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2003 DIGILAW 855 (KAR)

Ramesh Tai Seeta Naik v. Huliya Yanka Naik

2003-10-14

K.SREEDHAR RAO

body2003
JUDGMENT K. Sreedhar Rao, J.— The appeal filed against Judgment and decree in RA No. 21 of 1992 on the file of the Civil Judge, Sirsi, arising out of the Judgment and decree in O.S. No. 319 of 1989 on the file Prl. Munsiff, Sirsi. 2. The Appellant is the son and the legal representative of the deceased Plaintiff. The Respondents are the Defendants. The Plaintiff filed suit seeking partition and possession of half share in the suit schedule land. The Plaintiff is the daughter of one Dyava Naik died in the year 1961. The father of the Plaintiff and the husband of the first Defendant were jointly cultivating the land on tenancy basis. The husband of the first Defendant filed an application in Form No. 7 before the Land Tribunal. The Plaintiff also made a rival claim. The Land Tribunal directed registration of the tenancy in joint names. The Land Reforms appellate Authority set aside the order of the Land Tribunal and ordered that the husband of the first Defendant is aloe entitled to occupancy rights. Further directed that the Plaintiff can work out her remedy for share in a civil suit or by any other legal method. Hence, the suit came to be filed. 3. The Defendant in the written statement contends that the Plaintiff is not entitled to share in the property, as she was not the member of the joint family. That apart, plea of limitation is also taken. 4. The trial Court allowed the suit and granted half share to the Plaintiff. The first appellate Court reversed the findings allowed the appeal and dismissed the suit of the Plaintiff on the ground of limitation. Hence, the Second Appeal. 5. The Admission Judge has framed the following substantial questions of law: 1. Whether the lower appellate Court was right in reversing the finding on the additional issue No. 2 regarding limitation after having answered additional issue No. 1 regarding adverse possession in favour of the Plaintiff ? 2. Whether the lower appellate Court is justified in dismissing the suit as barred by limitation after having held the issue regarding adverse possession in favour of the Plaintiff? 6. 2. Whether the lower appellate Court is justified in dismissing the suit as barred by limitation after having held the issue regarding adverse possession in favour of the Plaintiff? 6. One more additional question of law requires to be framed in view of the submissions made at the Bar in the following manner: Whether the Plaintiff is entitled to seek possession to the share of her father in view of the provisions contained in Sections 27 and 40 of the Bombay Tenancy and Agricultural Lands Act, 1948? (in short Bombay Tenancy Act) 7. The contention that the Plaintiff is not entitled to inheritance under Section 27 of the Bombay Tenancy Act is for the first time urged in the second appeal is an incorrect contention. In para-5 of the written statement the Defendants have taken a plea that the Plaintiff not being member of the family is not entitled to inheritance. The issue No. 3 issue framed by the trial Court would comprehensively over the right of inheritance of the Plaintiff under Bombay Tenancy Act. That apart the proposition canvassed by the Respondents is purely a question of law, which could be answered without the need of amendment of pleadings and additional evidence. 8. The relevant parts of provisions of Sections 27 and 40 of the Bombay Tenancy Act are extracted hereunder for convenient reference. 27. (1) No sub-division or sub-letting of the land held by a tenant assignment of any interest therein shall be valid: Provided further that if the tenant dies : (i) if he is member of a joint family, the surviving members of the said family, and (ii) if he is not a member of a joint family, his heirs, shall be entitled to partition and sub-divide the land leased 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 shall 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 less 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 use 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, (e) if any question arises regarding the apportionment of the rent payable by the sharers, it shall be decided by he Mamalatdar, whose decision shall be final. 40. (1) Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. (2) where the tenancy is inherited by heir other than the widow of the deceased tenant, such widow shall have a charge for maintenance on the profits of such land. 9. The Section 40 noted above is the amended version with effect from 1.8.1956, with a specific purpose of doing away with the right of inheritance by survivorship. The amendment permits inheritance by succession by the heirs of the tenant. It is argued that the provision of Section 27 is not an enabling provision for inheritance to the estate, but only prohibits transfer of interest of a tenant in any manner except a partition upon the death of a tenant. The Plaintiff would be entitled to inherit the estate of her father by succession under Section 40 of the Act. It is not in dispute that the tenancy was a joint tenancy of Yanka Naik and Dyava Naik (the father of the Plaintiff). 10. The Counsel for the Respondents relied on the ruling of the Division Bench of this Court in Ravu Babaji Berad Vs. Maruthi Krishna Naik, ILR (1992) KAR 877 . At the concluding portion of para 13, the following observations are made: ...A reading of both the provisions together makes it clear that it is not permissible to bequeath the tenancy right except the right of a permanent tenant. Second proviso to Section 27(1) specifically provides as to what should happen to the tenancy right on the death of a tenant. Second proviso to Section 27(1) specifically provides as to what should happen to the tenancy right on the death of a tenant. It specifically states that if the tenant were to be a member of the joint family at the time of his death, the tenancy right held by him should go to the surviving members of the joint family and if he was not a member of a joint family then to his heirs. It also provides for division of the tenancy right among the heirs of the deceased and apportionment of the rent payable by each of the sharers according to the shares allotted to them. (Emphasis supplied) 11. Prior to 1.8.1956 Section 40 had an explanation which reads thus: Explanation: For the purpose of this section, an heir means the lineal male descendent or his adopted son and failing both his widow who has not remarried. The word 'heir' in the explanation is defined to include only lineal male descendent (sic) of the tenant or his adopted son and in their absence, their unmarried widows. The Amendment Act XIII of 1956 omitted the explanation and enabled the female heirs to inherit the tenancy rights by succession. 12. The Section 40(1) enables even the female heirs to succession by inheritance to the leasehold rights of the deceased tenant. The proviso of Section 27(1) envisages different contingent situations and its consequences. Section 27(1)(i) applies if the deceased tenant is a member of joint family, then his leasehold rights will devolve on the surviving members of the joint family. Section 27(1)(ii) applies if the deceased tenant is not a member of a joint family, then all his heirs including the female heirs would be entitled to succession and can seek partition of their share. The provisions of Section 40(1) have to be read harmoniously with Section 27(1)(ii). The right of a female heir to succeed to the tenancy rights of a deceased tenant under Section 40(1) will have no application if the deceased tenant is a member of a joint family, in such a case it is only the members of the joint family will have right of inheritance. A non-member or a divided or separated erstwhile member is not entitled to inheritance under Section 27(1)(i) and it specifically excludes the female heirs of the deceased tenant if they are not the members of the joint family. 13. A non-member or a divided or separated erstwhile member is not entitled to inheritance under Section 27(1)(i) and it specifically excludes the female heirs of the deceased tenant if they are not the members of the joint family. 13. The Plaintiff obviously married during the lifetime of her father, when succession opened upon the death of her father in the year 1961 she was not a member of the joint family. Obviously Yenka Naik would be entitled to inheritance under Section 27(1)(i). The Division Bench Ruling of this Court in Ravu Babaji Berad Vs. Maruthi Krishna Naik, ILR (1992) KAR 877 supports my view. 14. Section 4(2) of the Hindu Succession Act excludes the application of the rules of succession envisaged under the Act, if there is a special law of succession relating to agricultural lands. The Bombay Tenancy Act provides special rules of succession. In that view, the Plaintiff would not be entitled to any share in the property in view of the provision in Section 27(1)(i). The additional question of law is answered in negative. 15. The finding of the appellate Court that the suit is barred by time is untenable. The discussion regarding Section 14 of the Limitation Act is irrelevant. The Plaintiff claims that the share in the usufruct was denied in the year 1971. After passing of Karnataka Land Reforms Act, the land is vested in the Government, tenants have to seek only occupancy rights. Accordingly Plaintiff made a rival claim before the Land Tribunal. The appellate Authority directed Plaintiff to pursue the remedy before the Civil Court. The grant of relief of partition is within the domain of the Civil Court. The Plaintiff has filed the suit immediately after the termination of proceedings before the appellate Authority, therefore suit for partition is not barred by time, so much so the plea of adverse possession is also untenable and not relevant for consideration. The first and second question of law accordingly answered. The appeal is dismissed.