- Bookmark
- Share
- CaseIQ
Timmakka Kom Venkanna Naik v. Land Tribunal
Judgment Summary (Shivashankar Bhat, J.)
Factual and Procedural Background
The appellant is the owner of lands Sy. Nos. 138/1 and 137/1, Agsur village, Ankola Taluk, Uttara Kannada District. Those lands had been leased in favour of one Hammi kom Somagouda, who died on 6-9-1972 and is admitted to have left no heirs. The third respondent (Subba Ayugouda) claimed that Hammi left a Will bequeathing the tenancy-right to him. Relying on the alleged Will, the third respondent filed O.S. No. 156 of 1973 in the Court of the Munsiff at Karwar for a permanent injunction against the appellant; a temporary injunction was granted in that suit and, because tenancy questions arose, the matter was referred to the Land Tribunal.
The appellant also applied to the Land Tribunal seeking registration as an occupant (said application dismissed on 11-11-1975). Respondents 2 and 3 applied under Section 48-A of the Karnataka Land Reforms Act for occupancy rights in respect of four lands; the appellant contested the claim insofar as it concerned the two parcels mentioned above and disputed the genuineness of the alleged Will. The Land Tribunal accepted respondents' claim, relying on the unregistered Will, and declared respondents 2 and 3 to be joint occupants. The appellant challenged the Tribunal's order by writ petition (W.P. No. 6351/1976), which was dismissed by the Single Judge on the basis that the Tribunal had done "substantial justice" and that the appellant could, in an appropriate forum, challenge the genuineness of the Will. The appellant brought this writ appeal against the dismissal.
Legal Issues Presented
- Whether a person can claim the right to be registered as an occupant under Section 45 of the Karnataka Land Reforms Act, 1961 (and thus make an application under Section 48-A) when the claimed right is based on a Will.
- Whether the Land Tribunal can and should examine the genuineness, validity or applicability of a Will when the Will is the basis for claiming tenant/occupancy rights (in light of Section 112(B)(b) as referenced by the court).
- Whether a tenant (here, Hammi) can bequeath his tenancy-right by Will so as to make the legatee a lawful tenant or occupant (i.e., whether tenancy-rights are capable of being transmitted by testamentary disposition).
Arguments of the Parties
Appellant's Arguments
- Counsel for the appellant (Mr. T.S. Ramachandra) argued that Section 21 of the Karnataka Land Reforms Act prohibits sub-division, sub-letting and assignment of any interest in land held by a tenant, and that this bar cannot be circumvented by bequeathing the tenancy-right by Will.
- The appellant relied on the principle (as stated in Mulla's Hindu Law and referred to in the judgment) that a Hindu cannot by will bequeath property which he cannot transfer inter vivos; thus, if a tenant cannot gift or assign tenancy during life, he cannot effect a testamentary transfer of that tenancy-right.
- Statutory provisions (Section 24 and the second proviso to Section 21(1)) show that succession to tenancy on death is regulated by statute (heirs/surviving family), and this statutory succession cannot be defeated by a Will.
Respondents' Position (as recorded)
- The primary basis of respondents 2 and 3's claim was the alleged (unregistered) Will of the deceased tenant (Hammi), and the Land Tribunal accepted and relied upon that Will to find that respondents were in continuous lawful possession and should be registered as occupants jointly.
- Beyond reliance upon the Will as the source of entitlement, specific alternative legal arguments from the respondents are not detailed in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jaspal Singh v. The Additional District Judge, Bulandshahr (1984 4 SCC 434) | Where an Act bars transfer of a tenant's interest during life, the scheme of such an Act does not warrant recognizing a testamentary transfer (i.e., transfer effective after death) of tenancy-rights. | The Court relied on this decision to support the proposition that a tenant cannot validly bequeath tenancy-rights by Will so as to make the legatee a tenant for statutory purposes. |
| Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala (1986 1 SCC 571) | The Supreme Court rejected the contention that a tenant of non-residential premises, continuing in occupation after contract, can bequeath his right of occupation by Will. | The Court relied on this authority (and the underlying reasoning approved there) to reinforce its conclusion that bequest of tenancy/occupation rights is not permissible under the statutory scheme. |
| Dr. Anant Trimback Sabnis v. Vasant Pratap Pandi (AIR 1980 Bombay 69) | Bombay High Court observations that bequest of tenancy rights is essentially a transfer like sub-lease, assignment or other prohibited transfers and thus should fall within statutory prohibitions on transfers "in any manner." | The Supreme Court in Bhavarlal approved these observations; the present Court invokes the same line of reasoning to hold that a testamentary bequest cannot circumvent the bar on transfers of tenancy-rights. |
Court's Reasoning and Analysis
The court proceeded through statutory construction and application to the facts, following these principal steps:
-
Identified statutory framework and relevant dates:
- Section 45 entitles every person who was a permanent, protected or other tenant (or lawful sub-tenant) to be registered as an occupant with effect from the date of vesting.
- Section 44 fixes the date of vesting as 1-3-1974 and provides that lands held by or in the possession of tenants immediately prior to 1-3-1974 shall vest in the State Government; thus, to claim registration a person must have been in the possession of the land as a tenant on 1-3-1974.
- Clarified the meaning of "tenant" (Section 2A(34)) as an agriculturist who cultivates personally the land he holds on lease and noted other statutory categories (e.g., deemed tenants under Section 4), but stressed the common requirement: lawful nature of holding. The court emphasized that one who cultivates without lawful induction cannot claim the status of tenant.
- On the Tribunal's jurisdiction and duty, the court observed that where an application under Section 48-A is based on a Will, the Land Tribunal must determine whether the applicant is a tenant (referring to Section 112(B)(b) and the Tribunal's duty to decide tenancy). Hence the Tribunal may need to examine genuineness/validity/applicability of a Will when such a Will is foundational to the claim.
- However, the court identified a more fundamental question: whether a tenant can, by Will, bequeath tenancy-rights at all. If the tenancy-right cannot be bequeathed, the genuineness of the Will would be immaterial to entitlement.
- Examined Section 21(1) (bar on sub-division, sub-letting and assignment of tenant's interest) and its provisos: the court held that the statutory bar on assignment cannot be circumvented by testamentary bequest. It accepted the textual and purposive reasoning that what a tenant cannot do inter vivos (i.e., assign or gift tenancy-rights) he cannot accomplish by will so as to affect succession inconsistent with the statutory scheme.
- Relied on statutory succession provisions (second proviso to Section 21(1) and Section 24) which allocate rights on death to surviving family or heirs and deem the landlord to have continued the tenancy to such heirs on the same terms. The court reasoned that these statutory succession rules would be nullified if testamentary bequests of tenancy were permitted.
- Supported the statutory construction with judicial authorities (Jaspal Singh; Bhavarlal Labhchand Shah and the Bombay High Court in Dr. Sabnis) that treat testamentary bequests of tenancy as akin to prohibited transfers (sub-lease, assignment, induction of strangers) and therefore within the statutory prohibition.
- Applied law to the facts: because respondents 2 and 3 derived their claim solely from the alleged Will, and because a tenant cannot bequeath his tenancy-right, respondents' cultivation and possession after Hammi's death could not be characterized as lawful tenancy. The appellant had continuously protested registration; consequently, as of 1-3-1974 neither respondent-2 nor respondent-3 was cultivating the lands as tenants. Therefore Sections 44, 45 and 48-A could not sustain their claim.
- Concluded that the Land Tribunal erred in registering respondents 2 and 3 as occupants based on the alleged Will, and that the Single Judge erred in not reversing the Tribunal's order.
Holding and Implications
Final Disposition:
THE APPEAL IS ALLOWED. The order of the learned Single Judge is reversed and the order of the Land Tribunal dated 19-4-1976 in KLR. SR. 51/110/7361 and KLR. SR. 51/168/1089 etc. is quashed.
Implications (direct effects)
- The registration/occupancy rights granted by the Land Tribunal to respondents 2 and 3 on the basis of the alleged Will are set aside.
- The court held that a tenant cannot bequeath the tenancy-right by Will; therefore the respondents could not be considered lawful tenants or occupants under the statutory scheme as of the vesting date (1-3-1974).
- The decision directly affects the parties: respondents lose the occupancy registration granted by the Tribunal; the appellant's objection to such registration is upheld.
Note: The summary above is confined to the matters expressly stated in the provided opinion. It does not include any information or interpretation beyond that opinion.
The Judgment of the Court was delivered by
Shivashankar Bhat, J.:— The owner of the lands in question has filed this Writ Appeal against the dismissal of her W.P No. 6351/1976. The lands are Sy. Nos. 138/1 and 137/1 of Agsur village, Ankola Taluk, Uttara Kannada District. Admittedly the lands were leased in favour of one Hammi kom Somagouda. She died on 6-9-1972. It is an admitted fact that she left no heirs. However, the third respondent (Subba Ayugouda) claimed that there was a Will left by Hammi under which the tenancy right of the deceased was bequeathed to him. Basing his right under the Will, the third respondent filed O.S No. 156 of 1973 in the Court of the Munsiff at Karwar for a permanent injunction against the petitioner in which there was an order of temporary injunction. Since the question of tenancy was involved, the said issue was referred to the Land Tribunal for determination. It is said that petitioner also filed an application before the Land Tribunal seeking registration as an occupant by mistake and the same was dismissed on 11-11-1975. Thereafter the petitioner received a notice of enquiry from the Land Tribunal, obviously arising out of the claim of respondents 2 and 3. They sought occupancy right under Section 48-A of the Karnataka Land Reforms Act in respect of four lands. The appellant is not concerned with the other lands except the two referred above. The appellant objected to the claim of respondents 2 and 3. She also disputed the genuineness of the alleged Will, which was being relied upon by the 3rd respondent.
2. The Land Tribunal upheld the claim of respondents 2 and 3 on the ground that they were in continuous lawful possession as actual cultivators of the lands in question Jointly. For this, the Land Tribunal relied upon the unregistered Will put-forth by the 3rd respondent. A reading of the order of the Tribunal shows that the only basis for its finding was its reliance on the aforesaid unregistered will as conferring a right to the 3rd respondent as a legatee of the deceased tenant. Having come to the said conclusion, the Tribunal declared that respondents 2 and 3 are to be registered as occupants of the lands jointly. There was also an observation that the said order will govern the reference made by the learned Munsiff, Karwar, in O.S No. 156 of 1973.
3. The appellant challenged this order of the Land Tribunal. The learned Single Judge held that admittedly the lands had been leased in favour of Hammi, who was in possession till her death on 6-9-1972. On her death 3rd respondent and his people started cultivating the lands in question. Therefore, the learned Single Judge proceeds on the assumption that ‘the Tribunal has done substantial justice between the parties’ and therefore it is not a matter for interference in writ proceedings. There is a further observation that the finding of the Land Tribunal regarding the genuineness of the Will will not preclude the appellant from taking appropriate steps available in law to challenge the said finding and that the decision of the Tribunal “will be subject to the decision of that forum or authority competent to decide the question of the genuineness of the Will”. Writ Petition was dismissed. The appellant has come up in appeal against this order.
4. The first question that arises for consideration is as to when a person can claim right under Section 45 of the Karnataka Land Reforms Act, 1961 for registration as an occupant. Under Section 48-A only a person entitled to be registered as an occupant under Section 45 may make an application to the Land Tribunal.
5. As per Section 45, every person who was a permanent tenant, protected tenant or other tenant or where a tenant has lawfully subject, such sub-tenant shall with effect on and from the date of vesting be entitled to be registered as an occupant. The date of vesting as per Section 44 is 1-3-1974. Under Section 44 all lands held by or in the possession of tenants immediately prior to 1-3-1974 shall vest in the State Government, Therefore, the condition precedent is the land should be in the possession of a tenant as on 1-3-1974.
6. ‘Tenant’ means an agriculturist who cultivates personally, the land he ‘holds on lease’, from a landlord, vide Section 2A(34). Of course, there are certain other categories of persons who are also included in the definition of ‘tenant’ such as ‘deemed tenant’ under Section 4 and a person who was protected from eviction earlier and a person governed by Section 5. But in all these cases the common ingredient is the lawful nature of the holding by the person who cultivates the land. In other words, no person can be called a tenant unless he cultivates the land lawfully and the lawful nature will have to be substantiated by a lease or by the factors stated in Section 4 etc. A person who is not inducted lawfully, but cultivates the land, cannot claim the status of a tenant at all.
7. The next question is, whether the Land Tribunal can go into the question of the validity or applicability of the Will. When an application filed under Section 48-A of the Act comes up before the Tribunal, it has to necessarily examine the question as to whether the applicant is a tenant or not Under Section 112(B)(b), it is the duty of the Tribunal to decide whether a person is a tenant or not. Therefore, it may be necessary for the Land Tribunal to go into the question of the genuineness or the validity of a Will whenever such a Will is the basis of a claim of a person, claiming to be a tenant. Here respondent-3 can succeed only on the basis of the Will and in fact the Tribunal granted the relief to respondents 2 and 3 solely on the basis of the Will. To that extent the Land Tribunal has to examine the validity, genuineness or applicability of the Will.
8. In this case it is not necessary to go into the question of genuineness of the Will. The real question is, whether respondent-3 can rely upon the will purporting to bequeath to him the right of a tenant in respect of the lands in question. If a tenant cannot bequeath his tenancy right, it is entirely immaterial whether the will is genuine or not. This question has not been considered by the learned Single Judge nor by the Land Tribunal.
9. The real question for consideration is, whether Hammi (tenant) could have bequeathed her right of tenancy to the third respondent under a Will?
10. Mr. T.S Ramachandra, learned Counsel for the appellant pointed out that Section 21 of the Act prohibits sub-division, sub-letting and assignment of any interest in the land held by a tenant. However, the second proviso to Section 21(1) makes the position very clear by declaring that when a tenant dies, his heirs or the surviving members of his family shall be entitled to the partition and sub-division of the lands leased. Section 21(1) reads thus:—
“Sub-division, sub-letting and assignment prohibited—(1) No sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be valid:
Provided that nothing in this sub-section shall affect the right, if any, of a permanent tenant;
Provided further that if the tenant dies,—
(i) if be is a member of joint family, the surviving members of the said family: and
(ii) if he is not a member of a joint family, his heirs shall be entitled to partition and sub-divide the land leased, subject to the following conditions:
(a) each sharer shall hold his share as a separate tenant;
(b) the rent payable in respect of the land leased shall be apportioned among the sharers, as the case may be, according to the share allotted to them:
(c) the area allotted to each sharer shall not be less than a fragment;
(d) if such area is less than a fragment the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds.
(e) xx xx (omitted as unnecessary)”.
11. The contention of the learned Counsel is that when there is a prohibition against assignment of any interest by the tenant, it follows that the said provision cannot be circumvented by bequeathing the said interest. In other words, the bar against the transfer of the tenancy right includes a bar against transferring such a right to be effective after the life time of the tenant. For the said proposition, Counsel relies on a passage from Mulla's Hindu Law (XV edn.) at page 483, para 368: It is stated therein that according to the Mitakshara Law, a Hindu cannot by will bequeath the property which he cannot gift intervivos. From this it follows that if a Hindu tenant cannot gift his tenancy interest, he has no right to transfer it by way of bequeathing it under a will so that the transfer may become effective on his death.
12. We are inclined to agree with this proposition. It is clear that, 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 over-come by a tenant by creating a Will. What he cannot do during his life time 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. Section 24 of the Act states that “where a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death”. This statutory provision is also against the concept of bequeathing the tenant's interest by will, statute has peremptorily provided the succession which cannot be defeated by the tenant by bequeathing his interest.
13. Two decisions of the Supreme Court were also referred, in support of his contention by the learned Counsel. In Jaspal Singh v. The Additional District Judge, Bulandshahr . 1984 4 SCC 434 a question arose under U.P Act 13/1972. There was a bar against transfer of the tenant's interest during his life time. Similarly, if a tenant sub-leases the premises, he was liable to be ejected. Therefore, it was held that the scheme of the Act did not warrant the transfer of the tenancy right, to be effective after the life time of the tenant. Thus the claim of the nephew of the tenant who claimed the right under a Will executed by the deceased tenant was rejected.
14. In Bhavarlal Labhchand Shah v. Kanaiyalal Nathalal Intawala . 1986 1 SCC 571 the question was whether the tenant of a non - residential premises continuing in occupation after the period of contract is over, can bequeath his right of occupation by will. The Supreme Court negatived such a contention. The Supreme Court approved the observations of the Bombay High Court in Dr. Anant Trimback Sabnis v. Vasant Pratap Pandi . AIR 1980 Bombay 69. which were extracted as follows:—
“Bequest of tenancy rights in this context stands on the same footing as any other transfer by sub-lease, sale, assignment, gift, volition of the tenant in inducting uncontemplated strangers in the premises and thrusting them on the landlord, being the common element of these dispositions. It makes little difference to the invasion on the landlord's right whether such uncontemplated stranger is so inducted by the tenant for gain or just as a favour invasion in either case having no nexus with the object underlying these protections. It is difficult to imagine why the legislature could have intended to exclude such bequests from the sweep of the prohibited assignments and transfers under Section 15, when bequest is pregnant with the same evils as other transfers. The words ‘transfer in any manner’ in this context only go to signify inclusion of ‘bequest’ also therein”.
15. Having regard to the above decisions, we are of the opinion that the deceased Hammi could not have bequeathed the tenancy right in favour of respondents 2 and 3 or to any one of them. If so, any possession and cultivation by respondents 2 and 3, after the death of the original tenant Hammi, cannot be termed as lawful and they cannot be termed as tenants. It has also come on record that throughout there was protest by the appellant against registering the names of respondents 2 and 3 or any one of them as a tenant in the record of rights. Therefore, as on 1-3-1974 neither respondent-2 nor respondent-3 was cultivating the lands in question as a tenant and hence Sections 44, 45 or 48-A of the Act cannot govern their claim. The Land Tribunal erred in granting occupancy right in favour of respondents 2 and 3 on the basis of the alleged will and hence the same is liable to be set aside. In this view of the matter, the learned Single Judge should have reversed the order of the Land Tribunal. Therefore, the order of the learned Single Judge also cannot be sustained.
16. In the result, for the aforesaid reasons, we allow the appeal, reverse the order of the learned Single Judge and quash the order of the Land Tribunal dated 19-4-1976 passed in No. KLR. SR. 51/110/7361 and KLR. SR. 51/168/1089 etc.
Alert