Channabasappa vs Fakkiravva

B.V. Nagarathna, J.—1. The plaintiff in O.S. No. 137/1995 has preferred this second appeal assailing judgment and decree passed by the Principal District Judge, Dharwad, in R.A. No. 18/2005 dated 17.09.2009, confirming the judgment and decree dated 23.02.2005 passed by the II Addl. Civil Judge (Sr. Dn.), Dharwad in O.S. No. 137/1995.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

The appellant-plaintiff filed suit seeking the relief of declaration of title and consequential injunction in respect of agricultural land bearing block No. 63/A-2 measuring 1 acre 29 guntas situated at Navalur village, Dharwad Taluk. According to the plaintiff, defendant is the daughter of late Mallavva and late Bheemappa. She is married and residing with her husband. Late Bheemappa was tenant of the suit land. On his demise his wife Mallavva succeeded as tenant. After enforcement of the Land Reforms Amendment Act in the year 1974, Mallavva applied to the Tribunal for grant of occupancy right in respect of the suit land. The Land Tribunal by an order dated 25.09.1979 was pleased to grant occupancy right of the suit land to late Mallavva and her daughter, that is the present defendant. Form No. 10 was also issued by the Land Tribunal on 22.07.1982 in the name of late Mallavva and her daughter the defendant, their names were entered by virtue of M.E. No. 6162. Subsequently, defendant relinquished her rights in the suit land in favour of her late mother Mallavva by giving wordi and M.E. No. 6619 dated 02.09.1986 came into existence. Consequently, late Mallavva had the absolute right, title and interest in respect of the suit land. She was in actual possession and cultivation of the same.

The plaintiff and late Mallavva belong to Navalur. According to the plaintiff since his childhood plaintiff treated late Mallavva as his mother and Mallavva treated him as her son as she had no male issues. Out of love and affection, Mallavva executed a registered Will in respect of the suit land in favour of the plaintiff on 15.10.1986. The plaintiff, after the demise of Mallavva, filed a wardi before the Village Accountant and his name was mutated in the revenue records by virtue of M.E. No. 6664. According to the plaintiff, defendant was well aware of the execution of the will by late Mallavva, who died on 23.07.1993. Plaintiff is the absolute owner of the suit land by virtue of the bequest made in his favour by late Mallavva and was cultivating the land but the defendant having been instigated by certain persons filed objections to the application filed by the plaintiff for entering his name in the revenue records. Overruling the objections, the Taluk Sheristedar passed an order dated 28.04.1994 and mutated name of the plaintiff in the revenue records. The defendant preferred RTS AP No. 25/94-95 before the Assistant Commissioner, Dharwad, against entry of the name of the plaintiff in the revenue records. The said appeal was allowed. Consequently, defendant started interfering with the peaceful possession and enjoyment of the suit land by the plaintiff. Therefore, the plaintiff was constrained to institute the suit seeking declaration and consequential injunction.

On receipt of suit summons and Court notices the defendant appeared before the trial Court and filed her written statement contending that she was residing with her late mother and her husband at Navalur even after her marriage, that the defendant and her husband were taking care of Mallavva who was in actual possession and cultivation of the suit land till her death. After her demise defendant alone is entitled to actual possession and cultivation, that the plaintiff gave wardi to enter his name in the revenue records on the basis of false and concocted will alleged to have been executed by late Mallavva. That the defendant was never aware of the existence of such a Will during the lifetime of Mallavva, that the defendant is a stranger to the family, he has no right, title or interest whatsoever in respect of the suit land, that the plaintiff approached the defendant and her mother stating that some compensation would be awarded in respect of the land and took thumb impression of the defendant and her mother on blank sheets of paper which was utilized to create a relinquishment deed by the defendant in favour of the mother and subsequently the Will was got up on the blank sheets of paper. That the plaintiff has fraudulently created a document styled as "will". There was no reason for the defendant to relinquish her rights in respect of the suit land in favour of her mother nor for the mother to execute the Will in favour of the plaintiff. It is also contended that there is a legal bar under the provision of Sec. 61 of the Karnataka Land Reforms Act with regard to any kind of transfer of land including the making of a Will, for a period of 15 years, in respect of tenanted land, the occupancy rights of which have been granted to a tenant. Therefore, the Will is not a legally enforceable document. Contending that the plaintiff has no right, title or interest in respect of the suit land defendant sought for dismissal of the suit.

On the basis of the rival pleadings the trial Court framed the following issues and additional issues for its consideration.

ISSUES

(1) Whether plaintiff proves that Smt. Mallawwa executed a Will in respect of the suit property bequeathing the same to the plaintiff?

(2) Is the plaintiff entitled for the declaration sought for?

(3) Whether the plaintiff proves that defendant also belongs to the community of the plaintiff?

(4) Whether the defendant proves that the Will is concocted and created document?

(5) Whether the defendant further proves that by inspiring confidence, the plaintiff obtained thumb impression on blank papers on 4-5 occasions on the pretext of getting higher compensation and used the same for the Vardi to enter the name of the plaintiff?

(6) Whether the plaintiff proves that he is in possession of the suit property?

(7) Whether the defendant proves that he is in possession of the suit property?

(8) Whether the suit is not maintainable for want of declaration without prayer for possession?

(9) Whether the defendant is entitled for compensatory costs of Rs. 5000/-?

ADDL. ISSUES

(1) Whether plaintiff proves that the defendant has relinquished her half share in favour of her mother?

(2) Whether the plaintiff proves that the defendant has lost her right by the alleged wordi and its certification of M.E. No. 6619 on 2.9.1986 of Navalur village?

(3) Whether the Wardi and its certificate of ME No. 6619 of Navalur village are against the provisions of law, i.e., The Karnataka Land Reforms Act and Indian Registration Act?

(4) Whether the plaintiff proves that the deceased Mallavva was the owner of the entire suit land?

In support of his case the plaintiff examined himself as P.W. 1 and three other witnesses were examined as P.Ws. 2 to 4. He produced 30 documents which were marked as Exs. P. 1 to 30 while defendant examined herself as DW 1 and another witness was examined as DW 2. 12 documents were produced as Exs. D1 to 12. On the basis of the said evidence the trial Court answered issue Nos. 1 to 3, 6 and additional issue Nos. 1, 2 and 4 in the negative and issue Nos. 4, 5, 7 to 9 and additional issue No. 3 in the affirmative and dismissed the suit with costs and compensatory costs of Rs. 1,000/-, by judgment and decree dated 23.02.2005. Being aggrieved by the dismissal of the suit, plaintiff filed R.A. No. 18/2005 before the first appellate Court which on hearing the learned counsel for the parties framed the following points for its consideration.

POINTS

1) Whether the plaintiff proves that late Mallawwa executed her last Will and testament dated 15.10.1986 bequeathing the suit schedule property to the plaintiff and the said Will was duly executed by her in accordance with law being in sound state of mind?

2) Whether the plaintiff proves that he has become the owner of the suit schedule property by virtue of the aforesaid Will?

3) Whether the plaintiff is entitled for an order of perpetual injunction against the defendant?

4) Whether the plaintiff is entitled for an order to the Revenue Authorities to enter his name in the revenue records?

5) Whether the impugned judgment and decree suffers from any error of law and fact calling for interference by this Court?

All the points were answered in the negative and the appeal was dismissed confirming the judgment and decree of the trial Court. Being aggrieved by the judgment of the first appellate Court the plaintiff has preferred this second appeal.

I have heard arguments of learned counsel for the appellant and learned counsel for the respondent and perused material on record.

Learned counsel for the appellant contended that the Courts below were not right in holding that the plaintiff had not proved the Will of late Mallavva dated 15.10.1986 in accordance with law. She submitted that after marriage of the defendant-Fakkiravva, she resided with her husband. Bheemappa, husband of Mallavva predeceased her. She was all along alone at Navalur. Plaintiff being the neighbour of late Mallavva knew her since his childhood. Late Mallavva treated him as her own son, showered her love and affection on him and ultimately recognizing and appreciating the fact that the plaintiff was looking after Mallavva till her end, she had executed Will dated 15.10.1986 in favour of the plaintiff. Mallavva died on 23.07.1993. Defendant and her husband are witnesses to the said Will executed by late Mallavva in favour of the plaintiff. The said Will is a registered document. The Will was proved in accordance with law by examining the attesting witnesses, there was no suspicious circumstances surrounding execution of the Will. Therefore, the Courts below ought to have accepted the validity of the Will and recognized plaintiff as successor under the Will in respect of the suit schedule property. She contended that substantial questions of law with regard to the validity of the Will would arise in this appeal and the appeal may be admitted for a detailed hearing.

Per contra learned counsel for the respondent at the outset, contended, that the Courts below were right in not accepting validity of the Will. Assuming for a moment that the Will was valid, such an instrument cannot be enforced on account of Section 61 r/w. Sec. 2(12) of the Karnataka Land Reforms Act, 1961 (for short referred to as ''Act'' for the sake of brevity). He contended that under Section 61 of the Act there is a bar for alienation with regard to the tenanted land, the occupancy rights of which are registered in the name of the tenant as no alienation can be made for a period of 15 years from the date of registration of the occupancy rights. That, in the instant case, the order of the Land Tribunal is dated 25.09.1979. Form No. 10 was issued on 22.07.1982 in favour of late Mallavva and the present defendant. The Will has been executed on 15.10.1986. The execution of the Will is within the non-alienation period. Therefore, the Will cannot be looked into for the purpose of declaration of title in favour of the plaintiff. In this regard he placed reliance on the judgment of the Supreme Court in the case of Jayamma Vs. Marla Bai dead by Proposed LRs. And Another reported in , ILR 2004 KAR 3975, to contend that the plaintiff is a stranger to the family and he does not belong to the family of Mallavva and Fakiravva, the defendant, who was registered as occupants in respect of the suit land. Therefore the Courts below were justified in dismissing the suit of the plaintiff. No substantial questions of law would arise in this appeal and therefore he would submit that the appeal may be dismissed in limine.

Having heard learned counsel for the parties and on perusal of the material on record it is noted that the facts detailed above are all admitted facts, in the sense that insofar as the land in question is concerned, the suit land was a tenanted land, late Mallavva and Fakiravva, the defendant were registered as occupants of the said land by order of the Land Tribunal dated 25.09.1979. Form No. 10 was issued by the Land Tribunal, Dharwad on 22.07.1982 in the name of late Mallavva and the defendant Fakkiravva. They have been in continuous cultivation of the said land thereafter. It is also noted that the registered Will on the basis of which the plaintiff is seeking the relief''s in the suit is dated 15.10.1986, execution of the Will falls within the bar stated in Section 61 of the Act.

In Jayamma''s case the Hon''ble Supreme Court has held that the expression "family" in the act is defined in Sec. 2(2) and the expression "joint family" is defined in Sec. 2(17) of the Act. They read as under:

"2(12) "Family" means-

(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;

(b) in the case of an individual who has no spouse such individual and his or her minor sons and unmarried daughters;

(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and

(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;"

"2(17) "Joint family" means in the case of person governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence."

Relevant portion of Sec. 61 of the Act reads as under:

"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) .....

(3) Any transfer or partition of land in contravention of sub-section (1) shall be invalid and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the provisions of Section 77."

On a combined reading of the aforesaid provision it becomes clear that if any transfer is made in respect of the land of which occupancy rights have been granted in contravention of sub-section 1 of Section 61, then such land would vest in the State Government free from all encumbrances and shall be disposed in accordance with u/s. 77 of the Act.

The Hon''ble Supreme Court in the aforesaid case held that the execution of a Will within the period of non-alienation in favour of a person would come within the scope of the expression "assignment". Such a will would be void, ab-initio and therefore non-est in the eye of law. That what is permitted under Section 61 is only partition of the land amongst the members of the family.

The legislative intent that the land should not be allowed to go to the hands of a stranger to the family by transfer, including by way of sale, gift, exchange, mortgage, lease and assignment, which would include by a bequest, is to ensure that strangers to the family of a tenant do not come upon the land. Therefore, the expression "assignment" was held to include a Will.

In the instant case it is admitted that the plaintiff does not belong to the family of the testatrix, Mallavva. He is stated to be a neighbor of Mallavva, who knew her since his childhood. Possibly if the Will had been made by late Mallavva in favour of a member of her own family it may have been certified as a valid document, if it was valid in all other aspects. But, the Hon''ble Supreme Court having regard to the object of Sec. 61 of the Act held that where a Will is made in favour of a person who is a stranger to the family of the occupant and if such a Will is within the period of non alienation then it would be hit by Sec. 61 of the Act. Therefore, having regard to the dictum of the Hon''ble Supreme Court it is held that the Will of late Mallavva dated 15.10.1986 is not a valid document, it is void ab-initio and therefore non-est in the eye of law.

The matter should end at this, but the trial Court as well as the first appellate Court have also considered the question of validity of the Will as the suit was not dismissed based on Sec. 61 of the Act. Both the Courts have held concurrently that the Will was not a valid instrument, the Courts have come to the conclusion that execution of the Will was shrouded in suspicious circumstances. Reference has been made to the leading Judgment of the Hon''ble Supreme Court with regard to the principles of proof of Wills reported in , AIR 1959 SC 443 (H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others) and have concurrently held that propounder of the Will did not satisfy the conscience of the Court with regard to the validity of the said document. Therefore, on this aspect also the plaintiff has failed in the matter.

I do not find any lacuna in the judgments of the Courts below. No substantial question of law arises in this appeal. The appeal is dismissed. Parties to bear their respective costs.

In view of the dismissal of the appeal Misc. Cvl. No. 109244/2009 filed for stay stands dismissed.