Kanna Timma Kanaji Madiwal (D) through Lrs. vs Ramachandra Timmaya Hegde (D) through Lrs. and Ors.

Karnataka Land Reforms Act, 1961: ss. 21, 24, 48A, 61 – Grant of occupancy rights – Claim for – Assignment of tenancy rights by way of bequeath – On facts, appellant’s father, brother of the original tenant, inducted as tenant in the land belonging to the respondent by the original tenant – Appellant’s father cultivating the land due to ill health of the original tenant and paid rent to the respondents on behalf of his brother – Will executed by the original tenant bequeathing his properties in favour of appellant’s father – Mutation of land in the name of appellant’s father however, the same was objected by the original tenant’s wife and she got the entry of land in her favour – Suit filed by appellant’s father for declaration of possessory title and injunction against original tenant’s wife with reference to Will – Suit decreed in favour of appellant’s father and attained finality – Another round of litigation wherein application u/s. 48-A of the Act of 1961 filed by appellant’s father for grant of occupancy rights in respect of the land in question – Application prosecuted by the appellant after demise of his father – Rejection of application as also appeal thereagainst – Revision petition and the review petition before the High Court also dismissed – High Court held that the bequeathing of all the properties by the original tenant by way of Will in favour of his brother is hit by statutory prohibition and no rights of tenancy could be claimed on its basis – Sustainability of – Held: Not sustainable – In the scheme of the Act of 1948 as also the Act of 1961, when a person had been inducted as tenant, heritable right comes into existence with certain embargo over transferability of such tenancy – Such tenancy continues even after the demise of tenant – If the deceased tenant was a member of joint family, then the surviving members of the joint family; and if he was not a member of joint family, his heirs would be entitled to claim partition subject to the conditions specified – However, the tenanted land cannot be sub-let nor any interest therein could be assigned – On facts, original tenant had executed the Will in favour of appellant’s father bequeathing his rights in the land and that appellant’s father was in possession of the land relates to the stage before acquisition of occupancy rights; and the legatee of the Will, had been none other than the brother of the deceased tenant; and the said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contracted other marriage – Hence, the Will is not hit by the embargo, whether that is contained in s. 27(1) of the Act of 1948 or in s. 21 of the Act of 1961 – A fortiori, the application made by appellant’s father for grant of occupancy rights is allowed – Orders passed by the High Court as also the Land Reforms Appellate Authority and Land Tribunal set aside – Bombay Tenancy and Agricultural Lands Act, 1948 – ss. 27, 40.

Allowing the appeals, the Court

HELD: 1.1 The High Court was not right in holding that the bequeath of all the properties by the executants-original tenant of the land in question by way of Will in favour of his brother is hit by statutory prohibition and no rights of tenancy could be claimed on its basis. Thus, the impugned orders cannot be sustained. [Para 8] [784-F-G]

1.2 As regards the applicable statutory provisions, the Will in question was executed on 13.02.1960 and the executant, G, the original tenant of the land in question, expired on 19.06.1963. At the relevant point of time, the Karnataka Land Reforms Act, 1961 had not come into force and the tenancy in question was governed by the Bombay Tenancy and Agricultural Lands Act, 1948. With advent of the Act of 1961, various enactments relating to the agricultural land and tenancy, including the Bombay Tenancy and Agricultural Lands Act, 1948, came to be repealed for the purpose of the territories governed by the Act of 1961. In the Act of 1961, the relevant provisions concerning the instant case are contained in sub-section (1) of Section 21 and Section 24, which are more or less in pari materia the erstwhile provisions contained sub-section (1) of Section 27 and Section 40 of the Act of 1948. It may, however, be noticed that the prohibition contained in Section 21(1) and the restriction contained in Section 61(1) of the Act of 1961 operate in different fields inasmuch as Section 21(1) occurs in Chapter II of the Act of 1961, making general provisions regarding the tenancy and rights and obligations of a tenant of an agricultural land. Section 61, on the other hand, occurs in Chapter III, dealing with conformant of ownership on tenants by way of their registration as occupants. In other words, the restriction envisaged by Section 61 of the Act of 1961 comes into operation after a tenant has acquired occupancy rights whereas the prohibition contained in Section 21 operates at the stage before acquisition of occupancy rights and in relation to the tenancy simpliciter. [Para 9.1, 9.2, 9.3.1] [784-H; 785-A-B; 786-E-F; 788-D-F]

1.3 In the scheme of the Act of 1948 as also the Act of 1961, when a person had been inducted as tenant, heritable right comes into existence with certain embargo over transferability of such tenancy. In other words, such tenancy continues even after the demise of tenant. If the deceased tenant was a member of joint family, then the surviving members of the joint family; and if he was not a member of joint family, his heirs would be entitled to claim partition subject to the conditions specified. However, the tenanted land cannot be sub-let nor any interest therein could be assigned. The instant case relates to the stage before acquisition of occupancy rights; and the legatee of the Will, T had been none other than the brother of the deceased tenant, G; and the said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other marriage. [Para 12, 13] [792-E-F; 793-A-D]

1.4 In the instant case, the deceased G was the tenant in the land in question. No doubt, GR was the wife of G and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by T (with the present respondent being parties thereto) are to the effect that GR left G, contracted second marriage with J, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that GR was not the heir of G. It was also held conclusively that T was the heir of G; that G had executed the Will in favour of T bequeathing his rights in the land in question; and that T was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, there is no justification that the High Court proceeded in the impugned orders on the premise that GR was the heir of G for being his wife. The effect of the said findings of the civil court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of G was not mentioned in the application made by T for grant of occupancy rights. On the date of filing of such application, the suit filed by T had already been decreed by the trial court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil courts did not lose their worth if the fact about erstwhile wife of G was not mentioned in the application made by T for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant. [Para 14] [793-D-H; 794-A-B]

1.5 So far the legal effect of the said Will by the tenant G in favour of his brother T is concerned, T was definitely related to G by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by T in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied. [Para 14.1] [794-C-D]

1.6 It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which T was the tenant in his own right were also being described. In that context, it was clarified that T was, as such, not the tenant in relation to the land in question; meaning thereby that T was not the original tenant. The statement was not incorrect because G was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of T and his cultivatory possession. [Para 15] [794-E-G]

1.7 The appeal against the order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa case. While adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by T, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details. [Para 16] [794-H; 795-A-C]

1.8 The impugned judgment and orders passed by the High Court as also the impugned orders passed by the Land Reforms Appellate Authority and order passed by the Land Tribunal are set aside; and the application filed by T for grant of occupancy rights in respect of the land in question is allowed. The Land Tribunal shall pass necessary formal orders for grant of occupancy rights in favour of the appellants. [Para 17, 18] [795E-F]

Ramchandra Dagdu Sonavane (Dead) by Lrs and Ors v. Vithu Hira Mahar (Dead) by Lrs and Ors: (2009)

10 SCC 273 : [2009] 15 SCR 222 ; Sangappa

Kalyanappa Bangi (Dead) through LRs. v. Land

Tribunal, Jamkhandi and Ors : (1998) 7 SCC 294 : [1998] 1 Suppl. SCR 600 ; Jayamma v. Maria Bai (Dead) by proposed LRs. and Anr. : (2004) 7 SCC 459 : [2004] 3 Suppl. SCR 175 - referred to.