Indian Kanoon - Search engine for Indian Law

Rastogi, J.

1. This is the defendant’s appeal by special leave against the judgment of the High Court of Punjab and Haryana at Chandigarh dated 28th July, 2004 and arises in the following circumstances.

2. Original plaintiffs, Darshan Singh son of Bhana, and Amriti and Udhi alias Iqbal Kaur, daughters of Bhana filed a suit for possession of the subject land in dispute. It was claimed by the plaintiffs that Bhana, son of Moti was the original owner of the subject properties in dispute. The plaintiffs along with one Gurdev Kaur were the children of aforesaid Bhana from his first wife Bhago and after the death of his wife(Bhago), Bhana was remarried to Smt. Banti but because of strained relations of Bhana and Smt. Banti, they started living separately. There was even a litigation between them. Bhana and Smt. Banti had a daughter, namely, Ajit Kaur(appellant) from the aforesaid wedlock. To settle the dispute between them, Bhana parted the suit land to Smt. Banti by way of gift for her maintenance way back in the year 1950. In furtherance thereof, mutation was also entered in favour of Smt. Banti bearing no. 3813 sanctioned on 25 th February, 1950. The aforesaid gift came to be challenged by the original plaintiff Darshan Singh in a Civil Suit No. 103/1953 for declaration under the customary law. It was claimed by him that the aforesaid gift by late Bhana in favour of Smt. Banti qua the ancestral property would not affect the reversionary rights of Darshan Singh(original plaintiff). The aforesaid civil suit filed at the instance of Darshan Singh was decreed by the learned trial Court vide judgment dated 30 th June, 1954 and it was held that the aforesaid gift by late Bhana in favour of Smt. Banti would not affect the reversionary rights of Darshan Singh and would operate only during the life time of Bhana. The Civil Appeal No. 101/1954 preferred by Banti against the aforesaid judgment and decree was dismissed by learned District Judge vide judgment dated 29th November, 1954 and the Regular Second Appeal No. 193/1955 filed at her instance(Smt. Banti) came to be dismissed by the High Court on 3rd November, 1959. It was claimed that Smt. Banti was to continue to have the rights in the property only during the life time of Bhana and was not an absolute owner. Since Bhana died on 27th March, 1973 and prior to his death, he had executed a registered will dated 5th January, 1973 whereby he bequeathed his estate in favour of plaintiffs Darshan Singh and others by excluding Smt. Banti and Smt. Ajit Kaur, original (defendant no. 1) and (defendant no. 25) appellant herein and other daughter Gurdev Kaur. In reference to the aforesaid will dated 5 th January, 1973, Civil Suit No. 15/1975 was filed by the plaintiff for possession. The appellant contested the suit and it was claimed by her that Banti was the absolute owner of the suit property. She even denied the earlier litigation between the parties whereby reversionary rights of Darshan Singh came to be upheld. The will as claimed by the plaintiffs dated 5 th January, 1973 was also contested.

11. Per contra, Ms. S. Janani, learned counsel for the respondents, while supporting the findings recorded by the first appellate Court and confirmed by the High Court in appeal submits that the subject land in dispute was mutated in the name of Smt. Banti on the basis of the oral gift and the suit which was filed by the respondents for mutation would not bind their reversionary rights on the suit land and that has been held by all the courts that the alleged oral gift has not been proved and being the concurrent finding of fact, needs no further indulgence. Learned counsel further submits that if the respondents cannot rely upon the said decree to seek possession of the land yet the findings in the suit proceedings would bind the parties. It was never the case of the appellant that the suit land was given to her mother Banti in lieu of the maintenance. On the contrary, it was pleaded that such land was given to her in lieu of service rendered and the subject land which was given to her mother Banti in lieu of maintenance has been specifically mentioned in the will dated 5 th January, 1973 of late Bhana. In the aforesaid will, late Bhana(testator) also mentioned that Smt. Banti was living in adultery and separate from him for more than 20 years and merely being in possession of the suit land will not make her an absolute owner of the property on coming in effect of the Act, 1956 and bare reading of Section 14(1) makes it clear that in order to avail the benefit of the mandate of law, the women must come in possession of the land under one of the devise mentioned therein.

14. It is a settled position of law that the mutation of a property in the revenue records are fiscal proceedings and does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation has been ordered, to pay the land revenue. At the same time, the effect of a declaratory decree to restore the property alienated to the estate of the alienor and until and unless the alienees are able to convince the court that they have no subsisting interest in the property, the heirs of the alienees would be entitled to the benefits of the property as per the law of succession. The effect of the operation of the aforesaid declaratory decree would be to restore the land in dispute to the aforesaid estate of Bhana(deceased) and the succession would be deemed to have opened on 27th March, 1973 when Bhana died. On his death, the estate left behind him including the land in dispute would devolve upon his heirs as per their entitlement and after the registered will dated 5th January, 1973 has been upheld by the High Court in RSA No. 933/1984 decided on 28 th July, 2004 and attained finality, its consequence was to follow accordingly.