Supreme Court: The present appeal was filed by the appellants against judgment dated 13-12-1943 of the Allahabad High Court (‘the High Court’), which arose out of a suit for declaration that the respondents were the owners of family properties, and that the appellants had no right. The 3-Judge Bench of M.C. Mahajan, Vivian Bose, and B. Jagannadhadas*, JJ., held that the entries in revenue records were not by themselves sufficient to rebut the presumption of jointness of the family, however, these entries when taken with other evidence consisting of acts of members of the family which were only consistent with hypothesis of separation, should have considerable value.
Background
The appellants were the daughters of Surajbhan Singh, one of the four sons of Bharat Singh. Bharat Singh and his four sons formed a joint Hindu family during his lifetime, and that the property in dispute was their joint family property. After Bharat Singh’s death, the properties were all recorded in the khewat, in the names of the four sons specifying a one-fourth share for each. Surajbhan Singh died in 1910 and thereafter the name of his widow, Kesar Kunwar was changed in the revenue registers as owner along with his three surviving brothers. Kesar Kunwar died in 1936 and the proceedings were initiated in the revenue courts by the appellants for change of their names in the revenue registers in the place of that of their mother, Kesar Kunwar as owners of a one-fourth share in the property.
The respondents submitted that there had never been any division between the four brothers and Surajbhan Singh died as member of an undivided Hindu family, and that on his death his share devolved on the other three brothers by survivorship, and that the widow was entitled only to maintenance. The appellants submitted that the family was divided, and Surajbhan Singh died as a divided member, and that their mother, Kesar Kunwar succeeded to his share, and she had separate possession and enjoyment of her share, and therefore on her death they were entitled to succeed.
The trial court dismissed the respondents’ suit, and on appeal the High Court concluded differently and decreed the suit. The appeal raised the question that whether Surajbhan Singh was at the time of his death, joint or divided in status in relation to his brothers.
Analysis, Law, and Decision
The Supreme Court observed that the mortgage deed executed by all the members of the family at the time, including Kesar Kunwar in favour of Onkar Prasad for the money due, showed that Kesar Kunwar executed the document with full knowledge of the implications thereof. The Supreme Court noted that the post-script which referred to the “family” having been benefited indicated that Kesar Kunwar executed the document as a member of the family and not as a co-sharer and the fact of her joining in the execution was therefore explicable on the footing that her name remained recorded in the revenue registers. Therefore, the mortgage deed could not be treated as sufficient to show that there was any unequivocal admission on the part of the male members of the family that Kesar Kunwar was entitled to a share.
The Supreme Court noted that during the lifetime of Bharat Singh there were separate khatas in the name of two of his sons and that on the death of Bharat Singh, the khewat showed the names of all the four sons as having a specific one-fourth share and on Surajbhan Singh’s death, the name of his widow, Kesar Kunwar, was entered in his place. The Supreme Court also took note of all the revenue records and opined that standing by themselves neither the canal jamabandi papers nor the siyahas were enough to make out that the respondents were divided inter se between themselves, and they certainly did not show that Kesar Kunwar had any share in the family property. The Supreme Court also noted that in the khewat Kesar Kunwar’s name had been changed in the place of her husband, and in the khatunis of the occupancy holdings and of the sir and khud-kasht lands, her name was shown as against certain individual items.
The Supreme Court opined that all that there was in favour of the appellants’ case was the fact that soon after the death of their father the revenue registers show that their mother’s name was mutated in the place of their deceased father, and that subsequent records like those in the land acquisition proceedings continued to be shown from time to time in the name of Kesar Kunwar, presumably based on the original entries in the revenue accounts, and had no independent probative value.
The Supreme Court relied on Ram Singh v. Tursa Kunwar, (1913) 15 Bom LR 863, wherein it was held that the entries in the revenue records were not by themselves sufficient to rebut the presumption of the Hindu Law relating to jointness or to prove separate possession by the different members of a family which in its inception was admittedly joint. However, these entries, when taken with the other evidence consisting of the acts of the brothers which were only consistent with the hypothesis of separation, should have considerable value. The Supreme Court also relied on Nageshar Bakhsh Singh v. Ganesha, 1919 SCC OnLine PC 99, wherein it was observed that “the broad question of partition of rights or separation of interests is not, of course, dealt with in the entries of revenue records, and the inference of such a transaction from such records may be weak or may be strong according to circumstances. Records of that character take their place as part of the evidence in the case. They do no more. Their importance may vary with circumstances, and it is not any part of the law of India that they are by themselves conclusive evidence of the facts which they purport to record. It may turn out that they are in accord with the general bulk of the evidence in the case; they may supply gaps in it; and they may, in short, form an important part of the testimony as to fact which is available”.
The Supreme Court opined that all the evidence relating to the period after the death of Surajbhan Singh militates against any reasonable inference that Surajbhan Singh died as a divided member except the fact of the mutation of Kesar Kunwar’s name in the khewat and in the khatunis. The entry in the wajib-ul-arz was against any inference other than that Kesar Kunwar was living as a member of the family, and that she was not receiving any share of the profits, which meant that she had no separate possession. Besides, the transactions relating to the money lending business show that her alleged share was not recognised.
The Supreme Court opined that there was no proof at all that Kesar Kunwar had been at any time in separate possession or enjoyment in respect of any kind of family property. The Supreme Court agreed with the respondents’ explanation that Kesar Kunwar’s name was entered in the revenue records on her husband’s death for her consolation.
The Supreme Court opined that the evidence and circumstances did not make out any division in status between the four brothers during Surajbhan Singh’s lifetime, thus, the usual presumption in favour of the continuance of the joint family must prevail. The Supreme Court dismissed the appeal and held that neither Kesar Kunwar nor her daughters had any title to a share in the family properties.
[Girraj Kunwar v. Thakur Bhullan Singh, (1953) 1 SCC 483, decided on 25-03-1953]
Note: Relevance of entries in revenue records
In Vishal Singh v. State of M.P., (1998) 9 SCC 90, it was held that the entry in the revenue record about possession of land in favour of a person is not conclusive and it will only give rise to a rebuttable presumption. In Partap Singh v. Shiv Ram, (2020) 11 SCC 242, it is held that presumption of truth attached to the revenue record can be rebutted only based on evidence of impeccable integrity and reliability. It is also held that the revenue record can be rebutted if the entry is made fraudulently, or when such entry is made by not following the prescribed procedure.
*Judgment authored by: Justice B. Jagannadhadas
