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2005 Supreme(Kar) 606
In The High Court Of Karnataka At Bangalore
K. Ramanna, J.
Rama Subraya Naik (Deceased) By L.Rs
V
State Of Karnataka And Others
Writ Petition No. 31755 of 1997 (LR).
28th September, 2005
Sri Ravi G. Sabhahit, Advocate for Petitioners;
Sri R. Kumar, Government Pleader for Respondents-1 and 2;
Sri R.B. Deshpande, Advocate for Caveator-Respondent-3;
Respondent-4 served.
Headnote:Occupancy rights - KARNATAKA LAND REFORMS ACT, 1961 - Section 21 -Occupancy rights - Claim based on Will -In case of permanent tenancy, proviso to section 21(1) is not a bar to claim or to grant occupancy rights to beneficiary of Will.
[K. Ramanna, J]: The petitioners have not disputed the relationship of R- 3 with them as well of as deceased R . Tribunal has held that since it is the permanent tenancy, proviso to Sub-sec (1) of Section 21 of Karnataka Land Reforms Act is not a bar to claim occupancy right or grant occupancy right to a beneficiary of the Will. Further, the contention that the appeal filled by the petitioner was till pending before the District Judge is concerned, the very petitioner No.2- l in his statement has clearly admitted that he has filed the appeal and he do not know the appeal number. Further, he has stated that he do not know whether his father had executed any Will in favour of the 3rd respondent and admitted that the 3rd respondent has paid the wara to the owner of the land right from the death of their father and the 3rd respondent himself is getting the crops raised in that land. Therefore, it cannot be said that the Tribunal has not discussed and considered the evidence of the parties adduced before it. Further, it is clear from the records, that the impugned order under challenge that the suit O.S.No. 42/88 ended in compromise on 10-3-88 and in that compromise petition, the petitioners being the L.Rs of the deceased R have accepted the same. The L.C.Rs contains the certified copy of the compromise decree dated 10-3-1988, which shows that the 3rd respondent is in enjoyment of the land in question even after the death of their father R . Since the petitioners themselves have admitted that the 3rd respondent is in possession of the said land, the majority of the Members of the Land Tribunal have rightly come to a conclusion and granted occupancy right in favour of the 3rd respondent, after considering both oral and documentary evidence placed by the parties and hence the same does not requires any interference to quash the same.
KARNATAKA LAND REFORMS ACT, 1961 - Section 21 -Summary procedure -Occupancy rights conferred based on Will subject matter of which was a permanent tenancy - Proof of Will - One of the attestors was son of tenant / testator -Son denied execution of will -Hence, legatee cannot summon him to give evidence -Tribunal hence adopted summary procedure -Held proper.
[K. Ramanna, J]: It is seen that one of the attestor to the Will is I the 2nd petitioner herein. He has denied the execution of the Will in favour of the 3rd respondent. Therefore, it is not proper to summon him to give evidence in favour of respondent No.3. Therefore, the Tribunal is expected to follow the summary procedures in deciding the case of occupancy right. The Will executed by the deceased R is a registered one. So far the petitioners have not challenged the same by filing the suit for declaration that the alleged Will is not binding and it is null and void. In view of the compromise decree passed by the Civil Court holding that 3rd respondent is in possession and enjoyment of the land in question, the contention of the petitioners that the contents of the Will has not been proved by examining the attestors of the Will cannot be accepted.
KARNATAKA LAND REFORMS ACT, 1961 - Section 21(1) -Bar under - A tenant cannot subdivide or sub-let land held by him as a tenant -This bar cannot be overcome by executing a Will -Exception is permanent tenancy.
Settled principle: Under Section 21(1) there is a bar against sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Any assignment contrary to the said bar is invalid (Of course, there is an exception in the case of a permanent tenant). This bar cannot be overcome by a tenant by creating a Will. What he cannot do during his lifetime cannot be held to be capable of being done immediately after his death. Second proviso to Section 21 (1) highlights this aspect by conferring certain rights only on the surviving members of the family or on his heirs. If a tenant can Will away his interest or a portion thereof, then the second proviso also Will be nullified by enabling the legatee to have the land partitioned in his favour. Statute has peremptorily provided the succession which cannot be defeated by the tenant by bequeathing his interest (ILR 1987 Kar 3336).
Grant of occupancy rights - KARNATAKA LAND REFORMS ACT, 1961 - Section 48 -Grant of occupancy rights -Permanent tenancy -Grant of occupancy rights based on Will executed by tenant -Section 21(1) of the Act is not a bar.
[K. Ramanna, J]: The petitioners have not disputed the relationship of R- 3 with them as well of as deceased R . Tribunal has held that since it is the permanent tenancy, proviso to Sub-sec (1) of Section 21 of Karnataka Land Reforms Act is not a bar to claim occupancy right or grant occupancy right to a beneficiary of the Will. Further, the contention that the appeal filled by the petitioner was till pending before the District Judge is concerned, the very petitioner No.2- l in his statement has clearly admitted that he has filed the appeal and he do not know the appeal number. Further, he has stated that he do not know whether his father had executed any Will in favour of the 3rd respondent and admitted that the 3rd respondent has paid the wara to the owner of the land right from the death of their father and the 3rd respondent himself is getting the crops raised in that land. Therefore, it cannot be said that the Tribunal has not discussed and considered the evidence of the parties adduced before it. Further, it is clear from the records, that the impugned order under challenge that the suit O.S.No. 42/88 ended in compromise on 10-3-88 and in that compromise petition, the petitioners being the L.Rs. of the deceased R have accepted the same. The L.C.Rs contains the certified copy of the compromise decree dated 10-3-1988, which shows that the 3rd respondent is in enjoyment of the land in question even after the death of their father R . Since the petitioners themselves have admitted that the 3rd respondent is in possession of the said land, the majority of the Members of the Land Tribunal have rightly come to a conclusion and granted occupancy right in favour of the 3rd respondent, after considering both oral and documentary evidence placed by the parties and hence the same does not requires any interference to quash the same.
Testamentary Succession - Conferment of occupancy rights - Conferment of occupancy rights - In case of permanent tenancy, Section 21(1) of Karnataka Land Reforms Act is not a bar either to claim or to grant occupancy rights based on a Will executed by tenant. See, Karnataka Land Reforms Act, 1961 -Section 21(1).
Testamentary Succession - Proof of execution of Will - Proof of execution of Will - Examination of attestors -One of the attestors was son of testator -Son denied execution of Will - Hence, legatee cannot summon son of testator to give evidence. See, Karnataka Land Reforms Act, 1961 - Section 21.
WILLS - Proof of Execution - Proof of execution -Proof of execution - Examination of attestors -One of the attestors was son of testator -Son denied execution of will - Hence, legatee cannot summon son of testator to give evidence. See, Karnataka Land Reforms Act, 1961 - Section 21.
Conferment of occupancy rights
TESTAMENTARY SUCCESSION - Conferment of occupancy rights - In case of permanent tenancy, Section 21(1) of Karnataka Land Reforms Act is not a bar either to claim or to grant occupancy rights based on a Will executed by tenant. See, Karnataka Land Reforms Act, 1961 -Section 21(1).
Proof of execution of Will
TESTAMENTARY SUCCESSION - Proof of execution of Will - Examination of attestors -One of the attestors was son of testator -Son denied execution of Will - Hence, legatee cannot summon son of testator to give evidence. See, Karnataka Land Reforms Act, 1961 - Section 21.
Proof of Execution
WILLS - Proof of execution -Proof of execution - Examination of attestors -One of the attestors was son of testator -Son denied execution of will - Hence, legatee cannot summon son of testator to give evidence. See, Karnataka Land Reforms Act, 1961 - Section 21.
This writ petition is filed by the petitioners who are the legal representatives of Ram a Subraya Naik challenging the order dated 26-91997 passed by the Land Tribunal-2nd respondent herein in Case No. LRM.SR.5-666-459 produced at Annexure-D whereby the Land Tribunal has granted occupancy right in favour of the 3rd respondent-Keshava Narayan Naik in respect of the land bearing Sy. No. 1626/2 to an extent of 14 guntas. Therefore, the petitioners have come up with this writ petition mainly on the ground that, the Tribunal has no jurisdiction to grant occupancy right in favour the 3rd respondent who claims right on the basis of the Will said to have been executed by the father of the petitioners. The Tribunal has failed to consider the oral and documentary evidence placed on record and it has simply narrated statement of the parties and not discussed the same. Further, the Tribunal has misread, misinterpreted and misunderstood the law laid down by the Division Bench of this Court in the case of Thimmakka Kom Venkanna Naik v. Land Tribunal and Others. The 3rd respondent who claims to be the tenant of the land in question has not proved the alleged Will and that Rama Subraya Naik has no authority to execute the Will during his lifetime and as such he could not have bequeathed the property.
2. Heard the arguments of the learned Advocates for the petitioners and respondent 3 •and also learned High Court Government Pleader for respondents 1 and 2. None represents on behalf of respondent 4-owner of the land.
3. Sri Ravi G. Sabhahit, learned Counsel for the petitioners vehemently contended that the 3rd respondent is a third person and the Land Tribunal has conferred occupancy rights in his favour only on the basis of the Will said to have been executed by Rama Subraya Naik, who was the tenant under the 4th respondent and that the petitioners very much disputes about the alleged Will said to have been executed by their father only with regard to Sy. No. 1626/2 measuring 14 guntas of No. 3 Haladipur Village. It is further contended that though the Chairman of the 2nd respondent was of the opinion that the claim of occupancy right on the basis of the Will is hit by Section 21(1) of the Karnataka Land Reforms Act, 1961, the majority members of the 2nd respondent-Tribunal are of the view that the occupancy right has to be granted in favour of the 3rd respondent, which is incorrect and illegal and that the 3rd respondent cannot get any right of tenancy under the alleged Will. Further, it is contended that the 3rd respondent has not examined the attestors of the Will to prove its contents. The suit filed by respondent 3 seeking injunction was decreed by the Munsiffs Court. Against which an appeal was preferred by the petitioners before the learned District Judge, Karwar and the said appeal is still pending. Further, contended that the Tribunal has not conducted the spot inspection and examined the neighbouring villagers of the said land and that the alleged Will is not produced. Therefore, it is contended that the impugned order under challenge is liable to be quashed. Further, contended that petitioners 1 and 3 to 6 are unmarried daughters of late Rama Subraya Naik and that the alleged Will is executed by their father 1 ignoring the rights of the petitioners and as per law, the petitioners are the legal heirs and are entitled to succeed to the estate of late Rama Subraya Naik but not respondent 3. Hence, the impugned order under challenge is not a speaking order and as such it is liable to be quashed. In support of his submission, reliance is placed upon the decision of this Court in Thimmakka Kom Venkanna Naik. Head Note 3, which is extracted as hereunder:
"Under Section 21(1) there is a bar against sub-division or subletting of the land held by a tenant or assignment of any interest thereunder. Any assignment contrary to the said bar is invalid. (Of course, there is an exception in the case of a permanent tenant). This bar cannot be o
