Singh & ANR Vs. Daulat Singh & Ors  INSC 546 (7 July 1997)
ANAND, K. VENKATASWAMI
CIVIL APPEAL NO. 293 OF 1984 THE 7TH DAY OF JULY 1997 Present:
Dr. Justice A.S. Anand Hon'ble Mr. Justice K. Venkataswami Mr. S.B. Sanyal, Sr.
Advocate, Ms. Meera Agarwal, Mr. R.C. Mishra, Advocates for M/s Agarwal & Mishra
& Co. and Mr. R.S. Sodhi Advocate with him for the appellants Mr. Shubodh Markandeya,
Mr. Ajay Singh, Ms. Meenakshi Aggarwal Ms. Chitra Markandeya, Mr. P.D. Sharma
and Mr. Alok Sharma, Advocates for the respondents.
following Judgment of the Court was delivered:
W I T
H CIVIL APPEAL NO. 293 OF 1984
these appeals are preferred against the judgment and decree of the Punjab and Haryana High Court R.S.A. No. 25
of 1976 dated 29.11.1983.
facts are given below.
defendants in Suit No. 158 of 1973 on the filed of the court of Sub-Judge,
First Class, Gurdaspur, are the appellants in these two appeals. The
plaintiffs-contesting respondents herein preferred the said suit under the
Singh was the owner of an extent of land measuring 270 kanals 9 marlas in
village Gandhian, Tehsil & District Gurdaspur. The above-said land after
consolidation was found measuring only 264 kanals and 7 marlas. The suit
property is the said extent of 264 kanals and 7 marlas. The original owner, Khushal
Singh, died issueless on 5.9.1950.
the suit lands were mutated in the name one Durga Devi widow of deceased Khushal
Singh on 19.7.1952. The said Durga Devi purporting to fulfil her husband's
desire of taking in adoption one Balwant Singh and Kartar Singh (both minors)
expressed her desire to mutate the land in favour of the said minors Balwant
Singh and Kartar Singh. Accordingly, the mutation was effected on 19.7.1954
under Mutation No.
the reversioners of Khushal Singh, y, Chet Singh filed a suit bearing no. 194
of 1995 in the court of Senior Sub-Judge, Gurdaspur praying for a declaration
that the mutation of `gift-deed' dated 19.7.1954 would not affect the
reversionary rights of the plaintiff after the death or after the re-marriage
of Durga Devi. In the said suit the validity of the adoption of Balwant Singh
and Kartar Singh was one of the issues and the trial court found that the
alleged adoption was not proved and the mutation would not bind the
reversionary rights of the plaintiff in that suit after the death of the widow Durga
Devi or after her marriage according to custom. The defendants in that suit,
the predecessor in title of the appellants herein (some of them), challenged
the judgment and the decree of the trial court by filing Civil Appeal No. 88 of
1956 before the District Judge, Gurdaspur. That appeal was dismissed by the
appellate court on 17.8.1957 by confirming the decree of the trial court. No
second appeal was preferred against that appellate court's judgment. After the
judgment of the appellate court, the suit lands were again mutated under
Mutation No. 1348 in favour of Durga Devi.
the latest Mutation No. 1348 the said Durga Devi claiming to be the absolute
owner of the suit property after the coming into force of the Hindu Succession
Act, 1956, had executed four separate gift-deeds in favour of the
appellants/their predecessors in title. Those gift-deed were executed on
1.8.70, 9.9.1970 and 7.10.1970. Thereafter on 24.4.1973 the said Durga Devi
the death of Durga Devi, the reversioners including the legal representative of
Chet Singh, (the plaintiff in O.S. No. 194 of 1955) filed the aforesaid suit
bearing no. 158 of 1973 in the court of Senior Sub-Judge, Gurdaspur, for
recovery of possession of the suit land, substantially on the basis of the
decree in Suit No. 194 of 1955. It is stated that the earlier suit was filed as
representative suit for the benefit of all the reversioners and as heirs of Khushal
Singh who would be alive at the time of death of Durga Devi.
pleading, it was stated that the mutation after the judgment of the appellate
court in Civil Appeal No. 88 of 1956 (supra) reverting the land back to Durga Devi
was of no consequence as the same was based on a misreading of the findings of
the trial and appellate courts. Likewise, they also pleaded that the gift-deeds
executed by Durga Devi asserting that she was the absolute owner of the
property, will not confer any title on the donees beyond the life time of Durga
Devi in view of the judgment in the earlier court proceedings. It was the
contention of the plaintiffs. (the contesting respondents herein), that Durga Devi
was not in possession and enjoyment of the suit lands in her own rights on the
date of coming into force of Hindu Succession Act, 1956 which alone would
enable her to make alienation as absolute owner. It was also the contention of
the plaintiffs that the decision in the earlier court proceeding would operate
as n against the defendants, appellants herein.
defendants in the present suit, appellants herein, contesting the suit pleaded
that in the earlier court proceedings the adoption having been found as not
proved, the first mutation, namely, Mutation No. 1311 will have to be ignored
an no title was passed on to the adoptees. In other words, it was pleaded that Durga
Devi continued to be owner and in possession of the suit property notwithstanding
Mutation No. 1311 dated 19.7.1954. In any case, it was further pleaded that by
virtue of subsequent mutation bearing no. 1348, Durga Devi was put in
possession and enjoyment of the suit lands and, therefore, she has every right
to execute the gift-deeds challenged in the suit.
trial court on the basis of the pleadings framed eleven issues and on the basis
of the oral evidence an documents filed before it and on appreciation of
pleading found that in view of the decree in the earlier court proceedings the
alienation by way of mutation gift by Durga Devi would not be binding on the
reversionary rights of the plaintiffs after her death. The decree in the
earlier proceedings confirmed by the appellate court operates as n against the
defendants in the suit. As a result of mutation on 19.7.1954 under Mutation No.
1311, Durga Devi was divested of her title to the suit property and
consequentially divested of possession also. Therefore, on the date of coming
into force of the Hindu Succession Act the widow was not in possession of suit
lands to enable her to validly execute the deeds in question. The trial court
also held that the subsequent mutation bearing no. 1348 was no misreading of
the earlier court proceedings and, therefore, will not come to the aid of the
defendants. On the basis of these findings, the trial court decreed the suit on
defendants (appellants herein) preferred Civil Appeal No. 39/83 of 1975 in the
Court of Second Additional District Judge, Gurdaspur, who, by judgment dated
11.12.1975, dismissed the appeal confirming the decree of the trial court.
High Court in Second Appeal No. 25 of 1976 considered only one question whether
Durga Devi was in possession of the gifted land when the Hindu Succession Act,
1956 came into force and found that she was not in possession. Accordingly, the
second appeal was dismissed.
under these circumstance these two appeals are filed against the said second
learned senior counsel appearing for the appellants in C.A. No. 293/84 before
taking us into the merits of the case, prayed for order in I.As. Nos. 3-9/96.
we can order I.A. No. 6/96 for deleting respondent No. 14 as he, according to
the counsel is not a contesting respondent. So far as I.A. No. 4/96 is
concerned, it relates to setting aside the abatement of appeal as a result of
death of one Makan Singh, appellant no. 4 in C.A. No. 293/84. There is an
inordinate delay in filing the applications for bringing the legal
representative of the deceased, 4th appellant. Therefore application for condonation
of delay and for setting aside the abatement were filed for bringing on record
the legal representative of the deceased.
learned counsel appearing for the contesting respondent, Mr. Markandeya,
seriously opposed the application for bringing on record the legal
representatives of the deceased 4th appellant and he further contended that in
view of the death of 4th appellant and the failure to bring the legal
representative on record in time, the whole appeal is abated and on that short
ground both the appeals are liable to be dismissed as the suit was one.
reply, Mr. Sanyal submitted that in the event of this court not willing to
condone the delay and consequently set aside the abatement, the appeal as a
whole will not stand abated, but only the properties dealt with under the gift
deed dated 9.9.70 executed in favour of Makan Singh alone will be affected and
to that extent, the appeal may stand abated.
have considered the rival submission. We find from the facts that the deceased Makan
Singh alone was the donee of specific items of properties under gift deed dated
9.9.70 and this possession and enjoyment of properties and dependent of others.
Therefore, his death would not abate the whole of the appeal. In our view, the
decree is divisible being a decree in favour of serval reversioners against
several independent donees having specified shares in indentifiable properties.
We are not satisfied with the reason given for the inordinate delay of more
than 25 years and, therefore, the appeal stands abated in respect of properties
given to the deceased-Makan Singh under the gift deed dated 9.9.70.
coming to the merits, though, Mr. Sanyal argued extensively concerning various
points said to arise out of the judgments of the trial court, appellate court
and High Court, were are of the view that since the High Court has considered
and decided only one point viz. whether the widow, Durga Devi died, possessed
by the suit properties in her own rights when the Hindu Succession Act, 1956
came into force, that alone need be considered by us. If the answer to the
question is in the affirmative, the appellants are entitled to succeed.
Otherwise, the appeals are liable to the dismissed on merits.
point of possession, it is the argument of Mr. Sanyal, learned Senior Counsel
for the appellants that all the three courts below went wrong in assuming that
as a result of mutation bearing no. 1311 dated 19.7.54, Durga Devi divested
herself of her title and possession to the suit property and from that date the
title in the suit property and possession thereof vested with the persons in
whose favour mutation was effected, namely, Balwant Singh and Kartar Singh. The
legal effect of mutation, according to the learned counsel, has been clearly
laid down by this court in a recent judgment in Smt. Sawarni vs. Smt. Inder Kaur
& Other (1996 (7) JT SC 580). According to the learned counsel, mutation of
the property in the revenue record will not extinguish title nor has it any
presumptive value on title. Therefore, according to the learned counsel, by
mutation No. 1311, the widow has not been divested of her title in the
properties and consequently she continued to be in possession and enjoyment of
the property. She became absolute owner of the properties on the coming into
force of the Hindu Succession Act, 1956. In any case, learned counsel further
argued that after the decree in suit no. 194/55 as confirmed by the appellate
court, there was a re-mutation in favour of the widow under mutation no. 1348.
That re- mutation having been allowed to remain unchallenged, whatever the
effect of mutation no. 1311, have been reversed by the latter mutation no.
1348. On the basis of these arguments, learned counsel submitted that the appeals
are to be allowed, if not in full, except to the extent the properties covered
by the gift deed in favour of Makan Singh.
R.S. Sodhi, learned counsel for appellants in C.A. No. 2295/84, adopted Mr. Sanyal's
learned counsel appearing for the contesting respondents, submitted that the
courts below were right in holding that the widow was divested of her
possession and enjoyment from the date of first mutation viz 19.7.54 and the
second re-mutation was not legal and valid in law.
have considered the rival submissions and we are of the view that Mr. Sanyal is
right in his contention that the courts were not correct in assuming that as a
result of mutation no. 1311 dated 19.7.54, Durga Devi lost her title from that
date and possession also was given to the persons in whose favour mutation was
effected. In Smt. Sawarni's case, Pattanaik J., speaking for the Bench has
clearly held as follows:- "Mutation of a property in the revenue record
does not create or extinguish title nor has it nay presumptive value on title.
It only enables the person in whose favour mutation is ordered to pay the land
revenue in question. The learned Additional District Judge was wholly in error
in coming to a conclusion that mutation in favour of Inder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire
judgment." Applying the above legal position, we hold that the widow has
not divested herself of the title in the suit property as a result of mutation
no. 1311 dated 19.7.54. The assumption on the part of the courts below that as
a result of the mutation, the widow divested herself of the title and
possession was wrong. If that be so legally, she was in possession on the date
of coming into force of the Hindu Succession Act and she as a full owner had
every right to deal with the suit properties in any manner she desired.
relevant to point out that it is only the trial court that has dealt with the
matter elaborately on facts.
first appellate court has dealt with the only point regarding validity and the
genuineness of the adoption. The High Court, as pointed out earlier, dealt with
only with the question of possession. Therefore, we have to look into the trial
court judgment for finding on facts. The trial court on the fact of possession
observed as follows:
continued to live with Balwant Singh and Kartar Singh and the necessary
conclusion that must be drawn is that hence forward after she made the gift the
property went to the minors Balwant Singh and Kartar Singh and if at all she
continued living with the minor and managing the property, if at all, the same
must be only on behalf of the minors and not in her own right." On the
question of the consequences of mutation, the trial court observed as follows:-
"I hold that the transaction in question i.e. mutation no. 1311 of 19.7.54
was a gift and the effect of the judgments and decree in suit no. 194 of 1955
is that the alienation in favour of Balwant Singh and Kartar Singh continued to
be valid till the death of Durga Devi and thereafter in view of the decree,
cannot have any effect as against the reversionary rights." So far as
re-mutation in favour of Durga Devi is concerned, the trial court observed as
follows:- "The land had been again mutated in the name of Durga Devi and
there is no evidence that in fact Balwant Singh and Kartar Singh reconveyed the
property or treated the gift as cancelled, thus the mere entry in the revenue
records of the name of Durga Devi won't make her full owner." At the risk
of repetition, we point out that the first appellate court and the High Court
have not discussed the possession aspect in the light of the above extracted
finding of the trial court.
circumstance, we are of the opinion that the trial court erred in assuming that
by Mutation No. 1311, the widow divested herself of the title to the suit
property by treating the mutation as gift and conveying title. Further it has
not applied uniform test in appreciating the mutation entries. In one place,
the trial court has accepted mutation entries in toto even for conveying title
but in the other place, the trial court was no prepared to accept the mutation
entries by expressing some doubt about it. It is to be state that this court in
Gurbaksh Singh v. Nikka Singh (1963 Supp. (1) SCR 55) has held that entries in
mutation must be taken as correct unless the contrary is established.
the trial court has shifted the burden on the appellants to prove the entries
as correct. The trial court has failed to apply the same yardstick that it has
applied to Mutation No. 1311 to Mutation No. 1348. Assuming for the sake of
arguments, that Mutation No. 1348 was on the basis of misunderstanding of the
judgment in the earlier proceedings, that having been allowed to remain unaltered
without challenge, cannot be brushed aside as worth nothing.
affected by such entries should have challenged the same as provide under the
law. In the absence of that, the entries cannot be ignored. Be that as it may,
we have already noticed that mutation entries do not convey or extinguish any
title and those entries are relevant only for the purpose of collection of land
revenue. That being the position. Mutation No. 1311 cannot be construed as
conveying title in favour of Balwant Singh and Kartar Singh or extinguishing
the title of Durga Devi in the suit property.
the title to the suit property always vested with the widow notwithstanding the
Mutation No. 1311. Viewed in this manner, the decision in the earlier
proceedings namely, decree in Suit No. 194/55 even assuming operates as res judicata,
will not be of any avail to the contesting respondents, (plaintiffs) in the
present suit because the reliefs sought in the prior proceeding was for a
simple declaration that the `mutation gift' of 1954 would not affect the
reversionary rights of reversioners. As noticed already, mutation entires will
not convey or extinguish title in the property. Therefore, under Mutation No.
1311 neither Balwant Singh and Kartar Singh acquired title nor Durga Devi's
title in the property got extinguished. The earlier court proceedings did not
and could not convey title in favour of reversioner, as the relief sought was
for a simple declaration as mentioned above. If no title as such was passed on
under the alleged `mutation gift', the limited right of the widow in the
property would get enlarged on the coming into force of the Hindu Succession
widow must be deemed to have continued in possessing and she became absolute
owner on the coming into force of the Hindu Succession Act, 1956. On that view,
the alienations made by her and challenged in the present litigation, cannot be
said to be without authority.
also point out that the trial court was prepared to accept that factually
possession and enjoyment were with Durga Devi, but it held that such possession
and enjoyment as one on behalf of the minors in whose favour the mutation was
earlier effected on 19.7.54. In view of our conclusion that by mutation the
widow has not divested herself of title and possession, the erroneous
conclusion reached by the court below have to be set aside.
result, the appeal are allowed except regarding the properties gifted to Makan
Singh under gift deed dated 9.9.70 and the properties dealt with under this
gift deed will go to the plaintiffs/reversioner as per the judgment of the
trial court confirmed by the appellate court and the High Court. There will be
no order as to costs.