Karnataka High Court
K Gopal Naik S/O Late Kunthu Naika vs Shanthamma W/O Late Krishna Anantha ... on 27 June, 2012
1 RSA 1663/10
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 27TH DAY OF JUNE, 2012
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.1663 OF 2010
BETWEEN:
K. Gopal Naik,
S/o. Late Kunthu Naika,
Aged about 54 years,
R/at Shewoode House,
Guddadabettu,
Pernankila Village,
Udupi Taluk & District-576 101. ... APPELLANT/S
[By Sri. Sampath Anand Shetty, Adv.]
AND:
1. Shanthamma,
W/o. Late Krishna Anantha Naika,
Aged about 63 years,
2. Kalavathi,
D/o. Late Krishna Anantha Naika,
Aged about 43 years,
Both are residing at
Hotel Gopalakrishna,
Station Road, Malad (West),
Mumbai-400 064.
3. Latha Kamath,
W/o. Late Sanjeeva Kamath,
Aged about 50 years,
4. Prakash Kamath,
S/o. Late Sanjeeva Kamath,
Aged about 26 years,
2 RSA 1663/10
5. Prathiba,
D/o. Late Sanjeeva Kamath,
Aged about 24 years,
6. Prasanthi,
D/o. Late Sanjeeva Kamath,
Aged about 24 years,
7. Praveena,
S/o. Late Sanjeeva Kamath,
Aged about 22 years,
Respondents 3 to 7 are
R/at Guddadabettu,
Pernankila Village,
Udupi Taluk & District-576 101.
8. K. Bhavanishankar,
S/o. Subbanna Naika,
Aged about 34 years,
R/at Guddadabettu,
Pernankila Village,
Udupi Taluk & District-576 101. ... RESPONDENT/S
[By Sri. K. Chandranath Ariga, Adv.]
***
This RSA is filed u/Section 100 of CPC, against the
Judgment and Decree dated 23.03.2010, passed in R.A.
No.126/1999, on the file of the Addl. Senior Civil Judge,
Udupi, dismissing the appeal filed against the Judgment
and Decree dated 19.07.1997 passed in O.S. No.255/1993 on
the file of the Prl. Civil Judge (Jr.Dn.), Udupi.
This RSA coming on for Final Hearing, this day, the
Court delivered the following:
JUDGMENT
The plaintiff is before this Court challenging the Judgment and Decree of dismissal of the suit filed for 3 RSA 1663/10 the relief of declaration and injunction, having been confirmed in the appeal by the first appellate Court.
2. The facts relevant for the purpose of this appeal are as under:
The parties are referred to as they were referred in the original proceedings, for the sake of convenience.
One Muddu Naika was the tenant of the suit property in relation to item Nos.1 and 2 and the occupancy rights were granted to him under the Order of the Land Tribunal dated 04.09.1976. So far as item No.3 of the suit property is concerned, the occupancy rights were granted on 16.09.1981. Muddu Naika is said to have executed a Will bequeathing his rights in the suit properties on 08.12.1980 in favour of the plaintiff-Gopala Naika.
Under the said Will, a life interest was confirmed upon his wife Kalyani Bai, who died on 12.01.1988 revoking the Will executed on 08.12.1980. The said Muddu Naika died on 01.10.1983.
It is thereafter that on the basis of the Will dated 08.12.1980 the plaintiff instituted the suit before the trial Court, seeking the relief of declaration that 4 RSA 1663/10 he is the absolute owner in possession and enjoyment of 'B' schedule properties on the basis of the registered Will dated 08.12.1980 and consequential relief of injunction restraining the defendants from causing obstruction to his peaceful possession and enjoyment over the suit property.
Deceased defendant No.1, who is the nephew i.e., the sister's son of late Muddu Naika filed his written statement claiming absolute interest in the suit property on the basis of a registered Will dated 20.05.1982 executed by late Muddu Naika in his favour. It was his contention that the Will dated 08.12.1980 has been revoked under the Will executed in his favour and therefore, he claimed that the plaintiff does not have any right, title or interest over the suit property. He sought dismissal of the suit mainly on the aforesaid ground.
The trial Court framed the issues and thereafter evidence was recorded. After hearing learned counsel for the parties and on appreciation of the material on record, the suit came to be dismissed. Aggrieved by the Judgment and Decree, the plaintiff approached the first 5 RSA 1663/10 appellate Court in R.A. No.126/1999. It also came to be dismissed vide Judgment and Decree dated 23.03.2010. Aggrieved by the finding of the Courts below, the present appeal has been filed.
3. This Court on 10.08.2010 while admitting the matter has raised the following substantial questions of law for consideration:
1) Whether the first appellate court has a jurisdiction to declare that the deceased defendant No.1 Krishna Anantha Naika as the legal heir of late Muddu Naika vis-à-vis the defendants 1(a) and
(b) as the persons entitled to inherit the plaint "B" schedule properties when the said defendants have not even produced the original will i.e., Ex.P13 dated 20.05.1982 much less proved the same in accordance with law?
2) Whether the first appellate Court has
jurisdiction to grant a relief of
declaration in favour of the defendants in the absence of any counter-claim putforth by the defendants with respect to plaint-"B" schedule properties?
3) Whether the lower appellate court could
have dismissed the suit of the
6 RSA 1663/10
plaintiff despite holding that the will dated 08.12.1980 stood proved and the will dated 20.05.1982 was not proved?
4. I have heard learned counsel for both the parties.
5. It is the contention of learned counsel for the appellant that the Will dated 08.12.1980 has been admitted in the second Will said to have been executed by late Muddu Naika and in the circumstances, it is his contention that as the plaintiff is the first cousin's son of late Muddu Naika who succeeds to the suit properties under the said Will and that Section 61 of the Karnataka Land Reforms Act, 1961 [hereinafter referred to as "the Act of 1961" for short] would not be a bar to bequeath the claim on suit 'B' schedule property in favour of the plaintiff. Therefore, it is his contention that this aspect of the matter has not been looked into by the Courts below and hence claimed to allow the appeal on the aforesaid ground. So also, it is his contention that the 1st defendant has not filed any counter-claim seeking relief of declaration of his right to inherit the property of late Muddu Naika and therefore, he submits 7 RSA 1663/10 that the observations made by the first appellate Court that the 1st defendant succeeds to the suit property and its ultimate Order that deceased defendant No.1 would succeeds to the interest of late Muddu Naika by intestamentary succession as a legal heir is without any basis.
Per contra, it is the submission of learned counsel for the respondents that the Courts below have taken a just decision in the light of the provisions of Sections 21 and 61 of the Act of 1961 and that the appellant has not made out any ground to call for any interference.
6. Though it is claimed that the occupancy rights of item Nos.1 to 3 in schedule 'B' property were granted by the Land Tribunal in the year 1977 in favour of Muddu Naika, the copy of the Order granting the occupancy rights has not been produced. Anyhow, so far as item No.4 i.e., Sy. No.140/4 in suit schedule 'B' properties is concerned, certified copy of the Order of the Land Tribunal has been produced as Ex.P6 and it reveals that the occupancy rights were granted vide Order dated 16.09.1981. The first appellate Court held that late Muddu Naika had no authority in law to bequeath the suit 8 RSA 1663/10 schedule property to any person/s except to those who are his legal heirs. On this aspect of the matter, it is necessary to refer to the provisions of Section 21 of the Act of 1961 and the relevant portion is extracted hereunder:
"Sub-division, sub-letting and assignment prohibited.-(1) No sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid:
Provided that nothing in this sub-
section shall affect the rights, if any, of a permanent tenant:"
So, as could be seen for the aforesaid provision, it is relevant to note that a tenant, who is in possession of the land has no right to sub-divide or sub-let the land held by him or assign any interest therein and in case if it is sub-divided or assigned, such a transaction would be invalid.
7. Section 24 of the Act of 1961 deals with the rights of the tenant when he dies, it provides that the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions 9 RSA 1663/10 on which such tenant was holding at the time of his death.
8. So, looking to provisions aforesaid, before grant of occupancy rights by the Tribunal, a tenant in occupation has no right to alienate the suit property except to his legal heirs. So, it is not in dispute that the plaintiff, who instituted the suit though he is a distant relative i.e., the first cousin's sister's son of late Muddu Naika had no right to inherit the land bearing Sy. No.140/4 as the said Muddu Naika had no authority to bequeath his interest in favour of the plaintiff as the plaintiff is not his legal heir and insofar as item No.4 of the suit schedule-'B' property is concerned, in view of the provisions of Sections 21 and 24 of the Act of 1961, the plaintiff cannot succeed to the property on the basis of the Will as the said transaction would defeat the very purpose of the aforesaid provisions.
9. Now so far as item Nos.1 to 3 of suit "B"
schedule property are concerned, though there is no material on record as on the date of grant of occupancy rights of late Muddu Naika, the Will-Ex.P1 reveals that the occupancy rights in respect of item Nos.1 to 3 were 10 RSA 1663/10 granted prior to execution of the Will. In these circumstances, it is Section 61 of the Act of 1961, which is relevant to consider the question of inheritance. The said provision is extracted hereunder for the sake of convenience:
"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) of 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) x x x x x (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 11 RSA 1663/10 accordance with the provisions of Section 77."
At this juncture, it is relevant to note, the Will said to have been executed by late Muddu Naika in favour of deceased 1st defendant was held to be not proved solely on the ground that the said defendant did not produce the original Will and did not also examine an attesting witness. In such circumstances, deceased defendant No.1 succeeding to the property on the basis of the aforesaid Will does not arise for consideration.
10. Now, so far as the provisions of Section 61 of the Act of 1961 is concerned, learned counsel for the respondents has placed reliance on the decision of this Court reported in ILR 2003 Kar. 3268 [K.Achutha Pai Vs. Joseph Tauro and Others], wherein this Court took into consideration an assignment of land by a tenant in favour of a stranger through a Will and considered the question as to whether such a stranger can succeed to any interest in the said land in view of the provisions of Section 61 of the Act of 1961. Ultimately, it held that the property cannot be bequeathed by a Will to defeat the purpose, for which such prohibition is imposed under the 12 RSA 1663/10 provisions of Section 61 of the Act of 1961. But anyhow, learned counsel for the appellant would contend that the plaintiff is a legitimate kin of late Muddu Naika and therefore, he can claim an interest in the property bequeathed as he is not a stranger and therefore claims that the decision referred to supra is not applicable to the fact. This Court in a decision reported in ILR 2008 Kar. 900 [Shivaputrappa Bharamappa Maneda Vs. The Head Quarters Assistant, Office of the Deputy Commissioner, Gadag and Others]; took into consideration the claim for occupancy rights by virtue of the bequest under the Will and as the plaintiff wherein was not a full brother of the deceased tenant, had held that Section 21 of the Act of 1961 confine the rights of tenancy only to those known as heirs under law, assignment to stranger is barred. This Court in para 4 of its Judgment took into consideration even the provisions of Section 61 of the Act of 1961 and by referring to the observations of the Apex Court observed:
"4. Having regard to the admitted circumstance that the petitioner, could not claim to be a member of a family of the deceased tenant and in terms of Section 61 of the Act, which in the view of the 13 RSA 1663/10 Supreme Court in Jayamma's case supra, would permit a transfer of agricultural land with occupancy rights, only in favour of one of the heirs who would be entitled to claim partition of land and not others."
So, if the decision referred to supra is taken into consideration, even a brother who is not a full brother of the deceased tenant, do not fall within the purview of Section 21 of the Act of 1961.
11. Learned counsel for the appellant placed reliance on the decision of the Apex Court reported in ILR 1999 Kar. 863 [Sangappa Kalyanappa Bangi Vs. Land Tribunal Jamkhandi & Others], wherein the provisions of Section 24 of the Act of 1961 were taken into consideration, which reads as follows:
"Though it can be said in general terms that the devise simpliciter will not amount to an assignment, in a special case of this nature, interpretation will have to be otherwise. Deceased Tenant can assign his rights only to the Heirs referred to in the Provision and such Heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate-kinship".
14 RSA 1663/10So, putting-forth his claim on legitimate-kinship, he contends that the plaintiff is also a relative of late Muddu Naika and therefore he is also entitled to succeed to the suit schedule property on the basis of the Will executed in his favour. But, as could be seen from the provisions of Sections 8 and 15 of the Hindu Succession Act, there are different classes of heirs and when there are Class I heir even under the provisions of Hindu Succession Act, Class II heir cannot succeed to the interest of the deceased by excluding Class I heir. In case, if all the heirs provided under Sections 8 and 15 of the Hindu Succession Act are to succeed to the interest on the basis of the Will, then it would defeat the very purpose of Sections 21 and 61 of the Act of 1961. Now, on this aspect of the matter, learned counsel for the respondents has placed reliance on the decision of the Apex Court, reported in ILR 2004 Kar. 3975 [Jayamma Vs. Maria Bai dead by proposed L.Rs. and another], wherein the Apex Court took into consideration the construction of Section 61 of the Act of 1961 and held in para 28 as under:
"On a fair construction of Section 61 of the Act, in our opinion, a transfer of 15 RSA 1663/10 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 Sections 2(12) and 'joint family' as contained in Section 2(17) of the said Act."
So, the construction of the said provision would lead to only interpretation that in case, if the tenant had left behind him Class I heirs, at the most he can bequeath his interest in the property to any one of them to the exclusion of the other Class I heir. But, cannot exclude Class I heir and bequeath his interest in the property to the heir in other Classes. Thereby, it would lead to only conclusion that the plaintiff though is a legitimate kin of late Muddu Naika, cannot claim an interest in the suit properties unless he falls within the purview of those heirs, who fall within the definition of the family. Thereby on the basis of the Will that has been executed by late Muddu Naik, the plaintiffs cannot claim any interest. Similarly, the defendants unless they establish the fact that they are legal representatives of late Muddu Naika cannot succeed to the interest in the 16 RSA 1663/10 suit property on the basis of the Will as the said Will has not been proved. If, they have any claim over the property on the basis of the intestate succession, it is for them to approach the Courts for appropriate relief. The observation made by the first appellate Court that defendant No.1 succeeded as a legal representative of late Muddu Naika and Kalyani Bai does not arise for consideration in this suit as the controversy that was before the Court for decision was the title on the basis of the Will said to have been executed by late Muddu Naika. Therefore, even the Order of the first appellate Court that defendant No.1 would succeed to the interest of late Muddu Naika by intestamentary succession as legal heir is also erroneous and to this extent, the Order passed by the first appellate Court will have to be modified.
12. The first appellate Court instead of making an observation and holding that the 1st defendant is the legal heir could have dismissed the appeal without any such finding or Order. In that view of the matter, substantial questions of law Nos.1 and 2 are answered in negative and substantial question of law No.3 is not a substantial question of law that arise for consideration. 17 RSA 1663/10
In the result, the appeal is partly allowed by setting aside the portion of the decree in relation to deceased defendant No.1 succeeding to the interest of late Muddu Naika by intestamentary succession as a legal heir and the decree so far as dismissal of the appeal by the first appellate Court is concerned, is confirmed.
The parties are at liberty to agitate their rights relating to intestate succession in appropriate forum.
Sd/-
JUDGE.
Ksm*