KANNA TIMMA KANAJI MADIWAL (D) THROUGH LRS. versus RAMACHANDRA TIMMAYA HEGDE (D) THROUGH LRS. AND ORS. on 27 September 2019

SUPREME COURT REPORTS

[2019] 12 S.C.R.

AKANNA TIMMA KANAJI MADIWAL (D) THROUGH LRS.

v.

RAMACHANDRA TIMMAYA HEGDE (D)THROUGH LRS. AND ORS.

B(Civil Appeal Nos. 1300-1301 of 2008)

SEPTEMBER 27, 2019

[A. M. KHANWILKAR AND DINESH MAHESHWARI, JJ.]

Land laws and agricultural tenancies:CKarnataka Land Reforms Act, 1961: ss. 21, 24, 48A, 61 –Grant of occupancy rights – Claim for – Assignment of tenancyrights by way of bequeath – On facts, appellant’s father, brotherof the original tenant, inducted as tenant in the land belonging tothe respondent by the original tenant – Appellant’s fathercultivating the land due to ill health of the original tenant and paidDrent to the respondents on behalf of his brother – Will executed bythe original tenant bequeathing his properties in favour ofappellant’s father – Mutation of land in the name of appellant’sfather however, the same was objected by the original tenant’s wifeand she got the entry of land in her favour – Suit filed byEappellant’s father for declaration of possessory title and injunctionagainst original tenant’s wife with reference to Will – Suit decreedin favour of appellant’s father and attained finality – Anotherround of litigation wherein application u/s. 48-A of the Act of 1961filed by appellant’s father for grant of occupancy rights in respectFof the land in question – Application prosecuted by the appellantafter demise of his father – Rejection of application as also appealthereagainst – Revision petition and the review petition before theHigh Court also dismissed – High Court held that the bequeathingof all the properties by the original tenant by way of Will in favourof his brother is hit by statutory prohibition and no rights ofGtenancy could be claimed on its basis – Sustainability of – Held:Not sustainable – In the scheme of the Act of 1948 as also the Actof 1961, when a person had been inducted as tenant, heritableright comes into existence with certain embargo over transferabilityof such tenancy – Such tenancy continues even after the demiseHof tenant – If the deceased tenant was a member of joint family, then the surviving members of the joint family; and if he was nota member of joint family, his heirs would be entitled to claimpartition subject to the conditions specified – However, thetenanted land cannot be sub-let nor any interest therein could beassigned – On facts, original tenant had executed the Will in favourof appellant’s father bequeathing his rights in the land and thatappellant’s father was in possession of the land relates to the stagebefore acquisition of occupancy rights; and the legatee of the Will,had been none other than the brother of the deceased tenant; andthe said legatee, being related to the deceased tenant by legitimatekinship, had already been declared to be the successor of thetenant in the civil suit in presence of all the relevant parties,including the respondents, with categorical finding that the wifeof tenant had left and ceased to be his heir after having contractedother marriage – Hence, the Will is not hit by the embargo, whetherthat is contained in s. 27(1) of the Act of 1948 or in s. 21 of theAct of 1961 – A fortiori, the application made by appellant’s fatherfor grant of occupancy rights is allowed – Orders passed by theHigh Court as also the Land Reforms Appellate Authority and LandTribunal set aside – Bombay Tenancy and Agricultural Lands Act,1948 – ss. 27, 40.

Allowing the appeals, the Court

HELD: 1.1 The High Court was not right in holding thatthe bequeath of all the properties by the executants-originaltenant of the land in question by way of Will in favour of hisbrother is hit by statutory prohibition and no rights of tenancycould be claimed on its basis. Thus, the impugned orders cannotbe sustained. [Para 8] [784-F-G]

Conclusion

1.2 As regards the applicable statutory provisions, the Willin question was executed on 13.02.1960 and the executant, G,the original tenant of the land in question, expired on19.06.1963. At the relevant point of time, the Karnataka LandReforms Act, 1961 had not come into force and the tenancy inquestion was governed by the Bombay Tenancy and AgriculturalLands Act, 1948. With advent of the Act of 1961, variousenactments relating to the agricultural land and tenancy,including the Bombay Tenancy and Agricultural Lands Act, 1948, AB

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Acame to be repealed for the purpose of the territories governedby the Act of 1961. In the Act of 1961, the relevant provisionsconcerning the instant case are contained in sub-section (1) ofSection 21 and Section 24, which are more or less in parimateria the erstwhile provisions contained sub-section (1) ofSection 27 and Section 40 of the Act of 1948. It may, however,Bbe noticed that the prohibition contained in Section 21(1) andthe restriction contained in Section 61(1) of the Act of 1961operate in different fields inasmuch as Section 21(1) occurs inChapter II of the Act of 1961, making general provisionsregarding the tenancy and rights and obligations of a tenant ofCan agricultural land. Section 61, on the other hand, occurs inChapter III, dealing with conformant of ownership on tenantsby way of their registration as occupants. In other words, therestriction envisaged by Section 61 of the Act of 1961 comesinto operation after a tenant has acquired occupancy rightswhereas the prohibition contained in Section 21 operates at theDstage before acquisition of occupancy rights and in relation tothe tenancy simpliciter. [Para 9.1, 9.2, 9.3.1] [784-H; 785-A-B;786-E-F; 788-D-F]

1.3 In the scheme of the Act of 1948 as also the Act of1961, when a person had been inducted as tenant, heritable rightEcomes into existence with certain embargo over transferabilityof such tenancy. In other words, such tenancy continues evenafter the demise of tenant. If the deceased tenant was a memberof joint family, then the surviving members of the joint family;and if he was not a member of joint family, his heirs would beFentitled to claim partition subject to the conditions specified.However, the tenanted land cannot be sub-let nor any interesttherein could be assigned. The instant case relates to the stagebefore acquisition of occupancy rights; and the legatee of theWill, T had been none other than the brother of the deceasedtenant, G; and the said legatee, being related to the deceasedGtenant by legitimate kinship, had already been declared to bethe successor of the tenant in the civil suit in presence of allthe relevant parties, including the respondents, with categoricalfinding that the wife of tenant had left and ceased to be his heirafter having contacted other marriage. [Para 12, 13] [792-E-F;H793-A-D]

1.4 In the instant case, the deceased G was the tenant inthe land in question. No doubt, GR was the wife of G and, hadshe retained this status, she would have been his Class I heir,in terms of the Schedule to the Hindu Succession Act, 1956.However, the concluded findings in the civil suit filed by T (withthe present respondent being parties thereto) are to the effectthat GR left G, contracted second marriage with J, and begottwo children from such marriage. In sequel to these findings andin view of the other evidence on record, it was held in the saidcivil suit conclusively that GR was not the heir of G. It was alsoheld conclusively that T was the heir of G; that G had executedthe Will in favour of T bequeathing his rights in the land inquestion; and that T was in possession of the land in question.These findings have attained finality with dismissal of appealsand ultimately, with dismissal of the petition for Special Leaveto Appeal in this Court. Moreover, these findings bind thepresent respondent fair and square, for they were parties to thesaid suit and in fact, only they had pursued the matter in appeals,though unsuccessfully. In the face of these concluded findings,there is no justification that the High Court proceeded in theimpugned orders on the premise that GR was the heir of G forbeing his wife. The effect of the said findings of the civil courthas been brushed aside by the High Court with a fewobservations that the fact of existence of the wife of G was notmentioned in the application made by T for grant of occupancyrights. On the date of filing of such application, the suit filed byT had already been decreed by the trial court with the findingsaforesaid, although the matter was pending in appeal. In any case,the concluded and binding findings of the civil courts did not losetheir worth if the fact about erstwhile wife of G was not mentionedin the application made by T for grant of occupancy rights; andthe High Court could not have treated such findings as nugatoryor redundant. [Para 14] [793-D-H; 794-A-B]

1.5 So far the legal effect of the said Will by the tenant Gin favour of his brother T is concerned, T was definitely relatedto G by legitimate kinship, being his brother. Hence, the Will isnot hit by the embargo, whether that contained in Section 27(1)of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, A

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Athe application made by T in Form 7 under Section 48-A of theAct of 1961 for grant of occupancy rights in respect of the landin question could not have been denied. [Para 14.1] [794-C-D]

1.6 It is noticed that the Land Tribunal proceeded to rejectthe claim in relation to the land in question by way of its orderBdated 22.09.1981 in a wholly cursory manner with reference tothe alleged statement made by the appellant but withoutappreciating that the statement was required to be understoodcontextually where certain parcels of land in which T was thetenant in his own right were also being described. In that context,Cit was clarified that T was, as such, not the tenant in relation tothe land in question; meaning thereby that T was not the originaltenant. The statement was not incorrect because G was theoriginal tenant qua the land in question. Such a bonafidestatement could not have operated against the claim of occupancyrights in respect of the land in question, when the claim wasDessentially based on the Will in favour of T and his cultivatorypossession. [Para 15] [794-E-G]

1.7 The appeal against the order of the Land Tribunal wasnot decided on merits. Rather, the approach of the AppellateEAuthority had been a bit too exacting where the appeal wasdismissed in default and then, the application for restoration wasdismissed with a hyper-technical view of the matter and for delayof one day in filing. In revision petition against the order sopassed by the Appellate Authority, the High Court, even withouthaving the benefit of a considered decision of the AppellateFAuthority, chose to deal with the matter on merits and rejectedthe claim of the appellant on either irrelevant considerations orwhile overlooking the effect of the findings in the civil suitbetween the parties as also the ratio in Sangappa case. Whileadopting such a course, of deciding the matter on merits withoutGhaving the finding of the Appellate Authority, it was moreoverrequired of the High Court to examine the record in properperspective; and, for that matter, the decisions rendered in thecivil suit filed by T, which carried concluded findings on the basicissues involved in the litigation, ought to have been examinedHin requisite details. [Para 16] [794-H; 795-A-C]

1.8 The impugned judgment and orders passed by the HighCourt as also the impugned orders passed by the Land ReformsAppellate Authority and order passed by the Land Tribunal areset aside; and the application filed by T for grant of occupancyrights in respect of the land in question is allowed. The LandTribunal shall pass necessary formal orders for grant ofoccupancy rights in favour of the appellants. [Para 17, 18] [795-E-F]

Ramchandra Dagdu Sonavane (Dead) by Lrs and Orsv. Vithu Hira Mahar (Dead) by Lrs and Ors: (2009)10 SCC 273 : [2009] 15 SCR 222 ; SangappaKalyanappa Bangi (Dead) through LRs. v. LandTribunal, Jamkhandi and Ors : (1998) 7 SCC 294 :[1998] 1 Suppl. SCR 600 ;Jayamma v. Maria Bai(Dead) by proposed LRs. and Anr. : (2004) 7 SCC 459: [2004] 3 Suppl. SCR 175 - referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 1300-1301 of 2008.

From the Judgment and Order dated 08.08.2001 of the HighCourt of Karnataka at Bangalore in L.R.R.P. No. 1 of 1996 (LRA)and order dated 06.12.2004 in Review Petition No. 484 of 2002.

S. N. Bhat, Adv. for the Appellant.

Rajesh Mahale, Advs. for the Respondents.

The Judgment of the Court was delivered by DINESH MAHESHWARI, J.

1. In the foreground, these appeals are in challenge to thejudgment and orders dated 08.08.2001 and 06.12.2004, passed by the A

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AHigh Court of Karnataka at Bangalore in L.R.R.P. No. 1 of 1996 andReview Petition No. 484 of 2002 respectively, arising out of anapplication filed by the father of the appellant for grant of occupancyrights in respect of 4 parcels of agricultural land[1] situated at BilagiVillage, Siddapur Taluk, Uttara Kannada District, Karnataka [‘the landBin question’]. However, in the background is a labyrinth of litigation/s,spreading well over half a century, as briefly summarised infra.2. The relationship and respective position of the parties involvedin the matter may be noticed at the outset and as follows:

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C2.1. One Kanna Kulage of the village aforesaid had three sonsnamely, Gutya, Timma and Ganappa. The appellant herein, Kanna[2], isson of Timma and thus, nephew of Gutya. It is not in dispute thatGanappa had left the family and nothing in his regard is now involvedin this litigation. Gutya had married Gauri but it is the case of theDappellant that Gutya’s wife Smt. Gauri left him; remarried one Jatya;and begot two children from her second marriage with Jatya[3]. The landin question originally belonged to the respondents herein but admittedly,Gutya, paternal uncle of the appellant, was inducted as tenant therein.

3. The relevant background aspects of the matter could now beEnoticed, in brief, as follows:

3.1. It is the case of the appellant Kanna that due to the ill-healthof his uncle Gutya, the land in question was being cultivated by his fatherTimma (brother of Gutya); and Timma was paying the rents to theFrespondents on behalf of Gutya, whose health kept on deteriorating.

1 Bearing Survey No. 69/4 (measuring 1 acre 10 guntas), Survey No. 82/1 (measuring1 acre 30 guntas), Survey No. 81 (measuring 30 guntas) and Survey No. 92 (measuring2 guntas).2 Kanna son of Timma having expired during this litigation, is now represented byGhis legal representatives but, looking to the subject-matter and the issues involved,the discussion herein is with reference to the original appellant Kanna.

3 This assertion that Smt. Gauri left Gutya and established matrimonial relations withJatya is supported by the appellant with reference to the findings returned in a civilsuit filed by Timma for declaration of his title and for injunction in respect of theland in question. The requisite details pertaining to the said civil suit shall occurHhereafter a little later.

3.2. It is further the case of the appellant Kanna that on13.02.1960, Gutya executed a Will and got it registered, bequeathingall his properties in favour of his brother Timma (father of the appellant).Gutya expired on 19.06.1963. After the demise of Gutya, the Tahsildarconducted an enquiry and, on 08.07.1963, effected mutation entry No.1080 in the name of Timma in relation to the land in question that hadbeen in cultivatory possession of Timma.

3.3. Later on, the said Smt. Gauri filed her objections to themutation entries made in favour of Timma but the said objections wereoverruled. However, the Assistant Commissioner, in appeal, remandedthe matter for consideration afresh and, after such remand, the authorityconcerned, by its order dated 18.05.1965, ordered that the mutation entryof the land in question be made in the name of Smt. Gauri.

3.4. Having thus succeeded in getting the land in questionmutated in her favour, the said Smt. Gauri purportedly surrendered thetenancy rights in favour of the respondents herein on 16.06.1965.

3.5. In the wake of the developments aforesaid, Timma filed acivil suit[4] for declaration of possessory title and injunction against Smt.Gauri with reference to the Will of his brother Gutya, while also joininghis other brother Ganappa and the present respondents as defendants.In her written statement, Smt. Gauri denied the execution of Will byGutya and validity thereof; and also denied that Timma was in possessionof the land in question. The respondents-landlords denied that Timmacould have derived any right by virtue of the Will executed by Gutya.

3.5.1. On 30.06.1969, the suit aforesaid was decreed by the TrialCourt with the findings, inter alia, that Smt. Gauri left the company ofGutya and contacted marriage with Jatya; that after leaving the companyof Gutya and upon her re-marriage, Smt. Gauri was no longer an heirof Gutya and, therefore, she was not entitled to inherit or surrenderthe tenancy rights of Gutya in the land in question. The Trial Court also 4 Original Suit No. 117 of 1965 in the Court of Munsiff, Sirsi.

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Aheld that Timma was in lawful possession of the land in question andthe Will dated 13.02.1960 was validly executed by Gutya[5].

3.5.2. Assailing the decree aforesaid, appeals were preferred inthe Court of District Judge, Karwar by the respondents-landlords andSmt. Gauri[6]. The First Appellate Court reversed the decree of the TrialBCourt and remanded the matter for reconsideration of the question asto who was the tenant after the death of Gutya. This order of remandwas challenged by Timma before the High Court of Karnataka[7]. TheHigh Court, by its order dated 08.03.1977, disapproved the order ofremand and restored the matter to the file of First Appellate Court forCdisposal on merits, after observing that the question involved was notof ‘tenancy’ but the one relating to the ‘succession of Gutya’s tenancy’.

3.5.3. After remand, the appeal filed by the present respondentsagainst the decree of the Trial Court was transferred to the Court ofCivil Judge, Sirsi[8]. Ultimately, the First Appellate Court dismissed the D5 The typed copy of this judgment dated 30.06.1969, placed on record as AnnuxureP-1 carries several obvious typographical errors but, for the purpose of reference,the operative part thereof (at pp. 132-133 of the paper-book) is being extracted,verbatim, as under:- “In view of my findings on the documentary and oral evidence in this case and inview of the correct legal position according to me I hold that the power of theEdeceased Gutya to will away his properties is unassailable. The plff. therefore,got absolute title and possession in respect of the Malki properties and possessarytitle in respect of lease hold items the moment Gutya died. I am also of the clearopinion that the first deft. did not retained her character as widow of Gutya andconsequently acquired no titled or possession in respect of the suit properties.Upon a careful assessment of the evidence in this case the first deft. has impressedme as tool in the hands of owners of lease hold properties….Therefore a decreeFis passed in favour of the plff. and against the defts. in the following terms.

I. The Malki title of the plff. to items 1 to 3 of the plaint is hereby declared on thebasis of Exh. P.1.

II. The possessary title of the plff. is hereby declared in respect of items 4 to 7 of theplaint on the same basis.

III. An perpetual injunction is issued against all the defendants, their servants, agentsetc., from interfering with the peaceful possession and enjoyment of all the suitGproperties.

IV. The suit of the plff. is decreed against all the defendants for costs. This decreefor costs is a joint and several decree.

V. The defendants will bear their own costs.” (sic)

6 Being RA No. 59 of 1973 and RA No. 60 of 1973.

7 In Misc. Appeal No. 5 of 1975H8 renumbered as RA No. 43 of 1978

said appeal by way of the judgment and decree dated 18.12.1990 whileholding that the Will executed by Gutya in favour of Timma was provedand the same was validity registered. The First Appellate Court alsoconfirmed the findings of the Trial Court that Smt. Gauri had re-marriedand ceased to be the heir of Gutya. While referring to the provisionscontained in sub-section (1) of Section 27 of the Bombay Tenancy andAgricultural Lands Act, 1948, [‘the Act of 1948’], the First AppellateCourt also observed that the said provision prohibited alienation ofleasehold land by a tenant but testamentary succession was notprohibited.[9]

3.5.4. The decree so passed by the First Appellate Court waschallenged by the present respondents by way of a second appeal[10]that was considered and dismissed by the High Court on 08.07.1998.The present respondents attempted to challenge the judgment of theHigh Court in this Court but the petition for Special Leave to Appeal[11]was also dismissed on 26.02.2001.

3.5.5. Hence, the net result of the civil suit aforesaid had beenthat the findings came to be recorded conclusively that Smt. Gauri wasnot the heir of Gutya; that Timma was the heir of Gutya; that Gutyahad executed the Will in favour of Timma bequeathing his rights in theland in question; and that Timma was in possession of the land inquestion. These findings attained finality with dismissal of appeals andthe petition for Special Leave to Appeal in this Court.

9 A passage from the said decision of the First Appellate Court (at pp. 198-199 ofpaper-book) could also be usefullyextracted as under:- “21…..There is therefore, no substance in the contention of the learned counselfor petitioner that the claim of respondent no. 5 based on testamentary successioncould not have been entertained by Tribunal as alleged acquisition of lease was inviolation of Sec. 21 of the Act. In the instant case, there is evidence to show thatdeft. 1 Gouri remarried. There is no dispute regarding the tenancy as it is admittedfact late Gutya was a tenant of lease hold properties. It has come in the evidencethat deft. 1 Gouri had left her husband’s house and started living in some othervillage and led an unchaste life and subsequently she married one Jatya throughwhom she begotten children, for which there is evidence. The very object ofprohibition u/s 27 is that after the death of tenant, the heirs of deceased tenantshall be entitled to partition and sub division the land leased subject to theconditions laid down. In the Will it is specifically stated that Gutya had no issues.It is also not the case of Gouri that she has filed any application claiming tenancyright before the competent authority after the alleged execution of the Will…..”10 RSA No. 22 of 199111 SLP (C) No. 4770 of 2000

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A 3.6. The other line of proceedings commenced on 08.08.1974with filing of an application in Form No. 7 under Section 48-A of theKarnataka Land Reforms Act, 1961 [‘the Act of 1961’] by Timma forgrant of occupancy rights in respect of the land in question before theLand Tribunal, Siddapur[12]. This application was moved by Timma afterthe decree of the Trial Court in the above-referred civil suit but duringBthe period when the appeal against such decree was pending. Duringthe pendency of application before the Land Tribunal and also the appealproceedings relating to the aforesaid civil suit, Timma expired and hence,his wife and children were brought on record as his legalrepresentatives.C3.6.1. On 22.09.1981, the Land Tribunal rejected the claim forgrant of occupancy rights in respect of the land in question whileobserving that the appellant (son of Timma) had made a statement ofadmission that he was not the tenant of the land in question.

3.6.2. The aforesaid order of the Land Tribunal was challengedDby the appellant Kanna, son of Timma, before the High Court by filinga writ petition and, inter alia, disputing the purport of the statementalleged to have been made by him before the Land Tribunal. Duringthe pendency of the said writ petition, the Land Reforms AppellateAuthority came to be established and hence, the High Court transferredthe matter to the said Appellate Authority. The matter so transferredEby the High Court was registered before the Appellate Authority as anappeal against the order of Land Tribunal[13].

3.6.3. By its order dated 18.07.1988, the Appellate Authoritydismissed the said appeal of the appellant for non-prosecution. Theappellant sought restoration of the appeal and recall of the order ofFdefault dismissal by moving an application under Rule 9 of theKarnataka Land Reforms Rules. The application so moved by theappellant was dismissed by the Appellate Authority on 26.12.1988, forwant of sufficient reasons for absence of advocate on the date ofhearing as also for want of an application for condonation of delay ofGone day in filing the application for recall.

3.6.4. Being aggrieved by such dismissal of the appeal and theapplication for restoration, the appellant preferred a revision petition[14]

12 Case No. TNC-DSR-988-5563-4885-752413 Appeal No. DAAA:AP:203/1986H14 L.R.R.P. No. 1 of 1996

before the High Court of Karnataka. The High Court proceeded todismiss the petition so filed by the appellant by its impugned order dated08.08.2001, while rejecting the claim of appellant on merits and whileobserving, inter alia, that: (a) Gutya was the original tenant of the landin question before his demise in the year 1963; (b) in the application inForm No. 7, Timma failed to plead about the separation of Smt. Gaurifrom Gutya prior to his demise and, therefore, the alleged disinheritanceof Smt. Gauri could not be countenanced, meaning thereby that sheremained the legal heir of Gutya; (c) the assignment of interest oftenancy by way of bequeath was barred under Section 21 of the Actof 1961 and, therefore, Timma could not succeed to Gutya’s land byvirtue of the Will executed in his favour; (d) Gutya and Timma had theirrespective parcels of land and each of them was cultivating his ownparcel; (e) if tenancy was transferred in favour of Timma, it wouldamount to creation of fresh tenancy, which would be in contraventionof the provisions of the Act of 1961; and (f) the appellant had made astatement before the Land Tribunal that he was not a tenant in respectof the land in question. The relevant portion of the order of the HighCourt reads as under:- “……the petitioner herein cannot succeed to the tenancy rightof the deceased Gutya by virtue of the Will alleged to havebeen executed by the deceased Gutya in favour of his fatherThimma, in the presence of the wife of the deceased Gutyaby name Gowri who is the legal heir of the deceased tosucceed to the tenancy rights of her deceased husband.Further it is also the case of the petitioner herein that whenthe deceased Gutya fell ill and the father of the petitionerThimma began to cultivate the lands in respect of which thedeceased Gutya was a tenant, the father of the petitioner hadstarted paying the rent in respect of the said lands to thelandlord and which were duly accepted by him. Thusaccording to the petitioner there was almost a fresh leasecreated in favour of the father of the petitioner Thimma. Butit has to be stated that any tenancy created in contraventionof Section -5 of the Karnataka Land Reforms Act would bevoid and therefore any possession pursuant to such freshlease would also be unlawful and such person is thereforenot entitled to the benefit of section-4 of the KLR Act. Evenon the ground also, the father of the petitioner was not A

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Aentitled to seek the registration of occupancy rights in respectof the lands, of which the deceased Gutya was a tenant.Therefore looking from any angle, neither the petitioner norhis father Thimma could be entitled to seek registration ofoccupancy rights in respect of the lands, of which thedeceased Gutya was a tenant. That apart, the order of theBLand Tribunal would clearly indicate that the petitionerherein who gave his statement before the Land Tribunal didnot claim tenancy right in respect of the lands, of which thedeceased Gutya was a tenant. No doubt it was sought to becontended on behalf of the petitioner that there was no suchCstatement made before the Land Tribunal by the petitioner.But the order of the Land Tribunal would clearly indicatethat the petitioner did make such a statement before the LandTribunal. If the petitioner wanted to establish the fact thatthe said observation made by the Land Tribunal in itsimpugned order is factually incorrect, he could haveDadduced additional evidence before the Land ReformsAppellate Authority. But he did not do so and on the otherhe allowed the appeal to be dismissed for default. Thereforehaving given my anxious consideration to the entire matterin issue, I find no merit in this revision petition filed by thepetitioner and it is liable to be dismissed.”E

3.6.5. The appellant attempted to challenge the aforesaid orderdated 08.08.2001 in this Court by way of a petition for Special Leaveto Appeal[15] but, on 11.03.2002, the same was dismissed as withdrawnwith liberty to the appellant to file a review petition before the HighCourt. The appellant, thereafter, filed a review petition[16] before the HighFCourt with an application for condonation of delay. Even this reviewpetition went through its own meandering course inasmuch as theapplication for condonation of delay was dismissed by the High Courton 01.08.2003 for want of satisfactory reasons for not approaching theCourt within reasonable time. Against this order dated 01.08.2003, theGappellant again approached this Court by way of another petition forSpecial Leave to Appeal[17] that was allowed on 09.07.2004; this Courtcondoned the delay and remitted the matter to High Court for disposalon merits.

15 SLP (C) No. 3339 of 200216 Review Petition No. 484 of 2002H17 SLP (C) No. 23609-23610 of 2003

3.6.6. Ultimately, the said review petition and an applicationtherein for production of additional documents were considered onmerits and the High Court proceeded to dismiss the same by its orderdated 06.12.2004 while essentially reiterating its findings, as occurringin the order dated 08.08.2001, and while observing that there wasnothing of any error apparent on the face of record. The High Courtobserved, inter alia, as under:-

“9. In the instant case, I find that there is no such errorapparent on the face of the record and the present reviewPetition filed by the Petitioner is only an attempt to rearguethe matter, which is not permissible in reviewjurisdiction…....In the case at hand, the deceased testatorGutya could not have executed the Will in favour of a personwho could not be declared to be a tenant having occupancyright and that further the person concerned was not a tenantwithin the meaning of the Act on the appointed day andhence he was clearly not eligible for occupancy rights. It isneedless to point out that the mere possession of the landswill not be sufficient to confer the status of occupancy oftenancy as the sine-qua-non for obtaining the status ofoccupancy of tenancy rights is that the person concernedmust be a tenant on the appointed day. It has to be statedthat the tenancy continues notwithstanding the death of thetenant in occupation of certain lands and such (?) is heldby the heirs of such tenant on the same terms and conditionson which he had held prior to his death and the heirs whocan take the property are those who are referable to inSection 21 of the Karnataka Land Reforms Act and that inthe instant case, the person concerned being not an heir ofthe deceased tenant and there being a spouse (wife) of thedeceased tenant living at the relevant time, could not haveobtained the status of the occupancy tenant [sic]. Obviouslytherefore, the person concerned did not seem to have claimedtenancy rights in respect of the lands in occupation of thedeceased tenant Gutya. Under the circumstances, therefore,I find no error apparent on the face of the order which isnow sought to be reviewed, so as to call for correction byexercise of the review jurisdiction.…...Considering the limitedscope for review under Order 47 Rule 1 of CPC, the A

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Aadditional evidence sought to be adduced by the Petitionerby means of his I.A. No. 1 cannot be permitted….”

3.7. The aforesaid orders dated 08.08.2001 and dated 06.12.2004,as passed by the High Court of Karnataka in the revision petition andthe review petition filed by the appellant are the subject of challenge inBthese appeals. However, the narration about the litigations between theparties would remain incomplete if another proceeding in the form of acivil suit filed by the present respondent No. 1 is not referred[18]. Afterpassing of the aforesaid order dated 08.08.2001 by the High Court, acivil suit was filed by the respondent No. 1, seeking perpetual injunctionagainst the appellant and his brothers. An application seeking temporaryCinjunction was also filed therein, being IA No. 1. The Trial Courtdismissed the said application for temporary injunction by its order dated17.04.2003 while holding that the defendants (appellant and others) werein possession of the suit property.

4. In summation of the chronicle aforesaid, it could be noticedDthat in essence, there had been two major lines of litigation concerningthe parties: One being the civil suit filed by Timma wherein the questionsof validity of Will of Gutya and possession of Timma over the land inquestion were gone into. The suit was decreed with all material findingsin favour of Timma and the decree attained finality. The other line oflitigation relates to the application in Form No. 7 under Section 48-AEof the Act of 1961 filed by Timma for grant of occupancy rights inrespect of the land in question. This application, prosecuted by theappellant Kanna after demise of Timma, was rejected; the appeal wasdismissed; and the revision petition and the review petition before theHigh Court were also dismissed by the impugned orders datedF08.08.2001 and 06.12.2004.

5. Assailing the impugned orders dated 08.08.2001 and06.12.2004, learned counsel for the appellant has strenuously arguedthat the High Court has erred in law as also on facts in failing to considerthe crucial aspect of this matter that in the civil suit filed by Timma,Gcategorical findings came to be recorded to the effect: (a) that the Willdated 13.02.1960, executed by Gutya in favour of Timma in respect ofthe land in question, was proved and the Will was not invalid; (b) thatTimma was the heir of Gutya by virtue of the said Will and Smt. Gauriwas not the heir of Gutya; and (c) that Timma was in possession of H18 O.S. No. 209 of 2002 in the Court of Civil Judge (Jr.Dn.), Siddapur the land in question. The learned counsel has emphasised on thesubmission that the said findings rendered in the civil proceedings haveattained finality and are binding on the respondents, who were partiesto the said suit; and these concluded findings cannot be reopened inthe present proceedings for grant of occupancy rights. The learnedcounsel has relied on various decisions including that in RamchandraDagdu Sonavane (Dead) by Lrs and Ors v. Vithu Hira Mahar(Dead) by Lrs and Ors: (2009) 10 SCC 273 to submit that it is onlythe civil Courts which have jurisdiction to decide the heirship right ofan individual and the Land Tribunal lacks such jurisdiction. Thus,according to the learned counsel, the rights available to Timma, and afterTimma to the appellant as his son, could not have been denied in theseproceedings.

5.1. The learned counsel has also contended that the High Courtfell in further error in holding that Section 21 of the Act of 1961 barsassignment of tenancy rights by way of bequeath. The learned counselhas relied on the decision of this Court in Sangappa Kalyanappa Bangi(Dead) through LRs. v. Land Tribunal, Jamkhandi and Ors:(1998) 7 SCC 294 and submitted that the scope and purport of Section21 of the Act of 1961 stands explained by this Court that a tenant cannotintroduce a stranger to the land by means of bequest but there is nobar in bequeathing tenancy rights by a tenant to his heirs, who are relatedto him by ‘legitimate kinship’. The learned counsel has yet furtherreferred to the decision of this Court in Jayamma v. Maria Bai(Dead) by proposed LRs. and Anr.: (2004) 7 SCC 459 and submittedthat the said decision re-affirms this position and does not in any waydiffer or detract from the ratio of Sangappa (supra). Thus, accordingto the learned counsel, rejection of Timma’s claim for occupancy rightson the basis of the Will dated 13.02.1960 was wholly incorrect inasmuchas Timma was not a stranger but was related to the tenant by legitimatekinship, being his brother and hence, a Class II heir, in terms of theentry occurring in the Schedule to the Hindu Succession Act, 1956. Thelearned counsel lastly submitted that the Land Tribunal and the HighCourt have misconstrued the statement made by appellant regardinghis tenancy rights because what was sought to be conveyed by himwas this much that Timma was not the original tenant of the land inquestion but had inherited the tenancy rights by virtue of a Will; and inany event, there was no intention of the appellant to disown his claim,which was being pursued relentlessly.

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A6. Per contra, learned counsel for the respondents has supportedthe orders passed by the Land Tribunal and the High Court rejectingthe claim for grant of occupancy rights in favour of Timma and hassubmitted that in view of the prohibition over assignment of tenancyrights by way of bequeath, Timma could not have claimed nor couldhave exercised any tenancy rights over the land in question on the basisBof the Will of Gutya; and the land in question stood reverted to therespondents after the demise of Gutya. The learned counsel has referredto and relied upon the observations of the High Court that disinheritanceof Smt. Gauri from the tenancy rights of her husband Gutya could notbe countenanced and transfer of the tenancy rights of Gutya in favourCof Timma would amount to creation of fresh tenancy rights incontravention of the provisions of the Act of 1961. Learned counselhas also relied upon the observations that the appellant made a statementbefore the Land Tribunal about himself being not a tenant in respect ofthe land in question.D6.1. The learned counsel for the respondents has referred to the D6.1. The learned counsel for the respondents has referred to thedecision in Jayamma (supra) to submit that the principles expoundedtherein, in relation to Section 61 of the Act of 1961, do apply with equalforce to the case at hand; and bequeath of tenancy rights beingprohibited, the High Court has rightly rejected the claim made on thebasis of the Will said to have been executed by Gutya.E

7. For what has been noticed hereinabove, the principal questioncalling for determination is as to whether the High Court is right inholding that the bequeath in question, by way of Will dated 13.02.1960by Gutya in favour of his brother Timma, is hit by statutory prohibitionand no rights of tenancy could be claimed on its basis?F

8. Having given anxious consideration to the rival submissionsand having examined the record with reference to the law applicable,we are clearly of the view that the answer to the question aforesaidcould only be in the negative and the impugned orders cannot besustained.G

9. For the purpose of the question aforesaid and in view of therival submissions, appropriate it would be to take note of the relevantstatutory provisions and the principles applicable to the present case.

9.1. As regards the applicable statutory provisions, it could beHnoticed that the Will in question was executed on 13.02.1960 and the executant, Gutya, the original tenant of the land in question, expired on19.06.1963. At the relevant point of time, the Act of 1961 had not comeinto force[19] and the tenancy in question was governed by the BombayTenancy and Agricultural Lands Act, 1948. The provisions containedin sub-section (1) of Section 27 and Section 40 of the said Act of 1948read as under:- “27. Sub-division, sub-letting and assignment prohibited.-(1) Save as otherwise provided in Section 32F no sub-divisionor sub-letting of the land held by a tenant or assignment ofany interest therein shall be valid:

Provided that nothing in this sub-section shall prejudiciallyaffect the rights of a permanent tenant :

Provided further that if the tenant dies,-

(i) if he is a member of a joint family, the survivingmembers of the said family, and

(ii) if he is not a member of a joint family, his heirs, shallbe entitled to partition and sub-divide the land leasedsubject to the following conditions- (a) each sharer shall hold his share as a separatetenant, (b) the rent payable in respect of the land leased shallbe apportioned among the sharers, as the case maybe, according to the share allotted to them,

(c) the area allotted to each sharer shall not be lessthan the unit which the State Government may, bygeneral or special order, specify in this behalfhaving regard to the productive capacity and othercircumstances relevant to the full and efficient useof the land for agriculture, (d) if such area is less than the unit referred to in clause(c), the sharers shall be entitled to enjoy the incomejointly, but the land shall not be divided by metesand bounds, 19 It came into force as Mysore Land Reforms Act, 1961 w.e.f. 02.10.1965

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(e) if any question arises regarding the apportionmentof the rent payable by the sharers, it shall bedecided by the Mamlatdar, whose, decision shall befinal.

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40. Continuance to tenancy on death of tenant.-(1) Where atenant (other than a permanent tenant) dies, the landlord shallbe deemed to have continued the tenancy on the same termsand conditions on which such tenant was holding it at thetime of his death, to such heir or heirs of the deceased tenantas may be willing to continue the tenancy.

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(2) Where the tenancy is inherited by heirs other than thewidow of the deceased tenant, such widow shall have acharge for maintenance on the profits of such land.”

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9.2. With advent of the Act of 1961, various enactments relatingto the agricultural land and tenancy, including the aforesaid BombayTenancy and Agricultural Lands Act, 1948, came to be repealed forthe purpose of the territories governed by the Act of 1961. It is forthese reasons that reference has been made in these proceedings tothe provisions of the Act of 1961.[20] In the Act of 1961, the relevantprovisions concerning the present case are contained in sub-section (1)of Section 21 and Section 24, which are more or less inpari materiathe erstwhile provisions contained sub-section (1) of Section 27 andSection 40 of the Act of 1948 and read as under:- “21. Sub-division, sub-letting and assignment prohibited.—

(1) No sub-division or sub-letting of the land held by a tenant Gor assignment of any interest therein shall be valid:

20 However, the First Appellate Court dealing with the appeal arising out of the decreepassed in civil suit filed by Timma, in its judgment and decree dated 18.12.1990,indeed took into account the provision applicable to the case at hand i.e., SectionH27(1) of the Act of 1948.

Provided that nothing in this sub-section shall affect therights, if any, of a permanent tenant:

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Provided further that if the tenant dies,—

(i) if he is a member of joint family, the surviving membersof the said family, andB

(ii) if he is not a member of a joint family, his heirs shallbe entitled to partition and sub-divide the land leased,subject to the following conditions—

(a) each sharer shall hold his share as a separatetenant; C

(b) the rent payable in respect of the land leased shallbe apportioned among the sharers, as the case maybe, according to the share allotted to them; D

(c) the area allotted to each sharer shall not be lessthan a fragment; (d) if such area is less than a fragment the sharers shallbe entitled to enjoy the income jointly, but the landshall not be divided by metes and bounds; E

(e) if any question arises regarding the apportionmentof the rent payable by the sharer it shall be decidedby the Tahsildar:

Provided that if any question of law is involved the TahsildarFshall refer it to the court. On receipt of such reference thecourt shall, after giving notice to the parties concerned, trythe question as expeditiously as possible and record findingthereon and send the same to the Tahsildar. The Tahsildarshall then give the decision in accordance with the saidGfinding.

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24. Rights of tenant to be heritable.- Where a tenant dies thelandlord shall be deemed to have continued the tenancy to H

Athe heirs of such tenant on the same terms and conditionson which such tenant was holding at the time of his death.”[21]

9.3. In view of the submissions made and for their relevance,the provisions contained in Section 61(1) of the Act of 1961 could alsobe usefully extracted as under:-B

“61. Restriction on transfer of land of which tenant hasbecome occupant.—(1) Notwithstanding anything containedin any law, no land of which the occupancy has beengranted to any person under this Chapter shall, withinfifteen years from the date of the final order passed by theCTribunal 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 maybe partitioned among members of the holder’s joint family, ***D

******”

9.3.1. It may, however, be noticed that the prohibition containedin Section 21(1) and the restriction contained in Section 61(1) of theAct of 1961 operate in different fields inasmuch as Section 21(1) occursin Chapter II of the Act of 1961, making general provisions regardingthe tenancy and rights and obligations of a tenant of an agricultural land.ESection 61, on the other hand, occurs in Chapter III, dealing withconformant of ownership on tenants by way of their registration asoccupants. In other words, the restriction envisaged by Section 61 ofthe Act of 1961 comes into operation after a tenant has acquiredoccupancy rights whereas the prohibition contained in Section 21operates at the stage before acquisition of occupancy rights and inFrelation to the tenancy simpliciter. This distinction in the fields ofoperation of Section 21 and Section 61 of the Act of 1961 would be of 21 The present Section 24 was substituted by Act No. 1 of 1974. Prior to itsamendment, Section 24 read as under:

“24. Right of tenants to be heritable. -(1) Where a tenant dies, the landlord shallGbe deemed to have continued the tenancy-(a) if such tenant was a member of an undivided Hindu family, to the survivingmembers of the said family, and (b) if such tenant was not a member of an undivided Hindu family, to his heirs,on the same terms and conditions on which such tenant was holding at the timeof his death.

(2) The interest of a permanent tenant in his holding shall on his death pass byHinheritance or survivorship in accordance with his personal law.”

assistance in comprehension of the two cited decisions of this Courti.e., in the cases of Sangappa and Jayamma (supra).

10. In Sangappa (supra), this Court has dealt with a situationwhere the dispute related to testamentary disposition of interest in thetenanted land. While observing that bequest under a Will was alsocovered within the ambit of “assignment” under Section 21 of the Actof 1961, this Court held that such bequest could only be to the heirs ofthe tenant and not to the strangers to the family of tenant. This Courtsaid, inter alia, as under:- “5. This case gives rise to a difficult and doubtful question,whether a devise under a Will would amount to anassignment of interest in the lands and, therefore, would beinvalid under the provisions of Section 21 of the LandReforms Act. What is prohibited under Section 21 of the Actis that there cannot be any sub-division or sub-letting of theland held by a tenant or assignment of any interestthereunder. Exceptions thereto are when the tenant dies, thesurviving members of the joint family and if he is not amember of the joint family, his heirs shall be entitled topartition and sub-divide the land leased subject to certainconditions. Section 24 of the Act declares that when a tenantdies, the landlord is deemed to continue the tenancy to theheirs of such tenant on the same terms and conditions onwhich the tenant was holding at the time of his death. Wehave to read Section 21 with Section 24 to understand thefull purport of the provisions. Section 24 is enacted only forthe purpose of making it clear that the tenancy continuesnotwithstanding the death of the tenant and such tenancy isheld by the heirs of such tenant on the same terms andconditions on which he had held prior to his death. The heirswho can take the property are those who are referable to inSection 21. If he is a member of the joint family, then thesurviving members of the joint family and if he is not such amember of a joint family, his heirs would be entitled topartition. Again, as to who his heirs are will have to bedetermined not with reference to the Act, but with referenceto the personal law on the matter. The assignment of anyinterest in the tenanted land will not be valid. A devise or a AB

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bequest under a Will cannot be stated to fall outside thescope of the said provisions inasmuch as such assignmentdisposes of or deals with the lease. When there is adisposition of rights under a Will, though it operatesposthumously is nevertheless a recognition of the right of thelegatee thereunder as to his rights of the tenanted land. Inthat event, there is an assignment of the tenanted land, butthat right will come into effect after the death of the testator.Therefore, though it can be said in general terms that thedevise simpliciter will not amount to an assignment, in aspecial case of this nature, interpretation will have to beotherwise.

6. If we bear in mind the purpose behind Section 21, itbecomes clear that the object of the law is not to allowstrangers to the family of the tenant to come upon the land.The tenanted land is not allowed to be sub-let, i.e., to passto the hands of a stranger nor any kind of assignment takingplace in respect of the lease held. If the tenant could assignhis interest, strangers can come upon the land, and therefore,the expression “assignment” will have to be given suchmeaning as to promote the object of the enactment. Therefore,the deceased tenant can assign his rights only to the heirsnoticed in the provision and such heirs could only be thespouse or any descendants or one who is related to thedeceased tenant by legitimate kinship.We must take intoconsideration that when it is possible for the tenant to passthe property to those who may not necessarily be the heirsunder the ordinary law and who become heirs only by reasonof a bequest under a Will in which event, he would be astranger to the family and imported on the land thus to thedetriment of the landlord. In that event, it must be taken thata devise under a Will will also amount to an assignment and,therefore, be not valid for the purpose of Section 21 of theAct. If Section 24 is read along with Section 21, it would onlymean that the land can pass by succession to the heirs of adeceased tenant, but subject to the conditions prescribed inSection 21 of the Act…..”

(underlining supplied for emphasis)

11. On the other hand, in Jayamma’s case (supra), the appellanthad filed an application under Section 276 of the Indian Succession Act,1925 for grant of letters of administration with a copy of Will annexed.The respondents, being wife and children of the testator, denied the factof execution of Will and hence, the application was converted into asuit. Though the Trial Court decreed the suit but the appeal was allowedby the High Court while holding that the application in question wasnot maintainable in view of Section 61 of the Act of 1961, for thesubject-matter of the testament being agricultural land with occupancyrights, which could not have been assigned. The appellant, legatee underthe Will in question, was a neighbour and had not been a member ofthe testator’s family. In appeal before this Court, the decision inSangappa (supra) was referred. This Court distinguished the saiddecision as being related to Section 21 of the Act of 1961 and therebeing stricter embargo on transfer of land where the tenant had becomeoccupant than the land held by a tenant simpliciter. This apart, theappellant was found to be having no legitimate kinship with the testator.It was also found that occupancy rights were granted on 14.10.1981and Will in question was executed on 20.02.1984; hence transfer wasmade within the period of 15 years from the date of grant, which wasprohibited by law. The appeal was, therefore, dismissed by this Courtwhile observing, interalia, as under:- “18. As we have noticed hereinbefore, that the statutoryembargo on transfer of land is stricter in a case where thetenant has become occupant than a land held by a tenantsimpliciter. We have also noticed that the embargo on transferis not only by way of sale, gift, exchange, mortgage, leasebut also by assignment. What is permitted under the law ispartition of the land amongst the members of the family.Section 61 of the Act is to be read in its entirety.

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22. In this case, there is also no dispute that grant ofagricultural land with occupancy right in terms of theprovisions of the said Act was made on 14-10-1981. The Willin question having been executed on 20-2-1984; the transferhas been made within a period of fifteen years from the dateof grant which is prohibited in law.*********

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A25. Apart from the fact that the interpretation was renderedhaving regard to the language used in Section 21 of the saidAct which would not ipso facto apply to Section 61 thereof;as thereby a stricter statutory embargo has been imposed ontransfer or assignment, the contention of Mr Bhat to theeffect that the appellant was a relation of the testator alsoBdoes not appear to be correct……

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26. The appellant, therefore, in view of the aforementionedstatement was not having any legitimate kinship with thetestator of the Will.

C27. On a fair construction of Section 61 of the Act, in ouropinion, a transfer of agricultural land with occupancy rightis permissible only in favour of one of the heirs who wouldbe entitled to claim partition of land and not others havingregard to the definition of “family” as contained in Section2(12) and “joint family” as contained in Section 2(17) ofDthe said Act.”

12. It is at once clear from the provisions and the decisions abovereferred that in the scheme of the Act of 1948 as also the Act of 1961,when a person had been inducted as tenant, heritable right comes intoexistence with certain embargo over transferability of such tenancy.EIn other words, such tenancy continues even after the demise of tenant.If the deceased tenant was a member of joint family, then the survivingmembers of the joint family; and if he was not a member of joint family,his heirs would be entitled to claim partition subject to the conditionsspecified. However, the tenanted land cannot be sub-let nor any interestFtherein could be assigned. In Sangappa (supra), this Court has explainedthe object behind such embargo that strangers to the family of tenantwere not to be allowed to come upon the tenanted land. Even dispositionunder a Will is held covered within the wide sweep of the expression“assignment” for the purpose of the Act of 1961 but with the significant,and rather pertinent, exception that such embargo does not prevent aGbequeath in favour of the heirs noticed in the said provisions. This Courtsaid in no uncertain terms that: ‘the deceased tenant can assign hisrights only to the heirs noticed in the provision and such heirs couldonly be the spouse or any descendants or one who is related tothe deceased tenant by legitimate kinship’. This enunciation is neitherHcurtailed nor whittled down in Jayamma’s case (supra).

13. As noticed, the decision in Jayamma (supra)had been on theinterpretation of Section 61 of the Act of 1961, where stricter embargois envisaged, being related to a different provision that operates in adifferent field and comes into effect after acquiring of occupancy rights.Moreover, in Jayamma’s case, the legatee, a neighbour, was found tobe having no legitimate kinship with the testator; and the Will in questionwas executed within the period of 15 years from the date of grant,which was prohibited by law. Hence, the decision in Jayamma’s casehas no adverse effect on the claim in the present case for the obviousreasons that: (a) the present case relates to the stage before acquisitionof occupancy rights; and (b) the legatee of the Will in question beforeus, Timma, had been none other than the brother of the deceased tenant,Gutya; and the said legatee, being related to the deceased tenant bylegitimate kinship, had already been declared to be the successor ofthe tenant in the civil suit in presence of all the relevant parties, includingthe respondents, with categorical finding that the wife of tenant hadleft and ceased to be his heir after having contacted other marriage.

14. On the admitted fact situation of the present case and onthe concluded findings, the net position obtainable is as follows: Thedeceased Gutya was the tenant in the land in question. No doubt, Smt.Gauri was the wife of Gutya and, had she retained this status, she wouldhave been his Class I heir, in terms of the Schedule to the HinduSuccession Act, 1956. However, the concluded findings in the civil suitfiled by Timma (with the present respondent being parties thereto) areto the effect that Smt. Gauri left Gutya, contacted second marriage withJatya, and begot two children from such marriage. In sequel to thesefindings and in view of the other evidence on record, it was held in thesaid civil suit conclusively that Smt. Gauri was not the heir of Gutya. Itwas also held conclusively that Timma was the heir of Gutya; that Gutyahad executed the Will in favour of Timma bequeathing his rights in theland in question; and that Timma was in possession of the land inquestion. These findings have attained finality with dismissal of appealsand ultimately, with dismissal of the petition for Special Leave to Appealin this Court. Moreover, these findings bind the present respondent fairand square, for they were parties to the said suit and in fact, only theyhad pursued the matter in appeals, though unsuccessfully. In the faceof these concluded findings, we find absolutely no justification that theHigh Court proceeded in the impugned orders on the premise that Smt.Gauri was the heir of Gutya for being his wife. The effect of the A

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Aabovementioned findings of the civil Court has been brushed aside bythe High Court with a few observations that the fact of existence ofthe wife of Gutya was not mentioned in the application made by Timmafor grant of occupancy rights. As noticed, on the date of filing of suchapplication, the suit filed by Timma had already been decreed by theTrial Court with the findings aforesaid, although the matter was pendingBin appeal. In any case, the concluded and binding findings of the civilCourts did not lose their worth if the fact about erstwhile wife of Gutyawas not mentioned in the application made by Timma for grant ofoccupancy rights; and the High Court could not have treated suchfindings as nugatory or redundant.C14.1. So far the legal effect of the said Will by the tenant Gutyain favour of his brother Timma is concerned, as noticed, Timma wasdefinitely related to Gutya by legitimate kinship, being his brother. Hence,the Will is not hit by the embargo, whether that contained in Section27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori,Dthe application made by Timma in Form 7 under Section 48-A of theAct of 1961 for grant of occupancy rights in respect of the land inquestion could not have been denied.

15. An observation made by the High Court, about the appellanthaving made a statement before the Land Tribunal as if to give up hisEclaim as tenant of the land in question, has only been noted to bedisapproved. It is noticed that the Land Tribunal proceeded to rejectthe claim in relation to the land in question by way of its order dated22.09.1981 in a wholly cursory manner with reference to the allegedstatement made by the appellant but without appreciating that thestatement was required to be understood contextually where certainFparcels of land in which Timma was the tenant in his own right werealso being described. In that context, it was clarified that Timma was,as such, not the tenant in relation to the land in question; meaningthereby that Timma was not the original tenant. The statement was notincorrect because Gutya was the original tenant qua the land inGquestion. Such a bonafide statement could not have operated againstthe claim of occupancy rights in respect of the land in question, whenthe claim was essentially based on the Will in favour of Timma and hiscultivatory possession.

16. As noticed, the appeal against the aforesaid order of the LandHTribunal was not decided on merits. Rather, the approach of the

Appellate Authority had been a bit too exacting where the appeal wasdismissed in default and then, the application for restoration wasdismissed with a hyper-technical view of the matter and for delay ofone day in filing. In revision petition against the order so passed by theAppellate Authority, the High Court, even without having the benefitof a considered decision of the Appellate Authority, chose to deal withthe matter on merits and rejected the claim of the appellant on eitherirrelevant considerations or while overlooking the effect of the findingsin the civil suit between the parties as also the ratio in Sangappa(supra). In our view, while adopting such a course, of deciding the matteron merits without having the finding of the Appellate Authority, it wasmoreover required of the High Court to examine the record in properperspective; and, for that matter, the decisions rendered in the civil suitfiled by Timma, which carried concluded findings on the basic issuesinvolved in the litigation, ought to have been examined in requisite details.

17. The upshot of the discussion foregoing is that the impugnedorders cannot be sustained and it is beyond the pale of doubt that theapplication filed by the appellant by Timma for grant of occupancy rightsin respect of the land in question deserves to be allowed.

18. Accordingly, and in view of the above, the impugned judgmentand orders dated 08.08.2001 and 06.12.2004 passed by the High Courtof Karnataka in LRRP No. 1 of 1996 and Review Petition No. 484 of2002 respectively as also the impugned orders dated 18.07.1988 and26.12.1998 passed by the Land Reforms Appellate Authority and dated22.09.1981 passed by the Land Tribunal are set aside; and theapplication in question, as filed by Timma for grant of occupancy rightsin respect of the land in question is allowed. The Land Tribunal shallpass necessary formal orders for grant of occupancy rights in favourof the present appellants, who have acquired such rights as beingsuccessors of the rightful legatee of the original tenant.

18.1. The appeals are allowed with the directions andrequirements aforesaid. No costs.

Nidhi Jain

Appeal allowed.

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