REPORTABLE

 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 1300-1301 OF 2008

KANNA TIMMA KANAJI MADIWAL  (D) THROUGH LRS.            …APPELLANT(S)

                                 VS.

RAMACHANDRA TIMMAYA HEGDE  (D) THROUGH LRS. AND ORS.                             …RESPONDENT(S)

JUDGMENT

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  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:

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).

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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.  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

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.

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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 held that Timma was in 4 Original Suit No. 117 of 1965 in the Court of Munsiff, Sirsi.

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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’.  

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

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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 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.

8 renumbered as RA No. 43 of 1978 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

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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.  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

12 Case No. TNC-DSR-988-5563-4885-7524

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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 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

13 Appeal No. DAAA:AP:203/1986 14 L.R.R.P. No. 1 of 1996

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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 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

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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. 3.6.6. Ultimately,  the  said  review  petition  and  an  application  therein  for

production of additional documents were considered on merits and the High

15 SLP (C) No. 3339 of 2002 16 Review Petition No. 484 of 2002 17 SLP (C) No. 23609-23610 of 2003

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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 additional  evidence sought to be adduced by the Petitioner by means of his I.A. No. 1 cannot be permitted….”  

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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

18 O.S. No. 209 of 2002 in the Court of Civil Judge (Jr.Dn.), Siddapur

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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 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

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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. 6. Per  contra, learned  counsel  for  the  respondents  has  supported  the

orders passed by the Land Tribunal and the High Court rejecting the claim

13

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?

14

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 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

19 It came into force as Mysore Land Reforms Act, 1961 w.e.f. 02.10.1965  

15

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,

(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

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.

16

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: 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 the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death.”21  

21 The present Section 24 was substituted by Act No. 1 of 1974.  Prior to its amendment, Section 24  read as under:

17

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

“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.”

18

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 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

19

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. 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)

20

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

21

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.

*** *** ***

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

22

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).

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

23

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

24

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 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.

25

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 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 26

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.

27

18.1. The appeals are allowed with the directions and requirements aforesaid.

No costs.

……………………………J (A.M. KHANWILKAR)     1

……………………………J (DINESH MAHESHWARI)

New Delhi Dated:  27th September, 2019

28