Supreme Court of India
SMT. SAWARNIversusSMT. INDER KAUR AND ORS.
- Citation
- 1996 INSC 932
- Decided
- 23 August 1996
- Disposal
- Appeal(s) allowed
- Bench
- K RAMASWAMY
Holding
The appellate court erred; mutation does not convey title, the trial court’s finding that Roori is the second daughter stands, and the will and succession certificate under the Indian Succession Act, 1925, must be given effect.
Summary
The plaintiff, Smt. Sawarni, and her sister Roori claimed to be the daughters of the deceased landowner Gurbax Singh and sought a declaration of title and possession of the disputed land. A will executed by the widow Gurdip Kaur in favour of the two daughters and a succession certificate issued under the Indian Succession Act, 1925, supported their claim. Defendants 1‑4 alleged they purchased the land from Inder Kaur, who claimed to be another daughter of Gurbax Singh, relying on a mutation entry in revenue records. The trial court held that Roori, not Inder Kaur, was the second daughter and that mutation does not confer title, thereby declaring the defendants trespassers. The first appellate court reversed this decree without overturning the trial court’s factual finding, basing its decision on the mutation entry, and the High Court dismissed the appeal in limine. The Supreme Court held that the appellate court erred in ignoring the trial court’s finding, that mutation does not create title, and that the will and succession certificate cannot be disregarded, thus allowing the appeal and restoring the trial court’s decree.
Issues considered
- Whether a mutation entry in revenue records creates or confers title to land.
- Whether the appellate court can reverse a trial court’s factual finding without setting it aside.
- Whether the will executed by the widow and the succession certificate under the Indian Succession Act, 1925, determine the rightful heirs.
- Whether the plaintiff could sue for the half‑share of her sister Roori.
- Whether defendants 1‑4 are bona fide purchasers of the disputed land.
Legislation cited
Subjects
successionmutationtitlewillinheritancecivil proceduredeclaration of titleproperty disputebona fide purchaser
Judgment
SMT. SAWARNI A
v.
SMT. INDER KAUR AND ORS.
AUGUST 23, 1996
B
(K. RAMASWAMY AND G.B. PATTANAIK, JJ.)
CODE OF CIVIL PROCEDURE, 1908 :
Suit for declaration of title : Plaintiff claimed herself and her sister to
be daughters of the owner of land in dispute-Claim also based on Will c
executed by their mother and the succession certificate issued by Court-Al-
leged that defendants 1 to 4 trespassers--Defendants 1 to 4 claimed to have
bonafide purchased land from the daughter of owner's brother, alleging to be
second d0:ughter of owner and also having mlltation entry in her name-T1ial
Court allowing Suit-Holding Plaintiff and her sister to be daughters of the D
owner and defendants to be trespassers-First Appellate Court reversing
decree based on mutation entry-High Court dismissing appeal in limine-On
Appeal, Held-First appellate Court could not have reversed decree of Trial
Judge without setting aside finding that plaintiff's sister was the second
daughter of owner-Mutation-Does not convey title--Relevant only for pur-
poses of land revenue. E
Succession Act, 1925-Succession ce1tificate-lssued on basis of
Will-Not challenged-Held-Cannot be ignored.
Appellant-Plaintiff filed a suit for declaration of title and possession F
of certain land. It was the admitted fact that the owner of the suit land
died, leaving behind his widow, K, and two daughters one of whom was S.
The plaintiff alleged the suit land was willed by K in favour of S and R.
After the death of K, on the basis of the Will, a Succession Certificate was
issued by a Civil Court in favour of the plaintiff and R, who were entitled G
to half the share each in the suit property. It was alleged that R was not
beard of but defendant Nos. 8 & 9 were her sons and defendant No. 7 her
husband, who were together entitled to R's half share in the property. The
plaintiff alleged that 'I', defendant No. S forcibly occupied a portion of the
disputed property and subsequently wrongfully sold it to defendant Nos.
1 to 4, who were trespassers. H
165
166 SUPREME COURT REPORTS [1996) SUPP. 5 S.C.R.
A The Trial Judge, while allowing the suit, held the Plaintiff and R to
be the daughters of G, on the basis of the Will and Succession Certificate
issued umler the Indian Succession Act, 1925. He further held that 'I' was
the daughter of the brother of G and not of G. Furthermore, since 'I' did
not have anY. title, she could not convey a valid iitle to defendant Nos. 1 to
4, who were trespassers.
B
Appeals were filed before the First Appellate Court by I, claiming
to be the daughter of G, and by the defendants 1 to 4 who claimed to be
bonafide purchasers of Suit land from 'I'. The First Appellate Court,
without setting aside the finding of fact of the Trial Court that R and not
C 'I' was the second daughter, reversed the decree of the trial judge. It held
that since mutation in revenue records was in the name of 'I', she was
entitled to sell her share of the land and consequently, Defendant Nos. 1
to 4 derived a valid title from 'I'. The High Court dismissed the Second
Appeal in limine, against which Order the present Appeal by Special Leave
D was filed by the Plaintiff.
The Appellant contended that the first appellate court erred in
concluding; that the mutation entry in favour of 'I' could convey valid title
to her, which she could consequently convey to defendant Nos. 1 to 4. It
ought to have considered the Will executed by K in favour of the plaintiff
E and R, and. the succession certificate issued by the civil court on that basis
under the Indian Succession Act. It was also contended that the first
appellate <:ourt could not revc!rse the decree of the Trial Judge without
setting aside the finding of fad of the Trial Judge that the Plaintiff and R
(
were the two daughters of G. It was also contended that the High Court
committed an error of law in dismissing the Appeal in limine.
F
Allowing the Appeal, this Court
HELD : 1.1. The judgment of the lower appellate court reversing the
decree of t.he trial judge, without setting aside the finding of fact of the
G Trial Judge that R was the second daughter of G, and the judgment of the
High Court dismissing the second appeal in limine, are unsustainable in
law. [170-C-E; 171-F]
1.2. The first appellate court has erred in concluding that 'I' had a
valid title :in the property of G, without coming to a positive finding that
H 'I' and not R was the second daughter of G, since the main question that
SAWARNiv. INDERKAUR[PATIANAIK,J.] 167
arose for consideration before the trial court was whether R or 'I' was the A
daughter of G. [171-F:H]
1.3. Non-consideration by first appellate court of oral evidence led
by the parties before the trial court as to the second daughter of G vitiates
its ultimate conclusion on the question whether R or 'I' was the daughter
of G. [172-<:;-DJ B
1.4. The first appellate court erred in holding that the Plaintiff could
not have filed the suit in question, claiming half interest for herself and
claiming half interest in favour of husband and sons of R. [171-C-D]
2. Mutation of a property in revenue record does not create or
c
extinguish title nor does it have any presumptive value on title. It only
ena_bles a person in whose favour mutation is ordered, to pay the land
revenue in question. The first appellate Court has erred in concluding that
mutation in favour of 'I' conveys title in her favour. This erroneous
conclusion has vitiated the entire judgment. [172-A-B] D
3.1. The first appellate court has committed a serious error of law
in not considering the Will drawn in favour of the Plaintiff and R, and the
succession certificate issued by a Civil Court on that basis under the
Succession Act, 1925, which conclude the issue in favour of the Plaintiff.
Rights flowing from the Will and the succession certificate cannot be E
ignored, especially when no attempt has been made by defendant nos. 1 to
4 to annul the certificate on the grounds available under the Act. [172-D-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10987 of
~. F
From the Judgment and Order dated 22.11.94 of the Punjab &
Haryana High Court in R.S.A. No. 1253 of 1994.
A.S. Sohal and Sanjeev Malhotra for the Appellant.
G
Seeraj Bagga, Ms. S. Bagga and Ms. Tanuj Bagga and C.S. Ashri for
the Respondents.
The Judgment of the Court was delivered by
PATIANAIK, J. Leave granted. H
168 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A Thi:; appeal by special leave is by the plaintiff against the judgment
and decree of the High Court of Punjab and Haryana in Regular Secpnd
Appeal No. 1253 of 1994 dismissing the second appeal in limine, thereby
confirming the judgment and decree of the Additional District Judge in
Case No. 66 of 1986.
B
The plaintiff filed the suit for declaration of title and possession over
the disputed land. It was alleged in the plaint that one Gurbax Singh was
the admitted owner of the land in question and he died leaving behind his
widow Gurdip Kaur and daughters Swami, the plaintiff, and Roori @
Kirpal Kaur. Said Gurbax Singh purchased the land in question from one
C Dhara Singh under a registered sale deed dated 5th September, 1958.
Widow Gurdip Kaur died on 14th April, 1968 and on her death plaintiff
and Roori succeeded to the disputed land in question. Gurdip Kaur also
had executed a Will on 29th February, 1968 in favour of her two daughters
the plaintiff and Roori. Plaintiff and Roori had obtained a succession
D certificate claiming to be the legal heirs of Gurdip Kaur from the Civil
Court on 4th April, 1975. Said Roori was not heard of and did not claim
any interest in the disputed property, but defendant Nos. 8 and 9 are the
sons of said Roori and defendant No. 7 is her husband and, therefore, in
the property of Gurbax Singh, plaintiff as well defendant Nos. 7 to 9 are
E the successors in interest and are entitled to share half and half. It was also
alleged that defendant Nos. S and 6 without having any interest in the
property forcibly occupied a portion of the disputed property taking ad-
vantage of the absence of plaintiff from the suit village and, therefore, the
plaintiff filed the suit for the relief as already stated. It was also averred in
F the plaint that defendant No. 1 claimed to have purchased the property
from defendant No. 5 - lnder Kaur and said defendant No. 5 claiming
herself to be one of the daughters of Gurbax Singh had executed the sale
deed in question. Plaintiff contended that defendant No. 5 is the daughter
of Harnam Singh brother of Gurbax Singh and not daughter of Gurbax
Singh as alleged and, therefore, she had no title to the property to pass on
G in favour of defendant No. 1 under the registered sale deed in question.
Defendant Nos. 5 and 6 in their written statement though admitted
plaintiff to be one of the daughters of Gurbax Singh, but pleaded that the
other daughter of Gurbax Singh is Inder Kaur, the defendant No. 5 and
H Roori @ Kirpal Kaur was not the daughter of Gurbax Singh. The execution
SAWARNlv. INDERKAUR[PATIANAlK,J.) 169
of Will by Gurdip Kaur, widow of Gurbax Singh was also denied and it was A
averred that the said Will is a forged and fictitious document. The defen-
dants also denied the factum of obtaining a succession certificate by the
plaintiff and said Roori. It was thus contended that since Inder Kaur had
half share in the disputed property being daughter of Gurbax Singh, she
executed the sale deed in favour of defendant Nos. 1 to 4 and defendant B
No. 6 on receipt of valuable consideration. Thus, the possession of defen-
dant Nos. 5 and 6 or defendant Nos. 1 to 4 is that of a true owner and they
cannot be held to be trespassers. Defendant Nos. 1 to 4 filed a separate
written statement and took the same stand as that of defendant Nos. 5 and
6. It was also averred in the written statement that the land in question had
been mutated in· favour of plaintiff and Inder Kaur which establishes the C
"''' rightful ownership of defendant No. 5. Defendant Nos. 7 to 9 filed a written
statement admitting the plaintiffs claim. On these pleadings the learned
trial Judge framed as many as 8 issues and recorded the following findings:
(I). Gurbax Singh was the owner of the disputed property.
D
(11). Roori @ Kirpal Kaur was the other daughter. of Gurbax Singh
apart from plaintiff and Inder Kaur, defendant No. 5 was not his daughter.
(III). Inder Kaur in fact is the daughter of Harnam Singh, brother of
Gurbax Singh.
E
(IV). Smt. Gurdip Kaur executed a Will dated 29th February, 1968
in favour of her two daughters, the plaintiff and Roori @ Kirpal Kaur.
(V). Mutation of the property in the name of the plaintiff and Inder
Kaur does not convey any title in favour of said Inder Kaur. p
(VI). A succession certificate had been issued in favour of the
plaintiff and Roori to succeed the estate of Gurdip Kaur.
(VII). The sale deed executed by defendarit No.5 - Inder Kaur, in
favour of defendant Nos. 1 to 4;did not convey any title since Inder Kaur G
herself had no title to the property.
(VIII). Defendants 1 to 4 cannot claim to be bona fide purchasers of
the disputed property.
(IX). The valuation of the suit for the purpose of court fee and H
170 SUPREME COURT REPORTS [1996] SUPP. 5 S.C.R.
A jurisdiction is proper.
(X). The possession of defendant Nos. 1 to 4 is that of a trespasser
and plaintiff is entitle to file the suit for recovery of possession.
With these findings the suit having been decreed, the defendant Nos.
B 1 to 4 preferred an appeal which was registered as Civil Appeal No. 98 of
1985/1992. Defendant Nos. 5 and 6 also preferred an appeal which was
registered as Civil Appeal No. 66 of 1986 and both the appeals were
disposed of by a common judgment by the Additional District Judge,
Amritsar. The learned Additional District Judge came to the conclusion
c that plaintiff could not have filed the suit so far as half share of Roori is
concerned. He also came to the conclusion that the Will or the succession
certificate is of no consequence in establishing whether the Roori is one of
the daughters of Gurbax Singh. With this conclusion, he set aside the
judgment and decree of the trial court so far as half share of Roori's
D interest is concerned. He also held that since Inder Kaur was mutated in
the revenue records she had the right to sell her share in favour of
defendant Nos. 1to4 and consequently defendant Nos. 1to4 derived right,
title and interest by virtue of the sale deed in their favour executed by lnder
Kaur. With these findings he reversed the judgment and decree of the trial
court and allowed the appeal. The plaintiff, therefore, carried the matter
E in Second Appeal to the High Court. The High Court however, having
dismissed the same in limine, .the present appeal by way of special leave
has been filed.
Mr. AS. Sohal, learned counsel for the appellant contended that the
F learned Additional District Judge committed gross error of law in coming
to the conclusion that the mutation order in favour of Inder Kaur conveyed
valid titled on her which she could convey in favour of defendant Nos. 1
to 4 under the registered sale deed in question. He further contended that
the findings of the learned trial Judge on the question whether Roori was
the daughter of Gurbax Singh or Inder Kaur was the daughter of Gurbax
G Singh not having been r1~versed, it was not open to come to the conclusion
that Inder Kaur had valid title to half share of the property of Gurbax
Singh. The learned counsel also urged that in view of the Will executed by
Gurdip Kaur, widow of Gurbax Singh in favour of plaintiff and Roori and
in view of the succession certificate issued by the civil court in their favour,
H the lower appellate court was wholly in error in ignoring the same and in
SAWARNiv. INDERKAUR[PAITANAIK,J.] 171
coming to a conclusion that plaintiff could not file the suit in respect of A
half share of Roori. It was further urged that the High Court without
applying its mind dismissed the second appeal in limine has committed
serious error of law. The learned counsel for the respondents on the other
hand contended that a court of fact having examined and scrutinised the
evidence on record and having reached his conclusion, the second appel-
B
late Court rightly rerused to interfere with the same and accordingly this
Court would not be entitled to interfere with the same under Article 136
of the Constitution.
Having heard the learned counsel for the ·parties and having
scrutinised the judgment of the trial Judge as well as that of the lower C
appellate court, we find sufficient force in all the contentions raised by the
learned counsel for the appellant. At the outset, it may be noticed that the
plaintiff had filled the suit claiming half interest for herself and claiming
half interest in favour of the husband and sons of Roori and, therefore, the
learned Additional District Judge was wholly in error to hold that the D
plaintiff could not have filed the suit in question. In view of rival stand of
the parties the main question that arose for consideration was whether
Roori was daughter of Gurbax Singh or Inder Kaur, defendant No. 5 was
the daughter of same Gurbax Singh? The learned trial Judge after
elaborate discussion of the evidence on record both oral and documentary
came to the positive conclusion that it was Roori.who was the daughter of E
Gurbax Singh as alleged by the plaintiff and not Inder Kaur. The lower
appellate Court without focusing his attention to the weighty reasons
advanced by the trial court and without examining the materials on ri:cord
in that respect even did not set aside the said finding of the trial Judge and
yet reversed the decree of the trial Judge. We have no ho:sitation to come F
to the conclusion that the said judgment of the Additional District Judge
is wholly unsustainable in law. The crucial point being as to who was the
second daughter of Gurbax Singh, namely Roori or lnder Kaur, and the
trial Judge having come to the positive conclusion that it was Roori who
was the second daughter of Gurbax Singh, the lower appellate Court was
not justified in not considering the material evidence as well as reasons G
advanced by the trial Judge and merely coming· to the conclusion that the
1.
' evidence on the file do not prove Roori to be the daughter of Gurbax
Singh. Further, the lower appellate Court has not come to any positive
finding that Inder Kaur was the daughter of Gurbax Singh. He has been
swayed away by the so called mutation in the revenue record in favour of H
172 SUPREME COURT REPORTS (1996) SUPP. 5 S.C.R.
A Inder Kaur. Mutation of a property in the revenue record does not create
or extinguish title nor has it any 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 v,as wholly in error in
coming to a conclusion that mutation in favour of lnder Kaur conveys title
in her favour. This erroneous conclusion has vitiated the entire judgment.
B That apart, as it would be seen, the learned trial Judge had considered the
oral evidence adduced on behalf of the parties to establish the respective
stand as to who was the second daughter of Gurbax Singh and on perusal ,.
of the same came to the conclusion that it was Roori who was the second
daughter of Gurbax Singh. The Additional District Judge has not even
c discussed anything about the said oral evidence and the reasonings ad-
vanced by learned trial Judge in coming to the conclusion that it was Roori
who was the second daughter of Gurbax Singh. Non consideration of the
oral evidence adduced by the parties, by the lower appellate Cburt vitiates
the ultimate conclusion on the question whether Roori was daughter of
D Gurbax Singh or not. It is further seen that Gurdip Kaur, widow of Gurbax
Singh had executed a Will in respect of the entire estate in favour of
plaintiff and Roori and after death of Gurdip Kaur a succession certificate
had been issued by the civil court under the Indian Succession Act in
favour of plaintiff and said Roori. The said succession certificate and rights
flowing therefrom cannot be ignored. Admittedly no attempt has been
E made by defendant Ncis. 1 to 4 to annul the succession certificate on the
grounds available under thi~ Succession Act. The Additional District Judge
committed serious error of law in not considering the said Will and the
succession certificate in question which unequivocally clinches the matter
and thereby the ultimate judgment of the Additional District Judge is
vitiated. The High Court also was in error in not examining these questions
F
and dismissing the Second Appeal in limine.
In the aforesaid premises, we set aside the judgment and decree of
the High Court in Second Appeal as well as that of the Additional District
Judge in Case No. 66 of 1986/1993 and confirm the judgment and decree
G of the Senior Sub Judge, Tran Taran in Suit No. 218 of 1982. This appeal
is allowed but in the circumstances without any order as to costs.
S.K. Appeal allowed.
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