Karnataka High Court
Smt. Vatsala W/O Narayan Naik vs Sri. Sheshagiri S/O Subray Naik on 18 April, 2023
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RSA No. 100576 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 18TH DAY OF APRIL, 2023
BEFORE
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100576 OF 2018 (DEC/INJ)
BETWEEN:
SMT. VASTALA
W/O. NARAYAN NAIK
AGED: 55 YEARS,
OCC: HOUSEHOLD,
R/O: BASTIPETE, TQ: KUMTA,
DIST: UTTARA KANNADA.
...APPELLANT
(BY SRI A.P. MURARI, ADVOCATE &
SRI BHUSHAN B. KULKARNI, ADVOCATE)
AND:
VIJAYALAXMI
1. SRI. SHESHAGIRI
M BHAT S/O. SUBRAY NAIK
Digitally signed by
AGED: 56 YEARS,
VIJAYALAXMI M BHAT
Location: HIGH COURT
OF KARNATAKA
OCC: AGRICULTURIST &
DHARWAD
PRIVATE SERVICE,
R/O. BASTIPETE, TQ: KUMTA,
DIST: UTTARA KANNADA.
2. SRI. MITRANAND
S/O. SUBRAY NAIK
AGED: 47 YEARS, OCC: PVT. SERVICE,
R/O. BASTIPETE, TQ: KUMTA,
DIST: UTTARA KANNADA.
3. SRI. SADANAND
S/O. SUBRAY NAIK
AGED: 45 YEARS,
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RSA No. 100576 of 2018
OCC: PVT. SERVICE,
R/O. BASTIPETE, TQ: KUMTA,
DIST: UTTARA KANNADA.
4. SRI. NAGARAJ
S/O. SUBRAY NAIK
AGED: 43 YEARS,
OCC: PVT. SERVICE,
R/O. BASTIPETE, TQ: KUMTA,
DIST: UTTARA KANNADA.
5. SRI. VENKATESH
S/O. RAMKRISHNA NAIK
AGED: 45 YEARS,
OCC: PVT. SERVICE,
R/O. BASTIPETE, TQ: KUMTA,
DIST: UTTARA KANNADA.
6. SRI. SHRIDHAR
S/O. RAMKRISHNA NAIK
AGED: 56 YEARS,
OCC: BUSINESS,
R/O: BASTIPETE, TQ: KUMTA,
DIST: UTTARA KANNADA.
...RESPONDENTS
(BY SRI J.S. SHETTY, ADVOCATE & SMT. DEEPA R. UDIYAR,
ADVOCATE FOR C/R-1 TO R-6 IN CP NO.20200/2018)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908,
AGAINST THE JUDGMENT & DECREE DATED 06.06.2018 PASSED
IN R.A.NO.42/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE,
KUMTA, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 09.11.2017, PASSED IN
O.S.NO.109/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE
AND JMFC., KUMTA, DISMISSING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS RSA COMING ON FOR DICTATING JUDGMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 100576 of 2018
JUDGMENT
The present appeal by the unsuccessful defendant assailing the judgment and decree dated 6.6.2018 in RA.No.42/2017 on the file of the Senior Civil Judge, Kumta, reversing the judgment and decree dated 9.11.2017 in OS No.109/2019 on the file of the Prl. Civil Judge, Kumta.
2. The plaintiffs filed a suit for declaration and injunction that the plaintiffs are entitled to 1/3rd share of late Nagappa Irayya Naik as per the Will dated 30.03.2012 (Ex.P-1) and for permanent injunction.
3. The defendant filed written statement contesting the claim of the plaintiffs and filed counter claim, contending that as per the registered Will dated 13.02.2012 (Ex.D-16) said to have been executed by late Nagappa Irayya Naik, defendant has succeeded to the 1/3rd share of Nagappa Irayya Naik. The trial Court, by its judgment and decree, dismissed the suit of the plaintiffs. Aggrieved by which, the plaintiffs preferred appeal before -4- RSA No. 100576 of 2018 the first Appellate Court, the first Appellate Court on re- appreciation of the material on record decreed the suit of the plaintiffs and dismissed the counter claim filed by the defendant reversing the judgment and decree of the trial Court.
4. Heard learned counsel for the appellant and the learned counsel for the respondents and perused the material on record.
5. It is the case of the plaintiffs that Nagappa Irayya Naik had three sons and three daughters namely, Nagappa, Subraya, Ramakrishna, Mahadevi, Iramma and Savitri. It is stated that deceased Nagappa Irayya Naik and his wife Nagamma died issueless. The plaintiffs who are the children of Subraya brother of Nagappa were assisting and looking after late Nagappa and out of his love and affection has bequeathed his 1/3rd share in the suit schedule property by a registered Will dated 30.03.2012. The deceased Nagappa having full right to -5- RSA No. 100576 of 2018 bequeath the property in favour of the plaintiffs, they have acquired their right in light of the Will dated 30.3.2012. It is stated that the defendant who is a stranger to the family had requested to provide one house for her residence as a tenant and the defendant is residing in one of the houses as a tenant since many years. It is stated that the defendant has got executed the Will from Nagappa Irayya Naik contending that the defendant is the fostered daughter of deceased Nagappa Irayya Naik.
6. On the other hand, the defendant contended that the deceased Nagappa had executed the Will dated 13.02.2012 in favour of the defendant and by way of counter claim, sought to declare that the defendant is the absolute owner of his 1/3rd share in the suit schedule property on the basis of the Will executed by Nagappa Irayya Naik.
7. The plaintiffs in order to substantiate her claim, examined plaintiff No.1 as PW.1 and one attesting witness as PW.2 and got marked documents at Exs.P-1 to P.11. -6- RSA No. 100576 of 2018 On the other hand, the defendant examined herself as DW.1 and four witnesses as DWs.2 to 5 and got marked documents at Exs.D-1 to D-28.
8. Judgment and decree of the of the Courts below are perused and the first appellate Court, in the appeal filed by the plaintiffs, has decreed the suit and held that the Will executed by Nagappa Irayya Naik in favour of the plaintiffs is proved and the plaintiffs are entitled for 1/3rd share of the deceased Naggappa Irayya Naik.
9. Learned counsel for the appellant would contend that in light of restrictions enumerated under Section 61(1) of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as "the KLR Act" for short) the Will cannot be termed as an assignment and in support of his contention, relied upon the judgment of the Apex Court in the case of Economic Transport Organization vs. Charan Spinning Mills Private Limited & another [(2010) 4 SCC 114 ](Economic Transport). -7- RSA No. 100576 of 2018
10. Learned counsel for the appellant during the course of his argument would state that the appellant's possession needs to be protected as the plaint averments clearly evidence that the defendant is in permissive possession of the suit schedule property and would contend that the defendant is in possession of House Nos.388 and 389.
11. On the other hand, learned counsel for the respondents submits that the appellant is in possession of House No.388 only.
12. Section 61 of the Karnataka Land Reforms Act, reads as under:
"61. Restriction on transfer of land of which tenant has become occupant.--
(1) Notwithstanding anything contained in any law, no land of 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 sub-section (4) or sub-section (5) or sub-section (5A) of section 48A be transferred by sale, gift, exchange, mortgage, lease or -8- RSA No. 100576 of 2018 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 per cent 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 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.
(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 -9- RSA No. 100576 of 2018 from all encumbrances and shall be disposed in accordance with the provisions of section 77".
The said Section imposes a restriction on transfer of land of which, the tenant has become occupant. Section 61 contains a non-obstante clause, although tenancy would be heritable interest, the right of occupancy can be granted to any heir only if he is qualified therefor, that is, there must be cultivable land on the appointed day. The sine qua non for obtaining a state of occupancy of tenancy is that the person concerned must be a tenant on the appointed day.
13. The legislative intent from Section 61 is that the land should not be allowed to go into the hands of a stranger to the family is manifest. On a fair construction of Section 61 of the Act, a transfer of agricultural land with occupancy rights is permissible only in favour of the heirs who could be entitled to claim partition of the land and not others having regard to the definition of "family" as contained in sub-Section (12) of Section 2 of the Act and
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RSA No. 100576 of 2018
"joint family" as contained in sub-section 17 of Section 2 of the Act.
14. The Hon'ble Apex Court, in the case of Jayamma vs. Maria Bai dead by proposed L.Rs. & another [(2004) 7 SCC 459] (Jayamma) at para Nos.21 and 25, has held as under:
"21. It is not disputed that in view of the purport and object, the legislature sought to achieve by enacting the said provision, the expression "assignment" would include a Will.
xxx xxx xxx
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 to the testator also does not appear to be correct."
15. In view of the purport and object of legislature sought to achieve by enacting Section 61 of the KLR Act, "assignment" would include assignment by a Will as held
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RSA No. 100576 of 2018by the Hon'ble Apex Court in the case of Jayamma stated supra.
16. In the present case, admittedly, the suit schedule property is the granted property by the Land Tribunal and the plaintiffs and defendant have set up their claim by way of a Will said to have been executed in their favour by deceased Nagappa. The plaintiffs are the children of one Subraya, who is the brother of deceased Nagappa, whereas, the defendant claims to be the fostered daughter of the deceased Nagappa, who admittedly is a stranger to the family.
17. The Judgment relied upon by the learned counsel for appellant to contend that the "assignment" would not include "Will" in the case of Economic Transport stated supra is not applicable to the present facts and circumstances of the case, in light of the judgment of the Hon'ble Apex Court in Jayyamma's case where Section 61 of the KLR Act has been considered and held that the expression "assignment" would include a
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RSA No. 100576 of 2018
"Will". The defendant-appellant was not having any relationship with the testator and in light of the statutory embargo under Section 61 of the KLR Act, this Court is of the considered view that the transfer of the agricultural lands with occupancy rights is permissible only in favour of one of the heirs, who could be entitled to claim partition of land and not others, having regard to the definition of "family" and "joint family" of the said Act.
18. Taking into consideration the submission made by learned counsel for the appellant and the material evidence on record that the appellant is in possession of some portion of the property as a tenant, this Court is of the view that the observation to the effect that the appellant should not be dispossessed until in due process of law needs to be ordered.
19. For the foregoing reasons, this Court is of the considered view that no substantial question of law arises for consideration in the present appeal to be dealt with
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RSA No. 100576 of 2018under Section 100 CPC and resultantly, this Court pass the following:
ORDER
a) The second appeal filed by the defendant is hereby dismissed.
b) Judgment and decree dated 06.06.2018 in R.A.No.42/2017 on the file of the Senior Civil Judge Kumta, stands confirmed.
c) However, it is made clear that the appellant shall not be dispossessed from the portion of the property which is in possession of the appellant without following due process of law.
d) In view of disposal of the appeal, pending I.A's would not survive for consideration.
No order as to costs.
(sd/-) JUDGE AC List No.: 1 Sl No.: 50