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PETITIONER: HUCHAPPA YELLAPPA RADDER AND ANR.

       Vs.

RESPONDENT: NINGAPPA BHEEMAPPA TALAWAR

DATE OF JUDGMENT14/05/1993

BENCH: VENKATACHALA N. (J) BENCH: 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.

HEADNOTE: 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

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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)

JUDGMENT: 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

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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

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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

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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

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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.