Karnataka High Court
Maradan Sab Hussain Sab Kwati vs The Land Tribunal on 19 March, 2018
Author: Ravi Malimath
Bench: Ravi Malimath
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 19TH DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
WRIT PETITION NO.52764 OF 2003 (LR)
BETWEEN
1. MARDAN SAB HUSSAIN SAB KWATI
AGE: 53 YEARS
2. MIYA SAB HUSSAIN SAB KWATI
DECEASED BY HIS L.R's
(a) SMT.HUSENA-BI
W/O MIYA SAB KWATI
AGE: MAJOR
(b) SHAUKATH ALI SAB MIYA SAB KWATI
AGE: MAJOR
(c) M.M.KWATI, AGE: MAJOR
ALL ARE AGRICULTURISTS AND
R/O DEVAGIRI VILLAGE,
TQ. & DIST: HAVERI. ...PETITIONERS
(BY SRI B.S.SANGATI, ADVOCATE)
AND
1. THE LAND TRIBUNAL,
HAVERI, BY ITS SECRETARY.
2
2. THE STATE OF KARNATAKA
BY ITS SECRETARY TO GOVERNMENT,
REVENUE DEPARTMENT, M.S.BUILDING,
BANGALORE-1.
3. NARASINGH
S/O LATE RAJARAMSINGH AMARAGOLL
AGE: MAJOR
4. CHANDRASINGH
SINCE DECEASED BY HIS L.R's
4(a) SMT.GOURAVVA
W/O CHANDRASINGH AMARGOL
AGE: 60 YEARS
OCC: HOUSEHOLD WORK
R/O DEVAGIRI VILLAGE
TQ. & DIST: HAVERI
4(b) SAROJA D/O CHANDRASINGH AMARGOL
AGE: 27 YEARS
OCC: HOUSEHOLD WORK
R/O DEVAGIRI VILLAGE
TQ. & DIST: HAVERI
4(c) RAVI S/O CHANDRASINGH AMARGOL
AGE: 20 YEARS
OCC: STUDENT
R/O DEVAGIRI VILLAGE
TQ. & DIST: HAVERI
4(d) VINODA
D/O CHANDRASINGH AMARGOL
AGE: 35 YEARS
OCC: HOUSEHOLD WORK
R/O DEVAGIRI VILLAGE
TQ. & DIST: HAVERI
3
5. SRIKANTH HANUMANTHAPPA THANDALE
SINCE DECEASED BY HIS L.R's
5(a) SMT.AMBAKKA
W/O SHRIKANT THANDALE
AGE: 48 YEARS
OCC: HOUSEHOLD WORK
R/O DEVAGIRI VILLAGE
TQ. & DIST: HAVERI
5(b) DEEPA
W/O VENKATESH BENDRE
AGE: 26 YEARS
OCC: HOUSEHOLD WORK
R/O DEVAGIRI VILLAGE
TQ. & DIST: HAVERI
5(c) GANESH
S/O SHRIKANT THADALE
AGE: 22 YEARS
OCC: AGRICULTURE
R/O DEVAGIRI VILLAGE
TQ. & DIST: HAVERI ...RESPONDENTS
(BY SMT.VEENA HEGDE, ADDITIONAL GOVERNMENT
ADVOCATE FOR R1 & R2;
SRI H.C.SHIVARAMU, ADVOCATE FOR R3-ABSENT;
SRI R.H.ANGADI, ADVOCATE FOR R4(a-d);
SRI LAXMAN T.MANTAGANI, ADVOCATE FOR R5(a-c)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH THE IMPUGNED ORDER DATED 22-08-2003,
MADE IN No.TEN/OCP/SR/46 PASSED BY THE LAND
TRIBUNAL, HAVERI-RESPONDENT NO.1 VIDE ANNEXURE-
F. DECLARE THE PETITIONERS AS THE OCCUPANTS OF
THE SUIT LANDS.
*****
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THIS WRIT PETITION COMING ON FOR HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The land bearing Survey Number 273/1A measuring 10 acres 21 guntas and the land bearing Survey Number 290/4 measuring 3 acres 28 guntas of Devagiri village, Haveri Taluk was originally under the tenancy of Peersab. He was a tenant of the lands for a number of years. He died on 18.07.1960 leaving behind his widow Chandbi. He had no issues. After his death, the name of Chandbi was entered in the record of rights as an ordinary tenant in terms of the Mutation Entry 4250 dated 11.10.1960. Chandbi died on 17.09.1977. Before her death, she bequeathed her property to the 1st petitioner and her brothers and, in terms of the mutation entry number 7096, their names were entered. Chandbi had filed Form No.7 for grant of occupancy rights. Since she died during the pendency of the proceedings, the petitioners were impleaded as legal representatives. By the order dated 5 28.12.1981, tenancy rights were granted to Chandbi. The same was challenged in Writ Petition No.30040/1982. Thereafter, it was transferred to the Appellate Authority and later on before this Court as a Civil Petition and subsequently, numbered as Writ Petition No.27768 of 1992. By the order dated 24.11.1999, the writ petition was allowed and the matter was remanded for a fresh consideration. Thereafter, the impugned order was passed rejecting the plea of tenancy. Hence, the present petition.
2. Learned counsel for the petitioner contends that the Trial Court committed an error in holding that there is no relationship between the petitioners and Chandbi. So far as the lands in question are concerned there is a registered will dated 16.08.1977 executed by Chandbi in favour of the petitioners. Therefore, they have succeeded to the properties. An application under Order 41 Rule 27 of Civil Procedure Code has been filed seeking production of documents, which is a copy of the mutation, 6 the record of rights and receipt for having made payment of revenue. Hence, he pleads that the petition be allowed.
3. On the other hand, counsel for the respondents contend that the will is doubtful. It has to be proved in the manner known to law. Secondly, that even if the will is held to be valid, the petitioners do not come under the definition of a 'Family' as defined under Section 2(12) of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as the 'Act' for short). In pursuance thereof, he relies on the judgment of the Hon'ble Supreme Court in the case of B.S. Mahabala (D) vs. Gopala Krishna reported in 2017(4) KCCR 3201(SC) wherein it is held that the tenancy cannot be based on a will to persons who are outside the family. Hence, he pleads that the petition be rejected.
4. On hearing learned counsels, I do not find any merit in this petition.
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5. The material on record would indicate that Chandbi's husband was cultivating the lands. After his death, Chandbi being his wife started cultivating the lands. She filed Form No.7 on 12.08.1974. As on that date, her husband had died. It is contended by the petitioners' counsel that in Form No.7 there is a note mentioned that the petitioners too are also cultivating the lands. However, what is relevant here is that even assuming that they were also cultivating the lands, the fact on record remains that the petitioners have not filed Form No.7. It is the Chandbi alone who had filed Form No.7. The petitioners have been impleaded before the Tribunal as legal representatives of the deceased Chandbi. Therefore, the claim before the Tribunal is not that they were tenants but they were legal representatives of the deceased Chandbi. It is for this reason that the Tribunal was justified in rejecting Form No.7. The Hon'ble Supreme Court in the aforesaid judgment have clearly enunciated that tenancy devolves only on the family members of the deceased tenant. 8 Transfer in favour of persons other than the family members would be void. Even assuming that the will is said to be a valid will, the petitioners cannot claim tenancy from the will. 'Family' has been defined in terms of Section 2(12) of the Act which reads as follows:
" 2(12) "Family" means,-
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and 9
(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;"
6. The petitioners claim to be the husband's brother's children. They are not covered within the said definition. Therefore, the judgment of Supreme Court squarely applies to the case on hand.
7. An application is filed for production of documents. There are no objections. Hence, the same is taken on record. Considering the additional documents also, the same would not be relevant to the case on hand and will not assist the petitioner in any manner.
Under these circumstances, I do not find any error committed by the Tribunal that calls for any interference. Tenancy rights under a will in favour of persons other than the family members, become void even assuming that the 10 will is a valid will. Under these circumstances, I do not find any good ground to entertain the petition.
Consequently, the petition being devoid of merit is dismissed.
Rule discharged.
Sd/-
JUDGE Kmv