Case: B.S. Mahabala Vs. Gopala Krishna & Another

A.M. Khanwilkar, J.1. By this appeal, the judgment of the Division Bench of the High Court of Karnataka at Bangalore in W.A. No.2644 of 2012(LR) dated 24.03.2014 has been challenged. The Division Bench has dismissed the writ appeal and affirmed the decision of the learned Single Judge dated 3/19.04.2012 in W.P. No.41051 of 2004 (LR) whereby the order passed by Land Tribunal, Bantwal Taluk, Dakshina Kannada District dated 04.10.1980 came to be set aside. Further, the learned Single Judge remanded the case to the Land Tribunal for hearing it afresh keeping in view the purport of Section 21 of the Karnataka Land Reforms Act, 1961("the said Act" for short), after affording opportunity to the legal representatives of deceased Channappa Poojary.2. The said Channappa Poojary had occupancy rights being a Chalgeni tenant in land bearing Survey Nos. 46/2A, 46/2D, 46/2K, 46/1E, 46/10, 46/3, 46/4B, 47/1D, 47/1B and 47/1E of Navoor village, Bantawal Taluk, Dakshina Kannada District. The said land originally belonged to one Smt. Gummanna Shetty, the predecessor of Respondent Nos. 2A/1, 2/2 and 2B. Respondent No.1 is the son of Channappa Poojary since deceased; and the Appellant is the nephew of Channappa Poojary.3. After the amendment to the Karnataka Land Reforms Act came into force on 09.06.1974, Channappa Poojary filed an application in Form No.7 before the Land Tribunal for grant of occupancy rights in respect of the said lands. During the pendency of the said application, Channappa Poojary died on 17.10.1979. The Appellant appeared in the said proceedings claiming that Channappa Poojary, during his life time, had executed a Will in his favour bequeathing the rights in the said lands to him. On the strength of the said Will, the Appellant claimed that the proceedings should be decided in his favour. The Land Tribunal accepted the claim of the Appellant and vide order dated 04.10.1980 granted occupancy rights to the Appellant in respect of the said lands. At the time of passing of the aforesaid order, Respondent No.1 was a minor. After attaining majority he filed a writ petition before the High Court on 05.10.2004. By that time he had turned 21 years after attaining majority. In the writ petition, however, he asserted that until recently he had no knowledge about the passing of the order by the Land Tribunal in favour of the Appellant.4. The learned Single Judge before whom the writ petition proceeded on 03.04.2012, however, was not impressed by the said plea. The learned Single Judge in the said order noted that the Respondent No.1 could not be permitted to challenge the order of Land Tribunal in favour of the Appellant after nearly 31 years; and also rejected the contention of Respondent No.1 that the Will in favour of the Appellant was hit by Section 21 of the said Act. However, on 19.04.2012 presumably on an application for speaking to the minutes of the order, the learned Single Judge modified the order dated 03.04.2012 by allowing the writ petition filed by the Respondent No.1. The learned Single Judge noted that, the fact as to whether the Will executed in favour of the Appellant was hit by Section 21 or otherwise was a matter to be considered by the Land Tribunal. The learned Single Judge also noted that the Land Tribunal could not have finally decided the proceedings without bringing the legal representatives of deceased Channappa Poojary on record. Accordingly, the learned Single Judge was pleased to set aside the order passed by the Land Tribunal and instead remanded the case to the Land Tribunal for fresh disposal, keeping in view Section 21 of the said Act and after affording opportunity to the legal representatives of the deceased Channappa Poojary.5. Aggrieved, the Appellant preferred Writ Appeal No.2644 of 2012 (LR) before the Division Bench. The Division Bench, after considering the submissions, declined to interfere with the remand order passed by the learned Single Judge while holding the same was just and proper. The Division Bench rejected the plea taken by the Appellant that the learned Single Judge could not have modified the order on 19.04.2012 having become functus officio. Even the argument of the Appellant that the writ petition filed by the Respondent No.1 suffered from laches, came to be rejected. Accordingly, the remand order passed by the learned Single Judge was affirmed by the Division Bench.6. The Appellant has questioned the correctness of the aforesaid orders passed by the High Court. It is contended that the learned Single Judge, having dismissed the writ petition on 03.04.2012, had become functus officio and therefore could not have modified or varied his earlier order on 19.04.2012. In any case, the writ petition should have been thrown out at the threshold, having been filed by Respondent No.1 around 24 years after the passing of the order by the Land Tribunal in favour of the Appellant. On merits, it is contended that Channappa Poojary could legitimately bequeath the tenancy to the Appellant by way of a Will, being his maternal uncle and in such a case the transfer will not be hit by the provisions to Section 21 of the said Act. It is contended that the High Court has misapplied the ratio in the case of Sangappa Kalyanappa Bangi v. Land Tribunal Jamkhandi and Others, 1998(4) R.C.R (Civil) 350 : (1998) 7 SCC 294. In fact, the said decision must come to the aid to the Appellant, being a member of the family or a close blood relation of deceased Channappa Poojary, who executed a Will in favour of the Appellant bequeathing the tenancy rights in the said land.7. Respondent No.1 on the other hand would contend that no error has been committed by the High Court in relegating the parties before the Land Tribunal. That is a just order to be passed in the facts of the present case. He has thus supported the judgment of the learned Single Judge dated 19.04.2012 and also the judgment of the Division Bench dated 24.03.2014. It is submitted that the Division Bench has correctly noted that the Appellant cannot be permitted to rely on the alleged Will executed in his favour as the same has not been proved. The said Will was inadmissible in evidence, until grant of a probate or a letters of administration was obtained by the Appellant. In which case, the legal representatives of deceased Channappa Poojary would have got an opportunity to raise legitimate objections thereto. The learned counsel for the Respondent No.1 then submitted that the Land Tribunal committed manifest error in proceeding with the matter initiated by Channappa Poojary, against a dead person, without bringing on record his legal representatives namely his wife and son (Respondent No.1). It is also contended that admittedly, the tenancy rights were claimed by Channappa Poojary for himself. It is not the case of the Appellant that Channappa Poojary was a member of a joint family or was holding the tenancy rights for the joint family. It is contended that the Appellant does not fall within the category of persons specified in Section 2(12), of the said Act which defines the term "family". Further, transfer of the tenancy rights to any person beyond the excepted category is prohibited in view of the mandate of Section 21 of the said Act. Learned counsel contends that this legal position is no more res integra, in light of the judgment in the case of Sangappa Kalyanappa Bangi (Supra) which answers the issue against the Appellant. Besides the said decision, even the subsequent decision in the case of Jayamma v. Maria Bai Dead By Proposed Lrs. And Another, (2004) 7 SCC 459 answers the question at hand. It is a well settled position that the purport and the object of the legislation sought to be achieved and in particular the expression "assignment" in Section 21 of the Act would include a Will. The testator of the Will cannot bequeath the tenancy rights in favour of a person not having any legitimate kinship with him. It is contended that the Appellant cannot claim himself to be one of the heirs entitled to tenancy rights to be inherited by the heirs of the deceased tenant. The tenancy rights would devolve only on the family members of the deceased tenant. The transfer in favour of a person other than the permitted heirs of the deceased tenant is void, in view of Section 21 and other applicable provisions of the Act. Further, the Land Tribunal gets jurisdiction to grant occupancy rights only when it is proved that the land has been personally cultivated by the tenant as on the relevant date. The tenancy will devolve only on the members of his family after his death and cannot be transferred even by way of a Will to any other person. The Appellant is not a member of the family of the deceased tenant. The objection taken by the Appellant of laches cannot denude the legitimate heirs of the deceased tenant to question the order passed by the Land Tribunal bestowing occupancy rights in favour of third person, being nullity in the eyes of law. Reliance is also placed on the decisions in Sankaranarayan Potti v. K. Sreedevi and Ors., 1998(2) R.C.R (Civil) 185 : (1998) 3 SCC 751 ; State of Punjab v. Bhai Ardaman Singh, (1969) 1 SCR 283 ; Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors., (2007) 2 SCC 355 and Zuari Cement Limited v. Regional Director, Employees State Insurance Corporation, 2016(1) S.C.T. 157 : (2015) 7 SCC 690. On the basis of the above submissions, it is prayed that the appeal be dismissed.8. Having considered the rival submissions and after perusing the judgment of the learned Single Judge and of the Division Bench, we are not inclined to interfere in this appeal. For, the learned Single Judge has only remanded the matter to the Land Tribunal for fresh consideration of all aspects after giving opportunity to the legal representatives of the deceased tenant Channappa Poojary. The Appellant will get an opportunity to raise all contentions that may be available to him in law for grant of occupancy rights in respect of the said lands in his favour on the basis of the Will executed by deceased Channappa Poojary. Whether that Will is admissible in evidence or is a genuine Will is a matter which must receive attention of the Land Tribunal. Besides, the Land Tribunal must also address itself as to whether any transfer by way of a Will in favour of person(s) other than spouse, minor sons, unmarried daughters, is permissible in law keeping in mind the rigours of Section 21 read with 2(12) and other applicable provisions of the said Act. The legal position in that behalf has already been expounded by this Court in the case of Sangappa Kalyanappa Bangi (Supra) and Jayamma (Supra). There is no reason to entertain any apprehension, by any party, that the matters in issue will not be adjudicated by the Land Tribunal, keeping in view the provisions of the said Act and the settled legal position expounded in the aforesaid reported decisions.9. The argument of the Appellant that the order passed by the Land Tribunal on 04.10.1980 cannot be allowed to be challenged at this distance of time, in our opinion, is misplaced. We agree with the view expressed by the Division Bench of the High Court that the Land Tribunal committed manifest jurisdictional error by passing an order in favour of the Appellant behind the back of the legal representatives of the deceased tenant/applicant. For, it could not have proceeded with the inquiry behind the back of the legal representatives of the deceased tenant without bringing them on record in the proceedings pending before it. Such exercise of jurisdiction is bordering on passing an order which is nullity in the eyes of law. It would have been a different matter if the Land Tribunal had consciously proceeded on being satisfied that the deceased tenant Applicant has not left behind any legal representative who could espouse his or their cause further. No attempt was made by the Land Tribunal to ascertain about the possibility of any objection from any legal representative of the deceased tenant/Applicant before bestowing occupancy rights in favour of the Appellant on the basis of the alleged Will executed by Channappa Poojary.10. As the order passed by the Land Tribunal is vitiated due to failure to bring on record the legal representatives of deceased Applicant Channappa Poojary and also without considering the mandate of Section 21 of the Act, the objection regarding the manner of interference by the Learned Single Judge of the High Court does not commend to us. The Respondent No. 1 in his writ petition had offered explanation about the circumstances in which he could file the writ petition only after getting knowledge of the order in the 1st week of April, 2004. Further, the plea of laches cannot be countenanced in light of the assertion of the Respondent No. 1 that, taking advantage of his minority, the Appellant succeeded in misleading the Land Tribunal to pass an order in his favour on the basis of an alleged Will executed by Channappa Poojary. This technical plea has been rightly negatived by the High Court in the fact situation of the present case involving the permissibility of transfer of tenancy by a Will to third person who is not covered by the excepted category of persons. Thus, the legal principle expounded in the case of State of Rajasthan v. D.R. Laxmi and Ors., (1996) 6 SCC 445 and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473 : 1997(2) R.C.R.(Rent) 682 : (1997) 3 SCC 443 , will be of no avail to the Appellant. The Respondent No. 1 has justly relied on the decisions in the case of Hasham Abbas Sayyad (supra) to buttress his plea that the objection regarding procedural matters cannot come in the way in a case where an order passed by the Tribunal is without jurisdiction as in this case and that issue can be raised at any stage [see Zuari Cement Limited (supra)].11. As aforesaid, the Tribunal must and will have to first consider the legal position as to whether the Appellant can legitimately claim to be a legal heir of the deceased tenant within the meaning of Section 21 read with 2(12) and other applicable provisions of the said Act; and only on recording finding on that issue in favour of the Appellant, further inquiry into the matter regarding the admissibility and genuineness of the alleged Will may become necessary. Since the parties have been relegated before the Land Tribunal, all questions about the genuineness and the legitimacy of their claim can be and will have to be considered by the said Authority in the first place on its own merit and in accordance with law without being influenced by any observation made by the learned Single Judge or the Division Bench of the High Court or for that matter, in the present judgment.12. At the cost of repetition we clarify that the Land Tribunal must examine all the relevant facts necessary for full, complete and effectual adjudication of the claim between the parties keeping in mind the settled legal position in respect of the relevant provisions of the said Act.

Decision:
0[ds]8. Having considered the rival submissions and after perusing the judgment of the learned Single Judge and of the Division Bench, we are not inclined to interfere in this appeal. For, the learned Single Judge has only remanded the matter to the Land Tribunal for fresh consideration of all aspects after giving opportunity to the legal representatives of the deceased tenant Channappa Poojary. The Appellant will get an opportunity to raise all contentions that may be available to him in law for grant of occupancy rights in respect of the said lands in his favour on the basis of the Will executed by deceased Channappa Poojary. Whether that Will is admissible in evidence or is a genuine Will is a matter which must receive attention of the Land Tribunal. Besides, the Land Tribunal must also address itself as to whether any transfer by way of a Will in favour of person(s) other than spouse, minor sons, unmarried daughters, is permissible in law keeping in mind the rigours of Section 21 read with 2(12) and other applicable provisions of the said Act. The legal position in that behalf has already been expounded by this Court in the case of Sangappa Kalyanappa Bangi (Supra) and Jayamma (Supra). There is no reason to entertain any apprehension, by any party, that the matters in issue will not be adjudicated by the Land Tribunal, keeping in view the provisions of the said Act and the settled legal position expounded in the aforesaid reported decisions.9. The argument of the Appellant that the order passed by the Land Tribunal on 04.10.1980 cannot be allowed to be challenged at this distance of time, in our opinion, is misplaced. We agree with the view expressed by the Division Bench of the High Court that the Land Tribunal committed manifest jurisdictional error by passing an order in favour of the Appellant behind the back of the legal representatives of the deceased tenant/applicant. For, it could not have proceeded with the inquiry behind the back of the legal representatives of the deceased tenant without bringing them on record in the proceedings pending before it. Such exercise of jurisdiction is bordering on passing an order which is nullity in the eyes of law. It would have been a different matter if the Land Tribunal had consciously proceeded on being satisfied that the deceased tenant Applicant has not left behind any legal representative who could espouse his or their cause further. No attempt was made by the Land Tribunal to ascertain about the possibility of any objection from any legal representative of the deceased tenant/Applicant before bestowing occupancy rights in favour of the Appellant on the basis of the alleged Will executed by Channappa Poojary.10. As the order passed by the Land Tribunal is vitiated due to failure to bring on record the legal representatives of deceased Applicant Channappa Poojary and also without considering the mandate of Section 21 of the Act, the objection regarding the manner of interference by the Learned Single Judge of the High Court does not commend to us. The Respondent No. 1 in his writ petition had offered explanation about the circumstances in which he could file the writ petition only after getting knowledge of the order in the 1st week of April, 2004. Further, the plea of laches cannot be countenanced in light of the assertion of the Respondent No. 1 that, taking advantage of his minority, the Appellant succeeded in misleading the Land Tribunal to pass an order in his favour on the basis of an alleged Will executed by Channappa Poojary. This technical plea has been rightly negatived by the High Court in the fact situation of the present case involving the permissibility of transfer of tenancy by a Will to third person who is not covered by the excepted category of persons. Thus, the legal principle expounded in the case of State of Rajasthan v. D.R. Laxmi and Ors., (1996) 6 SCC 445     and Tayabbhai M. Bagasarwalla v. Hind Rubber Industries Pvt. Ltd., 1997(2) R.C.R.(Civil) 473 : 1997(2) R.C.R.(Rent) 682 : (1997) 3 SCC 443  , will be of no avail to the Appellant. The Respondent No. 1 has justly relied on the decisions in the case of Hasham Abbas Sayyad (supra) to buttress his plea that the objection regarding procedural matters cannot come in the way in a case where an order passed by the Tribunal is without jurisdiction as in this case and that issue can be raised at any stage [see Zuari Cement Limited (supra)].11. As aforesaid, the Tribunal must and will have to first consider the legal position as to whether the Appellant can legitimately claim to be a legal heir of the deceased tenant within the meaning of Section 21 read with 2(12) and other applicable provisions of the said Act; and only on recording finding on that issue in favour of the Appellant, further inquiry into the matter regarding the admissibility and genuineness of the alleged Will may become necessary. Since the parties have been relegated before the Land Tribunal, all questions about the genuineness and the legitimacy of their claim can be and will have to be considered by the said Authority in the first place on its own merit and in accordance with law without being influenced by any observation made by the learned Single Judge or the Division Bench of the High Court or for that matter, in the present judgment.12. At the cost of repetition we clarify that the Land Tribunal must examine all the relevant facts necessary for full, complete and effectual adjudication of the claim between the parties keeping in mind the settled legal position in respect of the relevant provisions of the said Act.