Krishna Laxman Kokitkar vs Shakuntala and Others

B.V. Nagarathna, J.—1. Though this appeal is listed for admission, with the consent of learned counsel for parties, the appeal is taken up for final disposal.

This appeal is preferred by defendant No. 1 in O.S. No. 347/2005, assailing judgment and decree passed in R.A. No. 147/2008, dated 29/7/2010, by the III Addl. District Judge, Belgaum, confirming the judgment and decree dated 19/03/2008, passed in O.S. No. 347/2005, by the III Addl. Civil Judge (Sr.Dn.), Belgaum.

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

Respondent No. 1 herein filed the suit, seeking partition and separate possession of the suit properties consisting of agricultural land bearing RS. No. 82/2, measuring 1 acre 16 guntas and 8 annas, situated at Anagol Village, Belgaum, and a farm house existing in the said land, measuring east to west 10 ft. and north to south 25 ft.

It is the case of the plaintiff that she and defendant Nos. 1 and 2 are the children born to Khatchubai. Since Laxman Kokitkar father of plaintiff, had no male issue, he adopted his grand son-defendant No. 1, son of plaintiff with her consent, under a registered adoption deed dated 31/7/1964. Laxman died on 7/11/1964 leaving behind his widow Janakubai, daughter Khatchubai and adopted son-defendant No. 1. They succeeded to the estate of deceased Laxman and they continued enjoyment of properties held by Laxman. After the death of widow of Laxman namely, Janakubai, defendant No. 1 and Khatchubai continued in joint possession and enjoyment of the suit properties. Laxman was a protected tenant of RS. No. 82/1 and RS. No. 82/2. After coming into force of Karnataka Land Reforms Amendment Act, 1974 (hereinafter referred as "the Act"), defendant No. 1 filed a declaration in Form No. 7 for grant of occupancy rights in respect of the suit properties and other properties held by Laxman. The Land Tribunal rejected the claim of defendant No. 1 and the order of the Land Tribunal was assailed before this Court, which remanded the matter for fresh consideration. Thereafter, the appellate authority was constituted. The said appellate authority heard the matter and granted occupancy rights in respect of suit properties and other properties in favour of defendant No. 1. According to the plaintiff, grant of occupancy right in the name of defendant No. 1 was for, and on behalf of the family and not in his individual capacity. Therefore, the suit properties are joint family properties is the averment in the plaint.

Khatchubai, during her lifetime, purchased RS. No. 82/1 for Rs. 5,000/- under a registered sale deed dated 8/2/1973. She converted the said land into non-agricultural property and formed a layout. Khatchubai, defendant Nos. 1 and 2 and plaintiff entered into a family arrangement according to which, plots were allotted to plaintiff, defendants and late khatchubai. They sold the plots formed in suit lands to different persons. Khatchubai died on 16/6/1984, leaving behind plaintiff and defendant No. 2 as her legal heirs. Plaintiff and defendants continued in joint possession and enjoyment of suit properties. There was no partition in respect of suit properties between the parties. In the last week of May, 2005, plaintiff demanded partition of the suit properties. Defendants refused to agree for a partition. Therefore, plaintiff sent a notice to defendant No. 1, calling upon him to divide the properties and allot her 1/4th share. Defendant No. 1 did not effect partition and did not even reply to the said notice. Therefore, plaintiff filed the suit seeking her 1/4th share in the suit properties.

On service of suit summons and court notices defendant Nos. 1 and 2 appeared through their advocates and defendant No. 1 filed his written statement, while defendant No. 2 filed a memo adopting the written statement of defendant No. 1.

Defendant No. 1, in his written statement, while admitting the relationship between the parties stated that he was an adopted son of late Laxman under a registered deed of adoption. He admitted death of his adoptive mother Janakubai and that his natural mother is Khatchubai. That his adoptive father Laxman was cultivating several agricultural lands as a protected tenant including RS. Nos. 82/1 and 82/2. On the demise of Laxman, defendant No. 1 succeeded to all his properties and continued to enjoy the properties as a protected tenant. His name was entered in the revenue records in respect of RS. Nos. 82/1 and 82/2. After coming into force of the Act, he filed an application in Form No. 7 for grant of occupancy rights in his individual capacity. Therefore, the suit properties are the absolute properties of defendant No. 1 and not joint family properties. Defendant No. 1, further, contended that plaintiff preferred W.P. No. 5585/1990 before this court regarding grant of occupancy right in the name of defendant No. 1 and the same came to be dismissed. Therefore, it was not open for plaintiff to contend that Form No. 7 was submitted by defendant No. 1 for, and on behalf of all members of the family. Plaintiff or defendant No. 1 have no right over the suit properties. Defendant No. 1 got his written statement amended and included some more additional defences to the effect that the suit was bad for non-joinder of necessary parties and that all properties belonging to Laxman were not included in the suit. Therefore, he sought dismissal of the suit.

The trial court, on the basis of the said pleadings, framed the following issues for its consideration:

"i) Whether the plaintiff proves that his mother had 1/2 undivided share in suit property?

ii) Whether plaintiff proves that he has got share in suit property? If so, what is extent of his share?

iii) Whether the plaintiff is entitled for partition and separate possession?

iv) Whether the plaintiff is entitled for decree?

v) What decree or order?"

In support of her case, plaintiff examined herself as PW1 and produced 7 documents, which were marked as Exs.P-1 to P-7. Defendant No. 1 got examined himself as DW1, which were marked as Exs.D-1 to D-7 and produced 8 documents. On the basis of the said evidence, the trial court answered issue Nos. 1, 3 and 4 in the affirmative and on Issue No. 2 held that plaintiff is entitled to 1/4th share in the suit properties and thereafter decreed the suit of the plaintiff by holding that plaintiff is entitled for 1/4th share in the suit properties by metes and bounds.

Being aggrieved by the said judgment and decree of the trial court, defendant No. 1 filed R.A. No. 147/2008 before the first appellate court, which after hearing the counsel for respective parties framed the following point for its consideration:

"Whether learned trial judge is grossly erred in properly appreciating the oral and documentary evidence adduced by both the parties in the light of settled principles of law and that whether inference by this Court in the impugned judgment and decree is necessary?"

The first appellate court answered the said point in the negative and dismissed the appeal by confirming the judgment and decree of the trial court vide judgment and decree dated 29/7/2010. Being aggrieved by the judgment and decree of the first appellate court, defendant No. 1 has preferred this second appeal.

I have heard learned counsel for appellant and learned counsel for respondent as well as perused the material on record.

It is contended on behalf of the appellant that the courts below were not right in decreeing the suit filed by the plaintiff, as the plaintiff is the daughter of Khatchubai. She is not entitled to any share in the tenanted lands. That the lands are also not available for partition as the tenancy issue has not yet been decided by the trial court. When an issue regarding tenancy arises, under Section 133 of the Act, the trial court ought to refer the matter to the Land Tribunal for adjudication. The trial court as well as the first appellate court have granted a decree of partition and separate possession to the plaintiff by ignoring Section 133 of the Act. He, further, vaguely contended that the plaintiff did not include all joint family properties for partition and therefore, the suit was not maintainable in view of all properties not being included in the suit. Therefore, he contended that substantial questions of law would arise in this appeal, which would require admission of the matter for a detailed consideration.

Learned counsel for appellant further relied on a judgment of the Division Bench of this Court in Nimbavva v. Channaveerayya [, 2015 (1) KCCR 205 (DB)], to contend that a married daughter is not entitled to any share in tenanted lands.

Per contra, learned counsel for the respondent, supporting the judgment of the first appellate court submitted that when relationship between the parties is admitted, all that the plaintiff is seeking is, right, title and interest along with defendant No. 1 as legal representative of Khatchubai their mother, who in turn was a heir of Laxman, the original tenant. She contended that under Section 24 of the Act, when the original tenant Laxman died, his legal heirs in relation to the tenancy were Khatchubai and adopted son of Laxman i.e., defendant No. 1, who inherited the tenancy equally. On the death of Khatchubai, her children, namely plaintiff and defendant No. 2 inherited the tenancy to an equal share. Therefore, the courts below have only adjudicated upon the issue of partition in the suit schedule properties, which are tenanted lands, as Khatchubai had inherited the tenancy from her father, from which the plaintiff and defendant No. 1 inherited the tenancy on the death of Khatchubai their mother. She contended that in view of Section 24 of the Act, the suit filed by the plaintiff was maintainable. She also contended that this is not a case where Section 133 of the Act would apply as if, a tenancy issue had to be adjudicated between the parties. The tenancy issue is not one concerning between the legal heirs of Laxman including the plaintiff and defendants. It is concerning landlord and plaintiff and defendants as tenants and when once that is decided, then the plaintiff as a legal heir of Khatchubai, who has also inherited the original tenancy from Laxman would also get a share in the suit properties. All that the trial court and first appellate court have done is, granted a decree of partition of the suit properties by adjudication of the same and not the issue of tenancy between the landlord and tenant. In support of her contention, she placed reliance on a decision of the Hon''ble Supreme Court in the case of Balawwa v. Hasanabi [, (2000)9 SCC 272] (Balawwa), which has been followed by a learned single Judge of this Court in Rati Alias Varija v. State of Karnataka [, ILR 2005 Kar. 5219] (Rati Alias Varija). She therefore contended that there is no merit in the appeal as no substantial question of law would arise in this appeal. Hence, the appeal may be dismissed, in limine.

Having heard the learned counsel for the parties and on perusing the material on record, it is noted that the relationship between the parties is not in dispute. The original propositus is one Laxman, who was the father of Khatchubai. Khatchubai was married to one Vaiju Joshi. Plaintiff and defendant Nos. 1 and 2 are children of Khatchubai and Vaiju Joshi. As her father Laxman Kokitkar and his wife Janakubai had no male issue, they adopted defendant No. 1 with the consent of Khatchubai and Vaiju Joshi. The registered adoption deed is dated 31/7/1964, by which defendant No. 1, son of Khatchubai, became the brother of Khatchubai as the adopted son of Laxman. Laxman died on 7/11/1964. When he died, he was a protected tenant of the suit properties. As per Section 24 of the Act, on the death of a tenant, 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. Therefore, Khatchubai as daughter of Laxman along with defendant No. 1 inherited the tenancy in respect of the suit properties on the death of Laxman. After coming into force of Karnataka Land Reforms Amendment Act, 1974, defendant No. 1 filed an application for grant of occupancy rights. When he filed that application, there was no partition in respect of the suit properties. The family had remained joint. Therefore, the rights of Khatchubai and her adopted brother-defendant No. 1 in the tenancy remained joint. When once the tenancy is declared in favour of defendant No. 1, because it was only he who had filed Form No. 7, that would inevitably enure to the benefit of Khatchubai and her children as the family was joint when Form No. 7 was filed by her adopted brother-defendant No. 1. Therefore, the right that Khatchubai had in the suit properties is, by virtue of the original tenancy. Her share would be in accordance with what she would be entitled to, when ultimately the occupancy rights are registered in the name of defendant No. 1, which would enure to the benefit of the whole family, in which event, Khatchubai and defendant No. 1 would be entitled to half share each in the tenancy. The rights of Khatchubai on her death would be inherited by her children namely, plaintiff and defendant No. 2. The husband of Khatchubai, Vaiju Joshi had pre-deceased her and defendant No. 1 who was her son became her adopted brother and thus, he cannot claim any right, title and interest in the suit lands as the legal heir of Khatchubai. His share in the suit lands is from his adoptive father, Laxman. Having regard to this aspect of the matter, the trial court as well as the first appellate court granted plaintiff and defendant No. 2, 1/4th share each in the suit properties and half share to defendant No. 1.

Having regard to Section 24 of the Act and in view of what has been discussed above, it is held that both Khatchubai as well as defendant No. 1 as daughter and adopted son of Laxman the original tenant, were entitled to inherit the tenancy rights in the suit schedule properties, being brother and sister and as children of Laxman, they being Class-I heirs are entitled to equal share in the tenancy. On the death of Khatchubai, the tenancy was inherited by her children, plaintiff and defendant No. 2. The right that her children have in the tenancy is 1/4th share each. Therefore, all that the plaintiff is seeking is an assertion of that right. Section 24 does not make any distinction between a male and a female heir and much less does it make any distinction with regard to a married daughter. Therefore, contention raised with regard to a married daughter not being entitled to a share in the tenancy rights, is incorrect.

The other contention raised by learned counsel for the appellant is that the suit lands are not available for partition as tenancy rights are yet to be declared. In this regard, the contention of the learned counsel for plaintiff-respondent No. 1 herein is that the suit was filed after the Land Tribunal registered occupancy rights in respect of the suit lands in favour of defendant No. 1 and once that has been done, the plaintiff and defendant No. 2 were entitled to their share in the suit lands. Even if it is assumed that the matter is remanded to the Land Tribunal for fresh consideration, even then, it cannot be contended that the suit lands are not available for partition. Ultimately, when Form No. 7 filed by defendant No. 1 is accepted and the lands are registered in the name of defendant No. 1, the said registration would enure to the benefit of the family i.e., Khatchubai and defendant No. 1, who would be entitled to their respective shares as the heirs of their father and original tenant, Laxman.

Further, Section 133 of the Act does not apply to the present case as this is not a case where share of tenancy has to be decided by the Land Tribunal. All that the plaintiff is seeking is a share in the tenancy rights from defendant No. 1. Therefore, Section 133 of the Act is not applicable.

In the case of Balawwa (supra) a suit was filed for partition in respect of four items of property i.e., two house properties and two landed properties. The trial Court decreed the suit in favour of the plaintiff. The first appellate Court confirmed the decree as far as it related to the house property but reversed the decree insofar as it related to the landed properties. The first appellate Court while doing so, came to the conclusion that the order of the Land Tribunal in favour of those defendants under Section 48A of the Karnataka Land Reforms Act, conferred exclusive title on them and therefore, the plaintiff could not have been granted a right of partition in the same. In appeal, the High Court reversed the decree of the first appellate Court and granted the relief of partition. The judgment of the High Court was upheld by the Hon''ble Supreme Court, by holding that the Tribunal can only grant the relief of declaring occupancy rights in favour of the applicant provided the preconditions for the same are satisfied, namely, that the land was in possession of the tenant concerned on the relevant date. That being the position under the Act, the Tribunal has no jurisdiction to grant the relief of partition, the civil court itself has the jurisdiction to entertain the suit for partition. The aforesaid judgment is followed by the Hon''ble single Judge in the case of Rati Alias Varija (supra) by holding that the civil court has the jurisdiction to consider the claim for partition when the tenancy is a joint family tenancy.

Learned counsel for the appellant also relied upon the decision of the Hon''ble Supreme Court in Prakash and others v. Phulavati and others [, 2015 AIR SCW 6160 : , 2015(4) KCCR 3265] to contend that the plaintiff is not entitled to any share in the suit lands as the amendment to Section 6 of the Hindu Succession Act, 1956 is prospective and that on the date of the amendment i.e., 9/9/2005, both the daughter and the coparceners must be alive. That judgment is absolutely not applicable to the present case as the plaintiff in the instant case is seeking to enforce her right through her mother, Khatchubai and not through any male heir as coparcener. Learned counsel for the respondent also submitted that the said judgment is not applicable and further submitted that the judgment of the Division Bench in Nimbavva v. Channaveerayya [, 2015 (1) KCCR 205 (DB)], is also not applicable. She contended that the rights of the plaintiff are vis-�-vis the tenancy rights which her mother Khatchubai had inherited from her father Laxman were under Section 24 of the Act. Therefore, it is that right which is sought to be enforced.

The possession or occupancy of land under a lease is by a tenancy. Thus, a tenancy is created by a lease of land. A lease, in its generic sense, is a form of encumbrance which consists in a right to the possession and use of property owned by some other person. It is the outcome of the separation of ownership and possession. Therefore, it is an encumbrance of the owner''s title. Thus, the right which is encumbered by a lease is usually the ownership of a material object. The lessee is one who is rightfully in possession of the land, but does not own it. The lessor of the land who owns it would only transfer the possession to the lessee. Thus, the owner of the land owns it for ever or at any rate till he alienates it by a sale or by any other manner known to law, but the lessee possesses it for a time. Under Section 24 of the Act, tenancy is inheritable by the heir of a tenant on the same terms as the tenant. Thus, tenancy passes on from one tenant to his heir on the same terms as the previous tenant. The heir of a tenant as his representative, has a vested right in him or her by virtue of the inheritable rights of tenancy. Thus, under the Act, the rights of a tenant continue to vest in the heir of a tenant as tenancy is inheritable. Section 24 does not make a distinction with regard to inheritance of tenancy, between a male and a female heir of a tenant. Inheritance can be in two ways, namely by a testament (under a Will) or by intestate succession.

In fact, in case of Rati alias Varija, it has been held that if the Tribunal has not decided the question as to whether confirmation of occupancy rights is exclusive, then the said decision could be made by a Civil Court when a suit for partition of occupancy rights granted is sought. Similarly, in Narayana v. A. Sadashiva [, ILR 2000 Kar. 487], it has been held that once the occupancy rights are granted to the Tribunal, the lease-hold rights would get converted into freehold right without affecting the other rights of the joint family of which the person to whom occupancy rights are granted, is a member. It is always open to the other members to claim their share in a Civil Court. In Balagouda Alagouda Patil & others v. Babasaheb Ramagouda Patil [, ILR 1999 Kar. 831], it has been held that where tenancy rights have been acquired by a member of the joint family, such rights shall be held to be for the benefit of the entire family.

In the instant case, as already noted defendant No. 1 did not file Form No. 7 in his individual capacity. He was not a tenant in his own name insofar as the suit lands are concerned. Form No. 7 was filed as a legal representative of Laxman, the original tenant. Defendant No. 1 had inherited the tenancy along with plaintiff''s mother, Khatchubai. In that view of the matter, the trial court as well as the first appellate court were right in entertaining the suit for partition and separate possession and that the plaintiff and defendant No. 2 are entitled for a share in the suit properties. I do not find any infirmity in the judgments and decrees of the courts below. No substantial question of law arises in this appeal. Appeal is dismissed.

Parties to bear their own costs.