H.V.G. Ramesh, J

Petitioner has sought for quashing the order dated 29-1-2004 passed by the 2nd respondent - Land Tribunal, Raibag at Annexure C and for such other orders.

2. According to the petitioner, her father namely Malkari Devappa Pudalkatti waS personally cultivating the agricultural land in Sy. No.3 to the extent of 11 acres on the southern portion of the same which was in all, measuring 22 acres situate at Alakanur Village of Raibag Taluk, Belgaum and he has also filed Form 7 for granting occupancy rights. The Land Tribunal, Raibag and granted occupancy rights to the father of the petitioner on 20-1-1979. The said order’ was challenged by the 4th respondent before this Court in WP 40056/1993 and this Court remanded the matter to the Tribunal for fresh disposal. According to the petitioner, her grand father was cultivating the land and was in possession of the land in question and after his death, her father was cultivating and on the death of her father, she being the legal heir of the deceased Malkari, she also is cultivating the land in support of which RTC extracts for the year 1980-81 is produced at Annexure-A.

3. Further according to the petitioner, the 4th respondent has clearly stated before the Tribunal that petitioner’s father was cultivating and he was in possession of the land in question and that he has no objection for grant of occupancy rights. However, according to the petitioner, on remand the Land Tribunal granted occupancy rights to third respondent on 29-1-2004 only on the ground that the petitioner’s father had executed a Will in favour of the 3rd respondent as such, claim of the petitioner had been rejected by the said order. Hence, this petition.

4. Heard the Counsel for the petitioner, respondent and the Government Pleader.

5. It is the submission of the petitioner’s Counsel that she is the legal heir of Malkari the original tenant who had been granted with occupancy rights and his right has been recognised by the Land owner and ,she being the sole survivor, the Land Tribunal ought to have granted occupancy rights in her favour. When the legal heir is available, disposing of the property by Will in favour of a third person is illegal and the same cannot be acted upon by the Land Tribunal.

6. Per contra, Counsel for the 3rd respondent submitted that this petitioner is not at all the daughter of Malkari as such, property had been bequeathed in favour of the 3rd respondent who is none other than the brother of Malkari as such, there is no illegality in the order passed by the Land Tribunal. Further more, it is his submission that the documents produced are concocted to knock off the property by the petitioner.

7. Learned Counsel for the petitioner has relied upon the decision in K Achutha Pai Vs. Joseph Tauro and Others, ILR 2003 Kar 3268 to contend that the tenant cannot bequeath his interest in the tenanted property. He has also relied upon the decision of the Supreme Court in the case of Sangappa Kalyanappa Bangi Vs. Land Tribunal, Jamkhandi and Others, ILR 1999 Kar 863 to contend to a similar effect, wherein it is held that the deceased tenant can assign his right only to his heirs referred to in the provisions and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by a legitimate kinship. He has also relied on the decision in the case of Thimmakka Venkanna Naik Vs. Land Tribunal and Others, 1987 (2) KLJ 337 wherein this Court in a Division Bench, referring to Sections 21(1) and 24 of the Land Reforms Act, 1961, has held that statute has preempted succession which cannot be defeated by tenant by bequeathing his interest. Of course, this is in respect of bequeathing the property to a third party.

8. In the decision in the case of Rama Subraya Naik - by his LRs. and Others Vs. State ‘of Karnataka and Others, ILR 2005 Kar 5788, referred by the respondent’s Counsel, referring to sub-section (1) of Section 21 of the Act, this Court has held th