The main legal point established in the judgment is that the creation of a will in respect of the land is not prohibited under Section 61 of the Karnataka Land Reforms Act and does not amount to contravention.

( 1 ) THIS appeal arises out of judgment and decree passed by Addl. Civil Judge, Sr. Divn. Udupi, dakshina Kannada in R. A. No. 36/1988 arising out of judgment and decree passed by Addl. Munsiff and JMFC, in O. S. No. 225/84.

( 2 ) THE appellants who are the plaintiffs filed a suit for delivery of possession of suit schedule house consisting of two tenements and recovery of mesne profits. The plaintiffs contended that the suit house situated in survey No. 64/2 of Ambalpady village in Udupi Taluk along with agricultural land was granted by the Land Tribunal in favour of the father of the plaintiffs by name Raju Poojary. The said house was leased in favour of the defendant on monthly rent of Rs. 10/ -. During the life time, Raju Poojary executed a Will bequeathing the land and the said house in favour of the plaintiffs. Raju Poojary died on 21. 7. 1999. The plaintiffs issued a notice under section 106 of T. P. Act, to seek possession of the same.

( 3 ) THE defendant in the written statement denied the relationship of landlord and tenant contended that the rent deed produced is held to be forged and concocted. Further, contended that he is a tenant of agricultural land and he has filed Form No. 7 before the Tribunal for grant of occupancy rights, therefore the suit is not maintainable.

( 4 ) THE Trial Court on the basis of evidence adduced by the parties, rejected the contention of the defendant that the Civil Court has no jurisdiction to entertain the matter on the ground that Form no. 7 is filed for grant of occupancy rights. The relevant issues 6 and 7 have been decided as jurisdictional issues by order dated 21. 1. 1986. The Trial Court found as a fact that the defendant has failed to place necessary material to show the filing of Form No. 7 or 2 (A) for grant of occupancy rights in respect of property in question. The documents to show filing of the application and acknowledgment given have not been produced. Thus, the Trial Court decided issues 6 and 7 against the defendant. It was contended before the Trial Court that the suit of the plaintiff is not maintainable, in view of the provisions of Section 61 of the Land Reforms Act (herein after referred to as "act" for short ). For convenient reference, the provisions of Section 61 of the Act, are extracted below: 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. (2) Notwithstanding anything contained in Sub-section (1), it shall be lawful for the occupant registered as such or his successor - in -title to take a loan and mortgage or create a charge on his interest in the land in favour of the State Government ( a financial institution, a co-operative land development bank, a co-operative society) or a company as defined in Section 3 of the companies Act, 1956, in which not less than fifty one percent of the paid up share capital is held by the State Government or the State Government or both for development of land or improvement of agricultural practices and without prejudice to any other remedy provided by any law, in the event of his making default in payment of such loan in accordance with the terms and conditions on which such loan was granted, it shall be lawful to cause his interest in the land to be attached and sold and the proceeds to be utilised in the payment of such loan. (3) Any transfer or partition of land in contravention of sub section shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provision