Sri Malakari Pudalakatti (since dead by his LR Smt. Sitawwa Ningappa Naik) vs State of Karnataka and Others

H.V.G. Ramesh, J.—Petitioner has sought for quashing the order dated 29.1.2004 for such other orders.

According to the petitioner, her father namely Malkari Devappa Pudalkatti was personally cultivating the agricultural land in Sy. No. 3 to the extent of 11 acres on the southern portion of the same which was in all, measuring 22 acres situate at Alakanur Village of Raibag Taluk, Belgaum and he had also filed Form 7 for granting occupancy rights. The Land Tribunal, Raibag had granted occupancy rights to the father of the petitioner on 20.1.1979. The said order wag challenged by the 4th respondent before this Court in WP 40056/1993 and this Court remanded the matter to the Tribunal for fresh disposal. According to the petitioner, her grand father was cultivating the land and was in possession of the land in question and alter his death, her father was cultivating and on the death of her father, she being the legal heir of the deceased Malkari, she also is cultivating the land in support of which RTC extracts for the year 1980-81 is produced at annexure A.

Further according to the petitioner, the 4th respondent has clearly stated before the Tribunal that petitioner''s father was cultivating and he was in possession of the land in question and that he has no objection for grant of occupancy rights. However, according to the petitioner, on remand the Land Tribunal granted occupancy rights to the 3rd respondent on 29.1.2004 only on the ground that the petitioner''s father had executed a Will in favour of the 3rd respondent as such, claim of the petitioner had been rejected by the said order. Hence, this petition.

Heard the counsel for the petitioner, respondent and the Government Pleader. It is the submission of the petitioner''s counsel that she is the legal heir of Malkari the original tenant who had been granted with occupancy lights and his right has been recognised by the Land owner and she being the sole survivor, the Land Tribunal ought to have granted occupancy rights in her favour. When the legal heir is available, disposing of the property by Will in favour of a third person is illegal and the same cannot be acted upon by the Land Tribunal.

Per contra, counsel for the 3rd respondent submitted that this petitioner is not at all the daughter of Malkari as such, property had been bequeathed in favour of the 3rd respondent who is none other than the brother of Malkari as such, there is no illegality in the order pasted by the Land Tribunal. Further more, it is his submission that the documents produced are concocted to knock off the property by the petitioner.

Learned Counsel for the petitioner has relied upon the decision in K. Achutha Pai Vs. Joseph Tauro and Others, to contend that the tenant cannot bequeath his interest in the tenanted property. He has also relied upon the decision of the Supreme Court in the case of Sangappa Kalyanappa Bangi v. Land Tribunal, Jamkkandi and Ors. ILR 1999 Kar 863 to contend to a similar effect wherein it is held that the deceased tenant can assign his right only to his heirs referred to in the provisions and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by a legitimate kinship. He has also relied on the decision in the case of Thimmakka Venkanna Naik v. Land Tribunal and Ors.1987 (2) KLJ 337 wherein this Court in a Division Bench, referring to Section 21(1) and 24 of the Land Reforms Act, 1961, has held that statute has preempted succession which cannot be defeated by tenant by bequeathing his interest Of course, this is in respect of bequeathing the property to a third party.

In the decision in the case of Rama Subraya Naik since dead by his L.Rs and Others Vs. State of Karnataka and Others, , referred by the respondent''s counsel, referring to Sub-section (1) of Section 21 of the Act, this Court has held that then; is no bar to claim occupancy right or grant of occupancy right to the beneficiary of the Will under Sub-section (1) of Section 21.

In the ratio laid down by the Apex Court in the decision cited supra with reference to the provision u/s 21, the Apex Court in so far as bequeathing of property is concerned, has observed that the deceased tenant can assign his right only to the heirs referred to in the provisions and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship. In the instant case, it is the case of the petitioner that she is the daughter of Malkari and she has produced the legal heir certificate and as such, property bequeathed in favour of the 3rd respondent is against the provisions.

In the larger terms what is being stated by the Apex Court is the tenant can assign his rights only to his relatives including his descendants. It is not clear as to whether such bequeathing the property is to be made in the order of succession and more over, bequeathing the property in favour of the 3rd respondent is not in dispute. On the basis of the Will made and on the basis of the lease hold right held by Malkari, the original applicant, the 3rd respondent participated in the proceedings and this 3rd respondent is none other man the nephew of the deceased Malkari in whose favour the Will was made. More over, the Land Tribunal after considering the contentions, although has not stated in many words, has formed an opinion that Malkari had no issues and of course, the contention of the 3rd respondent also is that Malkari had no issues and the petitioner had obtained a fake certificate. It is also to be noted, in the evidence of Sitawwa/petitioner, she has clearly admitted that Malkari & Tungavva w/o Malkari had no issues which clearly depicts the fact that she is not the legal heir of Malkari to claim the right even on the basis of succession.

In the absence of any bar u/s 21 to bequeath the property in favour of the property or lease hold right, the Will created by the deceased in favour of the 3rd respondent who is related to the deceased, cannot be held to be bad. In the circumstances, the impugned order of the Land Tribunal does not require any interference.

In the result, the petition is dismissed.