IMPORTANT POINT
On a fair construction of Section 61 of the Karnataka Land Reforms Act, 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.

Headnote:Karnataka Land Reforms Act, 1961-Sections 61, 2(12), (17) and 21-Indian Succession Act, 1925-Sections 276, 299 and 213-Interpretation of Section 61 of Land Reforms Act-Appellant filed an application for grant of letters of administration with a copy of Will-Factum of execution of Will having been denied and disputed by notices-Application converted into suit-Trial Court decreed the suit-However, on appeal, High Court held that application for grant of letters of administration was not maintainable inasmuch subject matter of testament being agricultural land with occupancy right could not have been assigned-Grant of agricultural land with occupancy right was made on 14.10.1981-Will in question having been executed on 20.2.1984-Transfer having been made within a period of fifteen years from the date of grant, prohibited in law-Appellant not having any legitimate kinship with the testator of Will-Whether High Court was justified in holding that application for grant of Letters of Administration was not maintainable-(Yes).
       Held : The Court empowered to grant a letter of administration although ordinarily may not go into the question of title in respect of property sought to be bequeathed by the testator; the situation would be different where the authority of the testator to execute a Will in relation to the subject matter thereof is in question. When a statutory embargo exists on execution of a Will, the court shall not refuse to determine the question as regard validity thereof, as in terms of the provisions of a statute, the same would be void ab initio. (Para 15)
       Sub-section (3) of Section 61 lays down that any transfer of land in contravention of sub-section (1) shall be invalid whereupon the same shall vest in the State Government free from all encumbrances. The legislative intent that the land should not be allowed to go to the hands of a stranger to the family is, therefore, manifest. Whereas in terms of Section 21, strangers to the family of the tenant to come upon the land is not allowed, the tenor of Section 61 is that except partition amongst the co-sharers, no transfer of the property, in any manner, is permissible. When an assignment or transfer is made in contravention of statutory provisions, the consequence whereof would be that same is invalid, and thus, being opposed to public policy the same shall attract the provisions of Section 23 of the Indian Contract Act . (Paras 19 and 20)

JUDGMENT

S.B. Sinha, J.-Interpretation of Section 61 of the Karnataka Land Reforms Act, 1961 (for short, "the said Act") falls for consideration in this appeal which arises out of a judgment and order dated 25.5.1999 passed by a Division Bench of the High Court of Karnataka in Misc. First Appeal No. 2353 of 1990.

2. Before adverting to the issue involved in this appeal, the factual matrix of the matter may be noticed.

3. The appellant herein filed an application purported to be under Section 276 of the Indian Succession Act, 1925 for grant of letters of administration with a copy of the Will dated 20.2.1984 annexed purported to have been executed by one Anthony Rebello. The respondents herein are the wife and children of the testator. The factum of the execution of the Will having been denied and disputed by the notices, the said application was converted into a suit and marked as O.S.No. 66 of 1986.

4. The Trial Court decreed the suit holding, inter alia that the testator executed the Will with full knowledge, having sound state of mind and it was not obtained by practicising fraud, misrepresentation or duress.

5. On an appeal preferred thereagainst, the High Court while exercising its appellate jurisdiction under Section 299 of the Indian Succession Act, allowed the same holding that the application for grant of letters of administration with a copy of the Will was not maintainable in view of Section 61 of the said Act, inasmuch as the subject-matter of testament being agricultural land with occupancy right could not have been assigned. The High Court also rejected the contention raised on behalf of the appellant herein that a disputed question of title cannot be gone into in an application for grant of Letters of Administration.

6. Before us Mr. Bhat, learned counsel appearing for the appellant herein raised the following contentions : (i) that the Trial Court had no jurisdiction to go into the question as regard the title of the property inasmuch as while disposing of an application under Section 276 of the Indian Succession Act, the Court is only concerned with genuineness or otherwise of the Will and in the event there exists a dispute with regard to title, a separate suit may be filed. It was pointed out that the impugned judgment wherein a contrary finding had been arrived at has since been overruled by a Full Bench of the High Court of Karnataka in Smt. Severine D Souza and Anr. Vs. Felix Ambrose D Souza [ILR 2003 Kar 194] (ii) that the expression family used in Section 61 of the said Act must be given an extended meaning so as to include the persons related to the testator by legitimate kinship or otherwise and in that view of the matter, the appellant being the cousin s daughter of the testator would come within the purview thereof. Reliance in this behalf has been placed on Sangappa Kalyanapa Bangi (Dead) through L.Rs. vs. Land Tribunal, Jamkhandi and Ors. [(1998) 7 SCC 294].

7. Ms. Arora, learned counsel appearing on behalf of the respondents on the other hand, would contend that the appellant was mere a neighbour and has not been proved to be a member of the testator s family. Our attention, in this behalf, has been drawn to the statement of the appellant herein made by her in examination in chief before the Trial Court.

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

"2(12) "Family" means,-

(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;

(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;

(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmar

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2004 Supreme(SC) 762

IMPORTANT POINTOn a fair construction of Section 61 of the Karnataka Land Reforms Act, 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.

Cases Referred (1)

IMPORTANT POINT
On a fair construction of Section 61 of the Karnataka Land Reforms Act, 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.