Murlidher Rao, J.
1.This is owners petition, challenging the order of the Land Tribunal, Kanakapura,dated 12-11-1984 (Annexure'A'). First petitioner is the wife of second petitioner. Respondent-3 is second petitioner's brother. This relationship is not disputed.
2. In retrospect, few facts which necessitate reference are as follows:
While the relationship, between the petitioners and respondent-3, is as stated above, the family genealogy is as follows :
| | | |
C.M. Lingegowda C.M. Marigowda Hoslingegowda Basave
gowda (Respondent-3) (Petitioner-2) gowda
= Lingamma (wife)
3. In a family partition, dated 3-6-1963, the lands in dispute fell to the share of petitioner-2 Hosalingegowda. It is admitted, Hosalingegowda is mentally unsound; there is enough material to support this fact. Respondent's Counsel also did not dispute this fact.
4. C. M. Lingegowda, brother of first petitioner, filed Form No. 7 claiming occupancy rights,this was rejected. His attempt, by filing Writ Petition, proved futile. So he did not succeed in claiming occupancy rights, in respect of these lands.
5. One brother having failed, the other brother, namely, respondent-3, taking the clue, filed Form-7, with better material and shrewdness. Before filing Form 7, a registered lease deed dated 13-2-1970, was got executed by Lingamma-first petitioner; though the second petitioner, is alleged to have executed the said deed, the registering authority has made the following endorsement:-
'Examined C.M. Hosalinge Gowda, He could not be treated as one of the executants since he is an idiot or a lunatic by his appearance and talk. Hence registration of this document ordered to be partially refused so far it is related to him.'
6. The lease deed is in favour of respondent-3 and another brother CM. Basavegowda, who is not a party to these proceedings. The resultant position is, registration was partially refused. Hence it is obvious Hosalingegowda has not leased the lands, in favour of respondent-3, as per the lease deed. There is no registered lease deed executed by him. Whether Lingamma had implied authority to lease the lands and lease is valid, so as to bind his interest is a matter which needs examination. On 9-4-1979, the Tribunal granted occupancy rights only in respect of S. Nos. 41, 48 and 49 of Agrahara village and S. No. 430 of Kanakapura. This order was challenged in W.P.No. 6118 of 1979, which was allowed: after setting aside the order, the case was remanded to Tribunal, for fresh disposal. By order dated 15-4-1982, the Tribunal rejected respondent No. 3's application. Again this order was challenged in W.P.No. 16665 of 1982; which was allowed; after setting aside the order, case was remanded; this was the second order of remand.
7. After the second remand the matter entered the third innings. Tribunal recorded the statements of witnesses on 6-11-1984 and 12-11-1984. It verified the revenue records, which did not support the third respondent. For the years 1964-65, 65-66, 66 67, 67-68, 68-69, names of Lingegowda and Basavegowda were found.Respondent's name was not found. For the years 1977-78, 78-79 the names of Lingegowda, Basavegowda, Marigowda and Lingamma are found and the nature of cultivation is indicated as 'Guttige' Suffice it to point out that this has no relevance, as it is subsequent to 1-3-1974, which is the 'appointed day' under the Karnataka Land Reforms Act.
8. The oral evidence consisted of statements of Marigowda (respondent-3), for himself. On behalf of petitioners, statements of C.N. Shivalingegowda and Lingegowda Bin Lingegowda was recorded. The gist of petitioners evidence was that they are cultivating the lands themselves since the date of partition.
9. The Tribunal did not place much reliance on oral evidence and revenue records. It rested its conclusion on the partially registered lease deed dated 13-2-1970 and statement of Lingamma - petitioner-l - in O.S. 43 of 1970.
10. Interrupting the narration, it would be appropriate to refer to few facts in O.S.43 of 1970. That is a suit filed by respondent-3 and his brother against one Lingegowda, for injunction on the basis of the partially registered lease deed dated 13-2-1970. The said suit is dismissed by the Trial Court and appeal R.A. 106 of 1974 is still pending. In the said suit, first petitioner Lingamma is examined as PW-3; reliance is placed on her deposition in these proceedings. This was done, to evidence that Lingamma has leased the lands, on her husband's behalf. The relevant portion of her statement reads thus:
'Hosalinge Gowda is my husband. The others plaintiffs and defendants are my The suit properties belong to my husband and myself. My husband is insane. I was married about 6 years back. After my marriage, I came to know my husband was insane on the date of marriage also. Immediately after my marriage, I went to my husband's house. I was getting the lands cultivated as he was not capable ofcultivating the lands. I got the suit lands cultivated for 2 years with coolies. I could not continue cultivation as I had no male support and coolies were difficult to get. So, I leased the lands to my I leased to plaintiff No. 1 and No. 2 for a sum of Rs. 1,000/- per year. I have executed the Ex.P-2; Myself and my husband went to Sub Registrar's office. The Sub-Registrar said that since my husband is insane, he need not execute before him and he made an endorsement. I gave possession of the suit lands to plaintiff 1 and 2, Rs. 1000/- was paid on the date of execution of E.x.P-2. Every year, the plaintiffs 1 and 2 are paying
Continuing the narration, the Tribunal relying on the partially registered lease deed and the above statement in O.S. 43 of 1970, has granted occupancy rights, in favour of respondent-3, in respect of the following lands :-
S. Nos.28/5,38/3,41, 48/2 and 24 of Agrahara village and S. No. 427/3 (30 guntas) of Kanakapura. This order is under challenge. Mr. Keshavamurthy, Learned Counsel for petitioner urged that the Tribunal having discarded oral evidence and Record of Rights entries, could not have placed reliance on the partially registered lease deed and the statement of petitioner-1. He urged that the lands having been allotted to the share of petitioner No. 2, who being idiot, insane, could not have been leased by his wife, who is not appointed as a 'guardian' under the Indian Lunacy Act. He stated that the third respondent'scultivation, even if it is a fact,does not entitle him to claim occupancy right as he is not 'lawfully cultivating' the land belonging to another - in this case his brother. The landlord being petitioner-2, and he having not executed the lease deed, there is no lease at all. Secondly, the statement of petitioner - 1 as PW-3 in O.S.43/1970, in a suit for injunction is not admissible in evidence and even if admissible, the said admission has no relevance. If the partially registered lease deed is eschewed from consideration, there is no basis to sustain the claim of tenancy. He urged, that in view of the mental state of petitioner-2, the execution of lease deed, by him, had to be established independently. The first petitioner being a wife and not being duly appointed, either as power of attorney or guardian, under the Lunacy Act, she had no right to lease on behalf of her husband.
11. Mr. Thirumale, the Learned Counsel for respondent, contended that the partially registered lease deed, having been executed by petitioners 1 and 2, did create a valid lease, and as such, respondent-3 was lawfully cultivating the land and he was entitled to the grant of occupancy rights. He maintained that notwithstanding the fact, that wife is not appointed as power of attorney or guardian, as a wife, she has an implied authority to manage the properties on behalf of her husband and it binds the estate. He did not dispute, that no proceedings were taken under the Indian Lunacy Act, for appointment of guardian to manage the estate of petitioner-2. In addition to thestatement in O.S. 43 of 1970, he relied upon two rent payment receipts, for the years 1973 and 1972. In these two receipts, there is an acknowledgment of receipt of Rs. 1000/-. While the receipt of 1973 bears a receipt of 1A of Government of Mysore, the other one is unstamped. The Tribunal has not placed reliance, on these two receipts. Neither the scribe nor the attesting witnesses of these two receipts are examined. No receipts are produced for the other periods. The receipts produced do not bear any date.
12. The question that arises for consideration is whether respondent-3 was cultivating the land as a 'tenant' entitling him to claim occupancy rights under the Karnataka Land Reforms Act ?.
13. Among other objects, the Act is intended to confer 'ownership on tenants ;' as provided in Section 45. The result is, true owner in the instant case, Hoslingegowda, the alleged lunatic and his wife, would be permanently deprived of their land, the moment occupancy rights are granted in favour of respondent-3. Uninfluenced by the consequence, serious and devastating as it is, let me consider whether respondent-3 has established his claim as 'tenant' entitling him to get occupancy rights.
14. The word 'tenant' means an agriculturist who cultivates personally the land he holds on lease from landlord and includes 'a deemed tenant' as defined in Section 4 and some other categories of persons. Lease is not defined in the Act, hence its definition, as found in Section 105 of the Transfer of Property Act, would be applicable. The word 'landlord' is defined as meaning a person who has leased land to a tenant and includes a person entitled to receive rent from a tenant. Admittedly the land belongs to Hosalingegowda and he is the 'landlord'; however, it was contended that, Lingamma his wife, who has executed the registered lease deed and received rents, is also a 'landlord'. The inclusive clause makes it clear that the person who receives the rent must have been 'entitled' to receive the rent. The fact that Lingamma is alleged to have signed the two receipts, does not mean that she was 'entitled' to receive rent. She must be clothed with legal right to receive rent from the tenant. On the facts of thiscase, it is difficult to hold that she has such a legal right. Neither Lingamma nor any one else had initiatedproceedings under the Indian Lunacy Act. The said Act makes provision for inquisition and management of lunatic'sproperty. Under Section 71, the Court can appoint a manager of the estate and a guardian of his person. Section 72 imposes restriction on appointment of legal heir of lunatic to be guardian of his person.
15. Section 73 provides for remuneration of manager and guardians. A guardian need not always be a manager; two different persons may be appointed, one to act as manager of the estate and the other to act as guardian of the person. Therefore Section 74 provides that when a distinct guardian is appointed, the manager shall pay to the guardian such allowances, as is fixed by the Court or Collector, as the case may be. Section 75 enunciates the powers of manager of the estate of lunatic, which power includes the power to lease any property, for not exceeding five years, with the permission of the Court. Section 11 of the Contract Act requires that person competent to contract must be of 'sound mind'. Section 12 explains what is sound mind for purposes of contracting. Considering the above provisions, it would be clear that the 'lease' to be valid must conform to these provisions. Admittedly, Hosalingegowda was, and continues to be mentally unsound ; Lingamma is not appointed by the Court as his guardian and manager of his property. Hosalingegowda, being a man of unsound mind, could not have entered into contract save through his validly appointed manager. Hence the 'Lease' of 1970 is not valid. The fact that Sub-Registrar has refused to register the same, because Hosalingegowda, was unsound makes itineffective and inoperative, so far as he is concerned. Lingamma, being his wife, has no right in the estate. She could not have leased the lands on behalf of her husband, as she had no legal authority. The Tribunal could not have placed reliance on this deed. Once the lease deed is excluded, the only other piece of material, on which reliance is placed, is the statement of Lingamma in OS. 43 of 1970. The said suit was for injunction. The suit was not between the present petitioners and third Respondent. The lease and its validity were not in issue. The said statement would only show that Lingamma has leased the lands to her brothers-in-law, but as stated above she had no independent right in the lands ; hence the said statement cannot be made a basis to establish tenancy.
16. Mr. Thirumale however contended that wife has an implied authority to act on behalf of her husband. Even if this be true, there can be no implied authority where a person on whose behalf acts are done is under a disability like unsound mind. Reliance is placed on the decision of E.T. Robinson -v.- Mrs. Rigg : AIR1936All393 . In that case plaintiff, who had supplied frocks, Jharans etc to Mrs. Robinson filed a suit for recovery of the amount; Mr. and Mrs. Robinson were impleaded as defendants. Though plaintiff succeeded in the Trial Court, he lost it in the High Court. Afterextracting a passage from the 'Law of Domestic Relations' by Mr. Eversely, the Court observed --
'It appears to me that the principle is quite clear that where a man comes to enforce a contract between the husband and wife as against the husband, he has to establish that the things sold come within thedefinition of ''necessaries.' If he proves that, he is entitled to ask the Court to draw an inference in his favour that the things were required as necessities. On the other hand, it is open to the husband to prove that though the things were necessaries, he is not liable because he had been well supplying his wife with funds to purchase all these things or that he had actually got things purchased by his wife and there was no need for the wife to go and pledge his credit.....'
17. It was further observed that the liability of a husband, for his wife's debts depends on the principle of agency, and he can only be liable when it is shown that he has expressly or impliedly sanctioned what his wife has done. No such express or implied sanction can be inferred, where the husband is a man of unsound mind.
18. The Learned Counsel relied on Baboolal Bhagwandas -v.- M. Purcell : AIR1936All869 . This was a case of recovery of money, due on a pronote executed by the wife, sought to be recovered jointly from husband and wife. It was pointed out that the sum represented the price of articles of grocery supplied by the plaintiff to household purposes. While remanding the suit, the Court observed that if the articles were intended for the family and can be considered to be necessary, for person in the position of life occupied by them, the Court may well infer that wife had authority to bind her husband.
19. The above two cases were dealing with cases of 'necessaries' which are suitable to the style of living and which fall within the domestic department, usually confided to the care of the wife. A useful passage from Debenham -v.- Mellon, (1880) S.Q.B.D. as quoted in Law of Contract by Cheshire andFifoot, reads thus :
'There is a presumption that she has such authority in the sense that a tradesman, supplying her with necessaries upon her husband's credit and suing him, makes out a prima facie case against him, upon proof of that fact and of the cohabitation. But this is a mere presumption of fact founded upon the supposition that wives cohabiting with their husbands ordinarily have authority to manage in their own way certain departments of the household expenditure, and to pledge their husband's credit in respect of matters coming within those departments '
20. In Dutt on Contract (6th Edition), the Learned author says -
'.............Where she enters into a contract with the consent or authority of her husband, she acts as his agent and binds him by her act. So also does she bind him by her contract under certain circumstances. If, however, she enters into a contract in the absence of such consent or circumstances, she fails to bind her husband by her act........'
21. In Gomathi Ammal -v.- Avu Ammal AIR 1933 Madras 686, which was relied upon by the Respondent's Counsel, the Learned Judge has made the following observations :
'...............If that person comes under disability by reason of insanity, then, in my opinion, anybody, even if it is his wife, who does any acts on his behalf without being clothed with authority conferred by the Indian Lunacy Act does not do such acts as the lawful guardian of the person under disability and is almost in the position of an intermeddler............ It is true that a wife has an implied authority to pledge the credit of her husband for necessaries and that this implied authority is not taken away or diminished by reason of her husband's insanity. But it is a limited authority and limited to only necessaries....'
After considering the wife's application to be appointed as a guardian under the Indian Lunacy Act, the Learned Judge has stated thus :
'I do not think that she was an agent of necessity or that it follows that she had any implied authority toacknowledge the debt on behalf of her insane husband.........'
These observations make it clear that the implied authority of the wife is confined only to necessaries and she has noauthority to manage his business or other properties during his insanity.
22. To hold that in all cases, wife has an implied authority and she can bind the husband's estate would be illegal and illogical. Imagining a case of a husband, who has more than one wife if each wife has an implied authority to manage or bind the estate, it would lead to chaos,resulting in disruption of the family life into. Her acts result be traceable to some legal authority and there should be legal sanction. In the absence of that she cannot bind her husband's estate, during his life time.
23. For the foregoing reasons, I am of the view that there is no valid lease and the third Respondent is not a 'tenant' and the lands are not tenanted. The order of the Tribunal cannot be sustained. Hence I make the following order :
Rule is made absolute ; Writ Petition is allowed ; order of land Tribunal dated 12-ll-1984,(Annexure 'A')is quashed.
Petitioners are entitled to get costs from Respondent-3; advocate's fee Rs. 250/-.