Karnataka High Court

Narasimha vs Mahabaleshwar on 25 March, 2025

                                                   -1-
                                                                 NC: 2025:KHC-D:5486
                                                             RSA No. 100326 of 2016
                                                         C/W RSA No. 100458 of 2020



                                  IN THE HIGH COURT OF KARNATAKA,
                                           DHARWAD BENCH
                               DATED THIS THE 25TH DAY OF MARCH, 2025
                                               BEFORE
                                 THE HON'BLE MR. JUSTICE E.S.INDIRESH


                           REGULAR SECOND APPEAL NO. 100326 OF 2016 (DEC-)
                                               C/W.
                              REGULAR SECOND APPEAL NO. 100458 OF 2020

                      IN RSA NO 100326 OF 2016
                      BETWEEN:

                      1.   NARASIMHA VENKATRAMAN HEGDE
                           SINCE DECEASED BY LRS

                           VENKATRAMANA
                           S/O. NARASIMHA HEGDE,
                           AGE: 69 YEARS,
                           OCC: AGRICULTURIST.
                           R/O: SHASHIMANE POST- PANCHALINGA,
                           TQ: SIRSI, DIST: KARWAR-581403.

                      2.   GANAPATI
Digitally signed by
ASHPAK
                           S/O. NARASIMHA HEGDE,
KASHIMSA
MALAGALADINNI
                           AGE: 64 YEARS,
Location: High
Court of
                           OCC: AGRICULTURIST,
Karnataka,
Dharwad Bench
                           R/O: SHASHIMANE POST- PANCHALINGA,
                           TQ: SIRSI, DIST: KARWAR-581403.

                      3.   RAMACHANDRA
                           S/O. NARASIMHA HEGDE,
                           AGE: 59 YEARS,
                           OCC: AGRICULTURIST,
                           R/O: SHASHIMANE POST- PANCHALINGA,
                           TQ: SIRSI, DIST: KARWAR-581403.


                      4.   PRAKASH
                           S/O. NARASIMHA HEGDE,
                           AGE: 49 YEARS,
                              -2-
                                           NC: 2025:KHC-D:5486
                                       RSA No. 100326 of 2016
                                   C/W RSA No. 100458 of 2020




     OCC: AGRICULTURIST,
     R/O: SHASHIMANE POST- PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.
                                                 ...APPELLANTS
(BY SRI. R.H. ANGADI. ADVOCATE)

AND:
1.   MAHABALESHWAR
     S/O. VENKATRAMANA HEGDE,
     SINCE DECEASED BY HIS LR.

1(a) NARAYAN
     S/O. MAHABALESHWAR HEGDE,
     AGE: 62 YEARS, OCC: AGRICULTURIST,
     R/O: KOTTIGEHALLI, POST: PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.

1(b) VIDYADHAR
     S/O. MAHABALESHWAR HEGDE,
     AGE: 59 YEARS, OCC: AGRICULTURIST,
     R/O: KOTTIGEHALLI, POST: PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.

1(c) GURPAD
     S/O. MAHABALESHWAR HEGDE,
     AGE: 55 YEARS, OCC: AGRICULTURIST,
     R/O: KOTTIGEHALLI, POST: PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.

1(d) SHRIPAD
     S/O. MAHABALESHWAR HEGDE,
     AGE: 49 YEARS, OCC: AGRICULTURIST,
     R/O: KOTTIGEHALLI, POST: PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.
                                                ...RESPONDENTS
(BY SRI. A.P. HEGDE JANMANE, ADVOCATE)


     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT & DECREE
UNDER APPEAL DATED 04.02.2016 PASSED IN R.A.NO.43/2013 ON
THE FILE OF THE SENIOR CIVIL JUDGE AT SIRSI AND JUDGMENT
AND DECREE DATED 27.04.2013 PASSED IN O.S.NO.84/1991 ON
                              -3-
                                           NC: 2025:KHC-D:5486
                                       RSA No. 100326 of 2016
                                   C/W RSA No. 100458 of 2020



THE FILE OF THE ADDITIONAL CIVIL JUDGE COURT AT SIRSI BE
CONFIRMED BY ALLOWING THIS APPEAL.

IN RSA NO 100458 OF 2020

BETWEEN:

1.   VENKATRAMANA
     S/O. NARASIMHA HEGDE,
     AGE: 69 YEARS,
     OCC: AGRICULTURIST.
     R/O: SHASHIMANE & KOTAGIHALLI
     POST- PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.

2.   GANAPATI
     S/O. NARASIMHA HEGDE,
     AGE: 64 YEARS,
     OCC: AGRICULTURIST,
     R/O: SHASHIMANE & KOTAGIHALLI
     POST- PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.

3.   RAMACHANDRA
     S/O. NARASIMHA HEGDE,
     AGE: 59 YEARS,
     OCC: AGRICULTURIST,
     R/O: SHASHIMANE & KOTAGIHALLI
     POST- PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.

4.   PRAKASH
     S/O. NARASIMHA HEGDE,
     AGE: 49 YEARS,
     OCC: AGRICULTURIST,
     R/O: SHASHIMANE & KOTAGIHALLI
     POST- PANCHALINGA,
     TQ: SIRSI, DIST: KARWAR-581403.
                                                 ...APPELLANTS

(BY SRI. R.H. ANGADI. ADVOCATE)
                             -4-
                                          NC: 2025:KHC-D:5486
                                      RSA No. 100326 of 2016
                                  C/W RSA No. 100458 of 2020



AND:
1. MAHABALESHWAR
   S/O. VENKATRAMANA HEGDE,
   AGE: 91 YEARS, OCC: AGRICULTURIST,
   R/O: KOTTIGEHALLI, POST: BALEGADDE,
   TQ: SIRSI, DIST: KARWAR-581403.


2. NARAYAN
   S/O. MAHABALESHWAR HEGDE,
   AGE: 62 YEARS, OCC: AGRICULTURIST,
   R/O: KOTTIGEHALLI, POST: BALEGADDE,
   TQ: SIRSI, DIST: KARWAR-581403.

3. VIDYADHAR
   S/O. MAHABALESHWAR HEGDE,
   AGE: 59 YEARS, OCC: AGRICULTURIST,
   R/O: KOTTIGEHALLI, POST: BALEGADDE,
   TQ: SIRSI, DIST: KARWAR-581403.

4. GURPAD
   S/O. MAHABALESHWAR HEGDE,
   AGE: 55 YEARS, OCC: AGRICULTURIST,
   R/O: KOTTIGEHALLI, POST: BALEGADDE,
   TQ: SIRSI, DIST: KARWAR-581403.

5. SHRIPAD
   S/O. MAHABALESHWAR HEGDE,
   AGE: 49 YEARS, OCC: AGRICULTURIST,
   R/O: KOTTIGEHALLI, POST: BALEGADDE,
   TQ: SIRSI, DIST: KARWAR-581403.
                                                ...RESPONDENTS

(BY SRI. A.P. HEGDE JANMANE &
    SRI. SURESH S. BHAT, ADVOCATES FOR R2-R5;
    R2-R5 ARE LR'S OF DECEASED R1)


     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT & DECREE
PASSED BY THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE
U.K. KARWAR SITTING AT SIRSI IN R.A. NO.5011/2016 DATED
13/05/2020 DISMISSING THE APPEAL BY CONFIRMING THE
JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL JUDGE
                                -5-
                                             NC: 2025:KHC-D:5486
                                         RSA No. 100326 of 2016
                                     C/W RSA No. 100458 of 2020



SIRSI IN O.S.NO.132/1994 DATED 03/03/2016 DISMISSING THE
SUIT FILED BY THE PLAINTIFF/APPELLANT, BY ALLOWING THE
APPEAL, IT IS FURTHER PRAYED THAT THE SUIT OF THE
APPELLANTS AT O.S.NO.132/1994 FILED BEFORE THE SENIOR CIVIL
JUDGE SIRSI MAY KINDLY BE DECREED AS PRAYED BY ALLOWING
THIS APPEAL WITH COST AND ETC.

      THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
21.03.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS
DAY, DELIVERED THE FOLLOWING:


CORAM:      THE HON'BLE MR. JUSTICE E.S. INDIRESH

                         CAV JUDGMENT

RSA No.100326/2016 is filed by the defendant Nos.2

to 5, challenging the judgment and decree dated

04.02.2016 passed in RA No.43/2013 on the file of Senior

Civil Judge, Sirsi (for short, hereinafter referred to as 'First

Appellate Court'), allowing the appeal and setting aside

the judgment and decree dated 27.04.2013 passed in OS

No.84/1991 on the file of Additional Civil Judge, Sirsi (for

short, hereinafter referred to as 'Trial Court'), dismissing

the suit of the plaintiff.

2. RSA No.100458/2020 is filed by the plaintiff

Nos.1 to 4, challenging the judgment and decree dated

13.05.2020 passed in RA No.5011/2016 on the file of I

NC: 2025:KHC-D:5486

Additional District and Sessions Judge, U.K. Karwar, sitting

at Sirsi (for short, hereinafter referred to as 'First

Appellate Court'), dismissing the appeal and confirming

the judgment and decree dated 03.03.2016 passed in OS

No.132/1994 on the file of Senior Civil Judge, Sirsi (for

short, hereinafter referred to as 'Trial Court'), dismissing

the suit of the plaintiffs.

3. For the sake of convenience, the parties in

these appeals shall be referred to in terms of their status

and ranking before the Trial Court in OS No.84/1991.

Facts in RSA No.100326/2016:

4. It is the case of the plaintiffs that, the original

propositus - Venkatramana had four children namely,

Ganapati (died without leaving any issues), Narasimha

(defendant No.1), Ramachandra (died as bachelor) and

Mahabaleshwar (plaintiff). It is the case of the plaintiffs

that, the original propositus - Venkatramana had five

immovable properties namely, land bearing Sy.No.48/2

measuring 1 acre, Sy.No.62 measuring 38 guntas 8 annas,

Sy.No.53/1 measuring 30 guntas 8 annas, Sy.No.61/2

NC: 2025:KHC-D:5486

measuring 10 guntas and Sy.No.56/2 measuring 4 guntas

and all the immovable properties are situate at Kottigehalli

village in Sirsi Taluk.

4.1. It is also stated that, the defendant Nos.2 to 5

are the children of defendant No.1. There was a registered

partition in the joint family properties consisting of

children of late Venkatramana and as such, the suit

schedule property was allotted to the share of

Ramachandra Hegde (third son of Venkatramana). It is

also stated that, the Ramachandra Hegde had health

ailments and as such, the plaintiff was looking after the

said Ramachandra Hegde and also cultivate the suit

schedule properties belonging to the said Ramachandra

Hegde. It is further stated that, the said Ramachandra

Hegde died on 16.04.1990 without leaving behind any

legal heirs as he was bachelor and therefore, the plaintiff

and defendant No.1, being the Class-I heirs of deceased

Ramachandra Hegde and accordingly, the plaintiff and

defendant No.1 are entitled for half share each in the suit

schedule properties.

NC: 2025:KHC-D:5486

4.2. It is further averred in the plaint that, the

plaintiff came to know that, the defendant Nos.2 to 5 got

mutated the revenue records in respect of the suit

schedule property based on the Will dated 14.08.1989 said

to have been executed by deceased Ramachandra Hegde.

Hence, it is the case of the plaintiff that, the suit schedule

properties are the tenanted properties of late

Ramachandra and therefore, the plaintiff and defendant

No.1 are entitled for equal share in the suit schedule

properties. Hence, the plaintiff has filed OS No.84/1991

against the defendants seeking relief of declaration with

consequential relief of partition in respect of the suit

schedule properties.

5. After service of summons, the defendants

entered appearance and filed detailed written statement

denying the averments made in the plaint. It is the case

of the defendants that, Ramachandra got the suit schedule

property as per registered partition dated 21.08.1989 and

was separately enjoying the suit schedule property. It is

also stated that the deceased Ramachandra was suffering

NC: 2025:KHC-D:5486

from age old ailments and further executed Will dated

14.08.1989 bequeathing the suit schedule properties in

favour of the defendant Nos.2 to 5 and therefore, the

defendant Nos.2 to 5 are entitled for suit schedule

properties. Hence, the defendants sought for dismissal of

the suit.

6. On the basis of the rival pleadings, the Trial

Court has formulated issues for its consideration.

7. In order to establish their case, plaintiff has

examined two witnesses as PW1 and PW2 and got marked

21 documents as Exs.P1 and P21. On the other hand,

defendants have examined two witnesses as DW1 and

DW2 and produced 21 documents as Exs.D1 to D21.

8. The Trial Court, after considering the material

on record, by its judgment and decree dated 27.04.2013

dismissed the suit of the plaintiff and being aggrieved by

the same, the plaintiff has preferred Regular Appeal in RA

No.43/2013 on the file of First Appellate Court and the

said appeal was resisted by the defendants. The First

Appellate Court after re-appreciating the facts on record,

- 10 -

NC: 2025:KHC-D:5486

by its judgment and decree dated 04.02.2016, allowed the

appeal and set aside the judgment and decree passed by

the Trial Court in OS No.84/1991. Being aggrieved by the

same, the defendants/appellants have preferred RSA

No.100326/2016.

Facts in RSA No.100458/2020:

9. It is the case of the plaintiffs that, the original

propositus - Venkatramana had four children namely,

Ganapati (died without leaving any issues), Narasimha

(defendant No.1), Ramachandra (died without leaving

behind any legal representatives) and Mahabaleshwar

(plaintiff). It is the case of the plaintiffs that, the original

propositus-Venkatramana had five immovable properties

namely, land bearing Sy.No.48/2 measuring 1 acre,

Sy.No.62 measuring 38 guntas 8 annas, Sy.No.53/1

measuring 30 guntas 8 annas, Sy.No.61/2 measuring 10

guntas and Sy.No.56/2measuring 4 guntas and all the

immovable properties are situate at Kottigehalli village in

Sirsi Taluk. It is also stated that, the plaintiff Nos. 1 to 4

are the children of defendant No.1. There was a registered

- 11 -

NC: 2025:KHC-D:5486

partition in the joint family properties of children of late

Venkatramana and as such, the suit schedule property was

allotted to the share of Ramachandra (third son of

Venkatramana). It is also stated that, the said

Ramachandra was unmarried and had executed registered

Will dated 14.08.1989 in favour of the plaintiffs

bequeathing the suit schedule properties. It is the specific

contention of the plaintiffs that, the suit schedule

properties were the tenanted lands of deceased

Ramachandra and therefore, the said Ramachandra was

the absolute owner of the said properties. Hence, plaintiffs

have filed OS No.132/2024 seeking relief of declaration

that, the plaintiffs are the absolute owners of the suit

schedule properties as per the Will dated 14.08.1989 and

also sought for consequential relief of permanent

injunction against the defendants.

10. After service of summons, the defendant Nos.1

to 5 entered appearance and filed detailed written

statement denying the averments made in the plaint.

- 12 -

NC: 2025:KHC-D:5486

11. On the basis of the rival pleadings, the Trial

Court has formulated issues for its consideration.

12. In order to establish their case, plaintiffs have

examined one witness as PW1 and got marked 10

documents as Exs.P1 and P10. On the other hand, no oral

and documentary evidence by the defendants.

13. The Trial Court, after considering the material

on record, by its judgment and decree dated 03.03.2016

dismissed the suit of the plaintiffs and being aggrieved by

the same, the plaintiffs have preferred Regular Appeal in

RA No.5011/2016 on the file of the First Appellate Court

and the said appeal was resisted by the defendants. The

First Appellate Court after re-appreciating the facts on

record, by its judgment and decree dated 13.05.2020,

dismissed the appeal, consequently, confirmed the

judgment and decree passed by the Trial Court in OS

No.132/1994. Being aggrieved by the same, the

plaintiffs/appellants have preferred RSA No.100458/2020.

- 13 -

NC: 2025:KHC-D:5486

14. This Court in RSA No.100326/2016 vide order

dated 22.04.2016 formulated the following substantial

question of law.

"Whether the lower appellate Court was right in reversing the judgment of the trial court by holding that the testator had no legal right to execute the dispute Will in view of the bar contained in Section 61 of the Karnataka Land Reforms Act?"

15. I have heard Sri R.H. Anagadi, learned counsel

appearing for the appellants and Sri. A. P. Hegde, learned

counsel appearing for the respondent

16. Sri. R. H. Angadi, learned counsel appearing for

the appellants argued that, it is not in dispute that the suit

schedule properties are the joint family properties of

original propositus - Venaktramana and his children

(plaintiff and defendants). It is also argued that, there was

a partition in the joint family of original propositus -

Venkatramana and his children and suit schedule

properties were fallen to the share of late Ramachandra,

who died as bachelor. It is also argued that, the

- 14 -

NC: 2025:KHC-D:5486

Ramachandra has left Will dated 14.08.1989, bequeathing

the suit schedule properties in favour of the appellants as

the father of the appellants and appellants were looking

after the health of late Ramachandra and on account love

and affection, the said Ramachandra has bequeathed the

suit schedule properties in favour of the appellants. It is

contended by the learned counsel appearing for the

appellants that, the appellate court has committed an

error in holding that, the said Ramachandra executed Will

within 15 years from the date of the order of the Land

Tribunal, bequeathing the suit property in favour of the

appellants herein and same is hit by Section 61 of the

Karnataka Land Reforms Act, 1961 (for short, hereinafter

referred to as 'Act, 1961').

16.1. He further contended that, the beneficiaries

under the Will are the children of Narasimha (brother of

late Ramachandra) and therefore, the appellants are the

members/heirs of late Ramachandra and therefore,

declaration of law made by the Hon'ble Supreme Court in

- 15 -

NC: 2025:KHC-D:5486

the case of Jayamma Vs. Maria Bai and Another1, is

not applicable to the case on hand. It is also contended

by the learned counsel appearing for the appellants that,

there is no impediment for grantee of the tenanted land to

execute the Will in favour of the legacies and same is not

prohibited under law and therefore, sought for interference

of this Court holding that, the First Appellate Court has

committed an error in holding that, Section 61 of the Act,

1961 is applicable to the case and therefore, sought for

interference of this Court.

17. In order to buttress his arguments, learned

counsel appearing for the appellants places reliance on the

judgment of the Hon'ble Supreme Court in the case of

Sangappa Kalyanappa Bangi Vs. Land Tribunal and

Others2 and argued that, the appellants herein are not

the strangers to deceased Ramachandra and were the

brother's children and therefore, Section 61 of the Act,

(2004) 7 SCC 459

(1998) 7 SCC 294

- 16 -

NC: 2025:KHC-D:5486

1961 is not applicable to the facts on record and

accordingly, sought for interference of this Court.

18. Per contra, Sri. A. P. Hegde, learned counsel

appearing for the respondents sought to justify the

impugned judgment and decree passed by the First

Appellate Court and contended that, the Land Tribunal has

granted the suit schedule properties in favour of

Ramachandra as per order dated 20.02.1976 and the said

Ramachandra died on 16.04.1990 leaving behind a Will

dated 14.08.1989, which is within the prohibition of 15

years from the date of grant, as per Section 61 of the Act,

1961 and accordingly, sought for dismissal of the appeals.

19. Nextly, it is contended by the learned counsel

appearing for the respondent that, the brother is a Class-II

(entry II) as per the schedule to Hindu Succession Act,

and therefore, the brother's sons are stranger to the

testator under Section 61 of the Act, 1961 and therefore,

sought to justify the impugned judgment and decree

passed by the First Appellate Court.

- 17 -

NC: 2025:KHC-D:5486

20. In order to buttress his arguments, he refers to

the judgment of this Court in Shivaputrappa

Bharamappa Maneda Vs. The Head Quarters

Assistant and Others3 and argued that, the finding

recorded by the First Appellate Court is just and proper

which does not requires interference in these appeals.

21. In the light of the submission made by the

learned counsel appearing for the parties, I have carefully

examined the finding recorded by both the Courts below

and perused the record. In order to ascertain the

relationship between the parties as averred in the plaint,

the genealogy reads as under:

Vekatramana

Ganapati Narasimha Ramachandra Mahabaleshwar (deceased) (died on 23.02.2007) (died on 16.04.1990) (plaintiff)

Smt. Parvati 1. Venkatramana (D2) 1. Narayan (died)

2. Ganapati (D3) 2. Viyadhar

3. Ramachandra (D4) 3.Gurupada

4. Prakash (D5) 4. Shripad

WP No.17807/2007 disposed off on 04.01.2008

- 18 -

NC: 2025:KHC-D:5486

22. It is not in dispute that, the original propositus

- Venkatramana had four children namely, Ganapati (died

without leaving any issues), Narasimha (defendant No.1 in

OS No.84/1991 and father of appellants herein),

Ramachandra - bachelor (died leaving behind Will dated

14.08.1989) and Mahabaleshwar (plaintiff in OS

No.84/1991). It is not in dispute that, the Land Tribunal,

Sirsi by order dated 20.02.1976 granted suit schedule

properties in favour of Ramachandra. The said

Ramachandra executed Will on 14.08.1989 bequeathing

the suit schedule properties in favour of the appellants

herein. The said Ramachandra died on 16.04.1990. These

facts are not disputed by either of the parties. It is the

case of the plaintiff in OS No.84/1991 that, since, the suit

schedule properties are granted properties and therefore,

as per Section 61 of the Act, 1961, the brothers of late

Ramachandra - Narasimha and Mahabaleshwar are

entitled for equal share in the suit schedule properties and

the appellants herein are, strangers to the family of late

Ramachandra and therefore, contended that both the

- 19 -

NC: 2025:KHC-D:5486

brothers of late Ramachandra are entitled for half share in

the suit schedule properties. In this regard it is relevant

to extract Section 61 of the Act, 1961 which 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 su

-section (5) or sub-section (5A) of section 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.[x x x x] (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 percent

- 20 -

NC: 2025:KHC-D:5486

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.

Explanation.- For the purpose of this sub- section, "Higher studies" means the further studies after Pre-university Examination or 12th Standard Examination conducted by CBSE or ICSE or any Diploma courses.

(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 accordance with the provisions of Section 77."

(Emphasis by me)

23. The plain language of Section 61 of the Act,

1961, envisages for restriction on transfer of land by the

- 21 -

NC: 2025:KHC-D:5486

grantees. It is the tenor of the provision that, the

grantees of land of which occupancy has been granted to

the tenants are prohibited from transferring the tenanted

land by sale, gift, exchange, mortgage, lease or

assignment in favour of strangers other than the members

of the joint family. Section 61(3) provides that any

transfer of land in contravention of 61(1) is invalid.

24. The Hon'ble Supreme Court in the case of

Sangappa (supra) at paragraph Nos.5 to 7 held as

follows:

"5. This case gives rise to a difficult and doubtful question whether a devise under a Will would amount to an assignment of interest in the lands and, therefore, invalid under the provisions of Section 21 of the Land Reforms Act. What is prohibited under Section 21 of the Act is that there cannot be any sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Exceptions thereto are when the tenant dies, the surviving members of the joint family and if he is not a member of the joint family, his heirs shall be entitled to partition and sub-divide the land leased subject to certain conditions. Section 24 of the Act declares that when a tenant dies, the landlord is deemed to continue the tenancy to the heirs of such tenant on the same terms and conditions on which the tenant was holding at the time of his death. We have to

- 22 -

NC: 2025:KHC-D:5486

read Section 21 with Section 24 to understand the full purport of the provisions. Section 24 is enacted only for the purpose of making it clear that the tenancy continues notwithstanding the death of the tenant and such tenancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those Who are referable to in Section 21. If he is member of the joint family then the surviving members of the joint family and if he is not such a member of a joint family, his heirs would be entitled to partition, Again as to who his heirs are will have to be determined not with references to the Act, but with reference to the personal law on the matter. The assignment of any interest in the tenanted land will not be valid. A devise or a bequest under a Will cannot be stated to fall outside the scope of the said provision inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will though operates posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the testator. Therefore, 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.

6. If we bear in mind the purpose behind Section 21, it becomes clear that the object of the law is not to allow strangers to the family of the tenant to come upon the land. The tenanted land is not allowed to be sub-let, i.e. to pass to the hands of a stranger nor any kind of assignment taking place in respect of the lease held. If the tenant could assign his interest, strangers can come upon the land, and therefore, the expression 'assignment' will have to be given such meaning as to promote the object of the enactment. Therefore,

- 23 -

NC: 2025:KHC-D:5486

the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or who is related to the deceased tenant by legitimate kinship. We must take into consideration that when it is possible for the tenant to pass the property to those who may not necessarily be the heirs under the ordinary law and who become heirs only by reason of a bequest under a 'Will, in which event, he would be a stranger to the family and imported on the land thus to the detriment of the landlord. In that event, it must be taken that a devise under a will also amount to an assignment and, therefore, not valid for the purpose of Section 21 of the Act. If section 24 is read along with Section 21, it would only mean that the land can pass by succession to the heirs of a deceased tenant, but subject to the conditions prescribed in Section 21 of the Act. Therefore, we are of the view that the broad statement made by the High Court in the two decisions in 1977(1) KLJ 146 (short notes item 160) and Dhareppa v. State of Karnataka and Others, reported in (1979) 1 KLJ .18, would not promote the object and purpose of the law. Therefore, the better view appears to us is as stated by the High Court in Timmiakka Kom Venkanna Naik v. The Land Tribunal and Others, (1987) 2 KLJ 337.

7. However. Shri. Kulkarni drew our attention to a decision of this Court in Angurbala Mullick v. Debabrata Mullick, [1951] SCR 1125, to contend that an heir need not necessarily be natural descendant or one who is related by legitimate kinship, but others also and therefore if any interest in a property is devised to them, the same would not amount to assignment barred under Section 21 of the Act. It is no doubt true that the meaning attributed to an heir could be as suggested by the learned counsel for the appellants so as to include the descendant and

- 24 -

NC: 2025:KHC-D:5486

other persons related by legitimate kinship or otherwise who may be covered by a Will, but the true question to be decided in this case is if there is a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to confine the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred. Thus it can be seen that; a broad definition of an heir would not be of much help. Hence the learned counsel for the appellant cannot derive any assistance from the Said decision."

(Emphasis by me)

25. The Hon'ble Supreme Court in the above case

held that, the deceased tenant can assign his rights only

to the heirs or any descendants or those who are related

by legitimate kinship under the law of succession. The

assignment to strangers is barred under Section 61 of the

Act, 1961.

26. It is also relevant to follow the judgment of the

Hon'ble Supreme Court in Jayamma (supra), paragraph

Nos.8 to 22 and 27 held as follows:

"8. The said Act was enacted for the purpose of enacting a uniform law relating to land reforms in the State of Karnataka. The expressions 'family' and 'joint family' have been defined in Sections 2(12) and 2(17) of the said Act to mean:

- 25 -

NC: 2025:KHC-D:5486

"2(A)(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

(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;"

"(17) "Joint family" means in the case of person governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence."

9. Various restrictions have been imposed as regard sub-division or sub- letting of the land held by a tenant or assignment of any interest therein.

10. Sections 21 (l), 61 (l) and 61 (3) of the said Act impose such restrictions which read as under :

"21. Sub-division, sub-letting and assignment prohibited.-(l)No sub- division or sub-letting of the land held by a tenant

- 26 -

NC: 2025:KHC-D:5486

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.

Provided further that if the tenant dies. -

(i) if he is a member of joint family the surviving members of the said family, and

(ii) if he is not a member of a joint family, his heirs shall be entitled to partition and sub-divide the land leased subject to the following conditions :-

(a) each sharer shall hold his share as a separate tenant;

(b) the rent payable in respect of the land leased shall be apportioned among the shares as the case may be according to the share allotted to them;

(c) the area allotted to each sharer shall not be less than a fragment;

(d) if such area is less than a fragment the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds;

(e) if any question arises regarding the apportionment of the rent payable by the sharer it shall be decided by the Tahsildar.

- 27 -

NC: 2025:KHC-D:5486

Provided that if any question of law is involved the Tahsildar shall refer it to the court. On receipt of such reference the court, shall, after giving notice to the parties concerned, try the question as expeditiously as possible and record finding thereon and send the same to the Tahsildar. The Tahsildar shall then give the decision in accordance with the said finding.

"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.

(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 accordance with the provisions of Section 77."

11. On a bare perusal of the aforementioned provisions it would appear that whereas Section 21 refers to sub-division, sub- letting of the land held by a tenant or assignment of any interest therein, Section 61 imposes a stricter restriction on transfer of land of which tenant has become occupant.

12. The said provisions are further required to be read with the expressions 'family' and 'joint family' as contained in Section 2(12) and 2(17) of the Act.

- 28 -

NC: 2025:KHC-D:5486

13. It is not in dispute that a tenant who has become an occupant cannot except on the grounds stated in the said Act, be evicted therefrom. Section 61 contains a non obstante clause. It is also not in dispute that although tenancy would be a heritable interest, the right of occupancy can be granted to an heir only if he is qualified therefor, that is there must be a cultivable land on the appointed day. However, all heirs cannot become occupant. Even a married daughter of the deceased tenant would not be granted such a right. The sine qua non for obtaining the status of occupancy of tenancy is that the person concerned must be a tenant on the appointed day.

14. Section 213 of the Indian Succession Act provides that no right as executor or legatee can be established in any Court of Justice, unless a Court of Competent jurisdiction inter alia, grants a letters of administration with a copy of the Will annexed.

15. The Court empowered to grant a letter of administration although ordinarily may not go into the question of title in respect of property sought to be bequeathed by the testator the situation would be different where the authority of the testator to execute a Will in relation to the subject matter thereof is in question. When a statutory embargo exists on execution of a Will, the court shall not refuse to determine the question as regard validity thereof, as in terms of the provisions of a statute, the same would be void ab initio.

16. We would discuss the construction of the provision of Section 61 of the said Act, a little later, but we have no hesitation in holding that in the event if it be held that the testator could not have executed the Will in favour of a person who

- 29 -

NC: 2025:KHC-D:5486

could not e declared to be a tenant having occupancy right such a Will would be void ab initio and, therefore, non est in the eye of law. The court in such an event would not be determining a disputed question of title but would be considering the effect of the statute vis-a- vis the Will in question.

17. The submission of Mr. Bhat for the forgoing reason cannot be accepted.

18. As we have noticed hereinbefore that the statutory embargo on transfer of land is stricter in a case where the tenant has become occupant than a land held by a tenant simpliciter. We have also noticed that the embargo on transfer is not only by way of sale, gift, exchange, mortgage, lease but also by assignment. What is permitted under the law is partition of the land amongst the members of the family. Section 61 of the Act is to be read in its entirety.

19. Sub-section (3) of Section 61 lays down that any transfer of land in contravention of sub- section (1) shall be invalid whereupon the same shall vest in the State Government free from all encumbrances. The legislative intent that the land should not be allowed to go to the bands of a stranger to the family is, therefore, manifest. Whereas in terms of Section 21, strangers to the family of the tenant to come upon the land is not allowed, the tenor of Section 61 is that except partition amongst the co-sharers, no transfer of the property, in any manner, is permissible.

20. When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that same is invalid and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act.

- 30 -

NC: 2025:KHC-D:5486

21. It is not disputed that in view the purport and object the Legislature sought to achieve by enacting the said provision the expression 'assignment' would include a Will.

22. In this case, there is also no dispute that grant of agricultural land with occupancy right in terms of the provisions of the said Act was made on 14.10.1981. The will in question having been executed on 20.2.1984; the transfer has been made within a period of fifteen years from the date of grant which is prohibited in law.

27. On a fair construction of Section 61 of the Act, in our opinion a transfer of 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 Section 2(12) and 'joint family' as contained in Section 2(17) of the said Act."

27. Following the declaration of law made by the

Hon'ble Supreme Court in the aforementioned cases, any

assignment of right by the tenant, including execution of

the Will is prohibited if such assignment is made within 15

years from the date of grant of land under the Act, 1961.

Undisputebly, in the present case, the Land Tribunal

granted land to late Ramachandra on 20.02.1976 and the

said Ramachandra died on 16.04.1990 leaving behind the

Will dated 14.08.1989.

- 31 -

NC: 2025:KHC-D:5486

28. In terms of the schedule to Hindu Succession

Act, 1956 the brothers of Ramachandra - Narasimha

(defendant No.1 in OS No.84/1991) and Mahabaleshwar

(plaintiff in OS No.84/1991) alone have precedence over

succession by the defendant Nos.2 to 5 in OS No.84/1991.

It is to be noted that, though the appellants herein are

nephews of late Ramachandra, however, they cannot be

considered as legal heir to succeed to the estate of late

Ramachandra as per the schedule to the Hindu Succession

Act, 1956. It is made clear that, in the absence of any

testament by Ramachandra and as per natural succession,

Narasimha - defendant No.1 and Mahabaleshwar -

plaintiff, who were the brothers of late Ramachandra shall

succeed to the estate of late Ramachandra and therefore,

in the event if bequeath has been made in favour of

Narasimha or Mahabaleshwar then, such assignment /

transfer through Will is valid however, in the present case

since, the bequeath has been made as per Will dated

14.08.1989 in favour of the sons of Narasimha (appellants

herein) and therefore, the bequeath made in favour of

- 32 -

NC: 2025:KHC-D:5486

appellants herein is prohibited under Section 61 of the Act,

1961, and in this regard the arguments advanced by the

learned counsel appearing for the respondent is just and

proper. In this regard, it is relevant to extract paragraph

No.4 in the case of Shivputrappa (supra) which reads as

under:

"4. Having regard to the admitted circumstance that the petitioner, could not claim to be member of a family of the deceased tenant and in terms of Section 61 of the Act, which in the view of the 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 petition of land and not others. While also taking Having taken note of the submission made by the learned counsel appearing for the of the observation in an earlier judgment, in Sangappa (supra), that the meaning attributed to an heir could include the descendant and other persons related by legitimate kinship or otherwise who may be covered by a will, the object of Section 21 being to confine the rights of tenancy only to those known under law as heirs, assignment to strangers was barred."

- 33 -

NC: 2025:KHC-D:5486

29. Applying the principles laid down by the Hon'ble

Supreme Court to the case on hand as late Ramachandra

had executed the Will in favour of the appellants herein

who cannot be considered as legal heir to the late

Ramachandra in the absence of Narasimha and

Mahabaleshwar and therefore, the First Appellate Court

after re-appreciating the material on record rightly arrived

at a conclusion that, the appellants herein are not entitled

for relief and same is hereby requires to be confirmed.

30. Since, there is no perversity in the judgment