Gujarat High Court
Dayaben vs Labhshanker on 30 November, 2011
Author: Harsha Devani
Bench: Harsha Devani
Gujarat High Court Case Information System
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SA/40/2009 33/ 33 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND
APPEAL No. 40 of 2009
For
Approval and Signature:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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DAYABEN
MANSHANKERBHAI JANI & 2 - Appellant(s)
Versus
LABHSHANKER
NATVARLAL BHATT & 2 - Defendant(s)
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Appearance :
MR
VIMAL M PATEL for
Appellant(s) : 1 - 3.MR HITESH S PADHYA for Appellant(s) : 1 - 3.
MR
KD VASAVADA for Defendant(s) : 1,
None for Defendant(s) : 2,
RULE
SERVED for Defendant(s) : 2.2.1, 2.2.2, 2.2.3,2.2.4 -
3.
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CORAM
:
HONOURABLE
MS.JUSTICE HARSHA DEVANI
Date
: 30/11/2011
CAV JUDGMENT
By this appeal under section 100 of the Code of Civil Procedure, 1908 (the Code), the appellants (original defendants No.3 to 5) have challenged the judgement and decree dated 29.11.2008 passed by the learned Presiding Officer, Fast Track Court, Morbi, in Regular Civil Appeal No.10 of 2006 whereby he has confirmed the judgment and decree dated 15.09.2004 passed by the learned Civil Judge (S.D.), Morbi in Regular Civil Suit No.66 of 2003 and dismissed the appeal preferred by the appellants herein.
The case of the respondent No.3 - Shri Durlabhji Natvarlal Bhatt (original plaintiff) as stated in the plaint is that the defendants No.1 and 2 are his brothers and defendants No.3, 4 and 5 are his sisters and that their deceased father Natvarlal Bhatt had purchased immovable property bearing old survey No.769 and 767 (new survey No.1120), admeasuring Acres 4 - 32 Gunthas, situated at Village Vajepur, Taluka Morbi, from one Mehta Dalichand Vanechand by a sale deed dated 16.1.1967 bearing registration No.108 and had acquired a house, admeasuring 2580.01 square feet situated at Village Lilapar, by a Lekh being Morbi D.L.B.R. No.24 dated 13.1.1949, (hereinafter referred to as "the suit properties"). That his father Natwarlal Bhaishankar Bhatt and his mother Shivkunvarben Natwarlal Bhatt had expired on 11.8.1979 during the floods at Morbi. It was the case of the plaintiff that the aforesaid suit properties had never been partitioned between the members of the joint family and that the plaintiff had a right, title and interest in one-sixth share of the suit properties. That for the purpose of making the agricultural land fit for cultivation, the plaintiff had expended a sum of Rs.35,670/- towards leveling the land and putting fertilizers during the period 7.10.2002 for which purpose, he had also used a JCB and a tractor and had made the land cultivable. The entire amount had been paid by the plaintiff and by dividing the cost into three parts, the defendant No.2 - Pradyumanlal Natvarlal Bhatt had paid Rs.11,666/- being his one-third share. However, the defendant No.1 - Labhshankar Natvarlal Bhatt upon being called upon to pay his one-third share of Rs.11,666/-, had categorically refused to pay the same and had also stated that no share in the land would be given to him. The plaintiff, therefore, instituted a suit being Special Civil Suit No.66 of 2003 in the Court of the learned Civil Judge (S.D.), Morbi, inter alia, seeking a declaration that the plaintiff is entitled to one-sixth share in the suit properties.
In response to the summons issued by the court, the defendants No.1 and 2 filed written statement at Exhibit-19 wherein they accepted that the suit properties were purchased by their father as stated in the plaint and that by virtue of mutation entry No.1751 dated 2.10.1979 the same had been entered in the joint name of all the parties. It was also denied that at present the suit properties stand in the joint names of the plaintiff and all the defendants. It was further the case of the defendants No.1 and 2 that the plaintiff had not been able to specify the exact extent of his share in the suit properties. It was also admitted that the suit properties were joint properties, however, it was denied that the plaintiff had expended Rs.35,670/- for making the same cultivable. That the claim of the plaintiff for 1/6th share was incorrect and made without verifying as to whose names were running in the revenue record. The appellants (defendants No.3, 4 and 5) had submitted their written statement at Exhibit-23 wherein they have supported the case of the plaintiff and have stated that it was true that the suit properties were of the ownership of their father Shri Natvarlal Bhaishanker Bhatt. That the father of the plaintiff and the defendants expired on 11.8.1979 after which, both the suit properties were of the joint ownership of the plaintiff and the defendants. That the suit properties were never partitioned and that in both the properties, the plaintiff had one-sixth share and similarly, the defendants No.3, 4 and 5 each, had one-sixth share in the suit properties. It was stated that the defendants No.3, 4 and 5 have no objection if the plaintiff is given his one-sixth share in the suit properties and that the defendants No.3, 4 and 5 should also be given their one-sixth share each, in the suit properties.
The trial court framed the following issues :
[1] Whether the plaintiff proves that he has one-sixth undivided share in the suit properties?
[2] Whether the defendants prove that the defendants No.3, 4 and 5 have no share in the suit properties?
[3] What would be the extent of the share of the plaintiff that has been proved?[4]
Whether the suit is within the period of limitation?[5]
Whether the plaint has been filed by affixing proper court fee?
[6]What order and decree?
The trial court, after appreciating the evidence on record, answered the first issue partly in the affirmative; the second issue in the affirmative; insofar as the third issue is concerned, the trial court has held that the plaintiff is entitled to one-third share in the suit properties and that the defendants No.3, 4 and 5 did not have any right, title or interest in the same, the fourth issue was answered in the affirmative, the fifth issue was answered partly in the affirmative and the last issue was as per the final order..
Being aggrieved by the judgement and decree of the trial court holding that the appellants - defendants No.3, 4 and 5 are not entitled to any share in the suit properties, the appellants herein preferred an appeal before the learned Presiding Officer, Fast Track Court, Morbi, who, by the impugned judgement decree, dismissed the appeal preferred by the appellants and confirmed the judgement and decree passed by the trial court. Being aggrieved, the appellants have preferred the present appeal.
While admitting the appeal, this Court, by an order dated 3.3.2010, had formulated the following four substantial questions of law :
"(a). Whether the lower appellate court is right in law and on facts in holding that the respondents are the owners of the property in question and respondent No. 3 is entitled to 1/3rd share despite the fact that the respondent no. 3 has filed as suit claiming 1/6th share in the property?
(b). Whether the lower appellate was right in law and facts in holding that the appellants are not entitled to the property in question on the basis of deletion of their name pursuant to entry No. 1752 in village form No. 6 which is maintained only for fiscal purpose and does not confer any right of title over the property?
(c). Whether the lower appellate court was right in law and facts in believing the entry No. 1752 when there is no independent material or documents on record to prove that the appellants have waived / released their rights over the property in question ?
(d). Whether the lower appellate court was right in holding that the appellants have waived right over the property in question in absence of any other material and / or evidence on record ?"
On 21.10.2011, this Court passed an order in the following terms:
"1. This matter was taken up on a priority basis on request made by Mr. H.D. Vasavada, learned advocate for the defendant No.1. The matter was taken up for hearing on 11th October, 2011 and Mr. Vimal Patel, learned advocate for the appellants and Mr. H.D. Vasavada, learned advocate for the defendant were heard at length. However, since the matter could not be concluded on that day, the same was adjourned as Mr. Vimal Patel, learned advocate for the appellants was to give his rejoinder in respect of the submissions made by Mr. H.D. Vasavada. On 18th October, 2011, when the matter came up for hearing, Mr. H.D. Vasavada, learned advocate for the respondent No.2 placed on record a copy of a communication dated 17th October, 2011 of the respondent No.3 addressed to this court praying for an adjournment of a period of one month on the ground that he wants to change his advocate and needs some time to engage another advocate.
2. As noted hereinabove, the arguments of Mr. H.D. Vasavada, learned advocate for the respondent No.1 were already concluded and the matter was only pending for rejoinder of Mr. Vimal Patel. In the circumstances, at this stage, no such request can be entertained. Such practice of permitting the court to proceed further with the hearing of the matter and then after the arguments are almost concluded, seeking an adjournment on the ground that the party wants to change the advocate, cannot be countenanced for a moment. In the circumstances, the request of the respondent came to be turned down and Mr. Vimal Patel, learned advocate was heard. The matter was posted for dictation of judgment on 20th October 2011. On 20th October, 2011, it could not be dictated due to paucity of time. The matter was again listed today, that is on the last day prior to the Diwali vacation however, again due to paucity of time the judgment could not be dictated. In the circumstances, the judgment is reserved."
The record of the case shows that the respondent No.1 had moved an application being Civil Application No.1239 of 2011 for fixing an early date of hearing of the second appeal through learned advocate Mr. K.D. Vasavada, on the ground that he is a senior citizen and is ill disposed and is in invalid health condition, which came to be allowed by an order dated 9.02.2011 and the second appeal came to be fixed for final hearing in the first week of may 2011. The record also shows that earlier Mr. Sunil Mehta, learned advocate was appearing on behalf of the respondent No.1 however, subsequently since Mr. K.D. Vasavada learned advocate put in appearance on behalf of the respondent No.1, hence, vide order dated 21.06.2011 the name of Mr. Sunil L. Mehta was ordered to be deleted from the board.
Thus, Mr. H.D. Vasavada learned advocate for Mr. K.D. Vasavada had appeared on behalf of respondent No.1. The record does not show any appearance on behalf of the respondent No.3-original plaintiff, who, in the plaint as well as in the suit proceedings before the trial court had taken a stand that the appellants are entitled to 1/6th share in the suit properties. Now at this stage, when the hearing of the matter between the contesting parties has been concluded, the respondent No.3 has addressed the above referred letter to the court.
Mr. Vimal Patel, learned advocate for the appellants submitted that the respondent No.3-original plaintiff has instituted Regular Civil Suit No.66 of 2003, inter alia, praying for his one-sixth share in the suit properties and to restrain the defendants in the suit from dealing with further or creating third party rights over the suit properties. The suit was opposed by the respondents No.1 and 2 (original defendants No.1 and 2). However, the appellants had agreed for partition and necessary affidavit was submitted before the trial court. It was submitted that at no point of time, the appellants had released their rights or any share over the properties in any manner whatsoever. However, the appellants were shocked to find out from the documents produced by the defendants No.1 and 2 that pursuant to entry No.1752, the names of the appellants had been deleted on the ground that the appellants had made an application to delete their names from the record. It was submitted that without issuance of any notice under section 135-D of the Bombay Land Revenue Code, the names of the appellants came to be deleted from the record vide entry bearing No.1752, which fact was also proved by the oral deposition of the Talati-cum-Mantri at exhibit-52. It was submitted that it is an admitted fact that no record is available as to the basis on which mutation entry No.1752 was made, nor is there any record to point out that before making the said entry, any notice under section 135-D of the Bombay Land Revenue Code had ever been issued on the appellants. It was further submitted that the respondent No.3 (original plaintiff) had sought for one-sixth share in the suit properties, thereby admitting that the appellants individually are entitled to one-sixth share over the properties. In his oral evidence, the plaintiff has admitted that the appellants have never released or waived any of their rights over the suit properties. Further, the defendants No.1 and 2 have not produced any document pursuant to which, the appellants have released/waived their rights over the suit properties. It was submitted that the respondents have not produced any document of title giving them right over the whole of the suit properties to the exclusion of the appellants.
Mr. Patel further submitted that the lower appellate court has failed to appreciate that in view of the partition suit filed by the respondent No.3 - plaintiff, the appellants herein have a right to seek a partition over the suit properties and such a right cannot be denied on the ground that under the provisions of the Hindu Succession Act, 1956, the appellants being the daughters have no right to seek partition. It was submitted that both the courts below have erred in holding that the appellants have no right over the suit properties by holding that the names of the appellants have been deleted from the record of rights, that is, village form No.6, despite the fact that the said entry could not be believed in view of the fact that no notice under section 135-D of the Bombay Land Revenue Code was ever issued to the appellants, which fact was admitted by the Talati-cum-Mantri and more so in view of the fact that there is no record available to show the basis for deletion of the names of the appellants. It was argued that the courts below have failed to appreciate that the defendants No.1 and 2 have not produced any title or documents to prove that the appellants have released/waived their rights over the suit properties. That in the absence of any such material, the courts below have erred in holding that the respondents herein are the owners of the suit properties and as such the findings of fact recorded by the courts below that the appellants have waived/released their rights over the suit properties, are perverse to the record.
Next, it was submitted that both the courts below have erred in holding that the respondent No.3 (original plaintiff) is entitled to one-third share in the suit properties which is beyond the relief prayed for in the plaint inasmuch as, the plaintiff had only claimed one-sixth share in the suit properties, whereas the courts below have held that the appellants herein had no share in the suit properties and that the plaintiff is entitled to one-third share instead of one-sixth share in the suit properties as originally claimed by him. It was submitted that the courts below have failed to appreciate that in a suit for partition by a brother, the sisters have a right to claim partition and in view of the fact that one of the suit properties is not a dwelling house, the appellants have a right to seek partition. It was submitted that the trial court had erred in holding that the appellants had not filed counter claim, whereas in fact, there was no question of filing counter claim inasmuch as the plaintiff had admitted that the appellants are entitled to one-sixth share over the suit properties. In conclusion, it was submitted that the judgments and decrees passed by the courts below are perverse, arbitrary and contrary to the material on record, as well as beyond the scope of the relief prayed in the suit and as such, deserve to be quashed and set aside, to the extent the same hold that the appellants are not entitled to any share in the suit properties.
In support of his submissions, the learned advocate for the appellants placed reliance upon the decision of this High Court in the case of Popat Khima Ramani (deceased) through his Legal Heirs v. Collector and others, (2002) 3 GLR 408, and more particularly, on paragraph 29 thereof. It was submitted that in the present case there is nothing to show that the mutation entry deleting the names of the appellants had been made after issuance of notice under section 135-D of the Bombay Land Revenue Code, and that even in the land revenue records do not contain the documents on the basis of which the alleged entry was made. In the circumstances, the said entry having been made without notice to the appellants, the delay in challenging the same would not come in their way. Reliance was also placed upon the decision of the Supreme Court in the case of State of A. P. v. Hyderabad Potteries Pvt. Ltd. and another, AIR 2010 SC 2760, for the proposition that it is trite that entry in the revenue record alone may not be sufficient as conclusive proof of title nor can be relied on for proof of establishing the title as such. The decision of the Supreme Court in the case of Sita Ram Bhau Patil v. Ramchandra Nago Patil (dead) by LRs and another, AIR 1977 SC 1712, was relied upon for the proposition that there is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. The court, in the facts of the case, found that apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue, it also appeared that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30.1.1956. The court was of the view that the counsel for the respondent had rightly contended that no presumption could arise for two principal reasons. Firstly, the oral evidence in the case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs, and, secondly, no notice was ever given to the respondent with regard to mutation proceedings. The court, accordingly, held that therefore, the respondent was right in contending that no presumption can validly arise from the record of rights. Mr. Patel submitted that the aforesaid decision of the Supreme Court would be squarely applicable to the facts of the present case inasmuch as, notice under section 135-D of the Bombay Land Revenue Code has not been served upon the appellants and there is no evidence to show that any such service had been effected. Hence, no presumption can validly arise against the appellants from the revenue record. Reliance was also placed upon the decision of the Supreme Court in the case of Mahila Bajrangi (dead) through LRs and others v. Badribai w/o Jagannath and another, (2003) 2 SCC 464, for the proposition that mutation proceedings before the revenue authorities are not juridical proceedings in any court of law and do not decide questions of title to immovable property is a trite position and principle of law.
On the other hand, vehemently opposing the appeal, Mr. H. D. Vasavada, learned advocate for Mr. K.D. Vasavada learned advocate for the respondent No.1 supported the impugned judgement and decree, submitting that both the courts below have, upon appreciation of the evidence on record, recorded concurrent findings of fact to the effect that the appellants had waived their rights over the suit properties way back on 02.10.1975 whereby they had made Kabulats in the presence of a gazetted officer for deleting their names from the record of rights. It was submitted that the aforesaid mutation entry No.1752 deleting the names of the appellants from the record of rights was made on 2.10.1979 which was never challenged by the appellants and as such, in the absence of any challenge to the aforesaid mutation entry, both the courts below were justified in holding that the appellants having waived their rights in the suit properties, were not entitled to any share in the same.
Inviting attention to the judgement and decree passed by the trial court, it was submitted that the trial court has recorded a finding of fact that it has been established that the names of the defendants No.3, 4 and 5 (the appellants herein) have been deleted from the revenue record. Moreover, the defendants No.3, 4 and 5 had not led any cogent and convincing evidence to establish that they had any possessory or ownership rights over the agriculture lands. That the defendants No.3, 4 and 5 being married daughters, were residing at their matrimonial homes and despite the fact that their names had been deleted in respect of the agriculture lands in the year 1979, they had not raised any objection or dispute in relation to the same. It was submitted that the trial court was, therefore, justified in coming to the conclusion that the defendants No.3, 4 and 5 had not established that they had any share in the suit properties. It was further submitted that a married daughter is not entitled to file a suit for partition and therefore also, the appellants herein are not entitled to claim any share in the suit properties. Reliance was placed upon the decision of this High Court in the case of State of Gujarat v. Ramagauri Harkishandas, 1994 Civil Court Cases 136 = 1997 (2) GLR 929, for the proposition that daughters, sisters etc. are not entitled to a share on partition of coparcenery property. Married daughters cannot be treated to be members of H.U.F. of which their father is a Karta. On marriage, she ceases to be member of her father's family and becomes member of her husband's family. Reliance was also placed upon the decision of this High Court in the case of Sitaben d/o Madaribhai Bhagabhai Dhodiya v. Bhanabhai Madaribhai Patel, 2002 (2) GLR 1365, for the proposition that on the marriage of a female, she ceases to be a member of her father's H.U.F., and becomes a member in her husband's H.U.F. In the facts of the said case, wherein it was the plaintiff's own case that she was married 26 years prior to the suit, the court held that the plaintiff had no interest in the property of her father's H.U.F. on the date of the suit. It was submitted that in the facts of the present case also, both the courts below have recorded a concurrent finding of fact to the effect that the defendants No.3, 4 and 5 were married daughters who had been married much prior to the date of the death of their father and as such, had no right, title or interest in the suit properties. It was submitted that in the circumstances, both the courts below have rightly held that the appellants have no right, title or interest in the suit properties and as such, there is no warrant for interference and that the appeal deserves to be dismissed.
In rejoinder, Mr. Vimal Patel, learned advocate for the appellants submitted that the decisions on which reliance has been placed by the learned advocate for the respondents would not be applicable to the facts of the present case inasmuch as, the suit properties are the self-acquired properties of the father of the appellants and as such, the provisions of the Hindu Succession Act would be applicable to the facts of the present case whereby, all the heirs specified in class I of the Schedule thereto are entitled to an equal share in the properties of their father, if the father dies intestate. It was submitted that though it is true that a daughter cannot file a suit for partition, in the case of Sitaben D/O. Madaribhai Bhagabhai Dhodiya v. Bhanabhai Madaribhai Patel (supra) on which reliance has been placed by the learned advocate for the respondents, this court has held that section 23 of the Hindu Succession Act leads to an inference that, as in the case of dwelling house contemplated by section 23, other properties in which a female holds a share, cannot be partitioned in a suit at her instance, but she would be entitled to a share as and when a partition is effected, at the instance of one of the coparceners. It was submitted that in the present case, firstly, the suit property is not coparcenery property and secondly, the present suit has been instituted by the brother of the appellants and hence, when a partition is effected between the brothers, the sisters would be entitled to a share as and when partition is effected between the brothers. It was submitted that in the circumstances, the suit having been partly decreed in favour of the plaintiff by holding that he has right, title and interest in the agriculture lands, and is entitled to a one-third share in the residential property, similar relief holding that the appellants are entitled to 1/6th share each in the suit properties could also have been granted in favour of the appellants herein. It was submitted that in the circumstances, the appeal deserves to be allowed and the relief granted in the suit in favour of the respondent No.3 (original plaintiff) is required to be modified by holding that he is entitled to only one-sixth share and that the appellants herein are also entitled to one-sixth share each in the suit property.
From the facts emerging on record, it is apparent that it is an admitted position that the suit properties are self-acquired properties of the father of the appellants (original defendants No.3, 4 and 5) and the respondents No.1, 2 and 3 (original defendants No.1 and 2 and original plaintiff respectively). In the circumstances, upon the death of Natwarlal Bhaishankar Bhatt, the father of the appellants and respondents, who died intestate, the provisions of section 8 and 9 the Hindu Succession Act, 1956 would come into play and the suit properties would devolve firstly upon the heirs, being the relatives specified in class I of the Schedule and all the heirs specified in class I shall take simultaneously and to the exclusion of all other heirs. Class I heirs as specified in the Schedule, inter alia, include son, daughter, widow, mother etc. Thus, by virtue of the provisions of section 8 of the Hindu Succession Act, sons and daughters are entitled to equal shares in the property of a male Hindu dying intestate.
Adverting to the facts of the present case, the main reason why the appellants have been denied their share in the suit properties is that in the record of rights, initially, vide entry No.1751 dated 02.10.1979, the names of the appellants and defendants came to be entered in the village form No.6 as the heirs of deceased Natvarlal Bhaishanker Bhatt. Thereafter, vide entry No.1752 of the same date, it came to be recorded that the sisters whose names came to be entered by the preceding entry have given Kabulats for deleting their names from the revenue records and accordingly, the names of all the three appellants came to be deleted. It was noted therein that all the three sisters had made separate Kabulats before a gazetted officer. The endorsement of the inquiry officer indicates that the entry has been certified upon perusal of the papers. However, it may be noted that the papers on the basis of which the entry is alleged to have been made are not found in the record nor is there anything to show that any notice under section 135-D of the Bombay Land Revenue Code had been issued to the appellants herein prior to deleting their names from the record of rights.
The trial court has, upon appreciation of the evidence on record, recorded findings of fact to the effect that the plaintiff and the defendants No.1 and 2 are brothers, and the defendants No.3, 4 and 5 are their sisters. The defendants No.3, 4 and 5 are married and are residing at their matrimonial homes since the last 20 years and that all the three sisters have waived their rights over the suit properties. The evidence in this regard is in the nature of the mutation entry made in the record of rights, viz., Village Form No.6, Exhibit-50 wherein an entry has been made on 2.10.1979 whereby the names of the defendants No.3, 4 and 5 have been deleted and no further action has been taken by them in this regard. Thus, it has not been proved that the defendants No.3, 4 and 5 have any share in the suit properties. The trial court has further recorded that one Naranbhai Valjibhai Kela, Talati-cum-Mantri has been examined at Exhibit-52 and he has produced extracts of the record of rights at Exhibit-55 which are dated 2.10.1979. Upon scrutiny thereof, it is found that the names of the defendants No.3, 4 and 5 have been deleted on the basis of Kabulats executed in the presence of a gazetted officer. That after such entries came to be made in the record of rights, the defendants No.3, 4 and 5 have not taken any steps in respect of the suit properties, nor have they raised any dispute with regard to their share in the suit properties. The trial court has further noted that the defendants No.3, 4 and 5 have not sought any relief through proper channel before the revenue authorities against the mutation entry produced at Exhibit-55 whereby their names came to be deleted from the record of rights, and therefore, it is not proved that the defendants No.3, 4 and 5 have any right, title or interest in the suit properties. The trial court has, thereafter, referred to the deposition of the defendant No.3 - Dayaben wherein she has stated that the suit lands are standing in the names of the plaintiff and the defendants No.1 and 2, and that she has not instituted any proceedings against the deletion of her name from the revenue record. In her cross-examination, she has stated that she has never made any effort to find out as to whether her name has been entered in the revenue record in respect of the suit properties. The trial court has, accordingly, held that the defendants No.3, 4 and 5 have been married approximately 25 years prior thereto and have thereafter been residing at their husbands' homes and have been separated from the Hindu Undivided Family. They have also waived their rights and have not taken any steps for restoration of their rights till date. They have also not taken any steps in respect of the entry wherein it is stated that they had executed Kabulats before a gazetted officer. In these circumstances, it is not proved that the defendants No.3, 4 and 5 have any right in the suit properties. The trial court has, thereafter, recorded that the Talati-cum-Mantri has been examined and he has stated that before the name of any person is deleted from the record of rights, notices are issued to the parties under section 135-D of the Bombay Land Revenue Code and if after service of notice, any objection is received, the same is registered in the Disputes Register and thereafter, further action is taken. If, however, no objections are received, the competent authority after a period of 31 days certifies the said entry. The trial court has thereafter observed that the names of the defendants No.3, 4 and 5 had been deleted vide entry No.1752 at Exhibit-55 and that there is nothing to indicate that they have taken any steps against the same. The trial court has, accordingly, held that on the basis of the revenue record as well as oral evidence, the plaintiff is entitled to not one-sixth but to one-third share in the suit properties; whereas the defendants No.3, 4 and 5 having waived their rights vide Exhibit-55, do not have any share in the suit properties. In the light of the aforesaid findings, the trial court has partly decreed the suit in favour of the plaintiff holding that he is entitled to a declaration to the effect that he has ownership right, title and interest in the agriculture lands. However, since by partition thereof, the provisions of the Bombay (Prevention of Fragmentation & Consolidation of Holdings) Act would be violated, the relief for partition in respect of the said property not granted. However, in relation to the residential property, it has been held that the plaintiff is entitled to one-third share thereof.
The lower appellate court, upon re-appreciation of the evidence on record, has held that the plaintiff and the defendants No.3, 4 and 5 have come in collusion before the court. That the defendants No.3, 4 and 5 are daughters of deceased Natvarlal Bhaishanker Bhatt. That they are sisters of the plaintiff and are married and are residing at their matrimonial homes since the last twenty years. That Dayaben, who has been examined at Exhibit-50, has not produced any evidence to show that they have taken any steps in respect of the entry No.1752 made in the revenue record on 2.10.1979 whereby, their names were deleted from the record of rights. Further, upon a perusal of the deposition of Naranbhai Valjibhai Kela, Talati-cum-Mantri, at Exhibit-52 as well as the village form No.6, it is apparent that the defendants No.3, 4 and 5 have waived their rights in respect of the agriculture lands. Much stress has been laid upon the fact that Dayaben has stated in her deposition that she has not made any application or report against the deletion of her as well as her sisters' names from the record of rights. The lower appellate court has, accordingly, held that admission is the best evidence and therefore, the conclusion arrived at by the trial court to the effect that the defendants No.3, 4 and 5 have waived their rights over the agriculture lands, is proper and legal. The lower appellate court has further recorded that if the provisions in relation to ancestral property are taken into consideration, as well as taking into consideration the provisions of sections 4, 6 and 23 of the Hindu Succession Act, 1956 in relation to rights of females in the joint property of the Hindu Undivided Family, a married female cannot institute any suit for a partition or share in such property. Hence, a married woman cannot institute a suit for partition of her father's property. Placing reliance upon the decision of this High Court in the case of Sitaben d/o Madaribhai Bhagabhai Dhodiya v. Bhanabhai Madaribhai Patel, 2002 (2) GLR 1365 as well as in the case of State of Gujarat v. Ramagauri Harkishandas, 1994 Civil Court Cases 136 = 1997 (2) GLR 929, the lower appellate court observed that as per the decision of the Gujarat High Court, it is well settled legal principle that a married female cannot be a member of the coparcenery. They do not get any right for instituting a suit for partition and are not entitled to obtain their shares. In the circumstances, the appellants do not have any right to institute a suit in respect of the undivided properties of the Joint Hindu Family and as such, they are not entitled to file the present appeal also. The lower appellate court has further observed that the plaintiff had produced a family tree vide Exhibit-41 wherein the names of the plaintiff and the defendants No.1 and 2 have been shown, whereas the names of the defendants No.3, 4 and 5 are not mentioned therein. The defendants No.3, 4 and 5, during the course of their evidence, have not challenged the said family tree and as such, the appellants are not entitled to any right, title or interest in the residential property situated at Lilapar. In the light of the aforesaid findings recorded by it, the lower appellate court has dismissed the appeal preferred by the appellants herein.
As noted hereinabove, the suit properties are self-acquired properties by deceased Natvarlal Bhaishanker Bhatt. It is nobody's case that the suit properties are ancestral properties. In the circumstances, it is apparent that the lower appellate court has misdirected itself in holding that the daughters are not entitled to a share in coparcenery property inasmuch as, the suit properties are not coparcenery properties but are the self-acquired properties of the father of the appellants and respondents who has died intestate. The observations regarding the property being coparcenery, are therefore, misconceived and based upon a misconception of the basic facts involved in the present case. In the circumstances, it is apparent that the judgement and decree passed by the lower appellate court suffers from the vice of non-application of mind inasmuch as, the lower appellate court has failed to consider the basic facts involved in the present case, namely, the suit properties are self-acquired properties of the deceased father of the appellants and the respondents, and are not ancestral or coparcenery properties.
Section 8 of the Hindu Succession Act, 1956, makes provision for "General rules of succession in the case of males"
and lays down that the property of a male Hindu dying intestate shall devolve according to the provisions of said Chapter - (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there are no heirs of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. In the present case, we are concerned with relatives specified under class I of the Schedule. The heirs specified under class I of the Schedule, interalia, are son; daughter; widow; mother etc. Section 9 of the Hindu Succession Act which makes provision for order of succession among heirs in the Schedule, interalia lays down that among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all the other heirs. In view of the provisions of section 8 read with section 9 of the Hindu Succession Act, upon the death of deceased Natvarlal Bhaishankerlal Bhatt, who has died intestate, his properties would devolve upon his sons and daughters, namely, the appellants and the respondents herein and accordingly each of the appellants and the respondents would be entitled to an equal share in the suit properties. The findings recorded by the lower appellate court that the property being coparcenery property, the daughters do not have any right to the same, being contrary to the record of the case, are unsustainable.
In the light of the aforesaid finding, the next question which arises for consideration is as to whether the appellants herein have waived their rights in the agriculture lands as held by both the courts below. From the facts noted hereinabove, it is apparent that the basis for holding that the appellants herein have waived their rights in the suit properties is the mutation entry No.1752 dated 2.10.1979 made in the record of rights wherein it is recorded that the appellants herein have made Kabulats before a gazetted officer for deleting their names from the record of rights. The question that arises for consideration is as to whether such an entry made in the record of rights would form the basis for deciding as to whether or not the appellants have any right, title or interest in the suit properties.
In this regard, it may be germane to refer to various decisions of the Supreme Court on which reliance has been placed by the learned advocate for the appellants. In Mahila Bajrangi (dead) through LRs and others v. Badribai w/o Jagnath and another (supra), the Supreme Court has held that mutation proceedings before revenue authorities are not judicial proceedings in a court of law and do not decide questions of title to immovable property is a trite position and principle of law vide Thakur Nirmal Singh v. Thakur Lal Rudra Partab Narain Singh. In Swarni (Smt) v. Inder Kaur (Smt) and others, (1996) 6 SCC 223, the Supreme Court held that mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question. The court, accordingly, held that the Additional District Judge was wholly in error in coming to the conclusion that mutation in favour of the respondent therein conveys title in her favour and held that this erroneous conclusion had vitiated the entire judgment. In Narain Prasad Aggarwal (dead) by LRs v. State of Madhya Pradesh, (2007) 11 SCC 736, the Supreme Court held that record of rights is not a document of title. Entries made therein in terms of section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable. In G. Sekar v. Geetha and others, AIR 2009 SC 2649, the Supreme Court in the facts of the said case held that the property in the hands of Govinda Singh was not a coparcenery property. It was his self-acquired property. The parties, therefore, obtained equal shares being the relatives specified in class-I of the Schedule. The respondents, therefore, became owners to the extent of 1/5th share of the said property. The title to the aforementioned extent of each co-sharer, having devolved upon them by reason of operation of statute, was absolute. Referring to section 23 of the Hindu Succession Act, the court observed that the said section, however, curtails the rights of the daughters to obtain a decree for partition in respect of dwelling houses and that the right of a female heir specified in class I of the Schedule to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein. The court further held that section 23 carves out an exception in regard to obtaining a decree for possession inter alia in a case where dwelling house was possessed by a male heir. Apart therefrom, the right of a female heir in a property of her father, who has died intestate, is equal to her brother. In Ramesh Dutt v. State of Punjab, (2009) 15 SCC 429, the Supreme Court held that entry in a revenue record-of-rights is merely an evidence of possession. Such entry does not create title and absence thereof, does not extinguish the same. On the facts of the said case, the court held that only because the order of mutation made in favour of the appellants therein had been cancelled, the same ipso facto would not lead to the conclusion that they had no title over the property. In Rajinder Singh v. State of Jammu And Kashmir and others, (2008)
9 SCC 368, the Supreme Court held that it is well settled that revenue records confer no title on the party. The court observed that it has been recently held by the Supreme Court in Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 that such entries are relevant only for "fiscal purpose"
and substantive rights of title and of ownership of contesting claimants can be decided only by a competent civil court in appropriate proceedings. In Gurunath Manohar Pavaskar and others v. Nagesh Siddappa Navalgund and others, (2007) 13 SCC 565, the court placed reliance upon its earlier decision in the case of Narain Prasad Aggarwal (dead) by LRs v. State of Madhya Pradesh, (2007) 11 SCC 736, wherein it has been held that record-of-right is not a document of title. Entries made therein in terms of section 35 of the Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable. It was accordingly held that such a revenue record is not a document of title, and it merely raises a presumption in regard to possession. In Sita Ram Bhau Patil v. Ramchandra Nago Patil (dead) by LRs and another, (supra), the Supreme Court held that there is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct.
In the light of the above referred decisions of the Supreme Court, it is apparent that the record of rights is not a document of title and that entries made therein although admissible as a relevant piece of evidence and may also carry a presumption of correctness, such a presumption is rebuttable. In the present case, vide entry No.1752, it has been recorded that the names of the defendants No.3, 4 and 5 are deleted on the basis of separate Kabulats executed before a gazetted officer. As noted hereinabove, a perusal of mutation entry No.1752, shows that there is nothing to indicate that any notice under section 135-D of the Bombay Land Revenue Code has ever been issued and served upon the appellants herein. Though the trial court has placed reliance upon the evidence of the Talati cum Mantri to the effect that prior to certifying an entry, the notices under section 135-D of the Bombay Land Revenue Code are issued to the parties and it is only if no objection is raised that the entry is certified, in the present case, apart from the fact that the entry does not indicate any such notices having been issued to the appellants herein, a perusal of the deposition of the Talati cum Mantri Naranbhai Valjibhai Kela shows that he has deposed to the effect that he has brought along with him the original record being village forms No.7/12, 8-A and 6 in relation to the agriculture lands. He has further stated that from the original papers, the applications and Kabulats are not to be found. He has also stated that as per entry No.1752 dated 2.10.1979, the names of the defendants No.3, 4 and 5 have been deleted from the revenue record on the basis of Kabulats executed before the gazetted officer. That the said entry has been certified by the Deputy Mamlatdar upon examining the case papers. In his cross-examination, he has stated that he cannot say as to whether actually any application, Kabulat have been made or notices have been issued. Thus, while the trial court and the lower appellate court have referred to the deposition of the Talati cum Mantri stating that the names of the appellants herein have been deleted on the basis of the Kabulats, neither of the courts below have referred to the fact that from the original papers, neither any application for deleting the names of the appellants from the record of rights, nor any Kabulats made in presence of a gazetted officer are found, as well as to the fact that the said witness has stated that it is not possible for him to state as to whether actually any such applications, Kabulats or notices are there on record and the same have been served on the appellants. In the regular course, normally when the inquiry officer makes his endorsement in the record of rights, there is an endorsement to the effect that the notices under section 135-D of the Bombay Land Revenue Code have been served or the reason as to why the notices under section 135-D have not been issued. In the present case, mutation entry No.1752 is totally silent as regards the service of notices under section 135-D of the Bombay Land Revenue Code upon the appellants. The original defendant No.3 - Dayaben has, in her cross-examination at the instance of the defendants No.1 and 2, has categorically denied that entry No.1752 has been made on the basis of the Kabulat and that they have executed any such Kabulats in presence of a gazetted officer. Thus, it is the categorical case of the appellants herein that the sisters have not waived their rights in the suit properties by executing Kabulats before the gazetted officer. In the aforesaid premises, the presumption as regards mutation entry No.1752 has been rebutted by the appellants.
Thus, as noted hereinabove, mutation entry No.1752 has not been proved beyond reasonable doubt inasmuch as the original record does not contain the alleged Kabulats made in presence of a gazetted officer, nor have the defendants No.1 and 2 produced the same, either in original, or copies thereof, during the course of trial. The appellants herein have categorically denied having executed any such Kabulats in the presence of a gazetted officer for deletion of their names from the record of rights. As held by the Supreme Court in the above referred decisions, the entries made in the record of rights have presumptive value. However, the same are rebuttable. In the present case, the appellants have rebutted the presumption by way of oral evidence whereby it is denied that any such Kabulat was made before any gazetted officer, waiving their rights in the agriculture lands. Moreover, even the entry which forms the basis of the conclusions arrived at by the courts below, has not been proved beyond doubt inasmuch as, the alleged Kabulats made in presence of the gazetted officers are not found in the original record, nor are any applications seeking deletion of the names of the appellants herein found in the original record. In the circumstances, reliance placed upon entry No.1752 for holding that the appellants herein had waived their rights in the suit property, is misconceived and contrary to the record of the case and the provisions of law. Moreover, once the property has devolved upon them by virtue of operation of law, namely, the provisions of section 8 of the Hindu Succession Act, unless the same is transferred by the appellants in favour of any other person, the appellants do not cease to have any right, title or interest in the same. In the present case, there is nothing to indicate that any deed has been executed by the appellants herein releasing or relinquishing their rights in the suit properties in favour of the respondents herein. In the circumstances, in the absence of any documentary evidence to indicate that the appellants herein have in fact waived their rights in favour of the respondents, both the courts below were not justified in placing strong reliance upon mutation entry No.1752 ignoring the other admissible evidences on record, namely, the depositions of Dayaben as well as the Talati cum Mantri. In the circumstances, the findings recorded by both the courts below are perverse to the record of the case and as such, the conclusions arrived at by the courts below on the basis of such perverse findings, stand vitiated. The impugned judgement and decree passed by the trial court to the extent it holds that the plaintiff therein is entitled to one-third share of the suit property and that the defendants No.3, 4 and 5 do not have any right, title or interest in the same, as well as the impugned judgment and decree of the lower appellate court affirming the same, therefore, cannot be sustained.
Another aspect of the matter is that though the finding regarding waiver of their rights are recorded only in relation to the agriculture lands, both the courts below have also held that the appellants herein do not have any right, title or interest even in the residential property. As noticed earlier, the Supreme Court in the case of G. Sekar v. Geetha and others, (supra), held that the right of a female heir to claim partition of the family dwelling house is restricted so long as the male heirs do not choose to affect partition of the same. The right of a female heir specified in class I of the Schedule to the Hindu Succession Act to claim partition of a dwelling house shall not arise until the male heirs choose to divide their respective shares therein. Apart therefrom, the right of a female heir in a property of her father, who has died intestate is equal to her brother. In the facts of the present case, one of the male heirs, viz., the respondent No.3-original plaintiff, has chosen to effect partition pursuant to which, the trial court has held that the original plaintiff is entitled to one-third share in the residential property. In the circumstances, once at the instance of a male heir, a partition is sought to be effected, the daughters too would be entitled to their share during the course of such partition. In the circumstances, the findings recorded by the lower appellate court to the effect that a female heir cannot claim any right in a residential property being contrary to the provisions of law, as well as the above referred decisions of the Supreme Court, and as such, cannot be sustained. Moreover, the lower appellate court has further erred in holding that the appellants do not have any right to institute a suit in respect of the undivided properties of the Joint Hindu Family and as such, they are not entitled to file the present appeal also overlooking the fact that the suit properties are self acquired properties of the father of the appellants and respondents and that though the right of a daughter to claim partition of the family dwelling house is restricted so long as the male heirs do not choose to affect partition of the same, she is entitled to her share when the male heirs choose to divide their respective shares therein. Moreover, the right to prefer an appeal against the decree passed by any court exercising original jurisdiction is a statutory right conferred by the provisions of section 96 of the Code, in the circumstances, the finding recorded by the lower appellate court that the appellants were not entitled to prefer the appeal is based upon a misconception of the statutory provisions.
For the foregoing reasons, the appeal succeeds and is, accordingly, allowed. Question (a) is answered in the negative, that is, the lower appellate court was not justified in holding that the respondents are the owners of the suit properties and that respondent No.3 is entitled to 1/3rd share despite the fact that the respondent No.3 has filed the suit claiming 1/6th share in the suit properties. Question (b) is also answered in the negative, that is, the lower appellate court was not right in law and facts in holding that the appellants are not entitled to any share in the suit properties on the basis of deletion of their names pursuant to entry No.1752 made in Village Form No.6. Question (c) and (d) are also answered in the negative, that is, the lower appellate court was not right in law in believing the contents of entry No.1752 when there was no independent material or documents on record to prove that the appellants have waived/released their rights over the property in question. The impugned judgement and decree passed by the lower appellate court confirming the judgement and decree passed by the trial court, is hereby quashed and set aside, to the extent the same holds that the defendants No.3, 4 and 5 do not have any right, title or interest in the suit properties. The decree passed by the trial court shall, therefore, stand amended to the following extent:
The plaintiff as well as the defendants No.1 to 5 have equal right, title and interest in the land bearing old survey No.769 and 767 (new survey No.1120), admeasuring acre 4 - 32 Gunthas, situated at Village Vajepur, Taluka Morbi; whereas in respect of the house, admeasuring 2580.01 square feet, situated at Village Lilapar, the plaintiff as well as the defendants are each entitled to one-sixth share in the same.
The appeal is, accordingly, allowed with costs. Decree to be drawn accordingly.
[HARSHA DEVANI, J.] parmar* Top