Holding

The sale deed was void only to the extent of the seller’s one‑fourth share, no merger of lease‑hold and reversion occurred, and the tenants' rights were not disturbed.

Summary

The dispute concerned agricultural lands in Karnataka that were originally hereditary Watans. Basappa Bheemappa, the former Watandar, re‑granted the lands under the Bombay Watans (Abolition) Act and subsequently sold them to the tenants, Huchappa Yellappa Radder and his father, on 31 March 1969. The plaintiff, Ningappa Bheemappa Talawar, sued for partition of his one‑fourth share, alleging that the sale was void because it was made without the consent of his brothers and violated the Karnataka Prevention of Fragmentation Act. The lower courts held the sale void and affirmed the partition decree, but the appellants contended that the void sale should revive their tenancy rights. The Supreme Court held that only Bheemappa’s one‑fourth undivided interest could be sold, so the lease‑hold and reversion interests did not merge under Section 11(d) of the Transfer of Property Act, and consequently the tenancy rights were not disturbed. The appeal was allowed, the lower judgments set aside, and the matter remitted to the Munsiff Court to determine partition as tenanted lands.

Issues considered

Whether the sale of joint family land without the consent of co‑heirs is void under the Karnataka Prevention of Fragmentation Act.
Whether a void sale revives the tenancy rights of the lessees under the Transfer of Property Act.
Whether merger of lease‑hold and reversion interests occurred under Section 11(d) of the Transfer of Property Act.
Whether a partition decree can be granted for lands that remain tenanted.

Legislation cited

Subjects

joint family propertysale without consentprevention of fragmentationtenancy rightsmerger of interestspartitionvoid saleland reformTransfer of Property Act

Judgment

HUCHAPPA YELLAPPA RADDER AND ANR. A

v.

NINGAPPA BHEEMAPPA TALAWAR

[KULDIP SINGH, B.P. .JEEV AN REDDY AND N. VEN KA TACHALA,
.J.J .1 B

MAY 14, 1993

Trall.lfer u.f Property Act 1882-S.lll(d)-Karnawka (Prevemion of Frag-
memation & Consolidation of Holdings) Act 1966-S. 39( 3 )- Kamataka land
Reforms Act 1961, Ss. J.I 1 and 1./3-Sale of land to tenams in possession fotmd C
rnid in a suit JiJr partition 1f joint family properties, '>rhether right of tenancy
disturbed /Jy the sale deed-Held, since sale deed void because rhe undivided
imerest r!(rhe brother could not have been sold, there was no merger of interest
within S. 111 (d) TP. Act-Tenancy rights not affected ,1,. disturbed by sale .
deed-BvmhaY Hereditary o.{(ices Act 187./-Bo111hay Paragand and Kulkarni
I\'atans (Abolirion)Act 1950-Bombay Tenancy and Agricul11ira/ Lands Act 1948. D

Basappa Bheemappa was the Watandar of the disputed agricultural
lands admeasuring 4 acres, and 6 acres 26 guntas, 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 tu appellant l and the
E
father of appellant 2 for their personal cultiYation.

With the coming into force of the Bombay paragana and Kulkarni
Watans (A holition) Act 1950, the lands were resumed by the State of Bombay,
Bheemappa applied under this Act for regrant of the watan land, and the Dy.
Commissioner of Dharwad District made the regrant in his fayour on F
30.11.1968. On 31.3.1969, he sold the land to appellant no. I and the father of
appellant no. 2 under a registered sale deed. The land Tribunal under d1e
Karnataka land Reforms Ad 1961 found it unnecessary to register the
occupancy rights of the appellant.; in view of the sale.
G
In 1976, respondent tiled a suit against Bheemappa aml 2other brothers
for partition of the disputed propert~· and separate possession. He impleaded
appellant.; l and 2 as defendants in the suit since the~· 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 necessit)· of the family, and the
sale was \'oid ab initio. H

779
780 Sl:PRJ:\1E Cot'.R'f REPORTS I I 993) 3 S.C.R.

A The MunsiffCourt granted a decree in favour of the respondent on it'>
finding that the dispukd lands were Hindu joint family properties, that the
sale was void ab initio for the reasons stated; and that the pica of the
defendants-appellant'> that if the sale was mid the tenancy revived, was
unacceptable.

B
The Munsiff Court, and in appeal, the Civil Judge concurrentl~: held
that the sale was void since sail· of' fragments was prohibited under the
Karnataka Prevention of Fragmentation Act 1966.

A regular second appeal hefore the High Court was dismissed in limine.
c
The appellant'> contended before this Court that if the sale was ab-initio
void, the agricultural tenancy of the appellant'> revived. For the respondent'>
it was submitted that the tenancy on lease hold right-. in the disputed lands
held hy the appellants got nwrged in the sale effected in their farnur. When
D that sale wasfound to be \"oid itdicl not have the effect of reviving the merged
tenancy of the appellant'>, as would restore their tenancy right'> in the disputed
lands.

Allowing the appeal, this Court,

E
HELD : (1) The tenant-. 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 onl~· if
permissible by law. (784-G)

F (2) The court'> hclow having found that the sale deed was rnid because
Bhecmappa could not have sold the unclh·iclcd interest of his brother, onl~· his
1/4 undivided interest, in the disputed lands had to he regarded as having been
sold by him. (784-H)

G The lessors' entire interest or entire reversion in the disputed lands
cannot therefore be regarded as having been sold under the sale deed of 31st
March, J 969. From this, it follo\,·s that the lease-hold interest'> of the leases
and the lessors entire re,·ersion could not have merged in one and the same
person, so as to constitute merger envisaged under section 1 ll(d) of the
Transfer of Property Act, 1982. For constituting merger under that provi-
H sion, the interest.; of the lessee and the interests of the lessor i11 the whole ofthe
H.Y. RADDER,.. N.B. TALWAR [VENKATACHALA. JJ 781

property had to vest at the same time in one person in the same right. (785-B- A
C)

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 unneces-
sary to consider the question ofrevival of the right of tenancy of the appellants B
in the disputed lands. (785-D)

3. Case remitted to the Court of M unsiff 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)
c
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. 534of1990.
D
S.D. Bajaj, and P. Mahale for the Appellants.

Ms. Kiran Suri for the Respondent.

The Judgment of the Court was delivered by E

VENKATACHALA,J. We grant Special Leave. Since we heard learned
counsel for parties on the merits of the appeal. we are finally deciding it.

An extent of 4 acres and another extent of 6 acres 26 guntas are agricultural F
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 viilage 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 G
1950 in favour of appellant- I 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 H
A
782 SUPREME COURT REPORTS ( 1993) 3 S.C.R.

Watan Ian?, to ohtain its regrant subject to payment of occupancy price. After the
-
resumption of the disputed lands hy the State of Bombay under the \Vatan
(Abolition) Act, Basappa Bheemappa, Claiming to be their former holder applied
fortheir re grant before the Assistant Commissioner, Savanur, 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 Re-
B
organisation Act 1956. Thereafter. by his Order dated 30th Novemher, 1968, the
Deputy Commissioner of Dharwad District made the regrant of disputed lands
(resumed Watan lands) in favour of their former Watandar, Ba-;appa 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
c time Bassppa Bhccmappa. as their Watandar, had leased them in favour of
appellant-I and father of appellant-2 in the year 1950, the re grant of the disputed
lands in fav.our 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
D Karnatakaon 2.10.1965, repealed by its section 141 the Watan (Abolition) Act and
by its section 143 the BT & AL 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- I and father of appellant-2) on 31st March, 1969 under a registered sale
deed. The land Tribunal under the KLR Act, before which the appellants sought
E
registration of their occupancy rights in the disputed lands, found it unnecessary
to so register them because ofits view that the disputed lands had been sold to them
by the landlord-regrantee, Basappa Bheemappa.

But, on 8th December, 1976, the respondent filed a suit in the Court of
F
Munsiff at Kundgol. against his eldest brother, Basappa.Beemappa (the seller of
the disputed lands) and two other brothers arraying them asdefendants-1 to 3. That
was a suit for partition of I/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
G 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 ab ini1io. He impleaded
in that suit appellants- I and 2 as defendants-4 and 5, since they were in possession
of the disputed lands. Defendants-I, 4 and 5, resisted the plaintiffs claim for
H
H.Y. RADDER"· N.B. TAL\VAR [VENKATACHALA, .I) 783

- partition and separate possession of his I/4th share in the disputed lands urging, A
inter a!ia, that he had no right to get any share in them. After trial of the suit, the
Munsiff Court granted a decree in favour of the respondent. That decree of the
MunsiffCourt was based on its findings (i) that the disputed lands were Hindu joint
family properties of the plaintiff and defendants-I to 3; (ii) that the sale of the
disputed lands in favour of defendant-4 and father of defendant-5 had since been B
made by defendant- I 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 inirio; (iii) that the plea of defendants-I, 4 and 5 that the tenancy revived, if the
sale by defendant- I in favour of defendant-4 and father of defendant-5 was found
to be v1' ·d, was unacceptable; and (iv) that the sale by defendant- I in favour of
defcndam-4 and father of dcfendant-5 of the disputed lands was also voict since
c
sale of them (Fragments) was prohibited under the provisions of the Karnataka
(Prevention of Fragmentation and Consolidation of Holdings) Act, 1966-the
Karnataka Prevention of Fragmentation Act. However, defendants-4 and 5 chal-
lenged 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 D
Judge, held that the sale deed date 31st March, 1969 by which defendants- I had
sold the disputed lands, was void because of the provisions of the Karnataka
0

Prevention of Fragmentation Act, prohibiting such sale and this situation itself
enabled the plaintiff to ignore the sale effected by defendant-I and claim his share
in the disputed lands. Accordingly, it dismissed the appeal. A Regular Second E
Appeal filed by defendants-4 and 5 before the High Court ofKainataka against the
decree of the Civil Judge's Court affirming the decree of the Munsiffs Court, was
dismissed in limine. It is those decrees which are impugned by defendants-4 and
5 in the present appeal by Special Leave.

F
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- I in favour of defendants-4 and 5 (appellants-
! and 2) was ab inirio 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 G
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 h~ve been scope for the

H
784 SUPREME COURT REPORTS [1993] 3 S.C.R.

A Munsiff Court to have made a decree in favour of the respondent for partition of
his I/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 Suri, the learned
counsel for the respondent, submitted that the tenancy or lease-hold rights in the
B disputed lands held by the appellants got merged in the sale effected in their favour
by defendant-I on 3 lst March, 1969. That sale, when was found to be void by the
Courts below, such finding did not have the effect of reviving the marged tenancy
of the appellants, as would restore their tenancy rights in the disputed lands. This
appeal was, therefore, liable to be dismissed.
c
·The Court ofMunsiff-the Trial Court and the Court of Civil Judge-the First
Appellant Court, have recorded a concurrent finding that the sale by defendant- I
in favour of defendant-4 and father of defendant-5 of the disputed lands by
registered sale deed dated 3 lst March, 1969, was void ab initio-that being a sale
D 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 their 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
E 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 limi11e.

That the sale deed dated 31st March, 1969. if is void, being a prohibited sale
F 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 conseque~e
contained in sub-section (3) of section 39 of that Act should have followed, that
is-

G
'"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

H
,..
H.Y. RADDER1·. N.B. TALWAR (VENKATACHALA.JJ 785

be in the possession of the person lawfully entitled to such posses- A
sion."

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 B
sought for by the plaintiff (respondent here) could have been granted 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-I could not have sold the undivided interest of C
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 necessityofthefamily. lfthatbe so.defendant-I 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 I/4th undivided interest in the disputed lands and not. 3/4th 0
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
regarCl.:d as having been sold under the sale deed of 31st March, 1969. From this,
it follows 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 11 l(d) of the E
Transfer of Property Act, 1882, in that, for constituting merger under that
provision. the interests of the lessee and the interests of the lessor in the whole of
tlte proper~· 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-I had
not SD!d the undivided interest of the plaintiff and defendants-2 and 3 in the F
disputed lands to the extent of their 3/4th share-there could not have been any
mergeroftenancy rights of defendant-4 and father ofdefendant-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 G
there arose revival of the right of tenancy of the appellants in the disputed lands,
is unnecesszj.

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 H
786 SUPREl\iE COURT REPORTS [1993] 3 S.C.R.

A 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.