Karnataka High Court
Mutti vs Kucharu on 14 December, 2023
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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RSA No. 2272 of 2008
IN THE HIGH COURT OF KARNATAKA
AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.2272/2008(PAR)
BETWEEN:
MUTTI W/O CHENNA,
MAJOR, R/O. PADMBA,
ODILNALA VILLAGE,
BELTHANGADY TALUK,
P.O. ODILNALA, D.K.-5744214
... APPELLANT
(By SRI K.SRI HARI, ADVOCATE)
AND:
1. KUCHARU W/O SANNU,
MAJOR, R/O. PADMBA,
ODILNALA VILLAGE,
Digitally BELTHANGADY TALUK,
signed by P.O. ODILANALA, D.K.-574214.
SUJATA
SUBHASH
PAMMAR
2. BIDUGU, W/O BOGU,
SINCE DEAD BY HIS LR'S.
2A KRISHNAPPA,
AGED ABOUT 45 YEARS,
PADYAR HOUSE,
KUVETTU VILLAGE,
BELTHANGADY TALUK,
D.K.DISTRICT.
3 SUBBU W/O NARNA,
MAJOR R/O. KARANDUR BALANJA OF
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RSA No. 2272 of 2008
MACHINA VILLAGE, P.O. MACHINA
BELTHANGADY,
TALUK-574219.
4. BABY S/O ANGARU,
MAJOR, R/O. PADMBA,
ODILNALA VILLAGE,
BELTHANGADY TALUK,
P.O. ODILANALA,
D.K.-574214.
5. UMANI S/O ANGARU,
MAJOR.
6. DERAPPA S/O ANGARU,
MAJOR.
BOTH R/A. MUNDAJE VILLAGE,
BELTHANGADY TALUK,
P.O. MUNDAJE, D.K.-574216.
... RESPONDENTS
(BY SRI YASHWANTH NETHAJI N.T., AMICUS CURIAE FOR R1,
R2A, R3, R4, R5, R6)
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 04/07/2008 IN R.A.
NO.28/1993 PASSED BY THE LEARNED ADDITIONAL CIVIL
JUDGE (SR.DN.) AND JMFC, PUTTUR, BY DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 11/01/1993 IN O.S.NO.217/1998 PASSED BY THE
LEARNED CIVIL JUDGE (JR.DN), PUTTUR, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL BEING HEARD AND RESERVED, COMING ON
FOR PRONOUNCEMENT OF JUDGMENT, THE COURT DELIVERED
THE FOLLOWING:
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RSA No. 2272 of 2008
JUDGMENT
The regular second appeal is filed by defendant No.2
challenging the Judgment and Decree passed in
R.A.No.28/1993 dated 04.07.2008 passed by the Court of
Addl. Civil Judge (Sr.Dn.) and JMFC, Puttur, D.K.,
(hereinafter referred to as 'the First Appellate Court),
which confirms the Judgment and Decree passed in
O.S.No.217/1988 dated 11.01.1993 passed by the Court
of the Munsiff and JMFC at Belthangady, D.K., hereinafter
referred to as 'the Trial Court). Against the concurrent
findings of both the Courts below, the present appeal is
filed.
2. The rank of the parties are stated as before the
Trial Court for convenience and easy reference.
3. The plaintiff who is respondent No.1 herein filed
a suit for partition praying to allot 1/6th share in the suit
properties. For easy reference, the genealogy is shown as
follows:
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Kanja Mera
Kucheru Bidugu Mutti Subbu Angaru
D1 D2 D3 (Dead)
Plaintiff
Baby Umani Derappa
D5 D6 D7
4. The original propositus is Kanjameru who has
five daughters. Defendant No.2 who is the appellant herein
is the second daughter. It is case of the plaintiff that the
suit schedule land was taken on lease by her father
Kanjameru. It is the case of the plaintiff that the said
Kanjameru had filed an application for claiming occupancy
rights before the Land Tribunal. During the pendency of
the said application, the said Kanjameru died and 2nd
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defendant appeared before the Land Tribunal and got
registered her name as an occupant of the schedule land.
The plaintiff and defendants are having share as
coparceners. Therefore, the plaintiff filed a suit for
partition claiming her share.
5. Defendant No.2 (appellant herein) has filed the
written statement. Defendant Nos.1, 3 to 4 have not filed
the written statement. Defendant No.2 admitted that the
suit schedule properties were leased properties taken by
her father and filed an application before the Land Tribunal
for grant of occupancy rights and the Land Tribunal
granted occupancy rights in her favour. It is the case of
defendant No.2 that she has got absolute right over the
suit schedule property in view of the Will executed by her
father and not because of the order of the Land Tribunal
granting occupancy rights. It is submitted that the said
Kanjameru had executed a registered Will bequeathing
plaint 'A' schedule properties and on the basis of the said
Will, the Land Tribunal has granted occupancy rights in
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favour of defendant No.2. Therefore, Kanjameru had
claimed absolute right over the suit schedule property.
The Trial Court has decreed the suit by granting 1/5th
share to the plaintiff on the reason that the original
propositus Kanjameru has taken the land on lease basis
and filed an application for grant of occupancy rights and
thus, the suit land belongs to Kanjameru and therefore, all
the coparceners have equal 1/5th share. Accordingly,
granted 1/5th share to the plaintiff. The First Appellate
Court has confirmed the said Judgment and Decree passed
by the Trial Court. Both the Trial Court and the First
Appellate Court held that the suit properties are tenancy
holding of her father Kanjameru and defendnat No.2 had
failed to prove that Kanjameru had executed Will in her
favour and thus, negatived the contention of defendant
No.2 that defendant No.2 has become absolute owner on
the basis of the Will.
6. The respondents in this appeal have been
served with notice, but they have not appeared before the
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Court. Since the respondents herein are women,
therefore, the standing counsel is ordered to appear on
behalf of the respondents by virtue of Section 13 of the
Legal Services Authority Act, 1987 as the respondents
being women are entitled to free legal aid and also to
assist the Court. Accordingly, Sri.Yeshwanth Netaji,
learned Advocate is appointed as amicus curiae/standing
counsel for the respondents.
7. Heard the arguments from both sides and
perused the records.
8. This Court on 13.08.2015 has framed the
following substantial questions of law:
1) Whether the Judgment and decree of the trial
court is erroneous in misreading the evidence
of P.Ws.2 and 3 while holding that there are
contradictions?
2) Whether the finding of the trial court is void-
abinitio and is unsustainable in law?
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9. Further during the course of argument, the
Court deems fit to frame the following additional
substantial questions of law on 23.06.2023:
i. Whether, under the facts and circumstances
involved in the case, the deceased - Kanja
Meru has executed the Will bequeathing 'B'
schedule land or occupancy rights only?
ii. Whether, under the facts and circumstance
involved in the case, the plaintiff is successful
that bequeath made as per Will dated
05.04.1973 as per Ex.D.1 is hit by Section 61
of the Karnataka Land Reforms Act, 1961?
10. The learned counsel for the appellant/
defendant No.2 submitted that by virtue of Will executed
by the father of the plaintiffs/defendants, viz., Kanja Meru,
the Defendant No.2 has become exclusive and absolute
owner over the suit property. Both the Courts below have
not appreciated evidence of PW.2 and PW.3 in true and
correct perspective manner and also plaintiff has not
proved that bequeathing the property by Kanja Meru in
favour of Defendant No.2 through Will is hit by Section 61
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of the Karnataka Land Revenue Act, 1961 (in short 'K.L.R
Act, 1961). It is argued transfer of property by way of Will
by father to daughter is not a transfer of property, but it is
an arrangement within the family. Therefore, it is not hit
by Section 61 of the K.L.R Act. It is further submitted that
by evidence of PW.3, execution of Will is proved. It is
further submitted that Kanja Meru has executed the Will.
Thereby, bequeathed 'A' schedule property to the
Defendant No.2, but not only occupancy rights also whole
rights over the land. Therefore, when the entire land is
bequeathed in favour of Defendant No.2, then by virtue of
Section 14 of Hindu Succession Act, the Defendant No.2
has become exclusive and absolute owner over the 'A'
schedule property. It is further submitted that Kanja Meru
has only five daughters and no male issues. Kanja Meru
has performed marriage of all daughters. Except
Defendant No.2 all other three daughters including plaintiff
are residing peacefully along with husband in their
respective family. But unfortunately, the Defendant No.2
was constrained to leave due to ill-treatment by her
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husband and started to reside along with father Kanja
Meru and Defendant No.2 has looked after her father till
his death. Therefore, out of not only love and affection
towards Defendant No.2, but for security of life of
Defendant No.2, since she has left her husband, therefore,
for her livelihood, father Kanja Meru has bequeathed suit
schedule 'A' property to the Defendant No.2 by way of
Will. Therefore, it is amounting to bequeathing the entire
property to the Defendant No.2 through the Will, but not
occupancy rights only. Thus, Defendant No.2 has become
absolute and exclusive owner of the 'A' schedule property.
This is lost sight of by both the Courts below. Hence,
prays to set aside the Judgment and Decree of both the
Courts below by allowing the appeal.
11. Learned counsel for the appellant has relied on
the following decisions:
i) Durga vs. Anil Kumar.1
ii) Raj Kumari and Ors. vs. Surinder Pal Sharma.2
(2005) 11 SCC 189
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iii) Prema and another vs. Deva Rao and others.3
iv) Madhukar D. Shende vs. Tarabal Aba Shedage.4
v) Sridevi and others vs. Jayaraja Shetty and
others.5
vi) Swarnalatha and others vs. Kalavathy and
others.6
vii) Sri J. T. Surappa and another vs. Sri
Satchidhanadendra Saraswathi Swamiji Public
Charitable Trust and others.7
viii) Kavita Kanwar vs. Pamela Mehta and others.8
ix) Kanna Timma Kanaji Madiwal (dead) through
legal representatives vs. Ramachandra
Timmayya Hegde (dead) through legal
representatives and others.
x) Sri Malakari since dead by his LR Smt. Sitawwa
vs. State of Karnataka and others.10
xi) C. C. Devasia vs. The Karnataka Appellate
Tribunal & Ors.11
xii) Mudakappa vs. Rudrappa and Others.12
xiii) Pentakota Satyanarayana and others vs.
Pentakota Seetharatnam and others.13
AIR 2020 SCC (supp) 105
(2011) 4 Supreme Court Cases 303
(2002) 2 SCC 85
(2005) 2 SCC 784
2022 SCC Online SCC 381
2008 SCC online Kar 188
(2021) 11 SCC 209
(2021) 14 SCC 309
(2008) SCC Online Kar 16
1998 SCC Online Kar 105
(1994) 2 SCC 57
(2005) 8 SCC 67
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12. The respondents were served notice, but they
remained absent in spite of service of notice to them.
Therefore, the respondents being women, are entitled for
free legal aid as per Section 13 of the Legal Services
Authority Act, 1987. Accordingly, the standing counsel is
appointed by name Sri.Yeshawanth Netaji, advocate-cum-
amicus curiae, Advocates' Association, Bengaluru, to
represent the respondents and also to assist the Court.
13. The learned standing counsel for the
respondents-cum-amicus curiae submitted that Will is not
proved. Therefore, there is no valid bequeath by Kanja
Meru to the Defendant No.2. Then, plaintiff and
defendants are daughters of Kanja Meru. Therefore, quite
naturally, the occupancy rights granted in favour of
Defendant No.2 is liable to be equally partitioned among
the plaintiff and defendants. Therefore, both the Courts
below have correctly held and decreed the suit. Hence,
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submitted that the appeal filed by the Defendant No.2 is
liable to be dismissed.
14. Learned counsel for the respondents has relied
on the following decisions:
i) Shambu Eshwar Hegde vs. Land Tribunal Kumta
and another.14
ii) Timmakka Kom Venkanna Naik vs. Land
Tribunal.15
iii) Jahirodin vs. Land Tribunal & Ors.16
iv) Sri J. T. Surappa and another vs. Sri
Satchidhanandendra Saraswathi Swamiji Public
Charitable Trust and others.17
v) M. L. Abdul Jabbar Sahib vs. M.V. Venkata
Sastri & Sons and others.18
vi) Bhagat Ram & Anr vs. Suresh & Ors.19
vii) N. Kamalam (dead) and another vs. Ayyasamy
and another.20
viii) Suraj Lamp and Industries Private limited (2)
through Director vs. State of Haryana and
Another.21
(1979) SCC Online Kar 156
(1987) SCC Online Kar 172
(1978) SCC Online Kar 292
ILR 2008 KAR 2115
(1969) 1 SCC 573
(2003) 12 SCC 35
(2001) 7 SCC 503
(2012) 1 SCC 656
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ix) Shanti Swaroop deceased and others vs. Onkar
Prasad deceased and others.22
x) Veerabhadrappam and Ors. vs. Virupaxappa
Totappa Bilebal.23
xi) Booda Poojary vs. Thomu Poojarthy.24
xii) Ganesh Rai and Others vs. Mahalinga Rai and
Others.25
xiii) Narayana and Others vs. A. Sadashiva and
Others.26
xiv) Kanteppa and Another v. Land Tribunal Bidar
Taluk, Bidar and Another.27
xv) Malliga vs. P.Kumaran.28
xvi) Sarada vs. Radhamani.29
xvii) Ramesh Verma (dead) through Legal
Representatives vs. Lajesh Saxena (Dead) by
Legal Representatives and Another.30
xviii) S.R.Srinivasa and Others vs.
S.Padmavathamma.31
xix) K.Laxmanan vs. Thekkayil Padmini and
Others.32
xx) Smt.Jaswant Kaur vs. Smt. Amrit Kaur and
Others.33
ILR 1998 KAR 2508
ILR 1992 KAR 1359
ILR 2003 KAR 2764
ILR 2000 KAR 487
ILR 2001 KAR 426
2022 SCC Online Mad 1289
2017 SCC Online Ker 41632
(2017) 1 SCC 257
(2010) 5 SCC 274
(2009) 1 SCC 354
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xxi) Yumnam ONGBI Tampha Ibema Devi vs.
Yumnam Joykumar Singh and Others.34
xxii) Janki Narayan Bhoir vs. Narayan Namdeo
Kadam.35
xxiii) H. Venkatachala Iyengar vs. B.N.
Thimmajamma and Others.36
15. The decisions placed on by the appellant and
respondents-Amicus Curiae are considered and those are
regarding the principle of law laid down on proof of Will
and the same are applied in this appeal.
16. Sub-section (1) of Section 61 of the K.L.R Act,
1961 reads as follows:
"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 (5-A) of section
(1977) 1 SCC 369
(2009) 4 SCC 780
(2003) 2 SCC 91
AIR 1959 SCC 443
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48A] be transferred by sale, gift, exchange,
mortgage, lease or assignment; but the land may
be partitioned among members of the holder's
joint family."
17. The father Kanja Meru has executed a Will on
05.04.1973 before coming into force of Amendment Act to
the Karnataka Land Reforms Act, 1961. Thereby,
bequeathing 'A' schedule property in favour of Defendant
No.2. Ex.D1-Will is executed before coming into force of
the Amendment Act to the K.L.R.Act, 1961. Therefore,
certainly, it does not mean that Kanja Meru did have
intention to bequeath occupancy rights only. Before
coming into force of the Amendment Act to the K.L.R.Act,
1961, Kanja Meru had bequeathed entire property
exclusively and absolutely to the Defendant No.2. Such
bequeath is not hit by Section 61 of the K.L.R.Act, 1961.
The Land Tribunal has passed an order on 31.08.1977 as
per Ex.D2. Therefore, Section 61 of the K.L.R.Act, 1961
restricts transfer of land of which tenant has become
occupant. Here, Kanja Meru was tenant over the 'A'
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schedule property and before passing Land Tribunal order,
he died. The Defendant No.2 had continued the
prosecution of application filed for grant of occupancy
rights before the Land Tribunal and was successful in
granting order of occupancy right by the Land Tribunal.
Thus, the Defendant No.2 has become occupant by virtue
of Land Tribunal Order by conferring occupancy rights on
her. Therefore, there is no transfer by sale, gift,
exchange, mortgage, lease or assignment or any other
mode. Bequeathing property by way of Will is not
restricted as per Section 61 of the K.L.R.Act.
Furthermore, Kanja Meru had executed a Will before grant
of occupancy rights. Therefore, it is not hit by Section 61
of the K.L.R.Act. Accordingly, I answer substantial
question of Law No.2 framed on 23.06.2023 in negative.
18. Upon considering Ex.D1-Will, as it is executed
before coming into force of the Amendment Act to the
K.L.R.Act, 1961, considering occupancy rights, therefore,
it could not be anticipated that Kanja Meru has executed
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the Will that he would come to know of the amendment in
future and therefore, he bequeathed occupancy rights
only. Therefore, it means upon considering the intention
of Kenja Meru, he bequeathed the entire property to
Defendant No.2 for the reason that the Defendant No.2
was constrained to leave her husband and started to
reside along with her father Kanja Meru and therefore,
Kanja Meru has bequeathed property in favour of
Defendant No.2. Therefore, the bequeath of 'A' schedule
property to the Defendant No.2 is bequeathing of 'A'
schedule property absolutely by virtue of Will.
19. Considering the proof of execution of Will is
concerned, DW.2 is the scribe. DW.2 is bond writer by
profession. He identified EX.D1-Will that he has written
the said Will in his own handwriting. He has stated that
the father of the plaintiffs and defendants namely
Khanamiru has instructed him to write the will and
accordingly he has written the said will. DW.2 has stated
that after signature of attested witnesses, he has also put
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his signature and he identified left hand thumb impression
of the propositus Kanjamiru. Upon considering the cross
examination of this DW.2, the evidence is given before the
Court on 04.01.1993. The Ex.D1 is dated 05.04.1973.
Therefore, when considering the nature of human conduct,
DW.2 examined after 20 years from the date of writing of
the Will. Therefore, quite naturally, DW.2 might have
stated that he does not know who is Kanjamera since
memory fades, if a person is not frequently met him.
Therefore, in this context, if the DW.2 admitted in the
cross examination that he does not know who is
Kanjamera that does not mean that the DW.2 has not
written the Will. Further, the DW.2 had stated that DW.3
Niranjan Rao had introduced Kanjamera and this DW.2
had put signature on the Will as one of the attesting
witness. Therefore, from the evidence of DW.2, it is
proved that the DW.2 is scribe of the Will and he has also
put his signature as a scribe.
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20. DW.3 is another attesting witness to the Will.
DW.3 has stated that he has put his signature on the
Ex.D1-Will as attesting witness and Kanjamera has put his
left hand thumb impression on the Will. It is revealed in
the cross examination that Kanjamera has given
instruction to him to write will and in turn DW.3 has
instructed the DW.2 to write the Will. It is evidence,
revealed from the DW.3 that there is no second attesting
witness signature on the will.
21. Therefore, when considering these evidence on
record, as per Section 63 of the Indian Succession Act and
Section 68 of the Indian Evidence Act, the requirement is
putting signature on the Will by two attesting witnesses
but one attesting witness is proved to have attested and
signed on the Ex.D1-Will. The question is whether the
DW.2 can be considered as attesting witness. The DW.2
has stated that he has written the Will as the propounder
of the Will was introduced by the DW.3 and DW.2 himself
and DW.3 has put signature on the Will. Therefore, the
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scribe is also to be considered as attesting witness apart
from the status as scribe. Therefore, the requirement of
proof of Will as per Section 63 of the Indian Succession
Act and Section 68 of Indian Evidence Act are complied
with.
22. Therefore, as discussed above, upon
considering the entire case on its true and correct
prospective way, the propositus has five daughters, all five
daughters who are coparceners have got married. There is
no male issue to propositus Kanjamera. The DW.2 was
constrained to leave her husband and started to reside
along with her father Kanjamera. All other coparceners
(daughters) have been residing in their own family along
with their respective husband and children. Therefore,
when the defendant No.2 was residing along with her
father Kanjamera, quite naturally, being the dutiful father
towards his daughter for security of life has bequeathed
suit schedule 'A' property in favour of the defendant No.2.
Bequeathing the entire land itself since, as on the date of
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execution of Will i.e. on 05.04.1973, the Karnataka Land
Reforms Act was not got amended for grant of Occupancy
Right. Therefore, the intention of propositus Kanjamera is
that to bequeath the entire land that is suit schedule 'A'
property to defendant No.2 for the reasons above
gathered from the case on all its preponderance of
probability. Therefore, the defendant No.2 has proved
that suit schedule 'A' property is bequeathed by father and
thus defendant No.2 has become absolute and exclusive
owner of the suit 'A' schedule property.
23. In this regard, both courts below have not
appreciated the evidence on record correctly and mere
just swayed away that the plaintiffs and other defendants
are also coparceners and held that all are equally entitled
for share in the 'B' schedule property. When the entire
case is considered on all its preponderance of probability
as discussed above, the intention of the propositus
Kanjamera is proved very clear that for security of life of
defendant No.2, since defendant No.2 was constrained to
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leave her husband and started to reside along with her
father, then Defendant No.2 has prosecuted the
application before the land tribunal. The land tribunal has
granted occupancy rights by the order dated 31.08.1977
which was not challenged by the plaintiff and other
defendants till filing of the suit that is till 29.11.1985.
Therefore, for more than eight years from the date of
grant of occupancy rights, the plaintiffs and other
defendants were silent and suddenly woke up and filed
suit for partition. This conduct of the plaintiff proves that
she has consented by acquiescence by silence about the
grant of occupancy rights in favour of defendant No.2.
Hence, by virtue of Will-Ex.D1, the defendant No.2 has
become exclusive and absolute owner in possession of the
suit schedule 'A' property is not amenable for partition. In
this regard, both the courts below have committed error in
partitioning the suit schedule 'A' property and the same
are liable to be set aside. Therefore, the suit filed by the
plaintiffs is liable to be dismissed.
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24. Learned Amicus Curiae-Sri Yashwanth Nethaji
N.T. has assisted the Court in well studied manner and
appraised the Court regarding law of Wills and has taken
the Court thoroughly on facts involved in the case and his
assistance to the Court is very valuable and appreciable,
making the Court to arrive at a just conclusion. Therefore,
the efforts put by the learned Amicus Curiae is placed on
record along with appreciation of the Court. The Secretary,
High Court Legal Services Committee, Bengaluru is
directed to pay professional fees of Rs.10,000/- to the
learned Amicus Curiae-Sri Yashwanth Nethaji N.T.,
advocate.
25. Accordingly, I proceed to pass the following:
ORDER
i) Regular Second Appeal filed by the
defendant No.2 is allowed.
ii) Judgment and decree passed in RA
No.28/1993 dated 04.07.2008 by Addl.
Civil Judge(Senior Division) and JMFC.,
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Puttur and judgment and decree passed
in OS No.217/1988 dated 11.01.1993 by
Civil Judge (Jr.Dn.) Puttur are hereby set
aside so far as partitioning the 'A'
schedule property.
iii) The suit filed by the plaintiffs so far as
suit schedule 'A' property is concerned is
dismissed.
iv) Draw decree accordingly.
v) No orders as to costs.
SD/-
JUDGE
BNV: para 1 to 17
HMB: para 18 to end
CT: ASC
