A.S. Bopanna, J.
1. The appellant is the plaintiff in O.S. No. 22/1998. The respondents herein were also the respondents in the suit with the same rank. The plaintiff had initially filed a petition seeking probate of the WILL and testament dated 18.01.1995 said to have been executed by the father of the parties namely late Thimothy Lewis. The father of the parties expired on 19.03.1995. The said petition was registered as P & SC No. 20/1996. The fourth respondent had lodged a caveat in respect of the same and as such the petition was converted as a suit in O.S. No. 22/1998. After trial, the said suit came to be dismissed by judgment and decree dated 24.7.2001. Claiming to be aggrieved by such dismissal of the suit, the plaintiff is before this Court in this appeal.
2. Sri B.V. Krishna, learned Counsel appearing for the appellant while assailing the judgment and decree impugned in this appeal contended that the Court below has proceeded at a tangent. According to the learned Counsel, the Court below instead of considering the requirement of testing the validity of the execution of the WILL as contemplated under Section 63 of the Indian Succession Act, has proceeded to look into the nature of the bequest and to examine as to whether the testator could make such a bequest. The learned Counsel would contend that the nature of proof has been well enunciated by the Hon'ble Supreme Court in the case of H.V. Iyangar v. B.N. Thimmajamma : AIR1959SC443 . The learned Counsel therefore contended that in the facts of the present case one of the attesting witness examined was a respectable person, who is none other than the brother-in-law of the testator. The said witness, namely Sri J.B. Bans, was a retired Tahsildar. The other attesting witness namely Peter Lewis was the nephew of the testator and a renowned painter in his own right. He was dead and as such the question of examining him did not arise. The witnesses therefore were not strangers and were natural witnesses. The WILL in question was a document which was registered in the office of the Sub-Registrar. The learned Counsel also referred to the oral evidence of the parties and witnesses and relied on several decisions of the Hon'ble Supreme Court as also this Court to contend what could or could not be considered as suspicious circumstance.
3. Contrary to the said contentions, Sri K.M. Nataraj, learned Counsel appearing on behalf of Sri S.K. Acharya, learned Counsel for the contesting fourth respondent, at the outset, would urge that the WILL on the face of it is null and void inasmuch as there is legal bar to execute the WILL. The learned Counsel would contend that there is no dispute that the WILL schedule lands were tenanted lands both mulageni and lands cultivated by the testator as tenant. In respect of the lands in question there is no dispute that the land Tribunal has granted occupancy rights in favour of the father of the parties by order dated 16.10.1981. The provision in Section 61 of the Karnataka Land Reforms Act, 1961 ('the Act' for short) prohibits transfer of such lands within a period of 15 years from the date of the order granting occupancy rights. The learned Counsel by placing reliance on the decision of the Hon'ble Supreme Court in the case of Sangappa Kalyanappa Bangi v. Land Tribunal, Jamkhandi and Ors. ILR 1999 Kar. 863 and Jayamma v. Maria Bai Dead By Proposed Lrs and Anr. ILR 2004 KAR 3975 contended that WILL is held to be an assignment contemplated in Section 61 of the Act and it has been held that such assignment cannot be made within 15 years.
4. The learned Counsel therefore contended that when there is a legal bar for executing the WILL during the period which is prohibited under law, even assuming for a moment that in all other respects, it satisfies the provisions of Indian Succession Act, such a WILL cannot be recognised in the eye of law. Therefore the question of granting Probate would not arise. To substantiate this contention, learned Counsel would refer to the relevant dates viz., the date of granting the occupancy being on 16.10.1981, the date of WILL being 18.1.1995 and the death of the testator being 19.3.1995, which would disclose that not only the WILL has been executed within the prohibitory period, but the same has come into force on the death of the testator within a period of 15 years and as such in any event, such a WILL cannot be given effect to. Even on merits, the learned Counsel sought to contend that the contents of the WILL and the manner in which it was executed by excluding the other legal heirs would indicate of strong suspicious circumstances, more particularly, when the plaintiff was away in Bombay throughout he could not have been preferred over others. Learned Counsel placed reliance on a decision of the Hon'ble Supreme Court in the case of Adivekka v. Hanamavva Kom Venkatesh 2007 AIR SCW 3060, to contend that even otherwise the WILL has not been proved as required under law since the persons concerned have not been examined. To this effect, learned Counsel placed reliance on the case of B. Venkatamuni v. C.J. Ayodhya Ramsingh 2006 AIR SCW 6115. The learned Counsel also sought to point out that the testator was aged about 80 years and was a chronic alcoholic. In this regard, he was being treated for a long period and the medical records would indicate that even around the period during which the WILL was executed, he was still under treatment.
5. In reply to the contentions raised by the learned Counsel for the respondent with regard to the legal bar for executing the WILL, the learned Counsel for the appellant would contend that this issue had not been raised before the Court below and is being raised for the first time. The learned Counsel would further contend that even assuming for a moment that the said contention could be considered by this Court, what requires to be noticed is that even in the decision relied upon by the learned Counsel for the respondent i.e., the case of Jayamma v. Maria Bai ILR 2004 Kar 3975, the Hon'ble Supreme Court has stated that a fair construction of Section 61 of the Act would provide for executing the WILL in favour of one of the heirs. As such the plaintiff being one of the heirs, there is no bar for executing the WILL. Learned Counsel in this regard would place reliance on a decision of this Court in the case of Mr. Benedict Nazreth v. Lawrence Nazreth and Ors. 2003(11) KCCR 1527 to contend that this Court has held that a WILL could be made in favour of sons, though not in favour of a stranger to the family.
6. In the backdrop of the contentions urged by the learned Counsel, the question at the outset would be with regard to the legal bar in executing the WILL since the same is prohibited under Section 61 of the Act and as to whether the same could be considered at this stage. In the case of MARIA BAI itself the Hon'ble Supreme Court has stated that the Court empowered to grant letter of administration although ordinarily may not go into the question of title in respect of the property sought to be bequeathed by the testator, the situation would be different, where the authority of the testator to execute a WILL in relation to the subject matter thereof is in question. Hence the Hon'ble Supreme Court has stated that when a statutory embargo exists on execution of a WILL, the Court shall not refuse to determine the question as regard validity thereof since in terms of the provisions of a statute the same would be void ab initio. It is true in the present case the said question was not urged before the Court which exercised the original jurisdiction. However, on examining the order passed by the Court below if this Court comes to a different view and directs that the letter of administration is to be issued, in that event, this Court would be the Court exercising such jurisdiction and as such this Court would have to examine whether the WILL in respect of which probate and letter of administration is sought is a document which is void ab initio. As such I am of the view that even at this stage, it is open for this Court to consider this aspect of the matter. In any event, since the statutory embargo has been argued, the same is a question of law which could be raised even at the appellate stage though certain factual inputs may also be required. Thus having concluded that the said issue requires examination; before I advert to the law laid down by this Court as well as the Hon'ble Supreme Court on this aspect of the matter, it would be necessary to notice the relevant provisions of the Karnataka Land Reforms Act which reads as hereunder:
[Section 2(12) 'family' means-
a) In the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;
b) In the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
c) In the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and
d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters;]
Section 2(17) 'joint family' means in the case of persons governed by Hindu Law, an undivided Hindu family, and in the case of other persons, a group or unit the members of which are by custom joint in estate or residence;
Section 61. Restriction on transfer of land of which tenant has become occupant.- 1) Notwithstanding anything contained in any law, no land of which the occupancy (xxx) has been granted to any person under this chapter (xxx) 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 (5A) 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, (xxx).
xxx xxx xxx3) Any transfer or partition of land in contravention of Sub-section (1) shall be invalid [and such land shall vest in the State Government free from all encumbrances and shall be disposed in accordance with the [provisions of Section 77.]]
7. A perusal of Section 61 of the Act would indicate that in respect of the lands of which the occupancy has been granted to any person under that chapter shall not be transferred by way of sale, gift exchange, mortgage, lease or assignment during the period of 15 years from the date of the order passed by the Tribunal. However, the said provision permits partition among members of the holder's joint family. In the case on hand, the subject matter of the property included in the WILL was registered in favour of the testator Thimothy Lewis by granting occupancy rights vide order dated 16.10.1981. The WILL has been executed on 18.1.1995 and the testator expired on 19.3.1995 and as such the WILL has come into effect on that day. The said dates would indicate that not only the WILL has been executed but the death also has taken place within the period of embargo contemplated under Section 61 of the Act No doubt the provision does not specifically state with regard to the execution of the WILL. However, this aspect is no more res integra in view of the decision rendered in the case Sangappa Kalyanappa Bangi's case (cited supra) and the decision of this Court in the case of K. Achutha Pai v. Joseph Tauro and Ors. reported in ILR 2003 KAR 3268, wherein this Court has placed reliance on the decision of the Hon'ble Supreme Court in the case of Sangappa Kalayanappa Bangi. In the said two decisions, the word assignment appearing in Section 61 has been considered and it is held that execution of WILL amounts to assignment. No doubt as pointed out by Sri B.V. Krishna, learned Counsel for the appellant, this Court as well as the Hon'ble Supreme Court in the said case was considering the issue wherein the legatee under the WILL was not a family member whereas in the present case, the beneficiary/legatee of the WILL is none other than the son of the testator. It is therefore the contention of the learned Counsel that this aspect assumes importance inasmuch as even in the case of MARIA BAI the observation of the Hon'ble Supreme Court in para 28 of the judgment wherein it has been held with reference to Section 61 of the Act that transfer of agricultural land with occupancy right is permissible in favour of one of the heirs and as such the appellant being one of the heirs can take benefit of the WILL and as such the embargo does not apply in the present case. The contrary submission of Sri K.M. Nataraj, learned Counsel however is that even the said observation of the Hon'ble Supreme Court in the said paragraph would have to relate to the definition of the 'family' and 'joint family'. Further with regard to the joint family is concerned the co-parcenary status would be available only in the case of Hindus. In the present case, the parties being governed by Christian law can be a member of the joint family as defined under the Act only if the group or unit the members of which are by custom joint in estate or residence. The learned Counsel further contended that in the present case, the very case put forth by the appellant before the Court below does not even indicate semblance of joint estate or joint residence. As such the case on hand does not fall within the excepted category, though the learned Counsel for the appellant has placed reliance on the decision of this Court in the case of Bendict Nazreth (cited supra).
8. The discussion above would indicate that the real question that arises for consideration as a preliminary question is whether the appellant being one of the heirs of the testator would be entitled to be a legatee under the WILL keeping in view the observation of the Hon'ble Supreme Court at para 28 of Maria Bai's case. In order to gather the intention of the Hon'ble Supreme Court in saying so, the entire judgment is to be understood. In the earlier judgment of Sangappa's case the Hon'ble Supreme Court was considering the case in the background of the provision contained in Sections 21 and 24 of the Karnataka land Reforms Act, which is at a stage before grant of occupancy right. The Apex Court has also noticed this in Maria Bai's case and has referred to the marked difference in Section 61 of the Act, that it contains a non-obstante clause. In this regard, it would be useful to extract paras 11, 13, 16, 18 and 28 of the judgment.
11. On a bare perusal of the aforementioned provisions; it would appear that whereas Section 21 refers to sub-division, sub-letting of the land held by a tenant or assignment of any interest therein, Section 61 imposes a stricter restriction on transfer of land of which tenant has become occupant.
13. It is not in dispute that a tenant who has become an occupant cannot, except on the grounds stated in the said Act, be evicted therefrom. Section 61 contains a non-obstante clause. It is also not in dispute that although tenancy would be a heritable interest the right of occupancy can be granted to an heir only if he is qualified therefor, that is there must be cultivable land on the appointed day. However, all heirs cannot become occupant. Even a married daughter of the deceased tenant would not be granted such a right. The sine qua non for obtaining the status of occupancy of tenancy is that the person concerned must be a tenant on the appointed day.
16. We would discuss the construction of the provision of Section 61 of the paid Act, a little later, but we have no hesitation in holding that in the event if it be held that the testator could not have executed the Will in favour of a person who could not be declared to be a tenant having occupancy right, such a Will would be void ab initio and, therefore, the non est in the eye of law. The Court in such an event would not be determining a disputed question of title but would be considering the effect of the statute vis-a-vis the Will in question.
18. As we have noticed hereinbefore that the statutory embargo on transfer of land is stricter in a case, where the tenant has become occupant than a land held by a tenant simpliciter. We have also noticed that the embargo on transfer is not only by way of sale, gift, exchange, mortgage, lease but also by assignment. What is permitted under the law is partition of the land amongst he members of the family. Section 61 of the Act is to be read in its entirety.
28. On a fair construction of Section 61 of the Act, in our opinion, a transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to the definition of 'family' as contained in Sections 2(12) and 'joint family' as contained in Section 2(17) of the said Act.
(emphasis supplied)
9. Harmonious reading of the discussion and conclusion of the Hon'ble Supreme Court would indicate that the embargo imposed under Section 61 of the Act is more stricter than the one imposed under Section 21 of the Act. As such tenancy although would be a heritable interest, the right of occupancy can be granted to an heir only if he is qualified therefor and all heirs cannot become occupants. Hence, the sine qua non for obtaining the status of tenancy is that person concerned must be a tenant on the appointed day. Keeping this in view the Hon'ble Supreme Court has held that the testator could not have executed the WILL in favour of a person who could not he declared to be a tenant having occupancy right, such WILL would be void ab initio and would be non est in the eye of law. In other words, the Hon'ble Court has held that when even a legal heir who does not qualify to be a tenant, cannot get occupancy, a stranger can never get the same.
10. Hence, keeping this observation in the foreground, the further reference of the Hon'ble Court to the permissibility of partition under Section 61 by reading the judgment as a whole would have to be considered while construing the observation made in para 28 of the judgment. The partition referred to therein would have to be understood as right of partition available to a member of the joint family as defined under the Act either by birth or having regard to the nature of occupancy right granted. Therefore, the right of partition permitted under Section 61 and the permissibility of executing a WILL in favour of one of the heirs entitled to claim partition of the land and not others as enunciated by the Hon'ble Supreme Court would have to be understood in the context that the validity of the WILL would depend on such heir having a right to seek for partition even during the lifetime of the testator and the validity of the WILL cannot be decided by considering the right to partition after the death of the testator since even otherwise on non-testamentary succession all heirs would be entitled to succeed to the estate of the deceased and seek for partition even if they do not fell within the definition of 'family' or 'joint family' as contemplated under Section 2(12) and 2(17) of the Act respectively but if the respective succession Act provides for the same, and if they answer the definition of heir and fall within the order of succession contemplated therein. This would have to be understood in such manner because the Hon'ble Supreme Court has used the expression 'a transfer of agricultural land with occupancy right is permissible only in favour of one of the heirs who would be entitled to claim partition of land and not others having regard to definition of 'family' or 'joint family'. Hence, for testamentary disposition of the land with occupancy right within the period of embargo the recipient heir must be a member of the joint family as defined in the Act, who is entitled to claim such right in the land with occupancy right. This would be further clear, since even the partition permitted under Section 61 of the Act is only among the holder's joint family, which means that the right over the property by the members of the joint family is recognised and in such event even though the grant is made in favour of one of the members of the family, the other members who are part of the joint family become entitled to the property. That being so, a WILL would become valid only if the legatee/beneficiary establishes that he is a member of the joint family as defined. Since I have reached this conclusion on analysing the subsequent decision of the Hon'ble Supreme Court in Maria Bar's case, the decision cited in the case of BENEDICT NAZRETH's case would not be of assistance. In any case, the said decision was not rendered in the background of the definition of 'joint family' coming into play. Further, it is made clear that this decision shall effect such cases, which have already attained finality.
11. With this understanding, the case on hand would have to be examined. The definition of 'family' does not arise. Hence, the definition of 'joint family' would have to be considered. If it was in the case of Hindus, only if it is shown that it is an undivided family that would suffice. But the parties to this appeal are governed by Christian personal law. Therefore not being Hindus, in order to answer the definition of joint family so as to entitle right of partition during the lifetime of the testator, they would have to form a group or unit who are by custom joint in estate or residence. Though the recitals in the Will provides some indication about the nature of the family and the cause title indicate separate residence, this is a matter of fact which would have to be established with reference to the point during which occupancy was granted and thereafter, by tendering evidence. As already noticed in the earlier part of this judgment, this issue with regard to the legal embargo had not been raised before the Court below, but I had proceeded to examine the same in view of the observation of the Hon'ble Supreme Court that it is to be examined if raised even in a probate proceedings. After analysing this issue, I am of the view that the said aspect requires a finding of fact with regard to the family status vis-a-vis 'joint family' defined in the Act, before the said finding becomes the basis for deciding the question of law as understood above. Though the question of suspicious circumstances and the manner of proof of WILL was argued by both the learned Counsel with reference to the evidence tendered and the decisions cited, I do not deem it necessary to dilate on that aspect for the present since in any event the matter would have to be remitted to the Court below to frame a issue with regard to the joint estate or residence of the testator's family and arrive at a finding on the same and thereafter come to a conclusion as to whether the WILL executed is unsustainable on the face of it being void ab initio or as to whether there was no bar to execute such WILL if the plaintiff proves that it was joint family as defined, by keeping in view the decision of the Hon'ble Supreme Court in Maria Bai's case and the observations made above. Hence, the finding rendered by the Court below on Issue Nos. 1, 2 and 3 are left unanswered for the present since the same would arise for consideration only if the plaintiff succeeds on the issue for which purpose it is being remanded. However, the judgment and decree impugned in this appeal is set aside in its entirety for the present so that the parties may have the opportunity of leading additional evidence on other issues also if it becomes necessary. Therefore, it is made clear that in the event of plaintiff succeeding in establishing the permissibility to execute the WILL in terms of the above discussion, it would be open to the plaintiff to challenge the finding already rendered in the present impugned order or else to challenge all the findings that would be rendered and also the existing findings.
12. In the result, the following:
ORDER
i) The appeal is disposed of in the above terms and the order dated 24.07.2001 passed in O.S.No. 22/98 is set aside for the reason and purpose indicated in the course of the judgment.
ii) The matter is remanded to the District Judge, Dakshina Kannada, to restore O.S.No. 22/1998 on file and render a finding with regard to the joint family status of the testator's family in terms of Section 2(17) of the Karnataka Land Reforms Act, 1961 and thereafter render its judgment keeping in view the observations with regard to the position of law.
iii) All contentions of the parties with regard to the joint family status are left open including filing of additional pleadings and documents.
iv) Since the contesting parties are represented by their respective learned Counsel, it is directed that they appear before the Court below on 10.09.2007 as the first date of appearance without further notice and the Court below shall thereafter regulate its proceedings and dispose of as expeditiously as possible.
v) There shall be no necessity to issue notice to defendants 1 to 3 and 5 since they have not chosen to appear before this Court despite service and defendants 2 and 3 even otherwise were set exparte before the Court below at the first instance.
vi) Considering that the matter has been remanded, the entire Court fee paid on this appeal shall be refunded to the appellant in terms of Section 64 of the Karnataka Court Fees and Suits Valuation Act.
vii) All other costs incurred in this appeal to be borne by the respective parties. Ordered accordingly.