Tenant May Bequeath Suit Property By Will Before Grant Of Occupancy Rights, Beneficiary Of Will Becomes Absolute Owner: Karnataka High Court

The Karnataka High Court has held that bequeathing property, by executing a will, by the tenant of the suit property is permitted before the grant of occupancy rights by the Land Tribunal. The beneficiary of the will in such instances will become the absolute and exclusive owner of the property, it observed.

A single judge bench of Justice Hanchate Sanjeevkumar allowed the appeal filed by one Mutti, who had challenged the order of the trial court and the first appellate court which had decreed the suit filed by petitioner Kucharu seeking partition and prayer to allot 1/6th share in the suit properties.

The bench said, “Before coming into force of the Amendment Act to the K.L.R.Act, 1961, Kanja Meru had bequeathed the entire property exclusively and absolutely to the Defendant No.2, such bequeath is not hit by Section 61 of the K.L.R.Act, 1961.”

Section 61 reads thus: Restriction on transfer of land of which tenant 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, within [fifteen years] [from the date of the final order passed by the Tribunal under sub-section (4) or sub-section (5) or sub-section (5-A) of section 48A] be transferred by sale, gift, exchange, mortgage, lease or assignment; but the land may be partitioned among members of the holder's joint family.

The plaintiff claimed that the original propositus Kanjameru had five daughters. Defendant No.2 who is the appellant before the HC was the second daughter, it was claimed.

It was alleged that the suit property was taken on lease by Kanjameru and that he had filed an application for claiming occupancy rights before the Land Tribunal. During the pendency of the said application, the said Kanjameru died and Mutti appeared before the Land Tribunal and registered her name as an occupant of the scheduled land. It was argued that the plaintiff and defendants have a share as coparceners and therefore, the plaintiff filed a suit for partition claiming her share.

In the appeal, Mutti contended that by the will executed by Kanja Meru, Defendant No.2 had become the exclusive and absolute owner of the suit property and that the Courts below had not appreciated evidence of PW.2 and PW.3 in true and correct perspective manner and also the plaintiff had not proved that bequeathing the property by Kanja Meru in favour of Defendant No.2 through Will is hit by Section 61 of the Karnataka Land Revenue Act, 1961.

Further, it was argued that the transfer of property by way of will by father to daughter is not a transfer of property, but it is an arrangement within the family. Therefore, it was not hit by Section 61 of the K.L.R Act.

It was also contended that Kanja Meru had executed the will and bequeathed 'A' schedule property to Defendant No.2, not only in terms of occupancy rights but also whole rights over the land.

It was argued that when the entire land was bequeathed in favour of Defendant No.2, then by Section 14 of Hindu Succession Act, Defendant No.2 had become exclusive and absolute owner over the 'A' schedule property.

Finally, it was argued that except for defendant No.2, all other three daughters including the plaintiff were residing peacefully along with their husbands in their respective family.

Unfortunately, it was submitted that Defendant No.2 was constrained to leave due to ill-treatment by her husband and started to reside along with her father Kanja Meru and looked after him till his death. Therefore, out of not only love and affection towards Defendant No.2, but for the security of her life and livelihood, Kanja Meru bequeathed suit schedule 'A' property to Defendant No.2 by way of Will, it was submitted.

On the other hand standing counsel for the respondents-cum-amicus curiae submitted that the will was not proved and there was no valid bequeath by Kanja Meru to Defendant No.2. It was argued that the plaintiff and defendants are daughters of Kanja Meru, therefore, quite naturally, the occupancy rights granted in favour of Defendant No.2 must be equally partitioned among the plaintiff and defendants.

Firstly the court noted that the father Kanja Meru had executed a Will on 05.04.1973 before coming into force of Amendment Act to the Karnataka Land Reforms Act, 1961. Therefore, certainly, it does not mean that Kanja Meru did have the intention to bequeath occupancy rights only, the Court found. 

Then it held that Section 61 of the K.L.R.Act, 1961 restricts the transfer of land of which the tenant has become occupant. Here, Kanja Meru was a tenant over the 'A' schedule property and before passing the Land Tribunal order, he died. It was found that Defendant No.2 had continued the prosecution of the application filed for the grant of occupancy rights before the Land Tribunal and was successful in granting an order of occupancy rights by the Land Tribunal.

Thus, Court found that Defendant No.2 has become occupant by virtue of Land Tribunal Order by conferring occupancy rights on her.

It added “Therefore, there is no transfer by sale, gift, exchange, mortgage, lease or assignment or any other mode. Bequeathing property by way of Will is not restricted as per Section 61 of the K.L.R.Act. Furthermore, Kanja Meru had executed a Will before grant of occupancy rights. Therefore, it is not hit by Section 61 of the K.L.R.Act.”

Rejecting the contention of the respondents that the will was not proved, the court said that considering the will was executed before the Amendment Act to the K.L.R.Act, 1961, it could not be anticipated that Kanja Meru had bequeathed occupancy rights only.

It added, “Therefore, it means upon considering the intention of Kenja Meru, he bequeathed the entire property to Defendant No.2 for the reason that the Defendant No.2 was constrained to leave her husband and started to reside along with her father Kanja Meru and therefore, Kanja Meru has bequeathed property in favour of Defendant No.2. Therefore, when the defendant No.2 was residing along with her father Kanjamera, quite naturally, being the dutiful father towards his daughter for security of life has bequeathed suit schedule 'A' property in favour of the defendant No.2. Bequeathing the entire land itself since, as on the date of execution of Will i.e. on 05.04.1973, the Karnataka Land Reforms Act was not amended for grant of Occupancy Right.”

The Court looked at the conduct of the plaintiff and concluded that she had consented by acquiescence by being silent about the grant of occupancy rights in favour of defendant No.2.

Accordingly, it allowed the appeal by observing that for more than eight years from the date of grant of occupancy rights, the plaintiffs and other defendants were silent and suddenly woke up and filed suit for partition.

Appearance: Advocate K Sri Hari for Appellant.

Amicus Curiae Yashwant Nethaji N T for R1, R2A, R3, R4, R5, R6.

Citation No: 2023 LiveLaw (Kar) 488

Case Title: Mutti AND Kucharu & Others

Case No: Regular Second Appeal No 2272 of 2008.

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