Back
2006 Supreme(Kar) 647
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
MOHAN SHANTANAGOUDAR, J.
MONAPPA KOTTARI (DECEASED) BY L.Rs - Appellants
Versus
DAVID PINTO AND ANOTHER
Regular Second Appeal No. 388 of 1999.
Decided on 24th August, 2006
Sri Padmanabha Mahale, S,mior Advocate for Sri C.R. Goulay. Advocate for Appellants;
Sri N.K. Ramesh. Advocate for Respondent-1;
Sri A. Keshava Bhat, Advocate for Respondent-2.
Headnote:Transfer of Property Act, 1882 -Purchase of rights of mulgar -Section 55 -Purchase of rights of mulgar -Purchase will always be subject to right of mulgenidar or sub-mulgenidar -Rights of mulgenidar and sub-mulgenidar -Cannot be extinguished except in case of violation of conditions of mulgeni relating to payment of rent.
Karnataka Land Reforms Act, 1961 -Rights of mulgar -Section 2A (21) -Rights of mulgar -Purchase of-Effect.
Cases Referred: AIR 2005 SC 2857; 2002 SAR (Civil) 225.
Transfer of Property Act,1882 -Lease -Section 111(d) -Lease -Determination of -Lease will be determined in case of vesting of interests of lessee and lessor in whole property at same time in one person in same right.
Cases Referred: AIR 2005 SC 2857; 2002 SAR (Civil) 225.
Words and Phrases -Mulgeni, Mulgar, Mulgenidar -Mulgeni, Mulgar, Mulgenidar -Mulgeni (Moolageni) is a permanent tenancy and the person who leases the property is called as Mulgar (Moolgar) and the lessee will be called as mulgenidar (Moolgenidar). This type of lease is prevailing only in Kanara District (Now the said District is divided into South Canara and Udupi Districts). The mulgenidars become the second class of proprietors from whom nobody can deprive of their right of possession except their own act of gift or sale. A mulgenidar is a tenant holding a perpetual lease, not removable so long as he pays rent and so long as he does not violate the stipulations of the lease entailing forfeiture. Mulgeni is also known as Kayamgeni or permanent lease. Mulgenidars (permanent tenants) have a perpetual and indefeasible right to occupy the land so long as they pay the rent, which is sometimes nominal. The mulgeni tenure is a permanent heritable tenure alienable in some cases by the conditions of the mulgeni chit but in all cases perpetual, though subject to forfeiture for non payment of rents (J.H.A. Mascarenhas -Law of Land Tenures in Kanara).
Cases Referred: AIR 2005 SC 2857; 2002 SAR (Civil) 225.
Karnataka Land Reforms Act, 1961 -Mulgeni tenancy -Section 2A (33) -Mulgeni tenancy -What is. [Mohan Shantanagourdar, J]: The mulgeni is a recognised type of lease and it is permanent in nature. The Mulgar s owner cannot evict the mulgenidar at any time except in the case of non payment of rent, if the Mulgeni chit provides for the same. The mulgar s right is only to collect rents from the mulgenidar. Mulgenidar in turn has right to enjoy the property or to sub-lease the same to submulgenidar. In case if mulgenidar sub-leases the property in favour of sub-mulgenidar, the said sub-mulgenidar also cannot be evicted by the mulgar except where the rent is not paid as agreed upon. In other words, the mulgenidars or sub-mulgenidars will enjoy the property permanently subject to payment of rent to the mulgar. Such a perculiar lease is preveiling only in Kanara District.
Karnataka Land Reforms Act, 1961 -Mulgenidar or sub -mulgenidar -Section 2A (34) -Mulgenidar or sub-mulgenidar - Rights of -Cannot be extinguished except in case of violation of conditions of mulgeni relating to payment of rent.
Cases Referred: AIR 2005 SC 2857; 2002 SAR (Civil) 225.
The legal representatives of the first defendant in O.S. No. 868 of 1990 have filed this second appeal.
2. The first respondent herein was the plaintiff and the second respondent herein was the second defendant in the said suit. Defendant 2 is the mother of plaintiff. The plaintiff filed a suit for declaration that he and second defendant have got subsisting Sub-moolageni and Moolageni rights respectively and that these pre-existing rights arc not extinguished by the act of first defendant purchasing the rights of moolgar. He has also sought for a decree for future mesne profits and other incidental reliefs. The Trial Court decreed the suit and the first Appellate Court confirmed the same.
3. Certain undisputed facts of the case arc as under:
One Anthu Hengsu was the owner and Moolgar of the property in question which is a residential house with backyard. Earlier the property was situated in village limits. Presently, the house and the land are within city limits of Mangalore, in view of expansion of city. She sold the property in favour of Nampalli Ham Rao on 18-4-1902. After the death of Nampalli Ram Rao, his son Subban Shiva Rao inherited Moolgar's rights. The said Subban Shiva Rao sold Moolgar's rights over the property on 27-a-1986 in favour of Monappa Kottari (defendant 1) by virtue of the sale deed Ex. D. 1.
Original Moolgar Smt. Antlm Hengsu, leased the property permanently to Anthojuvan Rodriges on 1a-6-1889 and consequently, said Rodriges became the Moolgenidar. The said Moolgeni rights were subsequently transferred from one person to another person on five occasions. Ultimately they were transferred in favour of Kasturba Medical College Trust on 30-9-1962 as per Ex. P. 20. Said Kasturba Medical College Trust transferred the Moolgeni rights again in favour of Mariel Pinto (defendant 2) on 18-8-1998, as could be seen from Ex. D.16. Thus from that date onwards, defendant 2 is the Moolgenidar.
Likewise, the property was subleased by Moolgenidars from time to time and ultimately came in the hands of Mr. Lawrence. When Mr. Lawrence was the Sub-moolgenidar, the property was put to auction sale by Court and the grandfather of the plaintiff i.e., father of defendant 2 namely John Francis purchased the property in Court sale on 20-a-1953 as per Ex. P. 21. By settlement (Ex. P. 1), the property came to defendant 2, the daughter of John Francis on 1a-8-1962. As could be seen from Ex. P. 1, dated 9-1-1984, in the partition among the children of defendant 2, the property fell to the share of plaintiff and consequently he acquired Sub-moolgenidar's rights with effect from 9-1-1981.
In the meanwhile, John Francis (earlier Sub-moolgenidar) i.e., grandfather of the plaintiff and father of second defendant leased the property in favour of the 1st defendant's father namely Koraga Kottari on a monthly lease. After the death of Koraga Kottari, the said ordinary lease continued with the 1st defendant namely Monappa Kottari. Thus Monappa Kottari is in possession as an ordinary tenant. The plaintiff herein being the Sub-moolgenidar filed H.R.C. No. 170 of 1985 for evicting 1st defendant as the property in question is a house property. During the pendency of the said HRC proceedings, the 1st defendant purchased Moolgar's rights from Moolgar Sri N. Subban Shiva Rao on 27-3-1986 under Ex. D. 1. In the said H.RC. No. 170 of 1985, the plaintiff herein filed an application to refer the matter to the Civil Court to resolve the dispute relating to the complicated question of ownership. Consequently, the Karnataka Rent Control Court, ordered that the parties shall approach the Civil Court for adjudication of the dispute relating to ownership. Hence, the proceedings in H.R.C. No. 170 of1985 were dropped. In view of the same, the present suit is filed. The aforesaid facts are not in dispute.
4. As aforesaid, both the Courts decreed the suit holding that there is no merger of interest of the Moolgenidar and Sub-moolgenidar with the interest of Moolgar
