Case: Jayamma Vs. Maria Bai Dead by Proposed Lrs. &amp; Another

In Sangappa Klyanappa Bangi (supra), whereupon Mr. Bhat placed strong reliance, a Division Bench of this Court held: "...We have to 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 a 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 reference 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 provisions inasmuch as such assignment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it 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." 24. Having held so, the Bench however having regard to the phraseology used in Section 21 of the said Act proceeded to observe that the object of the law is not to allow strangers to the family of the tenant to come upon the land stating: "... We must take into consideration that when it is possible for the tenant to pass the property to those who may nor 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 will also amount to an assignment and, therefore be 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 Shivanna ((1977) 1 Kant LJ 146 (Short Notes Item 160)) and Dhareppa v. State of Karnataka ((1979) 1 Kant LJ 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 Timmakka Kom Venkama Naik v. Land Tribunal ((1987) 2Kant LJ 337). It was further observed: "... It is no doubt true that the meaning attributed to an heir could be as suggested by the learned counsel for the applicants so as to include the descendant and 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 a devise of that nature is hit by Section 21 of the Act or not. The object and purpose of Section 21 being to continue the rights of tenancy only to those known under law as heirs and therefore, assignment to strangers is barred..." 25. Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would not ipso facto apply to Section 61 thereof; as thereby a stricter statutory embargo has been imposed on transfer or assignment, the contention of Mr. Bhat to the effect that the appellant was a relation of the testator also does not appear to be correct. In her examination in chief itself, the appellant stated: "I am the Plaintiff P.W. 3 Richard DSouza is my son-in-law. He was residing at Kinnigoli and after marriage he is residing at Kateel. He was living in a house within a distance about 1/4 meter from the house of the deceased Anthony Rebello. I was living in the house of my son-in-law. Anthony Rebello was living alone in his house. He is no more. I knew him for a period of about 1 year and 9 months prior to his death. I came to know him as I was living in the house of my son-in-law Anthony Rebello came to my son-in-laws house and told him that he has no one to look after him and he is aged 82 years. During this 1 year and 9 months his wife or children had not come to see him. Anthony Rebello requested my son-in-law for assistance and therefore, I, my son-in-law looking after him." 26. The appellant, therefore in view of the aforementioned statement was not having any legitimate kinship with the testator of the Will.27. On a fair construction of Section 61 of the Act, in our opinion as 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 Sections 2(12) and joint family as contained in Section 2(17) or the said Act. 28. We, therefore, find no force also in the second submission of Mr. Bhat.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]16. We would discuss the construction of the provision of Section 61 of the said Act, a little later, but we have no hesitation on holding that in the event if it be held that the testator could not have executed the Will in favour of a person who could not be declared to be a tenant having occupancy right such a Will would be void ab intio 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.Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would not ipso facto apply to Section 61 thereof; as thereby a stricter statutory embargo has been imposed on transfer or assignment, the contention of Mr. Bhat to the effect that the appellant was a relation of the testator also does not appear to be correct.The appellant, therefore in view of the aforementioned statement was not having any legitimate kinship with the testator of the Will.27. On a fair construction of Section 61 of the Act, in our opinion as 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 Sections 2(12) and joint family as contained in Section 2(17) or the said Act.