REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.    4585         OF 2009 (Arising out of SLP (C) No. 3535 of 2007)

AMRIT LAL & ORS.      … APPELLANTS

Versus

MAHARANI & ORS.            … RESPONDENTS

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. The  core  question  involved  in  this  appeal,  which  arises  out  of  a  

judgment and order dated 15th November 2006 passed by a learned single  

judge  of  the  High  Court  of  Judicature  at  Allahabad,  Lucknow  Bench,  

Lucknow in Writ Petition No. 8555 of 1987, is as to whether a purported  

patta granted in favour of the appellant’s predecessor herein could enure to  

the benefit of the joint family or not.

3. The relationship between the parties is not in dispute.  It is also not in  

dispute  that  the  family  was governed by the  Mitakshra  School  of  Hindu  

Law.   

One Baldi was the original owner of the property.  He left behind two  

sons, namely, Shankar and Ragghu.  After his death, the name of Shankar  

was recorded in revenue records.  Ragghu died leaving behind his widow  

Smt. Sukhraja.   

4. An  objection  was  filed  by  Sukhraja  under  Section  9(A)(2)  of  the  

Consolidation of Holding Act before the Consolidation Officer, which was  

allowed by reason of order dated 22nd January, 1971, holding:

“Therefore, on the basis of the evidence available  on record, Ragghu was the son of late Baldi and  real brother of Shankar.  It is proved that disputed  property is the ancestral property since the lifetime  of  Baldi  and  after  the  demise  of  Ragghu,  possession of Sukhraja, widow of Ragghu is also  proved.   

Accordingly, issues are decided.

Therefore,  it  is  ordered  that  name  of  Sukhraja,  widow  of  Ragghu  is  recorded  as  co- khatedar  in Khata  No. 908 and name of Umrao,  Mata  Badal,  Ram  Dulare,  son  of  Shankar  were  recorded in place of deceased Shankar.  Name of  Hira Lal, son of Bharose be deleted from Gata No.  3961/3/53-0.  Area be recorded by AP.  Partition  of  the  numberan  within  the  consolidation  be  recorded as under:

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1. Sukhraja, widow of Ragghu ½ portion

2. Umrao, S/o Shankar 1/6 share  

3. Mata Badal, S/o Shankar 1/6th share

4. Ram Dulare, S/o Shankar, 1/6th share”

5. Being aggrieved by the said order dated 22nd January, 1971, Umrao,  

Mata Badal and Ram Dulare filed an appeal before the Settlement Officer,  

Consolidation, Rai Bareli on 12th February, 1971, which was allowed by him  

by its judgment and order dated 26th October, 1971, holding:

“It was the duty of the appellant to prove beyond  doubt that either the land was inherited by Shankar  from Baldi or alternatively he was to prove that the  land was acquired by Shankar in a representative  capacity.  The appellants have failed to prove that  Shankar’s name was recorded in the papers as heir  to Baldi because if the Land was inherited not only  Shankar  but  Ragghu’s  name  should  also  be  recorded.  Alternatively he was to prove that the  Land was acquired by Shankar out of the common  funds of joint Hindu Family.  But no Nazarana etc.  was to be charged by the Zamindar and therefore,  the  plea  is  also  untenable,  according  to  Sheetal  witness  Shankar  acquired  the  property  in  the  Lifetime of his father Baldi.  The recorded tenure  holder has however stated on oath that the pedigree  is wrong but the pedigree has been proved beyond  doubt  and there  is  no parallel  pedigree  to  prove  that  the  pedigree  produced  by  the  appellants  is  wrong.  In the circumstances I am of the view that  the pedigree is correct.

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Smt. Shukharana (sic Sukhraja) herself says  that  the  lease  deed  was  executed  in  favour  of  Shankar, in the circumstances it cannot be legally  presumed that the land was acquired by Shankar in  a  representative  capacity  or  that  the  land  was  ancestral.   The  Consolidation  Officer  has,  therefore, decreed the claims of Srimati Sukharana  (sic Sukhraja) against the facts on file.

The appeal is accordingly allowed, the order  of the Consolidation Officer is set aside and it is  hereby ordered that after expunction of the name  of Shankar deceased, names of Umrao, Mata Badal  and  Ram  Dulare  sons  of  Shankar  shall  remain  recorded on Khata No. 908 of village Kandrawan  with equal shares.  Name of Srimati Sukharana (sic  Sukhraja) of Ragghu shall not be recorded in any  capacity.  Her claim is hereby dismissed.”

6. Revision filed thereagainst by Sukhraja was dismissed by the Deputy  

Director  of  Consolidation,  Rae  Bareli  by  an  order  dated  25th September  

1972.   

7. Feeling aggrieved thereby, a writ petition marked as Writ Petition No.  

190 of 1973 came to be filed by Sukhraja.   

8. The High Court by its order dated 10th July 1979 remanded the matter  

to the Deputy Director of Consolidation for further evidences.  The Deputy  

Director of Consolidation after taking further evidence again dismissed the  

Revision Application by an order dated 19th May, 1987.

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9. Aggrieved by and dissatisfied therewith, Sukhraja filed a Writ Petition  

marked  as  Writ  Petition  No.  8555  of  1987  before  the  High  Court  of  

Judicature  at  Allahabad  at  Lucknow Bench,  which  has  been allowed  by  

reason of the impugned judgment.    

10. During the pendency of the writ petition before the High Court, the  

original petitioner Sukhraja and the respondents 1 to 3 died and they have  

been substituted by their legal heirs and representatives.  

11. The appellants are, thus, before us.

12. Mr.  Dilip  Pandey,  learned  counsel  appearing  on  behalf  of  the  

appellants, contended that in terms of the provisions of the Oudh Rent Act,  

1886, after the death of Baldi, the properties vested in the then Zamindar of  

the village who granted fresh lease of the lands in question in favour of  

Shankar and, thus, the same became his self acquired property and ceased to  

be joint family property.   

The  learned  counsel  furthermore  has  drawn  our  attention  to  a  

purported admission made on behalf of the respondents herein to contend  

that a partition by and between the parties having been admitted and Khata  

No. 908 which is the subject matter of the present controversy being not the  

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subject matter of the partition, the High Court committed a serious error in  

passing the impugned judgment.   

13. Mr. Shrish Kumar Misra, learned counsel appearing on behalf of the  

respondents, on the other hand, would support the impugned judgment.  

14. Before  adverting  to  the  question  involved,  we may notice  that  the  

matter was heard by another Bench of this Court.  The appellants were asked  

to file the deed of lease of the disputed property.  On the plea that the said  

deed of lease could not be traced out because the house of the appellants had  

fallen down due to rain and valuable things including the said deed was  

destroyed, the same has not been produced.  Such a plea had not been taken  

earlier.  The said deed of lease was directed to be produced as the same had  

not been produced before the courts below.  It was absolutely necessary for  

proving his case.

We had pointedly asked Shri Pandey to show from the records as to  

when the said lease was granted and what was the date of partition.  The  

learned counsel failed to answer any of the queries.  There is also nothing on  

record to show that the provisions of the Oudh Rent Act would apply.  If the  

Khata No. 908 was the subject matter of an occupancy tenancy, there cannot  

be any doubt whatsoever that the property would be heritable.  Once it is  

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held  that  the  property  belonged  to  mitakshra  coparcenary  family,  Baldi  

cannot be said to have an exclusive right thereover and, thus, the question of  

the said property having vested again to the Zamindar of the Village upon  

his death did not and could not arise.  The rule of succession governing the  

Mitakshra School of Hindu Law would operate.  

15. Mr. Pandey has relied upon a decision of the Board of Revenue in  

Bijai Sunderji  v.  Hari Prasad & Ors. reported in 1942 Revenue Decisions  

212.   In that  case,  the  name of Sarbjit  alone was entered in  the patwari  

papers although the name of the plaintiffs had been shown as marfat in the  

column for tenant-in-chief and in the remarks column and in certain other  

years  they were shown as sub-tenants.   It  is  in the fact  of that  case and  

keeping in view the provisions of Section 48 of the Oudh Rent Act, 1886  

vis-à-vis Section 3(10) thereof, it was held that when a patta is granted in  

favour of one member of the family, the same cannot be treated to be a grant  

made in favour of the entire joint family.   

It is not a case where the patta was granted in favour of one of the  

members of the family.  Admittedly, it belonged to a family governed by  

Mitakshra School of Hindu Law.  If for the purpose of collection of revenue  

or otherwise, the name of Shankar was entered into in the revenue records  

after  the death of  Baldi,  but  the  same would not  mean that  the  property  

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vested in him irrespective of the share of the other co-owners.  A mitakshra  

coparcenary being a separate entity; once the property vested in it, the same  

would continue to vest  in it  irrespective of the death of one or the other  

coparceners  subject  of  course  to  the  application  of  rule  of  survivorship.  

Furthermore, upon coming into force of the U.P. Zamindari Abolition and  

Land Reforms Act, 1951, the right, title and interest of the Zamindar vested  

in the State.   The matter  relating to succession and inheritance would be  

governed by the provisions of the Hindu Succession Act, 1956.  

In that view of the matter, the case  Bijai Sunderji (supra) cannot be  

said to have any application whatsoever.  

16. In any view of the matter as has rightly been held by the High Court,  

there exists a presumption with regard to the continuance of the joint family.  

It was for the appellants to establish that the joint family disrupted prior to  

the said purported grant.  It has been found as of fact that there has been no  

pleading far less any proof that Baldi was in possession of the land pursuant  

to any patta granted by the Zamindar in his individual capacity.  On the other  

hand,  the  records  clearly  pointed  out  that  the  Khata  in  question  was  an  

ancestral property recorded in the name of late Baldi.   

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17. For the reasons aforementioned, there is no merit in this appeal. It is  

dismissed accordingly with costs.  Counsel’s fee assessed at Rs.10,000/-.

.……………………………….J. [S.B. Sinha]

...…………………………..…J. [Deepak Verma]

New Delhi; July 21, 2009

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