KANNA TIMMA KANAJI MADIWAL (D) THROUGH LRS. versus RAMACHANDRA TIMMAYA HEGDE (D) THROUGH LRS. AND ORS.
[2019] 12 S.C.R. 768, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
A
B
C
D
E
F
G
H
768
SUPREME COURT REPORTS
[2019] 12 S.C.R.
KANNA TIMMA KANAJI MADIWAL (D) THROUGH LRS.
v.
RAMACHANDRA TIMMAYA HEGDE (D)
THROUGH LRS. AND ORS.
(Civil Appeal Nos. 1300-1301 of 2008)
SEPTEMBER 27, 2019
[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]
Land laws and agricultural tenancies:
Karnataka Land Reforms Act, 1961: ss. 21, 24, 48A, 61 –
Grant of occupancy rights – Claim for – Assignment of tenancy
rights by way of bequeath – On facts, appellant’s father, brother
of the original tenant, inducted as tenant in the land belonging to
the respondent by the original tenant – Appellant’s father
cultivating the land due to ill health of the original tenant and paid
rent to the respondents on behalf of his brother – Will executed by
the original tenant bequeathing his properties in favour of
appellant’s father – Mutation of land in the name of appellant’s
father however, the same was objected by the original tenant’s wife
and she got the entry of land in her favour – Suit filed by
appellant’s father for declaration of possessory title and injunction
against original tenant’s wife with reference to Will – Suit decreed
in favour of appellant’s father and attained finality – Another
round of litigation wherein application u/s. 48-A of the Act of 1961
filed by appellant’s father for grant of occupancy rights in respect
of the land in question – Application prosecuted by the appellant
after demise of his father – Rejection of application as also appeal
thereagainst –
Revision petition and the review petition before the
High Court also dismissed – High Court held that the bequeathing
of all the properties by the original tenant by way of Will in favour
of his brother is hit by statutory prohibition and no rights of
tenancy could be claimed on its basis – Sustainability of – Held:
Not sustainable – In the scheme of the Act of 1948 as also the Act
of 1961, when a person had been inducted as tenant, heritable
right comes into existence with certain embargo over transferability
of such tenancy – Such tenancy continues even after the demise
of tenant – If the deceased tenant was a member of joint family,
768
   [2019] 12 S.C.R. 768
A
B
C
D
E
F
G
H
769
then the surviving members of the joint family; and if he was not
a member of joint family, his heirs would be entitled to claim
partition subject to the conditions specified – However, the
tenanted land cannot be sub-let nor any interest therein could be
assigned – On facts, original tenant had executed the Will in favour
of appellant’s father bequeathing his rights in the land and that
appellant’s father was in possession of the land relates to the stage
before acquisition of occupancy rights; and the legatee of the Will,
had been none other than the brother of the deceased tenant; and
the said legatee, being related to the deceased tenant by legitimate
kinship, had already been declared to be the successor of the
tenant in the civil suit in presence of all the relevant parties,
including the respondents, with categorical finding that the wife
of tenant had left and ceased to be his heir after having contracted
other marriage – Hence, the Will is not hit by the embargo, whether
that is contained in s. 27(1) of the Act of 1948 or in s. 21 of the
Act of 1961 – A fortiori, the application made by appellant’s father
for grant of occupancy rights is allowed – Orders passed by the
High Court as also the Land Reforms Appellate Authority and Land
Tribunal set aside – Bombay Tenancy and Agricultural Lands Act,
1948 – ss. 27, 40.
Allowing the appeals, the Court
HELD: 1.1 The High Court was not right in holding that
the bequeath of all the properties by the
executants-original
tenant of the land in question by way of Will in favour of his
brother is hit by statutory prohibition and no rights of tenancy
could be claimed on its basis. Thus, the impugned orders cannot
be sustained. [Para 8] [784-F-G]
1.2 As regards the applicable statutory provisions, the Will
in question was executed on 13.02.1960 and the executant, G,
the original tenant of the land in question, expired on
19.06.1963. At the relevant point of time, the Karnataka Land
Reforms Act, 1961 had not come into force and the tenancy in
question was governed by the Bombay Tenancy and Agricultural
Lands Act, 1948. With advent of the Act of 1961, various
enactments relating to the agricultural land and tenancy,
including the Bombay Tenancy and Agricultural Lands Act, 1948,
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v.
RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS.
A
B
C
D
E
F
G
H
770
SUPREME COURT REPORTS
[2019] 12 S.C.R.
came to be repealed for the purpose of the territories governed
by the Act of 1961. In the Act of 1961, the relevant provisions
concerning the instant case are contained in sub-section (1) of
Section 21 and Section 24, which are more or less in pari
materia the erstwhile provisions contained sub-section (1) of
Section 27 and Section 40 of the Act of 1948. It may, however,
be noticed that the prohibition contained in Section 21(1) and
the restriction contained in Section 61(1) of the Act of 1961
operate in different fields inasmuch as Section 21(1) occurs in
Chapter II of the Act of 1961, making general provisions
regarding the tenancy and rights and obligations of a tenant of
an agricultural land. Section 61, on the other hand, occurs in
Chapter III, dealing with conformant of ownership on tenants
by way of their registration as occupants. In other words, the
restriction envisaged by Section 61 of the Act of 1961 comes
into operation after a tenant has acquired occupancy rights
whereas the prohibition contained in Section 21 operates at the
stage before acquisition of occupancy rights and in relation to
the tenancy simpliciter. [Para 9.1, 9.2, 9.3.1] [784-H; 785-A-B;
786-E-F; 788-D-F]
1.3 In the scheme of the Act of 1948 as also the Act of
1961, when a person had been inducted as tenant, heritable right
comes into existence with certain embargo over transferability
of such tenancy. In other words, such tenancy
continues even
after the demise of tenant. If the deceased tenant was a member
of joint family, then the surviving members of the joint family;
and if he was not a member of joint family, his heirs would be
entitled to claim partition subject to the conditions specified.
However, the tenanted land cannot be sub-let nor any interest
therein could be assigned. The instant case relates to the stage
before acquisition of occupancy rights; and the legatee of the
Will, T had been none other than the brother of the deceased
tenant, G; and the said legatee, being related to the deceased
tenant by legitimate kinship, had already been declared to be
the successor of the tenant in the civil suit in presence of all
the relevant parties, including the respondents, with categorical
finding that the wife of tenant had left and ceased to be his heir
after having contacted other marriage. [Para 12, 13] [792-E-F;
793-A-D]
A
B
C
D
E
F
G
H
771
1.4 In the instant case, the deceased G was the tenant in
the land in question. No doubt, GR was the wife of G and, had
she retained this status, she would have been his Class I heir,
in terms of the Schedule to the Hindu Succession Act, 1956.
However, the concluded findings in the civil suit filed by T (with
the present respondent being parties thereto) are to the effect
that GR left G, contracted second marriage with J, and begot
two children from such marriage. In sequel to these findings and
in view of the other evidence on record, it was held in the said
civil suit conclusively that GR was not the heir of G. It was also
held conclusively that T was the heir of G; that G had executed
the Will in favour of T bequeathing his rights in the land in
question; and that T was in possession of the land in question.
These findings have attained finality with dismissal of appeals
and ultimately, with dismissal of the petition for Special Leave
to Appeal in this Court. Moreover, these findings bind the
present respondent fair and square, for they were parties to the
said suit and in fact, only they had pursued the matter in appeals,
though unsuccessfully. In the face of these concluded findings,
there is no justification that the High Court proceeded in the
impugned orders on the premise that GR was the heir of G for
being his wife. The effect of the said findings of the civil court
has been brushed aside by the High Court with a few
observations that the fact
of existence of the wife of G was not
mentioned in the application made by T for grant of occupancy
rights. On the date of filing of such application, the suit filed by
T had already been decreed by the trial court with the findings
aforesaid, although the matter was pending in appeal. In any case,
the concluded and binding findings of the civil courts did not lose
their worth if the fact about erstwhile wife of G was not mentioned
in the application made by T for grant of occupancy rights; and
the High Court could not have treated such findings as nugatory
or redundant. [Para 14] [793-D-H; 794-A-B]
1.5 So far the legal effect of the said Will by the tenant G
in favour of his brother T is concerned, T was definitely related
to G by legitimate kinship, being his brother. Hence, the Will is
not hit by the embargo, whether that contained in Section 27(1)
of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori,
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v.
RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS.
A
B
C
D
E
F
G
H
772
SUPREME COURT REPORTS
[2019] 12 S.C.R.
the application made by T in Form 7 under Section 48-A of the
Act of 1961 for grant of occupancy rights in respect of the land
in question could not have been denied. [Para 14.1] [794-C-D]
1.6 It is noticed that the Land Tribunal proceeded to reject
the claim in relation to the land in question by way of its order
dated 22.09.1981 in a wholly cursory manner with reference to
the alleged statement made by the appellant but without
appreciating that the statement was required to be understood
contextually where certain parcels of land in which T was the
tenant in his own right were also being described. In that context,
it was clarified that T was, as such, not the tenant in relation to
the land in question; meaning thereby that T was not the original
tenant. The statement was not incorrect because G was the
original tenant qua the land in question. Such a bonafide
statement could not have operated against the claim of occupancy
rights in respect of the land in question, when the claim was
essentially based on the Will in favour of T and his cultivatory
possession. [Para 15] [794-E-G]
1.7 The appeal against the order of the Land Tribunal was
not decided on merits. Rather, the approach of the Appellate
Authority had been a bit too exacting where the appeal was
dismissed in default and then, the application for restoration was
dismissed with a hyper-technical view of the matter and for delay
of one day in filing. In
revision petition against the order so
passed by the Appellate Authority, the High Court, even without
having the benefit of a considered decision of the Appellate
Authority, chose to deal with the matter on merits and rejected
the claim of the appellant on either irrelevant considerations or
while overlooking the effect of the findings in the civil suit
between the parties as also the ratio in Sangappa case. While
adopting such a course, of deciding the matter on merits without
having the finding of the Appellate Authority, it was moreover
required of the High Court to examine the record in proper
perspective; and, for that matter, the decisions rendered in the
civil suit filed by T, which carried concluded findings on the basic
issues involved in the litigation, ought to have been examined
in requisite details. [Para 16] [794-H; 795-A-C]
A
B
C
D
E
F
G
H
773
1.8 The impugned judgment and orders passed by the High
Court as also the impugned orders passed by the Land Reforms
Appellate Authority and order passed by the Land Tribunal are
set aside; and the application filed by T for grant of occupancy
rights in respect of the land in question is allowed. The Land
Tribunal shall pass necessary formal orders for grant of
occupancy rights in favour of the appellants. [Para 17, 18] [795-
E-F]
Ramchandra Dagdu Sonavane (Dead) by Lrs and Ors
v. Vithu Hira Mahar (Dead) by Lrs and Ors: (2009)
10 SCC 273 : [2009] 15 SCR 222 ; Sangappa
Kalyanappa Bangi (Dead) through LRs. v. Land
Tribunal, Jamkhandi and Ors : (1998) 7 SCC 294 :
[1998] 1 Suppl. SCR 600 ; Jayamma v. Maria Bai
(Dead) by proposed LRs. and Anr. : (2004) 7 SCC 459
: [2004] 3 Suppl. SCR 175 - referred to.
Case Law Reference
[2009] 15 SCR 222
referred to
Para 5
[1998] 1 Suppl. SCR 600
referred to
Para 5.1
[2004] 3 Suppl. SCR 175
referred to
Para 5 .1
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1300-
1301 of 2008.
From the Judgment and Order dated 08.08.2001  of the  High
Court of Karnataka at Bangalore in L.R.R.P. No. 1 of 1996 (LRA)
and order dated 06.12.2004 in Review Petition No. 484 of 2002.
S. N. Bhat, Adv. for the Appellant.
Rajesh Mahale, Advs. for the Respondents.
The Judgment of the Court was delivered by
DINESH MAHESHWARI, J.
1. In the foreground, these appeals are in challenge to the
judgment and orders dated 08.08.2001 and 06.12.2004, passed by
the
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v.
RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS.
A
B
C
D
E
F
G
H
774
SUPREME COURT REPORTS
[2019] 12 S.C.R.
High Court of Karnataka at Bangalore in L.R.R.P. No. 1 of 1996 and
Review Petition No. 484 of 2002 respectively, arising out of an
application filed by the father of the appellant for grant of occupancy
rights in respect of 4 parcels of agricultural land1 situated at Bilagi
Village, Siddapur Taluk, Uttara Kannada District, Karnataka [‘the land
in question’]. However, in the background is a labyrinth of litigation/s,
spreading well over half a century, as briefly summarised infra.
2. The relationship and respective position of the parties involved
in the matter may be noticed at the outset and as follows:
2.1. One Kanna Kulage of the village aforesaid had three sons
namely, Gutya, Timma and Ganappa. The appellant herein, Kanna2, is
son of Timma and thus, nephew of Gutya. It is not in dispute that
Ganappa had left the family and nothing in his regard is now involved
in this litigation. Gutya had married Gauri but it is the case of the
appellant that Gutya’s wife Smt. Gauri left him; remarried one Jatya;
and begot two children from her second marriage with Jatya3. The land
in question originally belonged to the respondents herein but admittedly,
Gutya, paternal uncle of the appellant, was inducted as tenant therein.
3. The relevant background aspects of the matter could now be
noticed, in brief, as follows:
3.1. It is the case of the appellant Kanna that due to the ill-health
of his uncle Gutya, the land in question was
being cultivated by his father
Timma (brother of Gutya); and Timma was paying the rents to the
respondents on behalf of Gutya, whose health kept on deteriorating.
1 Bearing Survey No. 69/4 (measuring 1 acre 10 guntas), Survey No. 82/1 (measuring
1 acre 30 guntas), Survey No. 81 (measuring 30 guntas) and Survey No. 92 (measuring
2 guntas).
2 Kanna son of Timma having expired during this litigation, is now represented by
his legal representatives but, looking to the subject-matter and the issues involved,
the discussion herein is with reference to the original appellant Kanna.
3 This assertion that Smt. Gauri left Gutya and established matrimonial relations with
Jatya is supported by the appellant with reference to the findings returned in a civil
suit filed by Timma for declaration of his title and for injunction in respect of the
land in question. The requisite details pertaining to the said civil suit shall occur
hereafter a little later.
A
B
C
D
E
F
G
H
775
3.2. It is further the case of the appellant Kanna that on
13.02.1960, Gutya executed a Will and got it registered, bequeathing
all his properties in favour of his brother Timma (father of the appellant).
Gutya expired on 19.06.1963. After the demise of Gutya, the Tahsildar
conducted an enquiry and, on 08.07.1963, effected mutation entry No.
1080 in the name of Timma in relation to the land in question that had
been in cultivatory possession of Timma.
3.3. Later on, the said Smt. Gauri filed her objections to the
mutation entries made in favour of Timma but the said objections were
overruled. However, the Assistant Commissioner, in appeal, remanded
the matter for consideration afresh and, after such remand, the authority
concerned, by its order dated 18.05.1965, ordered that the mutation entry
of the land in question be made in the name of Smt. Gauri.
3.4. Having thus succeeded in getting the land in question
mutated in her favour, the said Smt. Gauri purportedly surrendered the
tenancy rights in favour of the respondents herein on 16.06.1965.
3.5. In the wake of the developments aforesaid, Timma filed a
civil suit4 for declaration of possessory title and injunction against Smt.
Gauri with reference to the Will of his brother Gutya, while also joining
his other brother Ganappa and the present respondents as defendants.
In her written statement, Smt. Gauri denied the execution of Will by
Gutya and validity thereof; and also denied that Timma was in
possession
of the land in question. The respondents-landlords denied that Timma
could have derived any right by virtue of the Will executed by Gutya.
3.5.1. On 30.06.1969, the suit aforesaid was decreed by the Trial
Court with the findings, inter alia, that Smt. Gauri left the company of
Gutya and contacted marriage with Jatya; that after leaving the company
of Gutya and upon her re-marriage, Smt. Gauri was no longer an heir
of Gutya and, therefore, she was not entitled to inherit or surrender
the tenancy rights of Gutya in the land in question. The Trial Court also
4 Original Suit No. 117 of 1965 in the Court of Munsiff, Sirsi.
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
776
SUPREME COURT REPORTS
[2019] 12 S.C.R.
held that Timma was in lawful possession of the land in question and
the Will dated 13.02.1960 was validly executed by Gutya5.
3.5.2. Assailing the decree aforesaid, appeals were preferred in
the Court of District Judge, Karwar by the respondents-landlords and
Smt. Gauri6. The First Appellate Court reversed the decree of the Trial
Court and remanded the matter for reconsideration of the question as
to who was the tenant after the death of Gutya. This order of remand
was challenged by Timma before the High Court of Karnataka7. The
High Court, by its order dated 08.03.1977, disapproved the order of
remand and restored the matter to the file of First Appellate Court for
disposal on merits, after observing that the question involved was not
of ‘tenancy’ but the one relating to the ‘succession of Gutya’s tenancy’.
3.5.3.After remand, the appeal filed by the present respondents
against the decree of the Trial Court was transferred to the Court of
Civil Judge, Sirsi8. Ultimately, the First Appellate Court dismissed the
5 The typed copy of this judgment dated 30.06.1969, placed on record as Annuxure
P-1 carries several obvious typographical errors but, for the purpose of reference,
the operative part thereof (at pp. 132-133 of the paper-book) is being extracted,
verbatim, as under:-
“In view of my findings on the documentary and oral evidence in this case and in
view of the correct legal position according to me I hold that
the power of the
deceased Gutya to will away his properties is unassailable. The plff. therefore,
got absolute title and possession in respect of the Malki properties and possessary
title in respect of lease hold items the moment Gutya died. I am also of the clear
opinion that the first deft. did not retained her character as widow of Gutya and
consequently acquired no titled or possession in respect of the suit properties.
Upon a careful assessment of the evidence in this case the first deft. has impressed
me as tool in the hands of owners of lease hold properties….Therefore a decree
is passed in favour of the plff. and against the defts. in the following terms.
I. The Malki title of the plff. to items 1 to 3 of the plaint is hereby declared on the
basis of Exh. P.1.
II. The possessary title of the plff. is hereby declared in respect of items 4 to 7 of the
plaint on the same basis.
III. An perpetual injunction is issued against all the defendants, their servants, agents
etc., from interfering with the peaceful possession and enjoyment of all the suit
properties.
IV. The suit of the plff. is decreed against all the defendants for costs.  This decree
for costs is a joint and several decree.
V. The defendants will bear their own costs.” (sic)
6 Being RA No. 59 of 1973 and RA No. 60 of 1973.
7 In Misc. Appeal No. 5 of 1975
8 renumbered as RA No. 43 of 1978
A
B
C
D
E
F
G
H
777
said appeal by way of the judgment and decree dated 18.12.1990 while
holding that the Will executed by Gutya in favour of Timma was proved
and the same was validity registered. The First Appellate Court also
confirmed the findings of the Trial Court that Smt. Gauri had re-married
and ceased to be the heir of Gutya. While referring to the provisions
contained in sub-section (1) of Section 27 of the Bombay Tenancy and
Agricultural Lands Act, 1948, [‘the Act of 1948’], the First Appellate
Court also observed that the said provision prohibited alienation of
leasehold land by a tenant but testamentary succession was not
prohibited.9
3.5.4. The decree so passed by the First Appellate Court was
challenged by the present respondents by way of a second appeal10
that was considered and dismissed by the High Court on 08.07.1998.
The present respondents attempted to challenge the judgment of the
High Court in this Court but the petition for Special Leave to Appeal11
was also dismissed on 26.02.2001.
3.5.5. Hence, the net result of the civil suit aforesaid had been
that the findings came to be recorded conclusively that Smt. Gauri was
not the heir of Gutya; that Timma was the heir of Gutya; that Gutya
had executed the Will in favour of Timma bequeathing his rights in the
land in question; and that Timma was in possession of the land in
question. These findings attained finality with dismissal of appeals and
the petition for Special Leave to Appeal in this Court.
9 A
passage from the said decision of the First Appellate Court (at pp. 198-199 of
paper-book) could also be usefully
extracted as under:-
“21…..There is therefore, no substance in the contention of the learned counsel
for petitioner that the claim of respondent no. 5 based on testamentary succession
could not have been entertained by Tribunal as alleged acquisition of lease was in
violation of Sec. 21 of the Act. In the instant case, there is evidence to show that
deft. 1 Gouri remarried. There is no dispute regarding the tenancy as it is admitted
fact late Gutya was a tenant of lease hold properties. It has come in the evidence
that deft. 1 Gouri had left her husband’s house and started living in some other
village and led an unchaste life and subsequently she married one Jatya through
whom she begotten children, for which there is evidence. The very object of
prohibition u/s 27 is that after the death of tenant, the heirs of deceased tenant
shall be entitled to partition and sub division the land leased subject to the
conditions laid down. In the Will it is specifically stated that Gutya had no issues.
It is also not the case of Gouri that she has filed any application claiming tenancy
right before the competent authority after the alleged execution of the Will…..”
10 RSA No. 22 of 1991
11 SLP (C) No. 4770 of 2000
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
778
SUPREME COURT REPORTS
[2019] 12 S.C.R.
 3.6. The other line of proceedings commenced on 08.08.1974
with filing of an application in Form No. 7 under Section 48-A of the
Karnataka Land Reforms Act, 1961 [‘the Act of 1961’] by Timma for
grant of occupancy rights in respect of the land in question before the
Land Tribunal, Siddapur12. This application was moved by Timma after
the decree of the Trial Court in the above-referred civil suit but during
the period when the appeal against such decree was pending. During
the pendency of application before the Land Tribunal and also the appeal
proceedings relating to the aforesaid civil suit, Timma expired and hence,
his wife and children were brought on record as his legal
representatives.
3.6.1. On 22.09.1981, the Land Tribunal rejected the claim for
grant of occupancy rights in respect of the land in question while
observing that the appellant (son of Timma) had made a statement of
admission that he was not the tenant of the land in question.
3.6.2. The aforesaid order of the Land Tribunal was challenged
by the appellant Kanna, son of Timma, before the High Court by filing
a writ petition and, inter alia, disputing the purport of the statement
alleged to have been made by him before the Land Tribunal. During
the pendency of the said writ petition, the Land Reforms Appellate
Authority came to be established and hence, the High Court transferred
the matter to the said Appellate Authority. The matter so transferred
by the High Court was registered before the Appellate Authority as an
appeal against the order of Land Tribunal13.
3.6.3. By its order dated 18.07.1988, the Appellate Authority
dismissed the said appeal of the appellant for non-prosecution. The
appellant sought restoration of the appeal and recall of the order of
default dismissal by moving an application under Rule 9 of the
Karnataka Land Reforms Rules. The application so moved by the
appellant was dismissed by the Appellate Authority on 26.12.1988, for
want of sufficient reasons for absence of advocate on the date of
hearing as also for want of an application for condonation of delay of
one day in filing the application for recall.
3.6.4. Being aggrieved by such dismissal of the appeal and the
application for restoration, the appellant preferred a revision petition14
12 Case No. TNC-DSR-988-5563-4885-7524
13 Appeal No. DAAA:AP:203/1986
14 L.R.R.P. No. 1 of 1996
A
B
C
D
E
F
G
H
779
before the High Court of Karnataka. The High Court proceeded to
dismiss the petition so filed by the appellant by its impugned order dated
08.08.2001, while rejecting the claim of appellant on merits and while
observing, inter alia, that: (a) Gutya was the original tenant of the land
in question before his demise in the year 1963; (b) in the application in
Form No. 7, Timma failed to plead about the separation of Smt. Gauri
from Gutya prior to his demise and, therefore, the alleged disinheritance
of Smt. Gauri could not be countenanced, meaning thereby that she
remained the legal heir of Gutya; (c) the assignment of interest of
tenancy by way of bequeath was barred under Section 21 of the Act
of 1961 and, therefore, Timma could not succeed to Gutya’s land by
virtue of the Will executed in his favour; (d) Gutya and Timma had their
respective parcels of land and each of them was cultivating his own
parcel; (e) if tenancy was transferred in favour of Timma, it would
amount to creation of fresh tenancy, which would be in contravention
of the provisions of the Act of 1961; and (f) the appellant had made a
statement before the Land Tribunal that he was not a tenant in respect
of the land in question. The relevant portion of the order of the High
Court reads as under:-
“……the petitioner herein cannot succeed to the tenancy right
of the deceased Gutya by virtue of the Will alleged to have
been executed by the deceased Gutya in favour of his father
Thimma, in the
presence of the wife of the deceased Gutya
by name Gowri who is the legal heir of the deceased to
succeed to the tenancy rights of her deceased husband.
Further it is also the case of the petitioner herein that when
the deceased Gutya fell ill and the father of the petitioner
Thimma began to cultivate the lands in respect of which the
deceased Gutya was a tenant, the father of the petitioner had
started paying the rent in respect of the said lands to the
landlord and which were duly accepted by him. Thus
according to the petitioner there was almost a fresh lease
created in favour of the father of the petitioner Thimma. But
it has to be stated that any tenancy created in contravention
of Section -5 of the Karnataka Land Reforms Act would be
void and therefore any possession pursuant to such fresh
lease would also be unlawful and such person is therefore
not entitled to the benefit of section-4 of the KLR Act. Even
on the ground also, the father of the petitioner was not
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
780
SUPREME COURT REPORTS
[2019] 12 S.C.R.
entitled to seek the registration of occupancy rights in respect
of the lands, of which the deceased Gutya was a tenant.
Therefore looking from any angle, neither the petitioner nor
his father Thimma could be entitled to seek registration of
occupancy rights in respect of the lands, of which the
deceased Gutya was a tenant. That apart, the order of the
Land Tribunal would clearly indicate that the petitioner
herein who gave his statement before the Land Tribunal did
not claim tenancy right in respect of the lands, of which the
deceased Gutya was a tenant. No doubt it was sought to be
contended on behalf of the petitioner that there was no such
statement made before the Land Tribunal by the petitioner.
But the order of the Land Tribunal would clearly indicate
that the petitioner did make such a statement before the Land
Tribunal. If the petitioner wanted to establish the fact that
the said observation made by the Land Tribunal in its
impugned order is factually incorrect, he could have
adduced additional evidence before the Land Reforms
Appellate Authority. But he did not do so and on the other
he allowed the appeal to be dismissed for default. Therefore
having given my anxious consideration to the entire matter
in issue, I find no merit in this revision petition filed by the
petitioner and it is liable to be dismissed.”
3.6.5. The appellant attempted to challenge the aforesaid order
dated 08.08.2001 in this Court by
way of a petition for Special Leave
to Appeal15 but, on 11.03.2002, the same was dismissed as withdrawn
with liberty to the appellant to file a review petition before the High
Court. The appellant, thereafter, filed a review petition16 before the High
Court with an application for condonation of delay. Even this review
petition went through its own meandering course inasmuch as the
application for condonation of delay was dismissed by the High Court
on 01.08.2003 for want of satisfactory reasons for not approaching the
Court within reasonable time. Against this order dated 01.08.2003, the
appellant again approached this Court by way of another petition for
Special Leave to Appeal17 that was allowed on 09.07.2004; this Court
condoned the delay and remitted the matter to High Court for disposal
on merits.
15 SLP (C) No. 3339 of 2002
16 Review Petition No. 484 of 2002
17 SLP (C) No. 23609-23610 of 2003
A
B
C
D
E
F
G
H
781
3.6.6. Ultimately, the said review petition and an application
therein for production of additional documents were considered on
merits and the High Court proceeded to dismiss the same by its order
dated 06.12.2004 while essentially reiterating its findings, as occurring
in the order dated 08.08.2001, and while observing that there was
nothing of any error apparent on the face of record. The High Court
observed, inter alia, as under:-
“9. In the instant case, I find that there is no such error
apparent on the face of the record and the present review
Petition filed by the Petitioner is only an attempt to reargue
the matter, which is not permissible in review
jurisdiction…....In the case at hand, the deceased testator
Gutya could not have executed the Will in favour of a person
who could not be declared to be a tenant having occupancy
right and that further the person concerned was not a tenant
within the meaning of the Act on the appointed day and
hence he was clearly not eligible for occupancy rights. It is
needless to point out that the mere possession of the lands
will not be sufficient to confer the status of occupancy of
tenancy as the sine-qua-non for obtaining the status of
occupancy of tenancy rights is that the person concerned
must be a tenant on the appointed day. It has to be stated
that the tenancy continues notwithstanding the death of the
tenant in occupation of certain lands and such (?) is held
by the heirs of such tenant on the same
terms and conditions
on which he had held prior to his death and the heirs who
can take the property are those who are referable to in
Section 21 of the Karnataka Land Reforms Act and that in
the instant case, the person concerned being not an heir of
the deceased tenant and there being a spouse (wife) of the
deceased  tenant living at the relevant time, could not have
obtained the status of the occupancy tenant [sic]. Obviously
therefore, the person concerned did not seem to have claimed
tenancy rights in respect of the lands in occupation of the
deceased tenant Gutya. Under the circumstances, therefore,
I find no error apparent on the face of the order which is
now sought to be reviewed, so as to call for correction by
exercise of the review jurisdiction.…...Considering the limited
scope for review under Order 47 Rule 1 of CPC, the
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
782
SUPREME COURT REPORTS
[2019] 12 S.C.R.
additional evidence sought to be adduced by the Petitioner
by means of his I.A. No. 1 cannot be permitted….”
3.7. The aforesaid orders dated 08.08.2001 and dated 06.12.2004,
as passed by the High Court of Karnataka in the revision petition and
the review petition filed by the appellant are the subject of challenge in
these appeals. However, the narration about the litigations between the
parties would remain incomplete if another proceeding in the form of a
civil suit filed by the present respondent No. 1 is not referred18.  After
passing of the aforesaid order dated 08.08.2001 by the High Court, a
civil suit was filed by the respondent No. 1, seeking perpetual injunction
against the appellant and his brothers. An application seeking temporary
injunction was also filed therein, being IA No. 1. The Trial Court
dismissed the said application for temporary injunction by its order dated
17.04.2003 while holding that the defendants (appellant and others) were
in possession of the suit property.
4. In summation of the chronicle aforesaid, it could be noticed
that in essence, there had been two major lines of litigation concerning
the parties: One being the civil suit filed by Timma wherein the questions
of validity of Will of Gutya and possession of Timma over the land in
question were gone into. The suit was decreed with all material findings
in favour of Timma and the decree attained finality. The other line of
litigation relates to the application in Form No. 7 under Section 48-A
of the Act of 1961 filed by Timma for grant of occupancy rights in
respect of the land in question. This application, prosecuted by the
appellant Kanna after demise of Timma, was rejected; the appeal was
dismissed; and the revision petition and the review petition before the
High Court were also dismissed by the impugned orders dated
08.08.2001 and 06.12.2004.
5. Assailing the impugned orders dated 08.08.2001 and
06.12.2004, learned counsel for the appellant has strenuously argued
that the High Court has erred in law as also on facts in failing to consider
the crucial aspect of this matter that in the civil suit filed by Timma,
categorical findings came to be recorded to the effect: (a) that the Will
dated 13.02.1960, executed by Gutya in favour of Timma in respect of
the land in question, was proved and the Will was not invalid; (b) that
Timma was the heir of Gutya by virtue of the said Will and Smt. Gauri
was not the heir of Gutya; and (c) that Timma was in possession of
18 O.S. No. 209 of 2002 in the Court of Civil Judge (Jr.Dn.), Siddapur
A
B
C
D
E
F
G
H
783
the land in question. The learned counsel has emphasised on the
submission that the said findings rendered in the civil proceedings have
attained finality and are binding on the respondents, who were parties
to the said suit; and these concluded findings cannot be reopened in
the present proceedings for grant of occupancy rights. The learned
counsel has relied on various decisions including that in Ramchandra
Dagdu Sonavane (Dead) by Lrs and Ors v. Vithu Hira Mahar
(Dead) by Lrs and Ors: (2009) 10 SCC 273 to submit that it is only
the civil Courts which have jurisdiction to decide the heirship right of
an individual and the Land Tribunal lacks such jurisdiction. Thus,
according to the learned counsel, the rights available to Timma, and after
Timma to the appellant as his son, could not have been denied in these
proceedings.
5.1. The learned counsel has also contended that the High Court
fell in further error in holding that Section 21 of the Act of 1961 bars
assignment of tenancy rights by way of bequeath. The learned counsel
has relied on the decision of this Court in Sangappa Kalyanappa Bangi
(Dead) through LRs. v. Land Tribunal, Jamkhandi and Ors:
(1998) 7 SCC 294 and submitted that the scope and purport of Section
21 of the Act of 1961 stands explained by this Court that a tenant cannot
introduce a stranger to the land by means of bequest but there is no
bar in bequeathing tenancy rights by a tenant to his heirs, who are related
to him by ‘legitimate
kinship’. The learned counsel has yet further
referred to the decision of this Court in Jayamma v. Maria Bai
(Dead) by proposed LRs. and Anr.: (2004) 7 SCC 459 and submitted
that the said decision re-affirms this position and does not in any way
differ or detract from the ratio of Sangappa (supra). Thus, according
to the learned counsel, rejection of Timma’s claim for occupancy rights
on the basis of the Will dated 13.02.1960 was wholly incorrect inasmuch
as Timma was not a stranger but was related to the tenant by legitimate
kinship, being his brother and hence, a Class II heir, in terms of the
entry occurring in the Schedule to the Hindu Succession Act, 1956. The
learned counsel lastly submitted that the Land Tribunal and the High
Court have misconstrued the statement made by appellant regarding
his tenancy rights because what was sought to be conveyed by him
was this much that Timma was not the original tenant of the land in
question but had inherited the tenancy rights by virtue of a Will; and in
any event, there was no intention of the appellant to disown his claim,
which was being pursued relentlessly.
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
784
SUPREME COURT REPORTS
[2019] 12 S.C.R.
6. Per contra, learned counsel for the respondents has supported
the orders passed by the Land Tribunal and the High Court rejecting
the claim for grant of occupancy rights in favour of Timma and has
submitted that in view of the prohibition over assignment of tenancy
rights by way of bequeath, Timma could not have claimed nor could
have exercised any tenancy rights over the land in question on the basis
of the Will of Gutya; and the land in question stood reverted to the
respondents after the demise of Gutya. The learned counsel has referred
to and relied upon the observations of the High Court that disinheritance
of Smt. Gauri from the tenancy rights of her husband Gutya could not
be countenanced and transfer of the tenancy rights of Gutya in favour
of Timma would amount to creation of fresh tenancy rights in
contravention of the provisions of the Act of 1961.  Learned counsel
has also relied upon the observations that the appellant made a statement
before the Land Tribunal about himself being not a tenant in respect of
the land in question.
6.1. The learned counsel for the respondents has referred to the
decision in Jayamma (supra) to submit that the principles expounded
therein, in relation to Section 61 of the Act of 1961, do apply with equal
force to the case at hand; and bequeath of tenancy rights being
prohibited, the High Court has rightly rejected the claim made on the
basis of the Will said to have been
executed by Gutya.
7. For what has been noticed hereinabove, the principal question
calling for determination is as to whether the High Court is right in
holding that the bequeath in question, by way of Will dated 13.02.1960
by Gutya in favour of his brother Timma, is hit by statutory prohibition
and no rights of tenancy could be claimed on its basis?
8. Having given anxious consideration to the rival submissions
and having examined the record with reference to the law applicable,
we are clearly of the view that the answer to the question aforesaid
could only be in the negative and the impugned orders cannot be
sustained.
9. For the purpose of the question aforesaid and in view of the
rival submissions, appropriate it would be to take note of the relevant
statutory provisions and the principles applicable to the present case.
9.1. As regards the applicable statutory provisions, it could be
noticed that the Will in question was executed on 13.02.1960 and the
A
B
C
D
E
F
G
H
785
executant, Gutya, the original tenant of the land in question, expired on
19.06.1963. At the relevant point of time, the Act of 1961 had not come
into force19 and the tenancy in question was governed by the Bombay
Tenancy and Agricultural Lands Act, 1948. The provisions contained
in sub-section (1) of Section 27 and Section 40 of the said Act of 1948
read as under:-
“27.  Sub-division, sub-letting and assignment prohibited.-
(1) Save as otherwise provided in Section 32F no sub-division
or sub-letting of the land held by a tenant or assignment of
any interest therein shall be valid:
Provided that nothing in this sub-section shall prejudicially
affect the rights of a permanent tenant :
Provided further that if the tenant dies,-
(i) if he is a member of a 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 sharers, as the case may
be, according to the share allotted to them,
(c) the area allotted to each sharer shall not be less
than the unit which the State Government may, by
general or special order, specify in this behalf
having regard to the productive capacity and other
circumstances relevant to the full and efficient use
of the land for agriculture,
(d)
if such area is less than the unit referred to in clause
(c), the sharers shall be entitled to enjoy the income
jointly, but the land shall not be divided by metes
and bounds,
19 It came into force as Mysore Land Reforms Act, 1961 w.e.f. 02.10.1965
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
786
SUPREME COURT REPORTS
[2019] 12 S.C.R.
(e) if any question arises regarding the apportionment
of the rent payable by the sharers, it shall be
decided by the Mamlatdar, whose, decision shall be
final.
***
***
***
40. Continuance to tenancy on death of tenant.-(1) Where a
tenant (other than a permanent tenant) dies, the landlord shall
be deemed to have continued the tenancy on the same terms
and conditions on which such tenant was holding it at the
time of his death, to such heir or heirs of the deceased tenant
as may be willing to continue the tenancy.
(2) Where the tenancy is inherited by heirs other than the
widow of the deceased tenant, such widow shall have a
charge for maintenance on the profits of such land.”
9.2. With advent of the Act of 1961, various enactments relating
to the agricultural land and tenancy, including the aforesaid Bombay
Tenancy and Agricultural Lands Act, 1948, came to be repealed for
the purpose of the territories governed by the Act of 1961. It is for
these reasons that reference has been made in these proceedings to
the provisions of the Act of 1961.20 In the Act of 1961, the relevant
provisions concerning the present case are contained in sub-section (1)
of Section 21 and Section 24, which are more or less in pari materia
the erstwhile provisions contained sub-section (1) of Section 27 and
Section 40 of the Act of 1948 and read as under:-
“21. Sub-division, sub-letting and assignment prohibited.—
(1) No sub-division or
sub-letting of the land held by a tenant
or assignment of any interest therein shall be valid:
20 However, the First Appellate Court dealing with the appeal arising out of the decree
passed in civil suit filed by Timma, in its judgment and decree dated 18.12.1990,
indeed took into account the provision applicable to the case at hand i.e., Section
27(1) of the Act of 1948.
A
B
C
D
E
F
G
H
787
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 sharers, 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:
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.
***
***
***
24. Rights of tenant to be heritable.- Where a tenant dies the
landlord shall be deemed to have continued the tenancy to
KANNA TIMMA KANAJI MADIWAL
(D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
788
SUPREME COURT REPORTS
[2019] 12 S.C.R.
the heirs of such tenant on the same terms and conditions
on which such tenant was holding at the time of his death.”21
9.3. In view of the submissions made and for their relevance,
the provisions contained in Section 61(1) of the Act of 1961 could also
be usefully extracted 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 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,
***
***
***”
9.3.1. It may, however, be noticed that the prohibition contained
in Section 21(1) and the restriction contained in Section 61(1) of the
Act of 1961 operate in different fields inasmuch as Section 21(1) occurs
in Chapter II of the Act of 1961, making general provisions regarding
the tenancy and rights and obligations of a tenant of an agricultural land.
Section 61, on the other hand, occurs in Chapter III, dealing with
conformant of ownership on tenants by way of their registration as
occupants. In other words, the restriction envisaged by Section 61 of
the Act of 1961 comes into operation after a tenant has acquired
occupancy rights whereas the prohibition contained in Section 21
operates at the stage before acquisition of occupancy rights and in
relation to the tenancy simpliciter.  This distinction in the fields of
operation of Section 21 and Section 61 of the Act of 1961 would be of
21 The present Section 24 was substituted by Act No. 1 of 1974.  Prior to its
amendment, Section 24 read as under:
“24. Right of tenants to be heritable. -(1) Where a tenant dies, the landlord shall
be deemed to have continued the tenancy-
(a) if such tenant was a member of an undivided Hindu family, to the surviving
members of the said family, and
(b) if such tenant was not a member of an undivided Hindu family, to his heirs,
on the same terms and conditions on which such tenant was holding at the time
of his death.
(2) The interest of a permanent tenant in his holding shall on his death pass by
inheritance or survivorship in accordance with his personal law.”
A
B
C
D
E
F
G
H
789
assistance in comprehension of the two cited decisions of this Court
i.e., in the cases of Sangappa and Jayamma (supra).
10. In Sangappa (supra), this Court has dealt with a situation
where the dispute related to testamentary disposition of interest in the
tenanted land. While observing that bequest under a Will was also
covered within the ambit of “assignment” under Section 21 of the Act
of 1961, this Court held that such bequest could only be to the heirs of
the tenant and not to the strangers to the family of tenant. This Court
said, inter alia, as under:-
“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, would be
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 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
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
790
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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.
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,
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 one 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 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…..”
(underlining supplied for emphasis)
A
B
C
D
E
F
G
H
791
11. On the other hand, in Jayamma’s case (supra), the appellant
had filed an application under Section 276 of the Indian Succession Act,
1925 for grant of letters of administration with a copy of Will annexed.
The respondents, being wife and children of the testator, denied the fact
of execution of Will and hence, the application was converted into a
suit. Though the Trial Court decreed the suit but the appeal was allowed
by the High Court while holding that the application in question was
not maintainable in view of Section 61 of the Act of 1961, for the
subject-matter of the testament being agricultural land with occupancy
rights, which could not have been assigned. The appellant, legatee under
the Will in question, was a neighbour and had not been a member of
the testator’s family. In appeal before this Court, the decision in
Sangappa (supra) was referred. This Court distinguished the said
decision as being related to Section 21 of the Act of 1961 and there
being stricter embargo on transfer of land where the tenant had become
occupant than the land held by a tenant simpliciter. This apart, the
appellant was found to be having no legitimate kinship with the testator.
It was also found that occupancy rights were granted on 14.10.1981
and Will in question was executed on 20.02.1984; hence transfer was
made within the period of 15 years from the date of grant, which was
prohibited by law. The appeal was, therefore, dismissed by this Court
while observing,
inter alia, as under:-
“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.
***
***
***
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.
***
***
***
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
792
SUPREME COURT REPORTS
[2019] 12 S.C.R.
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……
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, 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.”
12. It is at once clear from the provisions and the decisions above
referred that in the scheme of the Act of 1948 as also the Act of 1961,
when a person had been inducted as tenant, heritable right comes into
existence with certain embargo over transferability of such tenancy.
In other words, such tenancy continues even after the demise of tenant.
If the deceased tenant was a member of joint family, then the surviving
members of the joint family; and if he was not a member of joint family,
his heirs would be entitled to
claim partition subject to the conditions
specified. However, the tenanted land cannot be sub-let nor any interest
therein could be assigned. In Sangappa (supra), this Court has explained
the object behind such embargo that strangers to the family of tenant
were not to be allowed to come upon the tenanted land. Even disposition
under a Will is held covered within the wide sweep of the expression
“assignment” for the purpose of the Act of 1961 but with the significant,
and rather pertinent, exception that such embargo does not prevent a
bequeath in favour of the heirs noticed in the said provisions. This Court
said in no uncertain terms that: ‘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 one who is related to
the deceased tenant by legitimate kinship’. This enunciation is neither
curtailed nor whittled down in Jayamma’s case (supra).
A
B
C
D
E
F
G
H
793
13. As noticed, the decision in Jayamma (supra) had been on the
interpretation of Section 61 of the Act of 1961, where stricter embargo
is envisaged, being related to a different provision that operates in a
different field and comes into effect after acquiring of occupancy rights.
Moreover, in Jayamma’s case, the legatee, a neighbour, was found to
be having no legitimate kinship with the testator; and the Will in question
was executed within the period of 15 years from the date of grant,
which was prohibited by law. Hence, the decision in Jayamma’s case
has no adverse effect on the claim in the present case for the obvious
reasons that: (a) the present case relates to the stage before acquisition
of occupancy rights; and (b) the legatee of the Will in question before
us, Timma, had been none other than the brother of the deceased tenant,
Gutya; and the said legatee, being related to the deceased tenant by
legitimate kinship, had already been declared to be the successor of
the tenant in the civil suit in presence of all the relevant parties, including
the respondents, with categorical finding that the wife of tenant had
left and ceased to be his heir after having contacted other marriage.
14. On the admitted fact situation of the present case and on
the concluded findings, the net position obtainable is as follows: The
deceased Gutya was the tenant in the land in question. No doubt, Smt.
Gauri was the wife of Gutya and, had she retained this status, she
would
have been his Class I heir, in terms of the Schedule to the Hindu
Succession Act, 1956. However, the concluded findings in the civil suit
filed by Timma (with the present respondent being parties thereto) are
to the effect that Smt. Gauri left Gutya, contacted second marriage with
Jatya, and begot two children from such marriage. In sequel to these
findings and in view of the other evidence on record, it was held in the
said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It
was also held conclusively that Timma was the heir of Gutya; that Gutya
had executed the Will in favour of Timma bequeathing his rights in the
land in question; and that Timma was in possession of the land in
question. These findings have attained finality with dismissal of appeals
and ultimately, with dismissal of the petition for Special Leave to Appeal
in this Court. Moreover, these findings bind the present respondent fair
and square, for they were parties to the said suit and in fact, only they
had pursued the matter in appeals, though unsuccessfully. In the face
of these concluded findings, we find absolutely no justification that the
High Court proceeded in the impugned orders on the premise that Smt.
Gauri was the heir of Gutya for being his wife. The effect of the
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]
A
B
C
D
E
F
G
H
794
SUPREME COURT REPORTS
[2019] 12 S.C.R.
abovementioned findings of the civil Court has been brushed aside by
the High Court with a few observations that the fact of existence of
the wife of Gutya was not mentioned in the application made by Timma
for grant of occupancy rights. As noticed, on the date of filing of such
application, the suit filed by Timma had already been decreed by the
Trial Court with the findings aforesaid, although the matter was pending
in appeal. In any case, the concluded and binding findings of the civil
Courts did not lose their worth if the fact about erstwhile wife of Gutya
was not mentioned in the application made by Timma for grant of
occupancy rights; and the High Court could not have treated such
findings as nugatory or redundant.
14.1. So far the legal effect of the said Will by the tenant Gutya
in favour of his brother Timma is concerned, as noticed, Timma was
definitely related to Gutya by legitimate kinship, being his brother. Hence,
the Will is not hit by the embargo, whether that contained in Section
27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori,
the application made by Timma in Form 7 under Section 48-A of the
Act of 1961 for grant of occupancy rights in respect of the land in
question could not have been denied.
15. An observation made by the High Court, about the appellant
having made a statement before the Land Tribunal as if to give up his
claim as tenant of the land in question, has only
been noted to be
disapproved. It is noticed that the Land Tribunal proceeded to reject
the claim in relation to the land in question by way of its order dated
22.09.1981 in a wholly cursory manner with reference to the alleged
statement made by the appellant but without appreciating that the
statement was required to be understood contextually where certain
parcels of land in which Timma was the tenant in his own right were
also being described. In that context, it was clarified that Timma was,
as such, not the tenant in relation to the land in question; meaning
thereby that Timma was not the original tenant. The statement was not
incorrect because Gutya was the original tenant qua the land in
question. Such a bonafide statement could not have operated against
the claim of occupancy rights in respect of the land in question, when
the claim was essentially based on the Will in favour of Timma and his
cultivatory possession.
16. As noticed, the appeal against the aforesaid order of the Land
Tribunal was not decided on merits. Rather, the approach of the
A
B
C
D
E
F
G
H
795
Appellate Authority had been a bit too exacting where the appeal was
dismissed in default and then, the application for restoration was
dismissed with a hyper-technical view of the matter and for delay of
one day in filing. In revision petition against the order so passed by the
Appellate Authority, the High Court, even without having the benefit
of a considered decision of the Appellate Authority, chose to deal with
the matter on merits and rejected the claim of the appellant on either
irrelevant considerations or while overlooking the effect of the findings
in the civil suit between the parties as also the ratio in Sangappa
(supra). In our view, while adopting such a course, of deciding the matter
on merits without having the finding of the Appellate Authority, it was
moreover required of the High Court to examine the record in proper
perspective; and, for that matter, the decisions rendered in the civil suit
filed by Timma, which carried concluded findings on the basic issues
involved in the litigation, ought to have been examined in requisite details.
17. The upshot of the discussion foregoing is that the impugned
orders cannot be sustained and it is beyond the pale of doubt that the
application filed by the appellant by Timma for grant of occupancy rights
in respect of the land in question deserves to be allowed.
18. Accordingly, and in view of the above, the impugned judgment
and orders dated 08.08.2001 and 06.12.2004 passed by the High Court
of
Karnataka in LRRP No. 1 of 1996 and Review Petition No. 484 of
2002 respectively as also the impugned orders dated 18.07.1988 and
26.12.1998 passed by the Land Reforms Appellate Authority and dated
22.09.1981 passed by the Land Tribunal are set aside; and the
application in question, as filed by Timma for grant of occupancy rights
in respect of the land in question is allowed. The Land Tribunal shall
pass necessary formal orders for grant of occupancy rights in favour
of the present appellants, who have acquired such rights as being
successors of the rightful legatee of the original tenant.
18.1. The appeals are allowed with the directions and
requirements aforesaid. No costs.
Nidhi Jain
Appeal allowed.
KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA
TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]