindu". This indicates that the female should have right or interest akin to ownership with a right to possession.
13. The combined effect of the position in law as referred to above and the facts and circumstances of the case on hand will lead to the conclusion that Page 0974 Akkayamma never had a right to the possession of the subject land and the Tribunal, on facts and based on the revenue records, has come to the specific conclusion that it was Rangaiah, who was in possession and cultivation of the subject land. Therefore, the argument advanced by the learned senior counsel that Akkayamma was in possession and, therefore, she had become the full owner thereof by virtue of Section 14 has to be rejected as devoid of merit.
14. The second point that arises for consideration is whether the Tribunal was right in permitting the husband of Akkayamma to enter her shoes as heir to her property. The answer to this question depends upon the source from which the property is inherited by Akkayamma, Section 15 of the Act throws light on this aspect of the matter. The said section reads thus:
15. General rules of succession In the case of female Hindus. - (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in Sub-section (1) -
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the husband.
15. Thus a bare perusal of the two clauses of Sub-section (2) of Section 15 provide the answer to the question before us. If the property is inherited by a female Hindu from her father or mother, it devolves upon the heirs of her father and, by virtue of Sub-section (2)(b), if the source of inheritance is from the husband or father-in-law, it devolves upon the heirs of the husband. This position in law is also made clear by the Supreme Court in the two decisions viz., AIR 1999 SC 1944 and AIR 2002 SC 1, referred to by the learned counsel Sri A.V. Gangadharappa.
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16. Bearing the above position in law in mind, if we look to the facts before us, I have already opined that the Tribunal has rightly declared Rangaiah as the person entitled to occupancy rights and following his death, all his children, who are his heirs, will get the right of tenancy by virtue of Section 24 of the Land Reforms Act, 1961. Unfortunately, the Tribunal has lost sight of the source of inheritance while declaring Akkayamma's husband being entitled to right of tenancy. It is only this part of the order of the Tribunal that is contrary to law and against the specific provision of law obtaining in Section 15(2)(a) of the Act. Therefore, I have no hesitation in agreeing with the argument of the learned counsel Sri A.V. Gangadharappa that, that part of the order of the Tribunal is liable to be set aside as illegal and, in my view, the right which had fallen to the share of Akkayamma would devolve, after her death, on the heirs of her father, but not on her husband. This legal principle was not followed in the instant case by the Tribunal and, as such, the said part of the alone requires to be set aside. Therefore, the ruling cited by the learned senior counsel has no application to the facts and circumstances of this case.
17. In the result, I proceed to pass the following order:
a) Writ Petition No. 8718/1999 is partly allowed.
b) The order of the Land Tribunal insofar as declaring Akkayamma's husband Venkatanarasaiah entitled to tenancy rights is set aside.
c) Writ Petition No. 38796/1998 is dismissed.
No order as to costs.