Punjab-Haryana High Court
Gurcharan Singh And Ors. vs Surjit Kaur And Ors. on 8 May, 2005
Equivalent citations: AIR2006P&H18, (2005)141PLR232, AIR 2006 PUNJAB AND HARYANA 18, 2006 (1) AJHAR (NOC) 278 (P&H), 2006 A I H C 1017, (2005) 3 PUN LR 232, (2005) 3 RECCIVR 628
JUDGMENT M.M. Kumar, J.
1. This is defendants' appeal under Section 100 of the Code of Civil Procedure, 1908 challenging the concurrent findings of fact recorded by both the Courts below which are to the effect that the plaintiff-respondents namely Surjit Kaur, Gurmail Kaur and Gurmit Kaur are the daughters of late Amar Singh and on that basis being Class-I legal heirs they were entitled to inherit the estate of their father after his death. It has further been held that defendant-respondents Inder Singh and Baru Singh, who are brothers of Amar Singh, were Class-II legal heirs (now represented by their legal representatives respondents No. 4 to 12) and they were not entitled to inherit the estate of Amar Singh during the life time of his Class-I legal heirs namely the plaintiff-respondents and their mother. The mutation No. 1559 in respect of the inheritance of Amar Singh sanctioned in favour of Inder Singh and Baru Singh has also been held to be illegal, null and void which has no effect on the rights of the plaintiff-respondents because mere entry of mutation does not confer title.
2. Brief facts of the case are that the plaintiff-respondents filed a civil suit No. 156 of 28.4.1999 for declaration to the effect that they were owners in possession of l/9th share out of the land fully described in the head note of the plaint and the mutation of inheritance of their father Amar Singh entered in favour of the defendant-respondents Inder Singh and Baru Singh was illegal, null and void. It was further claimed that the sale deed executed in favour of the defendant-appellants were of no effect and were liable to be set aside. Another prayer made was for joint possession to the extent of 1 /9th share of the suit land. Amar Singh father of the plaintiff-respondents was a co-sharer in possession of l/9th share in the suit land. He died 35 years ago preceding the date of filing the suit when his wife and three daughters who are plaintiffs-respondents were alive. On the basis of a false pedigree table in connivance with the Lambardar of the village, Inder Singh and Baru Singh brothers of the Amar Singh got mutation sanctioned in their favour at the back of the plaintiff-respondents and their mother, which is subject matter of challenge in the suit. Baru Singh and Inder Singh also died and after their death, mutation was sanctioned in favour of their widows, daughters and sons. It is claimed that the plaintiff-respondents were owners to the extent of l/9th share which belongs to their father Amar Singh and that mutation of inheritance sanctioned in favour of Baru Singh and Inder Singh was illegal, null and void. It has further been claimed that plaintiff-respondents were minors at the time of death of Amar Singh and thereafter, Baru Singh and Inder Singh used to give wheat from that land to the mother of the plaintiff-respondents which created the impression that mutation was sanctioned in their name in respect of the land of their father. It was revealed only when the mother of plaintiff-respondents died that an enquiry was made from the Patwari for the purpose of sanctioning of mutation of inheritance of the estate of their mother for sanctioning the same in their name which resulted in filing of the suit.
3. The defendant-respondents raised various issues like concealment of facts, limitation, cause of action and locus standi. On merits, ownership of Amar Singh in respect of the suit land was also denied. It was claimed that Amar Singh had died unmarried and issueless and therefore, the plaintiff-respondents were not his legal heirs. Mutation No. 1559 was claimed to have been rightly sanctioned and that Inder Singh and Baru Singh were legal heirs of deceased Amar Singh. Therefore, transfer deeds executed in favour of defendant-appellants were valid transferring valid title. The defendant-appellants took the stand that they were bona fide purchasers for valuable considerations and also placed reliance on Section 41 of the Transfer of Property Act, 1882 (for brevity 'the Act').
4. Both the Courts below have recorded concurrent findings of fact that all the three plaintiff-respondents were the daughters of Amar Singh. The basis of the aforementioned finding is the statement of Bhajan Kaur PW2 who was residing in the same vicinity as that of Amar Singh. PW3 Mal Singh who is real brother-in-law (wife's brother of Amar Singh), plaintiffs have themselves come in the witness box to prove their relationship with deceased Amar Singh. The defendant-respondents as well as the defendant-appellants did not plead anything in the written statement suggesting that the plaintiff-respondents were daughters of some other person than Amar Singh. Mere denial v/as not considered sufficient. The birth certificates of two daughters Ex.P2 and Ex. P3 have been considered sufficient to show that Amar Singh was married and two female children were born to him. An application filed by the wife of Amar Singh, Parsin Kaur Mark-C also amply proved that she had moved an application for pension to Sainik Welfare Officer, Sangrur. There are recommendations made by Brig. Jaswant Singh Mark-E. The aforementioned document Mark-B and Mark-C have been used for the purpose of corroboration to the oral as well as documentary evidence. It is on the basis of aforementioned detailed evidence and the absence of cross-examination of the defendant-appellants or defendant-respondents to the contrary which have led to the Courts below to conclude that the plaintiff-respondents were the daughters of Amar Singh and therefore, were entitled to inherit his estate after his death being Class-I legal heirs. It was further held that Inder Singh and Baru Singh brothers of Amar Singh being Class-II legal heirs could not inherit his estate during the life time of Class-I legal heirs of Amar Singh, who are the plaintiff-respondents. On the basis of the aforementioned findings, mutation of inheritance No. 1559 in respect of estate of Amar Singh in favour of Inder Singh and Baru Singh or subsequent mutation in favour of their widows and children have been declared null and void holding that mere mutation does not confer title.
5. The defendant-appellants who are vendees from the defendant-respondents have not been held to be bona fide transferees. It has been held that they were not entitled to the protection provided by Section 41 of the Act because it has been found that protection of Section 41 of the Act can be granted to those who take reasonable care to ascertain that the transferor was entitled to make the transfer and had acted in good faith. The findings of the trial Court on the aforementioned issues are as under:
"...
"that mutation of inheritance of Amar Singh bearing No. 1559 sanctioned in favour of his brothers Baru Singh and Inder Singh and subsequent mutation sanctioned in favour of defendants No. l to 6 and their mother regarding inheritance of property of Amar Singh through Baru Singh and Inder Singh are wrong, illegal, null and void and have no effect on the rights of the plaintiffs. Thus when defendants Gurnam Kaur, Melo and Sukhdev Kaur were not the owners of the land sold by them to defendants No. 7 to 10 vide sale deed dated 24.6.82 Ex.D1, then it cannot be said that they have rightly and validly sold the said land to defendants No. 7 to 10. Defendants No. 7 to 10 alleged themselves to be bona fide purchasers and in order to prove their said plea Gurcharan Singh defendant No. 7 came into the witness box as DW-5. He has stated that he had verified revenue record regarding the ownership and possession of the land before purchasing the said land. According to Section 41 of Transfer of Property Act, where with the consent, express or implied, of the persons interested in immovable property a person is ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it, provided that the transferee, after taking reasonable care to ascertain that the transferor has power to the transfer, has acted in good faith.
The above referred provision of Section 41 T.P. Act only protects the person who takes a reasonable care to ascertain that transferor had a power to make the transfer and has acted in good faith. No doubt revenue record i.e copy of jamabandi for the year 1995-96 Ex.P1 for the year 1980-81 Ex.D1 showing the ownership and possession of Gurnam Kaur, Melo and Sukhdev Kaur on the basis of mutation regarding inheritance of property of Amar Singh sanctioned in favour of Inder Singh and Baru Singh and subsequent entries in their favour on the death of Inder Singh and Baru Singh and revenue record is only presumptive evidence which cannot be deemed to be title deed. The defendants No.7 to 10 who have purchased the land from Gurmel Kaur etc. are belonging to the same village to which Amar Singh belonged. Gurcharan Singh DW-5 in his cross-examination has admitted that they had the knowledge about the ownership of Amar Singh of the land purchased by them at the time of its purchase. Thus it cannot be said that defendants No. 7 to 10 had no knowledge about the plaintiffs being the daughters of Amar Singh and the sanctioning of mutation of Amar Singh in favour of his brothers Inder Singh and Baru Singh and subsequently in favour of defendants No. 1 to 6 and their mothers wrongly and illegally. So mere verification of ownership of Gurnam Kaur etc. from the revenue record before purchasing the land by defendants No. 7 to 10 as bona fide purchasers. Section 41 of the T.P. Act is for the protection of careful men and not for different or credulous persons."
(emphasis added).
6. On the question of limitation also both the Courts have held that there is no period of limitation prescribed for possession of the land on the basis of inheritance because inheritance does not remain in abeyance. The aforementioned findings have been recorded in para 20 of the trial Court and the same reads as under:-
"It is not disputed that the inheritance does not remain in abeyance and mutation itself does not confer any title. Mere sanctioning of mutation of inheritance if Amar Singh in favour of Inder Singh and Baru Singh is not sufficient to hold them owners of the estate of Amar Singh particularly when the plaintiffs being the daughters and Parsin Kaur (since deceased) being the wife of Amar Singh were alive at the time of his death as held in issues No. 3 and 4."
7. The only point raised by Sh. Mahesh Gupta learned counsel for the defendant-appellants is that they are bona fide purchaser and with due diligence they could not have discovered that Amar Singh was the owner of the suit land and mutation of inheritance entered in 1969 was not illegal as it excluded the widow of Amar Singh and his three daughters. Learned counsel has further argued that the defendant-appellants and the defendant-respondents should be considered in adverse possession of the suit land and on the basis their rights have matured into ownership.
8. After hearing the learned counsel and perusing the concurrent findings of the Courts below on various issues, 1 have reached the conclusion that the instant appeal does not raise any question of law warranting its admission. It has been concurrently found by both the Courts below that the plaintiff-respondents are three daughters of deceased Amar Singh and the mutation of inheritance got sanctioned by Inder Singh and Baru Singh in respect of the property of deceased Amar Singh in 1969 was null and void as it over-looked completely the interest of successor-in-interest widow Parsin Kaur and his three daughters namely the plaintiff-respondents. Moreover, the defendant-appellants were from the same village and were aware of the share of Amar Singh. It has been further found that protection furnished by Section 41 of the Act is not available because the legal position is that the transfer or -co sharer was not required only to be ostensible owner but he was also required to be authorised by the other co-sharer for management of the property in respect of their share. The aforementioned question has been considered by the Supreme Court in the case of Suraj Rattan Thirani v. Azamabvad Tea Co. Ltd., . A similar argument was raised before the Supreme Court which has been rejected by observing as under:-
"The next point urged was based on Section 41 of the Transfer of Property Act. It was said that Ismail was by reason of the entry in the revenue registers which the coheirs did nothing to correct, ostensibly the full owners of the property and hence the mortgage by him as full owner and the sale in Court auction in execution of the decree by the National Agency Co. Ltd., passed the full title to the Tea Estate and that the co-heirs were consequently estopped from disputing the defendant's right to the full 16 as share in the property.
In order that Section 41 of the Transfer and Property Act could be attracted, the respondents should prove that Ismail was the ostensible owner of the property with the consent of his co-sharers and besides that they took reasonable care to ascertain whether Ismail had the power to make a transfer of the full 16 as, interest. Now, the facts however were that except the property being entered in the revenue records in Ismail's name, and that the management of the property was left by the co-sharers with Ismail, there is not an iota of evidence to establish that Ismail was put forward by them as the ostensible owner of the property. It is manifest that the conduct of co-sharers in permitting one of them to manage the common property does not by itself raise any estoppel precluding them from asserting their rights. The learned Judges have also pointed out that even the least enquiry by the mortgagee would have disclosed, that Ismail was not the full owner and this finding was not seriously challenged before us. In this view it is unnecessary for us to consider the submissions made to us by Mr. Desai that S.41 was inapplicable to cases of sales in Court auctions for the reason that what the Court is capable of selling and what is sold in execution of a decree is only the right, title and interest of the judgment-debtor and nothing more. We, therefore, hold that the learned Judges of the High Court rightly held that S.41 of the Transfer of Property Act afforded no defence to the respondents."
9. In view of the above findings of facts as well as findings on law there is no merit in the present appeal warranting its admission under Section 100 of the Code. The findings are based on ample evidence and it cannot be concluded that there is any perversity in those finding. Therefore, the appeal is liable to be dismissed.
10. The argument of the learned counsel that there is delay in challenging the mutation has not impressed me in view of the fact that under Article 65 of the Schedule appended to the Limitation Act, 1963 no period of limitation has been prescribed for establishing the rights by a heir. The only way to defeat such a suit is the proof by defendants that they have perfected their title by adverse possession. The controversy has been concluded by a Division Bench judgment of this Court in Mohinder Singh v. Kashmira Singh, 1985 P.L.J. 82 where earlier view to the contrary in the case of Narinder Singh and Ors. v. Chanan Singh and Ors., 1983 Current Law Journal 432 was over ruled. Similar view has been held by this Court in the case of Pahalwan Singh v. Lado Bibi, 2001(2) P.L.J. 54. A references in this regard may be made to the observation of this Court in para 14 of the judgment in Pahalwan Singh's case which reads as under: -
"Plaintiff s suit was within time as cause of action to them arose when Pehalwan Singh chose to act adversely to the interest of Sucha Singh and Jit Singh. Pehalwan Singh got the mutation entered on 18.3.1982. They got cause of action on 20.4.1984 when the mutation was sanctioned. Prior to 18.3.1982, the plaintiffs were believing the inheritance to have devolved upon them equally. There is no limitation so far as suit based on inheritance is concerned. It is for other party to plead and prove adverse possession. In this case, the adverse act commenced on 18.3.1992 or on 20.1.1984 and, therefore, suit instituted in 1992 is well within limitation."
11. Therefore, I have no hesitation to reject the contention raised on behalf of the defendant-appellants.
For the reasons recorded above, this appeal fails and the same is dismissed.