Punjab-Haryana High Court
Manti And Ors. vs Sarwati Devi And Ors. on 18 August, 2003
Equivalent citations: (2004)136PLR397
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
JUDGMENT Adarsh Kumar Goel, J.
1. The respondents filed a suit claiming title in the suit property on the basis of inheritance to the estate of Dalip Chand and Mokhi who died issue-less. Pedigree table showing the relationship between the parties as mentioned in the judgment of the trial Court is extracted below:-@TAB9 = 1. Mata Chand : Ml Manohari (widow) M2 Manti M3 Biro M4 Shanti = Rani M5 Prithi = Ramkumar's widow died issue-less.
M6 Kamlesh = K1 (Pavan) K2 (Sat Parkash) K3 (Tara Devi) K4 (Darshana Devi) (Defendants) Deyot 2. Fateh
1. Chameli R1 (Girdhar) Ram Chand
2. Lado R2 (Mahavir)
3. Ramchander R3 (Kam la-widow) R4 (Krishna)
4. Ishwar
11. Sarbati
5. Desh Raj
12. Niranjan
6. Dev Raj
13. Kusum (Plaintiffs)
3. Dalip (Died issue-less)
4. Mokhi (Died issue-less) Case of the plaintiffs (heirs of Fateh Chand) is that they were owners in possession of 1/3rd share of land measuring 212 kanals 8 marlas and land measuring 88 kanals 8 marlas and mutation pertaining to succession to the estate of deceased Dalip dated 20.1.1996 and mutation dated 29.6.1967 regarding succession to the estate of deceased Mokhi and gift deeds dated 3.7.1968 were erroneous and did not affect the rights of the plaintiffs. Case of the plaintiffs, further, was that common ancestor was Deyot Ram, who was owner of half share of total land and he had three sons namely Mata Chand (predecessor of the defendants who died on 25.3.1959), Fateh Chand and Dalip Chand (predecessor of plaintiffs who died issue-less on 9.6.1959). Mokhi, daughter of Deyot Ram died on 15.12.1965.
2. The defendants contested the suit and stated that on the death of Deyot Ram, the property devolved upon Mata Chand, Fateh Chand and Dalip Chand in equal shares and after the death of Dalip Chand, widow of Mata Chand, who had predeceased Dalip Chand was also entitled to a share in the estate of Dalip Chand. It was further submitted that under Section 15(1)(d) of the Hindu Succession Act, 1956 (hereinafter referred to as the 1956 Act), estate of Mokhi is to be inherited by heirs of her father i.e. plaintiffs and defendants.
3. The trial Court after declaring the respective shares of the parties held that the suit was barred by limitation and dismissed the suit. The relevant finding of the trial Court is as under:-
"As per Entry II (Class IInd of the Schedule) of Section 8 of the Act his 1/6th share devolved upon his surviving brother Fateh Chand and sister Mokhi in equal shares i.e. 1/12th each because Mata Chand died on 25.3.1959 (Ex.P3). After the death of Mokhi her share 1/12th (as per section 15(d) of the Act) devolved upon Fateh Chand in equal shares i.e. 1/24th each. Thereafter, after the death of Mokhi the total land became '1/6th+1/12th+1/24=7/24 each devolved upon his heirs, the plaintiffs and defendants set No. 3 after his death. In this way the total share of defendants set No. 1 and 2 in the total land comes out to be 1/6th+1/24th=5/24. In these circumstances, all these issues are decided accordingly and it is held that the share of defendants set Nos. 1 and 2 in the total land comes out to be 5/24 and the total share of the heirs of Fateh Chand in the total land comes out to be 7/24 and the mutation Nos. 4159 and 4977 are wrong and illegal and liable to be set aside and gift deeds Nos. 775 and 776 dated 3.7.1968 are valid only to the extent of 5/24 share of Mata Chand."
4. On appeal, the suit of the plaintiffs was decreed having been held to be within limitation but finding about shares to be inherited was modified.
5. Learned counsel for the appellants submitted that as far as inheritance to the share of Mokhi is concerned, the trial court had rightly held that under Section 15 of the Act, inheritance would be simultaneous by the plaintiffs and defendants. As regards inheritance to the estate of Dalip Chand is concerned, learned counsel for the appellant submitted that though under Entry IV of the Schedule read with Section 8 of the Act, heirs of Fateh Chand would exclusively inherit the estate of Dalip Chand, their claim will be barred by limitation.
6. Vide order dated 3.7.2003, statement of learned counsel for the respondent to the effect that as regards the share of Mokhi, inheritance will be simultaneous by plaintiffs as well as defendants under Section 15 of the Act, as contended on behalf of the appellants, was recorded and it was held that in view of the said statement, view taken by the trial court in para 10 of its judgment was correct, while the view taken by the lower appellate court in para 10 of its judgment was erroneous. Accordingly, the decree of the lower appellate court was liable to be modified.
7. As regards inheritance to the estate of Dalip Chand, learned counsel for the appellants submitted that though, in view of provisions of Section 8(b) of the 1956 Act read with Entry II, Mata Chand having predeceased Dalip Chand who died issue-less, the suit being barred by limitation, was liable to be dismissed, as rightly held by the trial Court. He further submitted that it was in the year 1966 that joint holding was separated and mutation was sanctioned and the plaintiffs applied for partition only with regard to land measuring 212 kanals 8 marlas and did not seek any pattition with regard to 88 kanals 8 marlas and, thus, suit for declaration and injunction filed by the plaintiffs on 26.4.1990 was barred by limitation being governed by Article 58 of the Schedule to the Limitation Act. He submitted that mere mutation entry may not be starting point of limitation but in the present case, the rights of the plaintiffs were jeopardised by over acts of the defendants when they alienated a share out of the land by a gift deed on 3.7.1968. They also applied for partition and their share was duly partitioned. They were fully aware about the record of rights and about assertion of title. The averments in para 8 of the plaint that the claimants came to know about the wrong entries only six months prior to filing of the suit, was belied by statement of plaintiffs, Niranjan Singh Ex.DX before the revenue authorities. Mutation Ex.P10 was also sanctioned in the presence of Fateh Chand and so was mutation Ex.P1 in respect of inheritance of the estate of Mokhi. He relied upon finding of the trial Court to the following effect:-
"In my view in the present case, the right of the plaintiffs was jeopardised firstly on dated 3.7.1968 when defendants set No. 1 alienated their share in the suit land in favour of defendants set No. 2 Gift deeds were executed by defendants set No. 1 in favour of defendants set No. 2 admitting the existing shares in the revenue record is correct. The plaintiff should have filed the suit within three years from 3.7.1968. Secondly, the rights of the plaintiff were jeopardised on 3.1.1986 when the application for partition of the suit land was filed. Ex.DX certified copy of statement of Niranjan son of Ishwar (plaintiff No. 2) speaks that the partition application was filed by the legal heirs of Fateh Chand on dated 3.11.1986 admitting the mutation Nos. 4519 and 4977 as correct. No doubt legal heirs of Fateh Chand, were not debarred from raising the question of title in the civil Court but in my opinion they should have filed the suit for correction of entries within three years from the date when their right was jeopardised. Admittedly, the present suit having been filed on 23.4.1990 is clearly time-barred. The averments of the plaintiffs in para No. 8 of the plaint that they came to know about the wrong entries about six months earlier to the filing of the present suit stands belied by Ex.DX. Moreover, perusal of mutation of Dalip Ex.P10 speaks that it is sanctioned in the presence of Fateh Chand. Perusal of mutation of inheritance of Mokhi (Ex.Pl) speaks that this mutation was also sanctioned in the presence of Fateh Chand. In these circumstances, I am of the opinion that the plaintiffs should have raised the question of title in the civil court within three years from the date when the application for partition of the suit land was filed by the legal heirs of Fateh Chand. The suit having been filed on 23.4.1990 is hopplessly time-barred. This issue is disposed of accordingly."
8. Learned counsel for the appellants further submitted that the lower appellate court erred in reversing the said findings by observing that ouster of the plaintiffs was not established and also by observing that Article 58 of the Schedule to the Limitation Act did not apply without mentioning as to which other Article applied. The lower appellate Court also observed that suit land was in joint possession.
9. Learned counsel of the plaintiff-respondents submitted that plaintiffs continued in joint possession in law and mutation did not confer any title and did not bring about any qualitative change in the rights of the parties. He submitted that till ouster is established, plaintiffs who are in joint possession could seek to establish their title at any time, whenever there was cloud on their title and by their seeking partition in one parcel of the land did not mean that plaintiffs had given up their rights in the other parcel of the land. He submitted that mere mutation entry will not be a cause of action for the plaintiffs and making of gift deed also did not amount of ouster, as a co-sharer in possession could alienate suit property to the extent of his share without legally affecting the rights of other co-sharers, not in actual possession. He submitted that there was no evidence to show that partition had taken place or that share had been separated and, therefore, the lower appellate court was justified in holding the suit land continued to be in joint possession. He submitted that in this situation, the limitation commences when plaintiff apprehends any cloud on his title and not before. He submitted that knowledge of mutation did not operate as estoppel. He relied on and supported the following findings recorded by the lower appellate court:-
"It is also well settled that mutation does not confer any right, title or interest and sanctioning of mutation in favour of defendants set No. 1 hardly affects the rights of the present plaintiffs to the suit land. It may also be mentioned that there is no evidence whatsoever, led by the defendants to prove the plea of estoppel. I fail to understand as to how the plaintiffs are estopped from their own act and conduct to file the present suit. Mere presence of Fateh Chand etc. at the time of mutation does not operate as estoppel when as per law of inheritance existing prior to the Hindu Succession Act and after the enforcement of this Act, rights of the parties inheriting suit property are to be considered, there cannot be any estoppel against statute. Thus, in my considered opinion, finding recorded by the learned trial court on issue No. 6 is not sustainable and hence issue No. 6 is held as not proved and is decided against the defendants-respondents and in favour of the plaintiff-appellants."
10. Question to be decided is whether mere mutation entry or making of gift deed to the knowledge of the plaintiffs amounted to ouster of the plaintiffs and furnished cause of action which amounted to starting point of limitation.
11. I have considered the rival submission and perused the record. There is no serious dispute about the substantive rights of the parties. Even learned counsel for the appellants does not dispute that Mata Chand having pre-deceased Dalip Chand, heirs of Mata Chand will not be entitled to the share of Dalip Chand in view of Entry-II of Class IInd of the Schedule to the Hindu Succession Act read with Section 8 of the said Act. Only question is of limitation. I am of the view that Article 58 of the Schedule to the Limitation Act will govern the limitation and the lower appellate court was in error in observing that Article 58 of the Act cannot apply. Learned counsel for the respondents is not able to show what any other Article will apply. Even so, contention of the learned counsel for the appellants that the suit is barred by limitation, cannot be accepted. Though limitation is three years, the time from which this period begins to run is when the right to sue first accrues. It is not possible to accept that right to sue accrued in the year 1966 when mutation was sanctioned, as rightly held by the lower appellate court nor it accrued when gift of part of land was made. The parties were in joint possession and it is not shown that their shares were separated. Though learned counsel for the appellants mentioned that there was separation of joint holding, there is no material on record to indicate separation of shares and date of separation, if any. Even if entries in revenue record are wrong, a party can choose to ignore the same till a real threat to title is apprehended. Reference in this regard may be made to the decision of a Division Bench of this Court in Ibrahim v. Smt. Sharifan, A.I.R 1980 P&H 25, it was observed : "It may be observed at the outset that the word 'first' occurring in Article 58 of the Act is of no significance at all for deciding the issue of limitation so for as the facts of the case in hand are concerned as the main point which requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not." It was further held that where no cloud is cast on the title of plaintiff, mere entry of mutation in the name of the defendant in absence of any other act of the defendant, cause of action does not accrue to the plaintiff for purpose of Article 58 of the Schedule to the Limitation Act. Reference may also be made to the decision of the Privy Council in Mt. Bolo v. Mt. Koklan, A.I.R. 1930 Privy Council 270 and Harendra Chandra Nath v. Bijy Krishna Nath? A.I.R. 1993 Gauhati 52.
12. For the above reasons, except with regard to the share of Mokhi as mentioned above, there is no merit in the appeal. The appeal is partly allowed to the extent of share of Mokhi, by holding that parties will simultaneously inherit the estate of Mokhi as mentioned in para 10 of the judgment of the trial Court. With regard to the inheri tance to the estate of Dalip Chand, the plaintiffs will be entitled to inherit the same to the exclusion of the defendants.