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PETITIONER: BALWANT SINGH & ANR. ETC.

       Vs.

RESPONDENT: DAULAT SINGH (DEAD) BY L.RS. &ORS.

DATE OF JUDGMENT:       07/07/1997

BENCH: A.S. ANAND, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT: WITH CIVIL APPEAL NO. 293 OF 1984                   THE 7TH DAY OF JULY 1997 Present:                Hon’ble Dr. Justice A.S. Anand                Hon’ble Mr. Justice K. Venkataswami Mr. S.B.  Sanyal, Sr.  Advocate, Ms. Meera Agarwal, Mr. R.C. Mishra, Advocates  for M/s  Agarwal &  Mishra &  Co. and Mr. R.S. Sodhi Advocate with him for the appellants Mr.  Shubodh  Markandeya,  Mr.  Ajay  Singh,  Ms.  Meenakshi Aggarwal Ms. Chitra Markandeya, Mr. P.D. Sharma and Mr. Alok Sharma, Advocates for the respondents.                       J U D G M E N T      The following Judgment of the Court was delivered:                           W I T H                 CIVIL APPEAL NO. 293 OF 1984                       J U D G M E N T K. Venkataswami. J.      Both these  appeals are  preferred against the judgment and decree  of the  Punjab and Haryana High Court R.S.A. No. 25 of 1976 dated 29.11.1983.      The facts are given below.      The defendants  in Suit No. 158 of 1973 on the filed of the court  of Sub-Judge,  First Class,  Gurdaspur,  are  the appellants in  these two  appeals. The plaintiffs-contesting respondents  herein   preferred  the  said  suit  under  the following circumstances.      One Khushal  Singh was  the owner  of an extent of land measuring 270  kanals 9 marlas in village Gandhian, Tehsil & District Gurdaspur.  The above-said land after consolidation was found  measuring only  264 kanals and 7 marlas. The suit property is  the said extent of 264 kanals and 7 marlas. The original owner,  Khushal Singh,  died issueless on 5.9.1950. Subsequently, the  suit lands  were mutated  in the name one Durga Devi widow of deceased Khushal Singh on 19.7.1952. The said Durga Devi purporting to fulfil her husband’s desire of taking in  adoption one Balwant Singh and Kartar Singh (both minors) expressed her desire to mutate the land in favour of the said minors Balwant Singh and Kartar Singh. Accordingly, the mutation  was effected  on 19.7.1954  under Mutation No. 1311.

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    One of the reversioners of Khushal Singh, y, Chet Singh filed a  suit bearing no. 194 of 1995 in the court of Senior Sub-Judge, Gurdaspur  praying for  a  declaration  that  the mutation of ‘gift-deed’ dated 19.7.1954 would not affect the reversionary rights  of the  plaintiff after  the  death  or after the  re-marriage of  Durga Devi.  In the said suit the validity of  the adoption  of Balwant Singh and Kartar Singh was one  of the  issues and  the trial  court found that the alleged adoption  was not  proved and the mutation would not bind the  reversionary rights  of the plaintiff in that suit after the  death of  the  widow  Durga  Devi  or  after  her marriage according  to custom.  The defendants in that suit, the predecessor  in title  of the appellants herein (some of them), challenged  the judgment  and the decree of the trial court by  filing Civil  Appeal No.  88 of  1956  before  the District Judge,  Gurdaspur. That appeal was dismissed by the appellate court on 17.8.1957 by confirming the decree of the trial court.  No second  appeal was  preferred against  that appellate  court’s  judgment.  After  the  judgment  of  the appellate court,  the suit  lands were  again mutated  under Mutation No. 1348 in favour of Durga Devi.      After the  latest Mutation No. 1348 the said Durga Devi claiming to be the absolute owner of the suit property after the coming into force of the Hindu Succession Act, 1956, had executed  four   separate  gift-deeds   in  favour   of  the appellants/their predecessors in title. Those gift-deed were executed on  1.8.70, 9.9.1970  and 7.10.1970.  Thereafter on 24.4.1973 the said Durga Devi died.      After  the   death  of  Durga  Devi,  the  reversioners including the  legal  representative  of  Chet  Singh,  (the plaintiff in  O.S. No. 194 of 1955) filed the aforesaid suit bearing no.  158 of  1973 in  the court of Senior Sub-Judge, Gurdaspur, for  recovery of  possession of  the  suit  land, substantially on  the basis of the decree in Suit No. 194 of 1955. It  is stated  that the  earlier  suit  was  filed  as representative suit  for the benefit of all the reversioners and as heirs of Khushal Singh who would be alive at the time of death of Durga Devi.      In the  pleading, it was stated that the mutation after the judgment  of the  appellate court in Civil Appeal No. 88 of 1956 (supra) reverting the land back to Durga Devi was of no consequence  as the same was based on a misreading of the findings of  the trial  and appellate courts. Likewise, they also pleaded  that the  gift-deeds executed  by  Durga  Devi asserting that  she was  the absolute owner of the property, will not confer any title on the donees beyond the life time of Durga  Devi in  view of the judgment in the earlier court proceedings. It  was the  contention of the plaintiffs. (the contesting respondents  herein), that  Durga Devi was not in possession and enjoyment of the suit lands in her own rights on the  date of  coming into  force of Hindu Succession Act, 1956 which  alone would  enable her  to make  alienation  as absolute owner. It was also the contention of the plaintiffs that the  decision in  the earlier  court  proceeding  would operate as n against the defendants, appellants herein.      The defendants  in the present suit, appellants herein, contesting the  suit  pleaded  that  in  the  earlier  court proceedings the  adoption having  been  found as not proved, the first  mutation, namely,  Mutation No. 1311 will have to be ignored  an no  title was  passed on  to the adoptees. In other words,  it was pleaded that Durga Devi continued to be owner and in possession of the suit property notwithstanding Mutation No.  1311 dated  19.7.1954. In  any  case,  it  was further  pleaded  that  by  virtue  of  subsequent  mutation bearing no.  1348, Durga  Devi was  put  in  possession  and

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enjoyment of  the suit  lands and,  therefore, she has every right to execute the gift-deeds challenged in the suit.      The trial  court on  the basis  of the pleadings framed eleven issues  and on  the basis  of the  oral  evidence  an documents filed  before it  and on  appreciation of pleading found that  in view  of the  decree  in  the  earlier  court proceedings the  alienation by way of mutation gift by Durga Devi would  not be binding on the reversionary rights of the plaintiffs after  her  death.  The  decree  in  the  earlier proceedings confirmed  by the  appellate court operates as n against the  defendants in the suit. As a result of mutation on  19.7.1954  under  Mutation  No.  1311,  Durga  Devi  was divested  of   her  title   to   the   suit   property   and consequentially divested  of possession  also. Therefore, on the date  of coming  into force  of the Hindu Succession Act the widow  was not in possession of suit lands to enable her to validly  execute the  deeds in  question. The trial court also held  that the subsequent mutation bearing no. 1348 was no  misreading   of  the   earlier  court  proceedings  and, therefore, will  not come  to the  aid of the defendants. On the basis  of these  findings, the  trial court  decreed the suit on 14.2.1975.      The  defendants  (appellants  herein)  preferred  Civil Appeal No.  39/83 of  1975 in the Court of Second Additional District  Judge,   Gurdaspur,   who,   by   judgment   dated 11.12.1975,    dismissed the appeal confirming the decree of the trial court.      The  High  Court  in  Second  Appeal  No.  25  of  1976 considered only  one question  whether  Durga  Devi  was  in possession of  the gifted  land when   the  Hindu Succession Act, 1956  came into  force and  found that  she was  not in possession. Accordingly, the second appeal was dismissed.      It is  under these  circumstance these  two appeals are filed against the said second appeal.      Mr. Sanyal,  learned senior  counsel appearing  for the appellants in  C.A. No.  293/84 before  taking us  into  the merits of  the case,  prayed for order in I.As. Nos. 3-9/96. Straightaway, we  can  order  I.A.  No.  6/96  for  deleting respondent No.  14 as  he, according to the counsel is not a contesting respondent. So far as I.A. No. 4/96 is concerned, it relates  to setting  aside the  abatement of  appeal as a result of  death of one Makan Singh, appellant no. 4 in C.A. No. 293/84.  There is  an inordinate  delay  in  filing  the applications for  bringing the  legal representative  of the deceased,   4th   appellant.   Therefore   application   for condonation of  delay and  for setting  aside the  abatement were filed  for bringing  on record the legal representative of the deceased.      The  learned   counsel  appearing  for  the  contesting respondent,   Mr.    Markandeya,   seriously   opposed   the application for bringing on record the legal representatives of the  deceased 4th appellant and he further contended that in view  of the  death of  4th appellant  and the failure to bring the  legal representative on record in time, the whole appeal is  abated and  on that short ground both the appeals are liable to be dismissed as the suit was one.      In reply,  Mr. Sanyal  submitted that  in the  event of this court not willing to condone the delay and consequently set aside  the abatement,  the appeal  as a  whole will  not stand abated,  but only  the properties dealt with under the gift deed  dated 9.9.70  executed in  favour of  Makan Singh alone will  be affected  and to  that extent, the appeal may stand abated.      We have  considered the  rival submission. We find from the facts  that the deceased Makan Singh alone was the donee

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of specific items of properties under gift deed dated 9.9.70 and  this   possession  and   enjoyment  of  properties  and dependent of  others. Therefore,  his death  would not abate the whole  of  the  appeal.  In  our  view,  the  decree  is divisible being  a decree  in favour  of serval reversioners against several  independent donees  having specified shares in indentifiable  properties. We  are not satisfied with the reason given  for the inordinate delay of more than 25 years and, therefore,  the appeal  stands  abated  in  respect  of properties given  to the deceased-Makan Singh under the gift deed dated 9.9.70.      Now coming  to the  merits, though,  Mr. Sanyal  argued extensively concerning  various points  said to arise out of the judgments  of the  trial court, appellate court and High Court, were  are of  the view  that since the High Court has considered and  decided only  one  point  viz.  whether  the widow, Durga  Devi died, possessed by the suit properties in her own rights when the Hindu Succession Act, 1956 came into force, that alone need be considered by us. If the answer to the question  is in  the  affirmative,  the  appellants  are entitled to  succeed. Otherwise,  the appeals  are liable to the dismissed on merits.      On the  point of  possession, it is the argument of Mr. Sanyal, learned  Senior Counsel  for the appellants that all the three  courts below  went wrong  in assuming  that as  a result of  mutation bearing  no. 1311  dated 19.7.54,  Durga Devi divested  herself of  her title  and possession  to the suit property  and from  that date  the title  in  the  suit property and  possession thereof  vested with the persons in whose favour  mutation was  effected, namely,  Balwant Singh and Kartar Singh. The legal effect of mutation, according to the learned  counsel, has  been clearly  laid down  by  this court in  a recent  judgment in  Smt. Sawarni vs. Smt. Inder Kaur &  Other (1996 (7) JT SC 580). According to the learned counsel, mutation of the property in the revenue record will not extinguish  title nor  has it  any presumptive  value on title. Therefore,  according  to  the  learned  counsel,  by mutation No.  1311, the  widow has  not been divested of her title in the properties and consequently she continued to be in possession  and enjoyment  of the  property.  She  became absolute owner of the properties on the coming into force of the Hindu Succession Act, 1956. In any case, learned counsel further argued  that after  the decree in suit no. 194/55 as confirmed by the appellate court, there was a re-mutation in favour of  the widow  under  mutation  no.  1348.  That  re- mutation  having   been  allowed   to  remain  unchallenged, whatever the effect of mutation no. 1311, have been reversed by the  latter mutation  no. 1348.  On the  basis  of  these arguments, learned counsel submitted that the appeals are to be allowed,  if not  in  full,  except  to  the  extent  the properties covered  by the  gift deed  in  favour  of  Makan Singh.      Mr. R.S.  Sodhi, learned counsel for appellants in C.A. No. 2295/84, adopted Mr. Sanyal’s arguments.      Mr.  Markandeya,  learned  counsel  appearing  for  the contesting respondents, submitted that the courts below were right  in  holding  that  the  widow  was  divested  of  her possession and enjoyment from the date of first mutation viz 19.7.54 and  the second  re-mutation was not legal and valid in law.      We have  considered the rival submissions and we are of the view that Mr. Sanyal is right in his contention that the courts were  not correct  in assuming  that as  a result  of mutation no.  1311 dated  19.7.54, Durga Devi lost her title from that  date and possession also was given to the persons

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in whose  favour mutation  was effected.  In Smt.  Sawarni’s case, Pattanaik  J., speaking for the Bench has clearly held as follows:-      "Mutation  of  a  property  in  the      revenue record  does not  create or      extinguish title  nor  has  it  nay      presumptive value on title. It only      enables the  person in whose favour      mutation is ordered to pay the land      revenue in  question.  The  learned      Additional   District   Judge   was      wholly in  error  in  coming  to  a      conclusion that  mutation in favour      of Inder  Kaur conveys title in her      favour. This  erroneous  conclusion      has vitiated the entire judgment."      Applying the  above legal  position, we  hold that  the widow has  not divested  herself of  the title  in the  suit property as a result of mutation no. 1311 dated 19.7.54. The assumption on  the part of the courts below that as a result of the mutation, the widow divested herself of the title and possession was  wrong. If  that be  so legally,  she was  in possession on  the date  of coming  into force  of the Hindu Succession Act  and she  as a  full owner had every right to deal with the suit properties in any manner she desired.      It is  relevant to  point out that it is only the trial court that  has dealt  with the matter elaborately on facts. The first  appellate court  has dealt  with the  only  point regarding validity  and the genuineness of the adoption. The High Court, as pointed out earlier, dealt with only with the question of  possession. Therefore, we have to look into the trial court  judgment for  finding on facts. The trial court on the fact of possession observed as follows:      "Durgi  continued   to  live   with      Balwant Singh  and Kartar Singh and      the necessary  conclusion that must      be  drawn  is  that  hence  forward      after  she   made  the   gift   the      property went to the minors Balwant      Singh and  Kartar Singh  and if  at      all she  continued living  with the      minor and managing the property, if      at all,  the same  must be  only on      behalf of the minors and not in her      own right."      On the  question of  the consequences  of mutation, the trial court observed as follows:-      "I hold  that  the  transaction  in      question i.e.  mutation no. 1311 of      19.7.54 was  a gift  and the effect      of the judgments and decree in suit      no.  194   of  1955   is  that  the      alienation  in  favour  of  Balwant      Singh and Kartar Singh continued to      be valid  till the  death of  Durga      Devi and  thereafter in view of the      decree, cannot  have any  effect as      against the reversionary rights."      So far  as re-mutation  in  favour  of  Durga  Devi  is concerned, the trial court observed as follows:-      "The land had been again mutated in      the name of Durga Devi and there is      no evidence  that in  fact  Balwant      Singh and  Kartar Singh  reconveyed      the property or treated the gift as

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    cancelled, thus  the mere  entry in      the revenue  records of the name of      Durga  Devi  won’t  make  her  full      owner."      At the  risk of repetition, we point out that the first appellate court  and the  High Court  have not discussed the possession aspect  in  the  light  of  the  above  extracted finding of the trial court.      In the  circumstance, we  are of  the opinion  that the trial court erred in assuming that by Mutation No. 1311, the widow divested  herself of the title to the suit property by treating the  mutation as  gift and conveying title. Further it has not applied uniform test in appreciating the mutation entries. In one place, the trial court has accepted mutation entries in  toto even  for conveying  title but in the other place, the  trial  court  was  no  prepared  to  accept  the mutation entries by expressing some doubt about it. It is to be state  that this  court in  Gurbaksh Singh v. Nikka Singh (1963 Supp.  (1) SCR  55) has  held that entries in mutation must be taken as correct unless the contrary is established. Here  the   trial  court  has  shifted  the  burden  on  the appellants to  prove the entries as correct. The trial court has failed  to apply  the same yardstick that it has applied to Mutation  No. 1311 to Mutation No. 1348. Assuming for the sake of  arguments, that  Mutation No. 1348 was on the basis of  misunderstanding   of  the   judgment  in   the  earlier proceedings, that  having been  allowed to  remain unaltered without challenge, cannot be brushed aside as worth nothing. Anybody affected  by such entries should have challenged the same as  provide under  the law. In the absence of that, the entries cannot  be ignored.  Be that  as  it  may,  we  have already noticed  that mutation  entries  do  not  convey  or extinguish any title and those entries are relevant only for the purpose  of collection  of land  revenue. That being the position. Mutation No. 1311 cannot be construed as conveying title in  favour  of  Balwant  Singh  and  Kartar  Singh  or extinguishing the  title of Durga Devi in the suit property. Consequently, the  title to  the suit property always vested with the widow notwithstanding the Mutation No. 1311. Viewed in this  manner, the  decision in  the  earlier  proceedings namely, decree  in Suit No. 194/55 even assuming operates as res judicata,  will not  be of  any avail  to the contesting respondents, (plaintiffs)  in the  present suit  because the reliefs sought  in the  prior proceeding  was for  a  simple declaration that  the ‘mutation  gift’  of  1954  would  not affect the  reversionary rights  of reversioners. As noticed already, mutation  entires will  not  convey  or  extinguish title in  the property.  Therefore, under  Mutation No. 1311 neither Balwant  Singh and  Kartar Singh  acquired title nor Durga Devi’s  title in  the property  got extinguished.  The earlier court proceedings did not and could not convey title in favour  of reversioner,  as the  relief sought  was for a simple declaration  as mentioned  above. If no title as such was passed on under the alleged ‘mutation gift’, the limited right of the widow in the property would get enlarged on the coming into force of the Hindu Succession Act, 1956.      The  widow   must  be   deemed  to  have  continued  in possessing and  she became absolute owner on the coming into force of  the Hindu  Succession Act, 1956. On that view, the alienations made  by  her  and  challenged  in  the  present litigation, cannot be said to be without authority.      We may also point out that the trial court was prepared to accept  that factually possession and enjoyment were with Durga Devi,  but it  held that such possession and enjoyment as one  on behalf of the minors in whose favour the mutation

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was earlier  effected on  19.7.54. In view of our conclusion that by mutation the widow has not divested herself of title and possession,  the erroneous  conclusion  reached  by  the court below have to be set aside.      In the  result, the appeal are allowed except regarding the properties  gifted to  Makan Singh under gift deed dated 9.9.70 and  the properties  dealt with  under this gift deed will go to the plaintiffs/reversioner as per the judgment of the trial  court confirmed  by the  appellate court  and the High Court. There will be no order as to costs.