Huchappa
Yellappa Radder & Anr Vs. Ningappa Bheemappa Talawar [1993] INSC 299 (14 May 1993)
Venkatachala
N. (J) Venkatachala N. (J) Kuldip Singh (J) Jeevan Reddy, B.P. (J)
CITATION:
1993 SCR (3) 779 1993 SCC Supl. (3) 651 JT 1993 (3) 412 1993 SCALE (2)971
ACT:
Transfer
of Property Act 1882-S. III(d) Karnataka (prevention of Fragmenting &
Consolidation of Holdings) Act 1966 S. 39(3)--Karnataka land Reforms Act 1961,
Ss.141 and 143--Sale of land to tenants in possession found void in a suit for
partition of joint family properties, whether right of tenancy disturbed by the
sale deed-Held, since sale deed void because the individed interest of the
brother could not have been sold, there was no merger of interest within S.III
(d) T.P.Act--Tenancy rights not affected or disturbed by sale deed-Bombay
Hereditary offices Act 1874-Bombay paragana and Kulkarni Watans (Abolition )
Act 1950-Bombay Tenancy and Agricultural Lands Act 1948.
HEAD NOTE:
Basappa
Bheemappa K,as the Watandar of the disputed agricultural lands admeasuring 4
acres, and 6 acres 26 guntts, in Kubihal Village in Kundgol Taluk of Dhwarwad
District which became a part of Karnataka State in 1956. In 1950, he leased the
disputed lands to appellant 1 and the father of appellant 2 for their personal
cultivation.
With
the coming into force of the Bombay paragana
and Kulkarni Watans(Abolition) Act 1950 the lands were resumed by the State of
Bombay, Bheemappa applied under this Act for regrant of the wattan land, and
the Dy. Commissioner of Dhawad District made the regrant in his favour on
30.11.1968. On 31.3.1969, he sold the land to appellant no. 1 and the father of
appellant no. 2 under a registered sale deed. The land tribunal under the
Karnataka land Reforms Act 1961 found it unnecessary to register the occupancy
rights (of the appellants in view of the sale.
In
1976, respondent field a suit against Bheemappa and 2 other brothers for
partition to the disputed property and separate possession. He impleadcd
appellants 1 and 2 as defendant,; in the suit since they were in possession of
the disputed lands. He contended that Bheemappa had sold the lands without the
prior consent of his brothers, and for nor legal necessity. of the family, and
the sale was void ab initio.
780
The Munsiff Court granted a decree in favour of the respondent on its finding
that the disputed funds were Hindu joint family properties, that the sale *%,as
void ab initio for tile reasons stated-. and that the plea (if the
defendants-appellants that if the sale was void the tenancy revived. ",as
unacceptable.
The Munsiff Court, and in appeal, the Civil Judge
concurrently held that the sale was void since sale (it' fragments was
prohibited under the Karnataka prevention of Fragmentation Act 1966.
A
regular second appeal before the High Court was dismissed in limine.
The
appellants contended before this Court that if the sale was ab-initio void, the
agricultural tenancy (of the appellant%; revived. For the respondents it was
submitted that the tenancy on lease hold rights in the disputed lands held by
the appellant got merged in tile sale effected in their favour. When that sale
was found to be void it did not have the effect (if reviving the merged tenancy
of the appellants,as would restore their tenancy right,; in the disputed lands.
Allowing
the appeal, this Court,
HELD:
(1) Tile tenants being the persons deemed to be in possession of the disputed
lands and entitled to continue in possession thereof a partition decree could
have been granted, in respect of such tenanted lands only if permissible by
law. (784-H) (2) The courts below having found that the sale deed was void
because Bheemappa could not having sold the undivided interest of his brother,
only his 1/4 undivided interest, in the disputed lands had to be regarded as
having been sold by him. (784-H) The lessors' entire interest (or entire
reversion in the disputed lands cannot therefore be regarded us having been
sold under the sale deed of 31 st March, 1969. From this, it follows that the
lease-hold interests of the leases and the lessors entire reversion could not
have merged in one and the same person, so as to constitute merger envisaged
under section 111(d) of the Transfer of Property. Act, 1982. For constituting
merger under that procession, the interests of the lessee and the interests of
the lessor in the whole of the 781 property had to vest at the same time in one
person in the same right. (785-BC) The tenancy rights of the appellants in the
disputed lands was not affected or disturbed by the sale deed of 31st March, 1969, and it is unnecessary to consider
the question of revival of the right of tenancy of the appellants in the
disputed lands. (785-D)
3.
Case remitted to the Court of Munsiff at Kundgol Dharwad District to decide the
claim for partition if the disputed lands had continued as tenanted lands, as
found by this Court. (785-E)
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 2854 of 1993.
From
the Judgment and Order dated 6.4.1992 of the Karnataka High Court in R.S.A. No.
534 of 1990.
S.D. Bajaj,
and P. Mahale for the Appellants.
Ms. Kiran
Suri for the Respondent.
The
Judgment of the Court was delivered by VENKATACHALA, J. We grant Special Leave.
Since we heard learned counsel for parties on the merits of the appeal. we are
finally deciding it.
An
extent of 4 acres and another extent of 6 acres 26 guntas are agricultural
lands comprised in Survey No. 24/2A and Survey No. 34/2B of Kubihal Village in Kundgol
Taluk of Dharwad District. They are the disputed lands in this appeal. The
disputed lands were Watans appertaining to hereditary village offices under the
Bombay Hereditary Offices Act, 1874 known as Watan Act. Basappa Bheemappa, who
was the Watandar of the disputed lands, leased them in the year 1950 in favour
of appellant-1 and father of appellant-2, for their personal cultivation. With
the coming into force on 25th January, 1951 of the Bombay Paragana and Kulkarni
Watans (Abolition) Act, 1950, known s the Watan (Abolition) Act, all the Watans
were resumed by the State of Bombay resulting in extinguishment of all the
rights held by Watandars in such Watans. But, there was a right conferred under
the Watan Act on every Watandar-the holder of the 782 Watan land, to obtain its
regrant subject to payment of occupancy price.After the resumption of the
disputed lands by the State of Bombay under the Watan (Abolition) Act, Basappa Bheemappa,
claiming to be their former holder applied for the irregrant before the
Assistant Commissioner.
Savannah, as by then, Dharwad District where
the disputed lands were located, had come to Karnataka State from Bombay State by reason of the reorganisation of
States under the States Reorganisation Act 1956. Thereafter, by his Order dated
30th November, 1968, the Deputy Commissioner of Dharwad
District made the regrant of disputed lands (resumed Watan lands) in favour of
their former Watandar, Basappa Bheemappa. The tenancy of the disputed lands had
since been regulated by the provisions of the Bombay Tenancy and Agricultural
lands Act, 1948 (the BT & Al, Act) from the time Bassppa Bheemappa as their
Watandar, had leased them in favour of appellant- 1 and father of appellant-2
in the year 1950, the regrant of the disputed lands in favour of Basappa Bheemappa
under the Watan (Abolition) Act, did not entitle him to obtain possession of
them except under the BT & AL, Act. Although, the Karnataka Land Reforms
Act, 1961 (the KLR Act) which came into force in Karnataka on 2.10.1965,
repealed by its section 141 the Watan (Abolition) Act and by its section 143
the BT & A L Act, 1948, nothing thereunder adversely affected the rights of
the appellants' tenancy in the disputed lands. However, the said Basappa Bheemappa
sold the disputed lands in favour of their tenants (the appellant- 1 and father
of appellant-2 on 3 1st
March, 1969 under a
registered sale deed. The land Tribunal under the KLR Act, before which the
appellants sought registration of their occupancy rights in the disputed lands,
found it unnecessary to so register them because of its view that the disputed
lands had been sold to them by the landlord- regrade, Basappa Bheemappa.
But,
on 8th December, 1976, the respondent filed a suit in the
Court of Munsiff at Kundogol against his eldest brother, Basappa Beemappa (the
seller of the disputed lands) and two other brothers arraying them as
defendants- 1 to 3. That was a suit for partition of 1/4th share in the
disputed lands and putting him ink separate possession of that share. His claim
for partition and separate possession of `his share in the disputed lands was
based on the plea that the sale deed dated 31st March, 1969 by which defendant-
1, his eldest brother, had sold the disputed lands (joint family lands) in favour
of the tenants, without the prior consent of his brothers and for no legal
necessity of the family, was void ab initio. The impleaded in that suit
appellants- 1 and 2 as defendants - 4 and 5, since they were in possession of
the disputed lands. Defendants-1, 4 and 5, resisted the plaintiff's claim for
783 partition and separate possession of his 1/4th share in the disputed lands
urging, inter alia, that he had no right to get any share in them. After trial
of the suit, the Munsiff
Court -ranted a
decree in favour of the respondent. That decree of the Munsiff Court was based
on its findings (i) that the disputed lands were Hindu joint family properties
of the plaintiff and defendants- 1 to 3; (ii) that the sale of the disputed
lands in favour of defendant-4 and father of defendant-5 had since been made by
defendant- 1 without the consent of his brothers, the plaintiff and defendants-2
and 3 and without legal necessity of the family, the same was void ab initio;
(iii) that the plea of defendants- 1, 4 and 5 that the tenancy revived, if the
sale by defendant- 1 in favour of defendant-4 and father of defendant-5 was
found to be v.' d, was unacceptable', and (iv) that the sale by defendant-] in favour
of defendant-4 and father of defendant-5 of the disputed lands was also void
since sale of them (Fragments) was prohibited under the provision. 1 of the
Karnataka (Prevention of Fragmentation and Consolidation of Holdings) Act,
1966-the Karnataka Prevention of Fragmentation Act. However, defendants-4 and 5
challenged the correctness of the decree of the Munsiff Court, by filing an
appeal before the Court of the Civil Judge at Hubli. In that appeal, the Court
of the Civil Judge, held that the sale deed date 3 1st March, 1969 by which
defendants had sold the disputed lands, was void because of the provisions of
the Karnataka Prevention of Fragmentation Act, prohibiting such sale and this
situation itself enabled the plaintiff to ignore the sale effected by
defendant-1 and claim his share in the disputed lands. Accordingly, it
dismissed the appeal. A Regular Second Appeal filed by defendants-4and 5 before
the High Court of Karnataka against the decree of the Civil Judge's Court
affirming the decree of the Munsiff's Court, was dismissed in limine. It is
those decrees which are impugnned by defendants-4 and 5 in the present appeal
by Special Leave.
Shri Padmanabha
Mahale, the learned counsel for the appellants, contended that the Courts below
ought to have held that the agricultural tenancy of the appellants in respect
of the disputed lands revived when, according to them, sale of the disputed
lands by defendant- 1 in favour of defendants-4 and 5 (appellants 1 and 2) was ab
initio void either (i) because the sale was of the joint family lands effected
by the eldest brother in the family without the consent of the other brothers
and for no legal necessity, or (ii) because the sale was effected when such a
sale was prohibited under the provisions of the Karnataka Prevention of
Fragmentation Act. Had it been so held, it was argued, there would not have
been scope for the 784 Munsiff Court to have made a decree in favour of the
respondent for partition of his 1/4th share in the disputed lands and putting
him in possession thereof to the extent of such share and granting him mesne
profits, and that decree to have been affirmed by the Appellate Court. On the
other hand, Mrs, Kiran Surj, the learned counsel for the respondent, submitted
that the tenancy or lease-hold rights in the disputed lands held by the
appellants got merged in the sale effected in their favour by defendant- 1 on
31st March, 1969. That sale, when was found to be void by the Courts below,
such finding did not have the effect of reviving the marked tenancy of the
appellants, as would restore their tenancy rights in the disputed lands. This
appeal was, therefore, liable to be dismissed.
The
Court of Munsiff-the Trial Court and the Court of Civil Judge-the First
Appellant Court, have recorded a concurrent finding that the sale by defendant-
1 in favour of defendant-4 and father of defendant-5 of the disputed lands by
registered sale deed dated 3 1 st March, 1969, was void ab initio-that being a
sale prohibited under the provisions of the Karnataka Prevention of
Fragmentation Act. Besides, the Trial Court has recorded a finding that the
said sale deed was void, on its view that the 3/4th share of the plaintiff and
defendants-2 and 3 in the disputed lands belonging to there joint family had
been sold by their eldest brother defendant- 1 without their consent and when
there was no legal necessity of the family for such sale.
The
Trial Court has accordingly, made the decree in the suit in favour of the
plaintiff and that decree is affirmed by the Appellate Court, because of the
said findings recorded by them. The Second Appeal filed before the High Court
by defendants-4 and 5, has been dismissed in limine.
That
the sale deed dated3 1st March, 1969 if is void, being a prohibited sale under
the provisions of the Karnataka Prevention of Fragmentation Act, as is held by
the Court of Munsiff and also the Court of Civil Judge, the consequence
contained in sub-section (3) of section 39 of that Act should have followed,
that is- "Any person unauthorisedly occupying or wrongfully in possession
of any land, the transfer or partition of which is void under the provisions of
this Act, may be summarily evicted by the Deputy Commissioner, and after such
eviction such land shall be deemed to 785 be in the possession of the person
lawfully entitled to such possession".
In the
instant case, the tenants on the lands (defendants-4 and 5) being the persons
deemed to be in possession of the disputed lands and entitled to continue in
possession thereof, the Court below ought to have seen that the partition
decree sought for by the plaintiff (respondent here) could have been -ranted in
respect of such tenanted lands, only if the same was permissible in law, and not
otherwise.
The
other finding of the Courts below is, that the sale deed dated 31st March, 1969
was void because defendant- 1 could not have sold the undivided interest of his
brothers-the plaintiff (respondent here) and defendants-2 and 3 in the disputed
lands, being their joint family properties, without their consent and without
the legal necessity of the family.
If
that be so, defendant- 1 had to be regarded as having sold in favour of
defendant-4 and father of defendant-5 under sale deed dated 31st March, 1969
only his 1/4th undivided interest in the disputed lands and not. 3/4th of the
undivided interest of the plaintiff and defendants-2 and
3.
That means that the lessors' entire interest or entire reversion in the
disputed lands cannot be regarded as having been sold under the sale deed of 31st March, 1969. From this, it following that the
lease-hold interests of defendant-4 and father of defendant-5 in the disputed
lands and lessors' entire reversion could not have merged in one and some
person. so as to constitute merger envisaged under section 111 (d) of the
Transfer of Property Act, 1882, in that, for constituting merger under that
provision, the interests of the lessee and the interests of the lessor in the
whole of the property. had to vest at the same time in one person in the same
right. Thus, on the basis of the finding of the Courts below, if it has to be
held that defendant- 1 had not sold the undivided interest of the plaintiff and
defendants-2 and 3 in the disputed lands to the extent of their 3/4th
share-there could not have been any merger of tenancy rights of defendant-4 and
father of defendant-5 in the disputed lands with that of lessors (landlords)
whole rights. If so, tenancy rights of the appellants in the disputed lands
ought to be regarded as not affected or disturbed by the sale deed of 31st March, 1969.
Hence,
consideration of the question whether there arose revival of the right of
tenancy of the appellants in the disputed lands, is unnecessary- In the result,
we allow this appeal, set aside the judgments and decrees of the Courts below
and remit the case to the Court of Munsiff at Kundgol, Dharwad 786 District of
Karnataka State with a direction to it to take back the suit on to its file and
decide after affording the parties an opportunity of hearing, the question
whether the plaintiff would be entitled to the decree sought for in the suit,
if the disputed lands had continued as tenanted lands, as found by us. No
costs.
U.R.
Appeal allowed.
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