VIJAYALAXMI Vs. SMT. SHASHIKALA @ RADHA AND OTHERS

JUDGEMENT

(1.) THE appeal filed against the Judgment and decree in RA No. 4 of 1993 on the file of Additional District Judge, Mangalore arising out of the Judgment and decree in O.S. No. 96 of 1989 on the file of Civil Judge, Puttur, Dakshina Kannada District.

(2.) THE Appellant is the Plaintiff had filed a suit for partition and possession of share in the suit schedule properties consisting of A and B schedule. The A schedule properties are the land granted by the Land Tribunal to one Narayana Bhat, the father of the Plaintiff. The B schedule properties are the Malki land of Narayana Bhat granted by Darkast. The propositus Narayana Bhat executed a Will in respect of A and B schedule properties and bequeathed them in favour of the 5th Defendant. The trial Court held that bequest of the agricultural lands granted by the Land Tribunal under Will is bad in law and Plaintiff was given 1/6th share. A Will in respect of B schedule properties is held to be valid. Thus the suit of the Plaintiff is partly decreed. In appeal, the first appellate Court allowed the appeal, has set aside the Judgment and decree and dismissed the suit of the Plaintiff upholding the validity of the Will in respect of both A and B schedule properties. Hence this appeal by the Plaintiff.

(3.) THE Counsel for the Appellant relied on the ruling of the Supreme Court in Sangappa Kalyanappa Bangi v. Land Tribunal Jamkhandi and Ors. ILR 1999 Kar. 863 wherein it is held that a Will is also a devise of transfer and with reference to Sections 21 and 24 of the Land Reforms Act it is held that any Will executed by the tenant only in favour of the members of the joint family and the heirs as contemplated under Section 24 would be valid and any bequest of tenancy rights under a Will to a stranger is invalid and cannot create or transfer any right. It is the contention of the Counsel for the Appellant that under the provisions of Section 61 of the Karnataka Land Reforms Act the restriction is more rigorous and does not permit a bequest under a Will to any others except to the members of a joint family of the grantee. When there is no joint family and when the person is not a member of a joint family bequest under a Will to the non -members of the family is bad in law. In the present case, the bequest under a Will is made to a married daughter who is not a member of a joint family. Therefore the bequest under a Will to 5th Defendant is contrary to provisions of Section 61 of Act. In that view argued that the land has to be inherited by him by normal rules of succession.