Kanna Timma Kanaji Madiwal (d) Through Lrs. v. Ramachandra Timmaya Hegde (d) Through Lrs. and Ors.

DINESH MAHESHWARI, J. 1. In the foreground, these appeals are in challenge to the judgment and orders dated 08.08.2001 and 06.12.2004, passed by the KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. High Court of Karnataka at Bangalore in L.R.R.P. No. 1 of 1996 and Review Petition No. 484 of 2002 respectively, arisi ng out of an application filed by the father of the appellant for grant of occupancy rights in respect of 4 parcels of agricultural land 1 situated at Bilagi Village, Siddapur Taluk, Uttara Kannada District, Karnataka [‘the land in 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 involved in the matter may be noticed at the outset and as follows: 2.1. One Kanna Kulage of the village aforesaid had three sons namely, Gutya, Timma and Ganappa. The appellant herein, Kanna 2 , is son of Timma and thus, nephew of Gutya. It is not in di spute that Ganappa had left the family and nothing in his regard is now involved in this litigation. Gutya had married Gauri but it is the case of the appellant that Gutya’s wife Smt. Gauri left him; remarrie d one Jatya; and begot two children from her second marriage with Jatya 3 . The land in question originally belonged to the respondents herein but admittedly, Gutya, paternal uncle of the appellant, was inducted as tena nt therein. 3. The relevant background aspects of the matter could now be noticed, in brief, as follows: 3.1. It is the case of the appellant Kanna that due to the ill-health of his uncle Gutya, the land in question was being cultivated by his father Timma (brother of Gutya); and Timma was paying the rents to the respondents on behalf of Gutya, whose health kept on deteriora ting. 1 Bearing Survey No. 69/4 (measuring 1 acre 10 guntas), Survey No. 8 2/1 (measuring 1 acre 30 guntas), Survey No. 81 (measuring 30 guntas) and Survey No. 92 (measuring 2 guntas). 2 Kanna son of Timma having expired during this litigati on, is now represented by his legal representatives but, looking to the subject-m atter and the issues involved, the discussion herein is with reference to the origina l appellant Kanna. 3 This assertion that Smt. Gauri left Gutya and establis hed matrimonial relations with Jatya is supported by the appellant with reference to the findings returned in a civil suit filed by Timma for declaration of his title and f or injunction in respect of the land in question. The requisite details pertaining t o the said civil suit shall occur hereafter a little later. 775 3.2. It is further the case of the appellant Kanna that on 13.02.1960, Gutya executed a Will and got it registered, bequeathing all his properties in favour of his brother Timma (father of the appellant). Gutya expired on 19.06.1963. After the demise of Gutya, the Tahsildar conducted 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 had been in cultivatory possession of Timma. 3.3. Later on, the said Smt. Gauri filed her objections to the mutation entries made in favour of Timma but the said objections were overruled. However, the Assistant Commissioner, in appeal, remanded the matter for consideration afresh and, after such remand, the authority concerned, by its order dated 18.05.1965, ordered that the mutation entry of the land in question be made in the name of Smt. Gauri. 3.4. Having thus succeeded in getting the land in quest ion mutated in her favour, the said Smt. Gauri purportedly surrendered the tenancy rights in favour of the respondents herein on 16.06.1965. 3.5. In the wake of the developments aforesaid, Timma filed a civil suit 4 for declaration of possessory title and injunction against Smt. Gauri with reference to the Will of his brother Gutya, while also joining his other brother Ganappa and the present respondents as de fendants. In her written statement, Smt. Gauri denied the execution of W ill by Gutya and validity thereof; and also denied that Timma was in possession of the land in question. The respondents-landlords denied that Timm a could 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 Trial Court with the findings, inter alia , that Smt. Gauri left the company of Gutya and contacted marriage with Jatya; that after leaving the company of Gutya and upon her re-marriage, Smt. Gauri was no longer an hei r of Gutya and, therefore, she was not entitled to inherit or sur render the tenancy rights of Gutya in the land in question. The Trial Court also 4 Original Suit No. 117 of 1965 in the Court of Munsi ff, Sirsi. KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] held that Timma was in lawful possession of the land in questi on and the Will dated 13.02.1960 was validly executed by Gutya 5 . 3.5.2. Assailing the decree aforesaid, appeals were preferred in the Court of District Judge, Karwar by the respondents-landlords and Smt. Gauri 6 . The First Appellate Court reversed the decree of the Trial Court and remanded the matter for reconsideration of the question as to who was the tenant after the death of Gutya. This order of remand was challenged by Timma before the High Court of Karnataka 7 . The High Court, by its order dated 08.03.1977, disapproved the order of remand and restored the matter to the file of First Appell ate Court for disposal on merits, after observing that the question involved w as not of ‘tenancy’ but the one relating to the ‘succession of Gutya’s tenancy’. 3.5.3.After remand, the appeal filed by the present respondents against the decree of the Trial Court was transferred to the Court of Civil Judge, Sirsi 8 . Ultimately, the First Appellate Court dismissed the 5 The typed copy of this judgment dated 30.06.1969, place d on record as Annuxure P-1 carries several obvious typographical errors but, for the purpose of reference, the operative part thereof (at pp. 132-133 of the pa per-book) is being extracted, verbatim, as under:- “In view of my findings on the documentary and oral evid ence in this case and in view of the correct legal position according to me I hol d that the power of the deceased Gutya to will away his properties is unassa ilable. The plff. therefore, got absolute title and possession in respect of the Malki properties and possessary title in respect of lease hold items the moment Guty a died. I am also of the clear opinion that the first deft. did not retained her cha racter as widow of Gutya and consequently acquired no titled or possession in respec t of the suit properties. Upon a careful assessment of the evidence in this case the first deft. has impressed me as tool in the hands of owners of lease hold prope rties….Therefore a decree is 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 th e plaint is hereby declared on the basis of Exh. P.1. II. The possessary title of the plff. is hereby declared i n respect of items 4 to 7 of the plaint on the same basis. III. An perpetual injunction is issued against all the defend ants, their servants, agents etc., from interfering with the peaceful possession a nd enjoyment of all the suit properties. IV . The suit of the plff. is decreed against all the defendants for costs. This decree for 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 1975 8 renumbered as RA No. 43 of 1978 777 said appeal by way of the judgment and decree dated 18.12.1990 while holding that the Will executed by Gutya in favour of Timma was proved and the same was validity registered. The First Appellat e Court also confirmed the findings of the Trial Court that Smt. Gauri had re-married and ceased to be the heir of Gutya. While referring to the provisions contained in sub-section (1) of Section 27 of the Bombay Tenancy and Agricultural Lands Act, 1948, [‘the Act of 1948’], the First Appell ate Court also observed that the said provision prohibited alie nation of leasehold land by a tenant but testamentary success ion was not prohibited. 9 3.5.4. The decree so passed by the First Appellate Court was challenged by the present respondents by way of a second ap peal 10 that was considered and dismissed by the High Court on 08.07.1998. The present respondents attempted to challenge the judgment of the High 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 be en that the findings came to be recorded conclusively that Smt. Gauri was not the heir of Gutya; that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings attained finality with dismissal of appeals and the 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 of paper-book) could also be usefully extracted as under:- “21…..There is therefore, no substance in the conte ntion of the learned counsel for petitioner that the claim of respondent no. 5 based on tes tamentary succession could not have been entertained by Tribunal as alleged acquisition of lease was in violation of Sec. 21 of the Act. In the instant case, there is evidence to show that deft. 1 Gouri remarried. There is no dispute regarding the tenancy as it is admitted fact late Gutya was a tenant of lease hold properties . It has come in the evidence that deft. 1 Gouri had left her husband’ s house and s tarted living in some other village and led an unchaste life and subsequently sh e married one Jatya through whom she begotten children, for which there is evid ence. The very object of prohibition u/s 27 is that after the death of tenant, the heirs of deceased tenant shall be entitled to partition and sub division the land leased subject to the conditions laid down. In the Will it is specifically sta ted that Gutya had no issues. It is also not the case of Gouri that she has filed any applicat ion claiming tenancy right before the competent authority after the alleged ex ecution of the Will…..” 10 RSA No. 22 of 1991 11 SLP (C) No. 4770 of 2000 KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] 3.6. The other line of proceedings commenced on 08.08.1974 with filing of an application in Form No. 7 under Section 48-A of the Karnataka Land Reforms Act, 1961 [‘the Act of 1961’] by Timma for grant of occupancy rights in respect of the land in question b efore the Land Tribunal, Siddapur 12 . This application was moved by Timma after the decree of the Trial Court in the above-referred civil suit but during the period when the appeal against such decree was pending. Duri ng the pendency of application before the Land Tribunal and also the appeal proceedings relating to the aforesaid civil suit, Timma expired and hence, his wife and children were brought on record as his legal representatives. 3.6.1. On 22.09.1981, the Land Tribunal rejected the claim for grant of occupancy rights in respect of the land in q uestion while observing that the appellant (son of Timma) had made a sta tement of admission that he was not the tenant of the land in question. 3.6.2. The aforesaid order of the Land Tribunal was challenged by the appellant Kanna, son of Timma, before the High Court by filing a writ petition and, inter alia , disputing the purport of the statement alleged to have been made by him before the Land Tribunal. Duri ng the pendency of the said writ petition, the Land Reforms Appel late Authority came to be established and hence, the High Court transferred the matter to the said Appellate Authority. The matter so transferred by the High Court was registered before the Appellate Authority as an appeal against the order of Land Tribunal 13 . 3.6.3. By its order dated 18.07.1988, the Appellate Authority dismissed the said appeal of the appellant for non-prosecution. The appellant sought restoration of the appeal and recall of the o rder of default dismissal by moving an application under Ru le 9 of the Karnataka Land Reforms Rules. The application so move d by the appellant was dismissed by the Appellate Authority on 26.12.1988, for want of sufficient reasons for absence of advocate on the date of hearing as also for want of an application for condonation of dela y of one day in filing the application for recall. 3.6.4. Being aggrieved by such dismissal of the appeal and the application for restoration, the appellant preferred a revision petition 14 12 Case No. TNC-DSR-988-5563-4885-7524 13 Appeal No. DAAA:AP:203/1986 14 L.R.R.P. No. 1 of 1996 779 before the High Court of Karnataka. The High Court proceede d to dismiss the petition so filed by the appellant by its impugned order dated 08.08.2001, while rejecting the claim of appellant on merits and while observing, inter alia , that: (a) Gutya was the original tenant of the land in question before his demise in the year 1963; (b) in the application in Form No. 7, Timma failed to plead about the separation of Smt. Gauri from Gutya prior to his demise and, therefore, the alleged disinheritance of Smt. Gauri could not be countenanced, meaning thereby that she remained the legal heir of Gutya; (c) the assignment of interest of tenancy by way of bequeath was barred under Section 21 of the Act of 1961 and, therefore, Timma could not succeed to Gutya’s land by virtue of the Will executed in his favour; (d) Gutya and Timma had their respective parcels of land and each of them was cultivating h is own parcel; (e) if tenancy was transferred in favour of Timma, it wou ld amount to creation of fresh tenancy, which would be in contraventi on of the provisions of the Act of 1961; and (f) the appellant had ma de a statement before the Land Tribunal that he was not a tenant in res pect of the land in question. The relevant portion of the order of the High Court reads as under:- “…… the petitioner herein cannot succeed to the tenancy right of the deceased Gutya by virtue of the Will alleged to have been executed by the deceased Gutya in favour of his fa ther Thimma, in the presence of the wife of the deceased Gutya by name Gowri who is the legal heir of the deceased to succeed to the tenancy rights of her deceased husba nd. Further it is also the case of the petitioner herein that when the deceased Gutya fell ill and the father of the p etitioner Thimma began to cultivate the lands in respect of whi ch the deceased Gutya was a tenant, the father of the petitioner h ad started paying the rent in respect of the said land s to the landlord and which were duly accepted by him. Thus according to the petitioner there was almost a fres h lease created in favour of the father of the petitioner Thimma. But it has to be stated that any tenancy created in contrave ntion of Section -5 of the Karnataka Land Reforms Act wou ld be void and therefore any possession pursuant to such fresh lease would also be unlawful and such person is the refore not entitled to the benefit of section-4 of the KLR A ct. Even on the ground also, the father of the petitioner wa s not KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] entitled to seek the registration of occupancy rights in re spect of the lands, of which the deceased Gutya was a ten ant. Therefore looking from any angle, neither the petit ioner nor his father Thimma could be entitled to seek registr ation of occupancy rights in respect of the lands, of which the deceased Gutya was a tenant. That apart, the order of the Land Tribunal would clearly indicate that the petit ioner herein who gave his statement before the Land Tribu nal did not claim tenancy right in respect of the lands, of whi ch the deceased Gutya was a tenant. No doubt it was sought to be contended on behalf of the petitioner that there was no such statement made before the Land Tribunal by the peti tioner. But the order of the Land Tribunal would clearly in dicate that the petitioner did make such a statement before the Land Tribunal. If the petitioner wanted to establish the fact that the said observation made by the Land Tribunal in i ts impugned order is factually incorrect, he could hav e adduced additional evidence before the Land Reforms Appellate Authority. But he did not do so and on th e other he allowed the appeal to be dismissed for default. Ther efore having given my anxious consideration to the entire matter in issue, I find no merit in this revision petition filed by the petitioner and it is liable to be dismissed. ” 3.6.5. The appellant attempted to challenge the aforesaid order dated 08.08.2001 in this Court by way of a petition for Special Leave to Appeal 15 but, on 11.03.2002, the same was dismissed as withdrawn with liberty to the appellant to file a review petition be fore the High Court. The appellant, thereafter, filed a review petition 16 before the High Court with an application for condonation of delay. Even this r eview petition went through its own meandering course inas much as the application for condonation of delay was dismissed by the High Court on 01.08.2003 for want of satisfactory reasons for not approaching the Court within reasonable time. Against this order dated 01.08.2003, the appellant again approached this Court by way of another petition for Special Leave to Appeal 17 that was allowed on 09.07.2004; this Court condoned the delay and remitted the matter to High Court for disposal on merits. 15 SLP (C) No. 3339 of 2002 16 Review Petition No. 484 of 2002 17 SLP (C) No. 23609-23610 of 2003 781 3.6.6. Ultimately, the said review petition and an applica tion therein for production of additional documents were considere d on merits and the High Court proceeded to dismiss the same by its order dated 06.12.2004 while essentially reiterating its findings, as occurring in the order dated 08.08.2001, and while observing th at there was nothing of any error apparent on the face of record. The High Court observed , inter alia, as under:- “9. In the instant case, I find that there is no such e rror apparent on the face of the record and the present review Petition filed by the Petitioner is only an attempt to re argue the matter, which is not permissible in review jurisdiction…....In the case at hand, the deceased testator Gutya could not have executed the Will in favour of a person who could not be declared to be a tenant having occu pancy right and that further the person concerned was not a tenant within the meaning of the Act on the appointed day and hence he was clearly not eligible for occupancy righ ts. It is needless to point out that the mere possession of t he lands will not be sufficient to confer the status of occu pancy of tenancy as the sine-qua-non for obtaining the statu s of occupancy of tenancy rights is that the person conc erned must be a tenant on the appointed day. It has to be stated that the tenancy continues notwithstanding the death of the tenant in occupation of certain lands and such (?) is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death and the heir s who can take the property are those who are referable t o in Section 21 of the Karnataka Land Reforms Act and th at in the instant case, the person concerned being not an heir of the deceased tenant and there being a spouse (wife) of the deceased tenant living at the relevant time, could not have obtained the status of the occupancy tenant [sic]. Obviously therefore, the person concerned did not seem to have claimed tenancy rights in respect of the lands in occupatio n of the deceased tenant Gutya. Under the circumstances, the refore, I find no error apparent on the face of the order w hich is now sought to be reviewed, so as to call for correc tion by exercise of the review jurisdiction.…...Considering the limit ed scope for review under Order 47 Rule 1 of CPC, the KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] additional evidence sought to be adduced by the Pet itioner by 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 pe tition and the review petition filed by the appellant are the subject of challenge in these appeals. However, the narration about the litigations between the parties would remain incomplete if another proceeding in the form of a civil suit filed by the present respondent No. 1 is not referr ed 18 . After passing of the aforesaid order dated 08.08.2001 by the High Court, a civil suit was filed by the respondent No. 1, seeking perpetual injunction against the appellant and his brothers. An application seeking temporary injunction was also filed therein, being IA No. 1. T he Trial Court dismissed the said application for temporary injunction by its order dated 17.04.2003 while holding that the defendants (appellant and others) were in possession of the suit property. 4. In summation of the chronicle aforesaid, it could be notice d that in essence, there had been two major lines of litigation concerning the parties: One being the civil suit filed by Timma wherein the questions of validity of Will of Gutya and possession of Timma over the land in question were gone into. The suit was decreed with all material findings in favour of Timma and the decree attained finality. The other line of litigation relates to the application in Form No. 7 under Sect ion 48-A of the Act of 1961 filed by Timma for grant of occupancy rights i n respect of the land in question. This application, prosecute d by the appellant Kanna after demise of Timma, was rejected; the a ppeal was dismissed; and the revision petition and the review petition b efore the High Court were also dismissed by the impugned orde rs dated 08.08.2001 and 06.12.2004. 5. Assailing the impugned orders dated 08.08.2001 an d 06.12.2004, learned counsel for the appellant has strenuously argued that the High Court has erred in law as also on facts in failing to consider the crucial aspect of this matter that in the civil suit filed by Timma, categorical findings came to be recorded to the effect: (a) that the Will dated 13.02.1960, executed by Gutya in favour of Timma in respect of the land in question, was proved and the Will was not invalid; (b ) that Timma was the heir of Gutya by virtue of the said Will and Smt. Gauri was not the heir of Gutya; and (c) that Timma was in possess ion of 18 O.S. No. 209 of 2002 in the Court of Civil Judge (Jr.Dn.), S iddapur 783 the land in question. The learned counsel has empha sised on the submission that the said findings rendered in the civil proceedings have attained finality and are binding on the respondents, who we re parties to the said suit; and these concluded findings cannot be reopened in the present proceedings for grant of occupancy rights. The learned counsel has relied on various decisions including that in Ramchandra Dagdu Sonavane (Dead) by Lrs and Ors v. Vithu Hira Mahar (Dead) by Lrs and Ors : (2009) 10 SCC 273 to submit that it is only the civil Courts which have jurisdiction to decide the heirship right of an individual and the Land Tribunal lacks such jurisd iction. Thus, according to the learned counsel, the rights available to Timma, and after Timma to the appellant as his son, could not have been denied in these proceedings. 5.1. The learned counsel has also contended that the High Court fell in further error in holding that Section 21 of the Act of 1961 bars assignment of tenancy rights by way of bequeath. The learned counsel has 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 Section 21 of the Act of 1961 stands explained by this Court that a tenant cannot introduce a stranger to the land by means of bequest but ther e is no bar in bequeathing tenancy rights by a tenant to his heirs, who are related to him by ‘legitimate kinship’. The learned counsel has yet f urther referred to the decision of this Court in Jayamma v. Maria Bai (Dead) by proposed LRs. and Anr.: (2004) 7 SCC 459 and submitted that the said decision re-affirms this position and does n ot in any way differ or detract from the ratio of Sangappa (supra). Thus, according to the learned counsel, rejection of Timma’s claim for occupancy rights on the basis of the Will dated 13.02.1960 was wholly incorrect inasmuch as Timma was not a stranger but was related to the tenant by legitimate kinship, being his brother and hence, a Class II heir, in term s of the entry occurring in the Schedule to the Hindu Succession Act, 1956. The learned counsel lastly submitted that the Land Tribunal and t he High Court have misconstrued the statement made by appellant regardi ng his tenancy rights because what was sought to be conveyed by him was this much that Timma was not the original tenant of the land in question but had inherited the tenancy rights by virtue of a Will; and in any event, there was no intention of the appellant to disown his claim, which was being pursued relentlessly. KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] 6 . Per contra, learned counsel for the respondents has supported the orders passed by the Land Tribunal and the High Court rej ecting the claim for grant of occupancy rights in favour of Timma and has submitted that in view of the prohibition over assignment of tenancy rights by way of bequeath, Timma could not have claimed nor coul d have exercised any tenancy rights over the land in question on the basis of the Will of Gutya; and the land in question stood reverted t o the respondents after the demise of Gutya. The learned counsel has referred to and relied upon the observations of the High Court that disinheritance of Smt. Gauri from the tenancy rights of her husband Gutya could n ot be countenanced and transfer of the tenancy rights of Gutya in fa vour of Timma would amount to creation of fresh tenancy rights in contravention of the provisions of the Act of 1961. Learned counsel has also relied upon the observations that the appellant made a statement before the Land Tribunal about himself being not a tenant in respect of the land in question. 6.1. The learned counsel for the respondents has referred to the decision in Jayamma (supra) to submit that the principles expounded therein, in relation to Section 61 of the Act of 1961, do apply with equal force to the case at hand; and bequeath of tenancy rights being prohibited, the High Court has rightly rejected the claim made on the basis of the Will said to have been executed by Gutya. 7. For what has been noticed hereinabove, the principal question calling for determination is as to whether the High Court is right in holding that the bequeath in question, by way of Will dated 13.02.1960 by Gutya in favour of his brother Timma, is hit by statutory prohibition and no rights of tenancy could be claimed on its basis? 8. Having given anxious consideration to the rival submissi ons and having examined the record with reference to the law app licable, we are clearly of the view that the answer to the question afo resaid could only be in the negative and the impugned orders cannot be sustained. 9. For the purpose of the question aforesaid and in view of the rival submissions, appropriate it would be to take note of the relevant statutory provisions and the principles applicable to the pre sent case. 9.1. As regards the applicable statutory provisions, it could b e noticed that the Will in question was executed on 13.02.1960 and the 785 executant, Gutya, the original tenant of the land in question, expired on 19.06.1963. At the relevant point of time, the Act of 1961 had not come into force 19 and the tenancy in question was governed by the Bombay Tenancy and Agricultural Lands Act, 1948. The provisions containe d in sub-section (1) of Section 27 and Section 40 of the said Act of 1948 read as under:- “27 . Sub-division, sub-letting and assignment prohibi ted.- (1) Save as otherwise provided in Section 32F no sub-division or sub-letting of the land held by a tenant or assi gnment of any interest therein shall be valid: Provided that nothing in this sub-section shall pre judicially affect the rights of a permanent tenant : Provided further that if the tenant dies,- (i) if he is a member of a joint family, the survivi ng members of the said family, and (ii) if he is not a member of a joint family, his hei rs, shall be entitled to partition and sub-divide the land le ased subject to the following conditions- (a) each sharer shall hold his share as a separate tenant, (b) the rent payable in respect of the land leased sha ll be apportioned among the sharers, as the case may be, according to the share allotted to them, (c) the area allotted to each sharer shall not be le ss than the unit which the State Government may, by general or special order, specify in this behalf having regard to the productive capacity and other circumstances relevant to the full and efficient us e of 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 income jointly, but the land shall not be divided by metes and bounds, 19 It came into force as Mysore Land Reforms Act, 1961 w.e.f . 02.10.1965 KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] (e) if any question arises regarding the apportionme nt of the rent payable by the sharers, it shall be decided by the Mamlatdar, whose, decision shall be final. *** *** *** 40. Continuance to tenancy on death of tenant.- (1) Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same term s and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased t enant as may be willing to continue the tenancy. (2) Where the tenancy is inherited by heirs other t han the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land. ” 9.2. With advent of the Act of 1961, various enactments relating to the agricultural land and tenancy, including the aforesaid Bo mbay Tenancy and Agricultural Lands Act, 1948, came to be repealed for the purpose of the territories governed by the Act of 1961. It is for these reasons that reference has been made in these proce edings to the provisions of the Act of 1961. 20 In the Act of 1961, the relevant provisions concerning the present case are contained in sub-section (1) of Section 21 and Section 24, which are more or less in pari materia the erstwhile provisions contained sub-section (1) of Secti on 27 and Section 40 of the Act of 1948 and read as under:- “21. Sub-division, sub-letting and assignment prohibit ed.— (1) No sub-division or sub-letting of the land held by a tenant or assignment of any interest therein shall be vali d: 20 However, the First Appellate Court dealing with the appeal arising out of the decree passed in civil suit filed by Timma, in its judgmen t and decree dated 18.12.1990, indeed took into account the provision applicable to the case at hand i.e., Section 27(1) of the Act of 1948. 787 Provided that nothing in this sub-section shall aff ect the rights, if any, of a permanent tenant: Provided further that if the tenant dies,— (i) if he is a member of joint family, the surviving membe rs of the said family, and (ii) if he is not a member of a joint family, his hei rs shall be entitled to partition and sub-divide the land le ased, subject to the following conditions— (a) each sharer shall hold his share as a separate tenant; (b) the rent payable in respect of the land leased sha ll be apportioned among the sharers, as the case may be, according to the share allotted to them; (c) the area allotted to each sharer shall not be le ss than a fragment; (d) if such area is less than a fragment the sharers shall be entitled to enjoy the income jointly, but the land shall not be divided by metes and bounds; (e) if any question arises regarding the apportionme nt of the rent payable by the sharer it shall be decided by the Tahsildar: Provided that if any question of law is involved the Tahsildar shall refer it to the court. On receipt of such ref erence the court shall, after giving notice to the parties con cerned, try the question as expeditiously as possible and recor d finding thereon and send the same to the Tahsildar. The Tah sildar shall then give the decision in accordance with the said finding. *** *** *** 24. Rights of tenant to be heritable.- Where a tenant dies the landlord shall be deemed to have continued the tena ncy to KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] the heirs of such tenant on the same terms and cond itions on 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 also be usefully extracted as under:- “61. Restriction on transfer of land of which tenan t has become occupant.— (1) Notwithstanding anything contained in any law, no land of which the occupancy has been granted to any person under this Chapter shall, wit hin fifteen years from the date of the final order pass ed by the Tribunal under sub-section (4) or sub-section (5) o r sub- section (5-A) of Section 48-A be transferred by sal e, gift, exchange, mortgage, lease or assignment; but the la nd may be partitioned among members of the holder’s joint family, *** *** ***” 9.3.1. It may, however, be noticed that the prohibition contained in Section 21(1) and the restriction contained in Section 61(1) of the Act of 1961 operate in different fields inasmuch as Section 21(1) occurs in Chapter II of the Act of 1961, making general provisions regarding the tenancy and rights and obligations of a tenant of an agricultural land. Section 61, on the other hand, occurs in Chapter III, dealing with conformant of ownership on tenants by way of their registration a s occupants. In other words, the restriction envisaged by Sec tion 61 of the Act of 1961 comes into operation after a tenant has acquired occupancy rights whereas the prohibition contained in Section 21 operates at the stage before acquisition of occupancy ri ghts and in relation to the tenancy simpliciter. This distinction in the fields of operation 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 its amendment, Section 24 read as under: “24. Right of tenants to be heritable. -(1) Where a tena nt dies, the landlord shall be deemed to have continued the tenancy- (a) if such tenant was a member of an undivided Hindu family, to the surviving members of the said family, and (b) if such tenant was not a member of an undivided H indu family, to his heirs, on the same terms and conditions on which such tenant was holding at the time of his death. (2) The interest of a permanent tenant in his holding shall on his death pass by inheritance or survivorship in accordance with his p ersonal law.” 789 assistance in comprehension of the two cited decisions of this Co urt i.e., in the cases of Sangappa and Jayamma (supra). 10. In Sangappa (supra), this Court has dealt with a situation where the dispute related to testamentary disposition of inter est in the tenanted land. While observing that bequest under a Wi ll was also covered within the ambit of “assignment” under Section 21 of the Act of 1961, this Court held that such bequest could only be to the heirs of the tenant and not to the strangers to the family of tenant. This Court said, inter alia , as under:- “5. This case gives rise to a difficult and doubtful q uestion, whether a devise under a Will would amount to an assignment of interest in the lands and, therefore, would be invalid under the provisions of Section 21 of the L and Reforms Act. What is prohibited under Section 21 of the Act is that there cannot be any sub-division or sub-letting of the land held by a tenant or assignment of any interest thereunder. Exceptions thereto are when the tenant dies, the surviving members of the joint family and if he is not a member of the joint family, his heirs shall be enti tled to partition and sub-divide the land leased subject to certain conditions. Section 24 of the Act declares that when a tenant dies, the landlord is deemed to continue the tenanc y to the heirs of such tenant on the same terms and conditio ns on which the tenant was holding at the time of his dea th. We have to read Section 21 with Section 24 to understa nd the full purport of the provisions. Section 24 is enacted onl y for the purpose of making it clear that the tenancy con tinues notwithstanding the death of the tenant and such te nancy is held by the heirs of such tenant on the same terms and conditions on which he had held prior to his death. The heirs who can take the property are those who are referable t o in Section 21. If he is a member of the joint family, then the surviving members of the joint family and if he is not suc h a member of a joint family, his heirs would be entitl ed to partition. Again, as to who his heirs are will have to be determined not with reference to the Act, but with reference to the personal law on the matter. The assignment o f any interest in the tenanted land will not be valid. A devi se or a KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] bequest under a Will cannot be stated to fall outsi de the scope of the said provisions inasmuch as such assig nment disposes of or deals with the lease. When there is a disposition of rights under a Will, though it operat es posthumously is nevertheless a recognition of the right of the legatee thereunder as to his rights of the tenanted land. In that event, there is an assignment of the tenanted land, but that right will come into effect after the death of the te stator. Therefore, though it can be said in general terms t hat the devise simpliciter will not amount to an assignment , in a special case of this nature, interpretation will ha ve to be otherwise. 6. If we bear in mind the purpose behind Section 21, it becomes clear that the object of the law is not to allow strangers to the family of the tenant to come upon the land. The tenanted land is not allowed to be sub-let, i.e ., to pass to the hands of a stranger nor any kind of assignment taking place in respect of the lease held. If the tenant co uld assign his interest, strangers can come upon the land, and therefore , the expression “assignment” will have to be given s uch meaning as to promote the object of the enactment. Therefor e, the deceased tenant can assign his rights only to t he heirs noticed in the provision and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship. We must take into consideration that when it is possible for the tena nt to pass the property to those who may not necessarily be th e heirs under the ordinary law and who become heirs only by reason of a bequest under a Will in which event, he would be a stranger to the family and imported on the land thu s to the detriment of the landlord. In that event, it must be taken th at a devise under a Will will also amount to an assignment and, therefore, be not valid for the purpose of Section 21 of the Act. If Section 24 is read along with Section 21, it would only mean that the land can pass by succession to the he irs of a deceased tenant, but subject to the conditions pres cribed in Section 21 of the Act…..” (underlining supplied for emphasis) 791 11. On the other hand, in Jayamma’ s case (supra), the appellant had 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 fact of execution of Will and hence, the application was converted into a suit. Though the Trial Court decreed the suit but the appeal was allowed by the High Court while holding that the application in question w as not maintainable in view of Section 61 of the Act of 1961, fo r the subject-matter of the testament being agricultural land with occupancy rights, which could not have been assigned. The appellant, legatee under the Will in question, was a neighbour and had not been a membe r of the testator’s family. In appeal before this Court, the decision in Sangappa (supra) was referred. This Court distinguished the said decision as being related to Section 21 of the Act of 1961 and ther e being stricter embargo on transfer of land where the tenant had become occupant than the land held by a tenant simpliciter. Th is apart, the appellant was found to be having no legitimate kinship with the testator. It was also found that occupancy rights were granted on 14.10.1981 and Will in question was executed on 20.02.1984; hence transfer was made within the period of 15 years from the date of grant, whi ch was prohibited by law. The appeal was, therefore, dismissed by this C ourt while observing, inter alia , as under:- “18. As we have noticed hereinbefore, that the stat utory embargo on transfer of land is stricter in a case w here the tenant has become occupant than a land held by a te nant simpliciter. We have also noticed that the embargo on transfer is not only by way of sale, gift, exchange, mortgag e, lease but also by assignment. What is permitted under the law is partition of the land amongst the members of the fa mily. Section 61 of the Act is to be read in its entirety . *** *** *** 22. In this case, there is also no dispute that gra nt of agricultural land with occupancy right in terms of the provisions of the said Act was made on 14-10-1981. The Will in question having been executed on 20-2-1984; the transf er has been made within a period of fifteen years from the date of grant which is prohibited in law. *** *** *** KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] 25. Apart from the fact that the interpretation was rendered having regard to the language used in Section 21 of the said Act which would not ipso facto apply to Section 61 t hereof; as thereby a stricter statutory embargo has been imposed on transfer or assignment, the contention of Mr Bhat t o the effect that the appellant was a relation of the tes tator also does not appear to be correct…… 26. The appellant, therefore, in view of the aforem entioned statement was not having any legitimate kinship wit h the testator of the Will. 27. On a fair construction of Section 61 of the Act , in our opinion, a transfer of agricultural land with occupancy ri ght is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not othe rs having regard to the definition of “family” as contained i n Section 2(12) and “joint family” as contained in Section 2( 17) of the said Act.” 12. It is at once clear from the provisions and the decisions above referred 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 com es into existence with certain embargo over transferability of suc h tenancy. In other words, such tenancy continues even after the demise of tenant. If the deceased tenant was a member of joint family, then the surviving members 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 conditions specified. However, the tenanted land cannot be sub-let nor any interest therein could be assigned. In Sangappa (supra), this Court has explained the object behind such embargo that strangers to the fami ly of tenant were not to be allowed to come upon the tenanted land. Even disposition under a Will is held covered within the wide sweep of the ex pression “assignment” for the purpose of the Act of 1961 but with the significant, and rather pertinent, exception that such embargo does not preve nt a bequeath in favour of the heirs noticed in the said provisions. This Court said in no uncertain terms that: ‘the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship’. This enunciation is neither curtailed nor whittled down in Jayamma’ s case (supra). 793 13. As noticed, the decision in Jayamma (supra) had been on the interpretation of Section 61 of the Act of 1961, where stricter embargo is envisaged, being related to a different provision that operates in a different field and comes into effect after acquiring of occupancy rights. Moreover, in Jayamma’ s case, the legatee, a neighbour, was found to be having no legitimate kinship with the testator; and the Will in question was executed within the period of 15 years from the date o f grant, which was prohibited by law. Hence, the decision in Jayamma’ s case has no adverse effect on the claim in the present case for t he obvious reasons that: (a) the present case relates to the stage before acquisition of occupancy rights; and (b) the legatee of the Will in qu estion before us, Timma, had been none other than the brother of the deceased tenant, Gutya; and the said legatee, being related to the deceas ed tenant by legitimate kinship, had already been declared to be the su ccessor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other m arriage. 14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as f ollows: The deceased 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 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 Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only t hey had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High 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 KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.] abovementioned findings of the civil Court has been brushed aside b y the High Court with a few observations that the fact of exis tence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decree d by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the c ivil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have tre ated such findings as nugatory or redundant. 14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that containe d in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori , the application made by Timma in Form 7 under Section 48-A of t he Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied. 15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to gi ve up his claim as tenant of the land in question, has only be en noted to be disapproved. It is noticed that the Land Tribunal proceeded to rej ect the claim in relation to the land in question by way of i ts order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreci ating that the statement was required to be understood contextually where cer tain parcels of land in which Timma was the tenant in his own righ t were also being described. In that context, it was clarified th at Timma was, as such, not the tenant in relation to the land in questio n; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated again st the claim of occupancy rights in respect of the land in quest ion, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession. 16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the app roach of the 795 Appellate Authority had been a bit too exacting where the app eal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and fo r delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the b enefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appell ant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the r atio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in prope r perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details. 17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt t hat the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed. 18. Accordingly, and in view of the above, the impugned judgment and orders dated 08.08.2001 and 06.12.2004 passed by the High Court of Karnataka in LRRP No. 1 of 1996 and Review Petition No. 484 of 2002 respectively as also the impugned orders dated 18.07.1988 and 26.12.1998 passed by the Land Reforms Appellate Authority and dated 22.09.1981 passed by the Land Tribunal are set asid e; and the application in question, as filed by Timma for grant of occupancy rights in respect of the land in question is allowed. The Land Tribunal s hall pass necessary formal orders for grant of occupancy rights in f avour of the present appellants, who have acquired such ri ghts as being successors of the rightful legatee of the original tenant. 18.1. The appeals are allowed with the directions a nd requirements aforesaid. No costs. Nidhi Jain Appeal allowed. KANNA TIMMA KANAJI MADIWAL (D) THR. LRS. v. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS. [DINESH MAHESHWARI, J.]