SANGAPPA KALYANAPPA BANGI DEAD Vs. LAND TRIBUNAL JAMKHANDI

JUDGEMENT

(1.) Sangappa Kalyanappa Bangi claiming to be a tenant in respect of land comprised in Survey No. 169/1A measuring about 16 acres 3 gunthas situated at Jamkhandi made an application to the Land Tribunal at Jamkhandi for grant of occupancy rights in respect of the said land. The Land Tribudnal made an order on 28th March, 1988 holding that respondents 2 to 5 are entitled to occupancy rights in respect of the said land. Aggrieved by that order an appeal was preferred to the District Land Reforms Appellate Authority (hereinafter referred to as "the Appellate Authority"). The Appellate Authority dismissed the same. Aggrieved by that order a Revision Petition was preferred before the High Court unsuccessfully. Hence this appeal by special leave.

(2.) The facts leading to this appeal are as follows:- Sangappa Bangi made an application under Section 45 of the Karnataka Land Reforms Act, 1961 (hereinafter referred to as "the Act") in Form No. 7 claiming occupancy rights in respect of the land in question. During the pendency of the proceedings he made a Will on 8-4-1975 bequeathing his tenancy rights in respect of the land in favour of one Ameerjan who claims to be the Legal Representative of the appellant Sangappa who died during the pendency of proceedings before the Tribunal. She in turn executed another Will under which Husensab is making a claim to the land through the said Sangappa. Respondent 2 is the wife of said Sangappa while respondents 3 to 5 are children of Sangappa. The Land Tribunal as well as the Appellate Authority examined the question whether right to tenancy could have been the subject-matter of a bequest under a Will. In answring that question the Appellate Authority referred to a decision of the High Court of Karnataka in Shivanna v. Rachiah, C.R.P. No. 319/76 dated 29-3-1977, reported in (1977) 1 Kant LJ 146 (Short Notes Item 160) wherein it was stated that there was no prohibition against a tenant disposing of his interest by testamentary disposition. However it was stated that such testamentary disposition must be confined to the heirs of the deceased or an interpretation of the provision of Sections 21 and 24 of the Karnataka Land Reforms Act that the tenancy rights are inherited only by legal representatives and not by anybody else; that tenancy could be deemed to have been continued in favour of heirs of the tenant. It is also made clear that transfer of tenancy rights made in violation of the provisions of Section 21 would be void. The High Court did not give any detailed reasons, but taking the view that the Appellate Authority and the Land Tribunal having concurrently held that respondents 2 to 5 are entitled for grant of occupancy rights found no reasons to interfere with the order made by them.

(3.) Shri S. K. Kulkarni, learned Advocate for the appellants submitted that it is clear from the law laid down by this Court in Anqurbala Mullick v. Debabrata Mullick, (1951) SCR 1125 , that a bequest to be made under a Will is not confined to the issues, but may include others and a bequest under Will would not amount to assignment or transfer and in support of this proposition he further placed reliance upon the decision of the Karnataka High Court in (1997) 1 Ker LJ 146 (short notes item 160) to which we have adverted to earlier and Dhareppa v. State of Karnataka, (1979) 1 Kant LJ 18. He submitted that the Will is not a transaction wherein property will pass inter viovos inasmuch as the Will takes effect only on the death of a party and is not a mode of succession thereof and there is no element of transfer or assignment of the same. He further submitted that the view taken by the High Court in Timmakka Kom Venkanna Naik v. The Land Tribunal, (1987) 2 Kant LJ 337 is not correct and the High Court therein had placed reliance on the decision of Bombay High Court in Dr. Anant Trimbak Sabnis v. Vasant Pratap Pandit, AIR 1980 Bombay 69 which stated that assignment will also include a disposition under a Will. He stated that enunciation was made in the context of Bombay Rent Act and under the Scheme of that enactment even disposition by Will was included. He, therefore, very strongly commended to us that the view taken by the Appellate Authority was not correct and needs to be interferred with.