WHEN THERE IS A QUESTION WHO IS CULTIVATING THE LAND - JUSTICE S SUJATHA

SOURCE:- K.T. Venkatappa and Ors. vs. State of Karnataka and Ors. (19.02.2019 - KARHC) : MANU/KA/0882/2019 - JUSTICE S SUJATHA

In the case of Basavaraj Vs. State of Karnataka 1982 (2) KLJ 531, the cognate bench of this court while examining the applications filed by the son during the life time of his father claiming conferment of occupancy rights, held that a son is the member of the joint family, the question to be considered is what is the interest of a son in the lease hold right and placed reliance on the judgment of the Hon'ble Apex Court in Municipal Corporation of Greater Bombay Vs. Lallapunchani & others wherein it is held that the lease hold right in an agricultural land, if it constitutes joint family property/joint property, is partible just like any other property of the joint family.

10. In H.R. Rama Singh Vs. D. Nagesh Rao & another 1977 (2) KLJ 329, referred to therein, it is observed that an employee of a Bank cultivating the lands with the assistance of his brother is entitled to conferment of occupancy rights.

11. Considering the said legal principles, it is observed that son as a member of the joint Hindu family is entitled to claim conferment of occupancy rights by filing an application in the prescribed form.

12. The Hon'ble Apex Court in the case of Mohan Balaku Patil & another Vs. Krishnoji Bhaurao Hundre (Dead) by L.Rs. MANU/SC/0040/1999 : (2000) 1 SCC 518, has held that when a finding of fact has been recorded that the claimants have been in possession, it will be startling to hold that the land-owner was himself cultivating the land. The rent paid by the claimant to the land-owner and the partition in their family has no bearing on the question of possession on the land and cultivation thereof. It was thus observed that the finding of the Tribunal as to possession and cultivation of the land by a party will prevail over entry to the contrary in record of rights.

13. In the case of Ram Vs. State of Karnataka MANU/SC/0768/2004 : Laws (SC) 2004 982, the Division bench of the court has referred to the earlier decision of this court in Writ Appeal No. 4310/1998 wherein it is observed that, this court exercising jurisdiction under Articles 226 and 227 of the Constitution of India normally cannot re-appreciate the evidence on record which has already been appreciated by the Land Tribunal. The finding of the Tribunal that it is the joint tenancy which is a finding of fact can not be upset by this court sitting under its jurisdiction by re-appreciating the evidence.

14. Having regard to the facts found, looking to close relationship between the parties and considering the spot inspection and the local enquiries made with the adjacent land owners, the order passed by the Tribunal therein holding that all the four applicants were entitled for grant of occupancy rights is held to be justifiable, more particularly taking note of the fact that the Tribunal consequently found that the all four applicants were cultivating their respective share of their land.

15. In the case of Vasantha Nanasaheb & others Vs. Piraji Pandu Patil & others MANU/KA/0256/2006 : ILR 2006 Kar 2061, in support of the case, the tenant had examined two independent neighbouring witnesses apart from examining himself. Both the witnesses have deposed in categorical terms that 1st respondent therein was cultivating the property in question as tenant. Nothing worth was elicited in their cross-examination to discard their evidence. In that context it was observed that the presumption arising out of the revenue records stand rebutted in view of consistent, cogent and clinching evidence relating to the party's possession over the property in question as a tenant.

16. In the case of Mudakappa Vs. Rudrappa & others MANU/KA/0143/1978 : 1978 (1) KLJ 459, it is held that when one person applies for registration of lands as an occupant in his individual name and three others apply for registration of the said lands in their name along with the other applicant as joint occupants, it becomes the duty of the Tribunal to decide whether only one of them was sole tenant of the lands in question before the appointed day or whether all of them were jointly in possession of the lands as tenants. It was observed that without deciding the said question, it would not be possible for the Tribunal to make an effective order under Section 48-A of the Act. What was necessary for the Tribunal to decide is whether the tenancy in question was held by one of them exclusively or by all of them jointly.

17. In the case of Sundara Mesta Bin Thimmappa Mesta Vs. Land Tribunal MANU/KA/0329/2005 : ILR 2005 Kar 4513, right course to be adopted by the Tribunal was discussed where applications are filed by different persons in respect of the same land under Sections 48-A and 38 of the Act. It was held that the applications are in respect of the same land, both the applications are required to be considered together, if necessary, by setting aside an earlier order either granting occupancy right or directing registration of an agricultural labourer as an owner thereof.

18. Division Bench of this court in the case of Davalsab Vs. The State of Karnataka MANU/KA/7360/2007 : ILR 2008 Kar 280, has observed that when we look at the practical difficulties, if tenants are allowed to file more than one Form No. 7, application in respect of the lands claimed by them as tenants pertaining to the very same landlord, it would only lead to multiplicity of proceedings and both the landlord and tenant would end up in litigations throughout their lives. Therefore, in view of the provisions of Section 48-A and Rule 19 of the Act, the principle underlying Order II Rule 2 of CPC is applicable as there is no such express provisions under the Land Reforms Act. It was the situation where the tenant claimed tenancy rights under the same landlord by filing two Form No. 7 applications one in the year 1974 and the other in 1976.

19. In the case of Chennappa Moolya Vs. Seju Moolya MANU/KA/2500/2012 : Laws (Kar) 2012 458, tenants the brothers had jointly filed declaration in Form No. 7 claiming occupancy rights on behalf of the Joint Hindu Family as held by this court.

20. In the case of Babu Madivala & others Vs. Kuddu Madivala & others MANU/KA/0212/2002 : ILR 2002 Kar 3417, the land Tribunal after conducting an enquiry granted occupancy rights while deciding the issue whether the grant of occupancy rights is for the benefit of the 'joint family' as defined under Section 2(17) of the Land Reforms Act or the 'family' as defined under Section 2(12) of the Land Reforms Act?

CASE LAW ON WILL AND PROBATE

Case Law Digest on Will and Probate by Sridhara babu. N - ಶ್ರೀಧರ ಬಾಬು. ಎನ್

THE JURISDICTION TO GRANT RELIEF IN CIVIL SUIT NECESSARILY DEPENDS ON THE PLEADINGS, PRAYER, COURT FEE PAID, EVIDENCE LET IN ETC

Bachhaj Nahar vs. Nilima Mandal and Anr (2008) 17 SCC 491. It is relevant to extract the principles enunciated in para 23 of the judgment which are as follows. "23. It is fundamental that in a civil suit, relief to be granted can be only with reference to the prayers made in the pleadings. That apart, in civil suits, grant of relief is circumscribed by various factors like court fee, limitation, parties to the suits, as also grounds barring relief, like res judicata, estoppel, acquiescence, non-joinder of causes of action or parties, etc., which require pleading and proof. Therefore, it would be hazardous to hold that in a civil suit whatever be the relief that is prayed, the court can on examination of facts grant any relief as it thinks fit. In a suit for recovery of rupees one lakh, the court cannot grant a decree for rupees ten lakhs. In a suit for recovery possession of property `A', court cannot grant possession of property `B'. In a suit praying for permanent injunction, court cannot grant a relief of declaration or possession. The jurisdiction to grant relief in a civil suit necessarily depends on the pleadings, prayer, court fee paid, evidence let in, etc." In those circumstances, while reiterating the principles laid down above, we hold that the same are not applicable to the case on hand.

CASE LAW DIGEST ON CIVIL COURTS AND INVOLVED PROCEDURE

Case Law Digest on Civil Court and Involved Procedure by Sridhara babu. N - ಶ್ರೀಧರ ಬಾಬು. ಎನ್

HINDU GAINS OF LEARNING ACT – SELF ACQUIRED PROPERTY

Before the enactment of Hindu Gains of Learning Act, 1930 it was settled law that income earned by a member of a joint family by the practice of a profession or occupation requiring special training was joint family property, if such training was imparted from the funds of the joint family. But this term „learning‟ was interpreted by the Courts to mean some kind of special learning, as distinguished from ordinary general education, that all members of the family might be expected to receive. The most famous decision in said regards is the decision of the Privy Council reported as AIR 1921 PC 35 Gokalchand v. Hukumchand where a person had acquired education by paying fee from the joint family income which enabled him to acquire knowledge, compete at a competitive examination and become a member of the Indian Civil Service. It was held by the Court that salary earned by said person was the property of joint family and thus should be partitioned between the members of the said family. After the decision of Privy Council in Gokalchand‟s case (supra), Hindu Gains of Learning Act, 1930 was enacted by virtue of which all gains of learning, whether the learning be special or ordinary, became the self-acquired property of the acquirer.

Madras High Court in the decision reported as AIR 1953 Mad 834 Parsam Venkataramayya v Parsam Venkatarmappa wherein it was observed as under:- "11. We are inclined to the view that if a member of a Joint family who was given a certain sum from the Joint family funds and who goes out of the family in the sense of leaving the family house as in the present case, starts a business of his own individually or in partnership and by virtue of his exertions he prospers in his business and acquires properties it will be not justifiable to hold that either the business or his properties would be joint family properties. In view of the constitution of the Hindu joint family and the incidents of its ownership of properties, to come to any other conclusion would be to deprive a member of such family of his initiative and his desire to eke out a livelihood by his individual efforts and intelligence. The trend of judicial opinion has been as far as possible to recognise properties acquired out of the individual exertions of a member of a joint family to be his self-acquisition. The Hindu Gains of Learning Act (Act 30 of 1930) is one of the enactments which gave legislative recognition to this view, by treating the properties acquired out of the earnings of the members of the family who happened to have had their education from out of the joint family funds as self-acquired and separate properties. The Act provides that notwithstanding any custom, rule or interpretation of the Hindu law, no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely for the reason that his learning, in whole or in part has been acquired with the aid of the funds of the family and "learning" has been understood to mean education which is to enable a person to pursue any trade, industry, profession or avocation in life. If a member of the family is inclined to start a trade and for that purpose he gets assistance by way of a contribution from the joint family funds without any further assistance from the joint family and goes and starts a business and acquires properties, it appears to be reasonable to extend the principle of the Hindu Gains of Learning Act to such a case. We are unable to find any real distinction between the case of a member getting himself educated out of the joint family funds and employing himself somewhere earning and acquiring properties and a member getting a cash contribution from the family and starting a trade on his own account."

Chandrakant Manilal Shah And Anr vs Commissioner Of Income Tax 1992 AIR 66, 1991 SCR Supl. (1) 546 The definition of the term "learning" under Section 2 of the Hindu Gains of Learning Act, 1930 is very wide and almost encompasses within its sweep every acquired capacity which enables the acquirer of the capacity 'to pursue any trade, industry, profession of vocation in life". The dic- tionary meaning of "skill" inter alia, is: "the familiar 'knowledge of any science, art, or handicraft, as shown by dexterity in execution or performance; technical ability" and the meaning of "labour" inter alia is: "physical or mental exertion, particularly for some useful or desired end." Whether or not skill and labour would squarely fail within the traditional jurisprudential connotation of property e.g. jura in re propria, jura in re aliena, corpo- real and incorporeal etc. may be a moot point but it cannot be denied that skill and labour involve as well as generate mental and physical capacity. This capacity is in its very nature an individual achievement and normally varies from individual to individual. It is by utilisation of this capacity that an object or goal is achieved by the person possessing the capacity. Achievement of an object or goal is a benefit. This benefit accrues in favour of the individual possessing and utilising the capacity. Such individual may, for consideration, utilise the capacity possessed by him even for the benefit of some other individual. The nature of consideration will depend on the nature of the contract between the two individuals.
Chandrakant Manilal Shah And Anr vs Commissioner Of Income Tax 1992 AIR 66, 1991 SCR Supl. (1) 546 “Just like a cash asset, the mental and physical capacity generated by the skill and labour of an individual is possessed by or is a possession of such individual. Indeed, skill and labour are by themselves possessions. "Any possession" is one of the dictionary meaning of the word 'property'. In its wider connotation, therefore, the mental and physical capacity generated by skill and labour of an individual and indeed the skill and labour by themselves would be the property of the individ- ual possessing them. They are certainly assets of that individual and there is no reason why they cannot be con- tributed as a consideration for earning profit in the busi- ness of a partnership. They certainly are not the properties of the HUF, but are separate properties of the individual concerned. To hold to the contrary, would also be incompati- ble with the practical, economic and social realities of present day living.”

Chandrakant Manilal Shah And Anr vs Commissioner Of Income Tax 1992 AIR 66, 1991 SCR Supl. (1) 546 Where an undivided member of a family qualifies in technical fields -- may be at the expense of the family - he is free to employ his technical expertise elsewhere and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits. This, of course, will have to be the subject matter of an agreement between the HUF and the member, but where there is such an agreement, it cannot be characterised as invalid. ……….. It is, therefore, illogical to hold that an undi- vided member of the family can qualify for a share of prof- its in the family business by offering moneys -- either his own or those derived by way of partition from the family -- but not when he offers to be a working partner contributing labour and services or much more valuable expertise, skill and knowledge for making the family business more prosperous.

Irrumathirumala ... vs Irumathirumal AIR 1969 AP 303 The offerings given to any Guru performing Samasrayanam are his personal property. The statement that property acquired from science and learning is separate property has had ancient sanction. Katyayana enumerates exhaustively the gains of learning. As pointed out by Mayne (Mayne's Hindu Law and Usage (11th Edn 352) gains which were the result, not of the education received at the expense of the joint family but of the peculiar skill and mental ability of a member educated at the expense of the family were not partible. There is no doubt left after the passing of the Hindu Gains of Learning Act, which provides that no gains of learning shall he held not to be the exclusive and separate property of the acquirer, merely by reason of his learning having been imparted to him by any member of his family, or with the aid of the joint funds of the family or with the aid of the funds of any member. The further fact that the acquirer or his family, while undergoing education or training was maintained by the funds of the joint family or of any member of it, is made wholly immaterial.

T.M. Channabasamma And Ors. vs T.M. Rudriak And Ors AIR 1982 Kant 198, ILR 1982 KAR 98 (DB) We have examined the purpose of repealing Section 6 of the Mysore Act X of 1933. It appears to us that that repeal was a necessary consequence of the extension of the Hindu Gains of Learning Act, 1930 to the State of Karnataka as well. The Miscellaneous Personal Laws (Extension) Act, 1959 amended S. 2 of the Hindu Gains of Learning Act, 1930 by extending the Act with effect from February 1, 1960 throughout the territory of India except Jammu and Kashmir while simultaneously repealing Section 6 of the Mysore Act X of 1933. Section 6 of the Mysore -Act X of 1933 is analogous to the provisions of the Hindu Gains of Learning Act, 1930 and it became redundent and se was repealed. No other inference is possible in this context.