The contention raised by the Appellants is that since Mangal
Kumhar was the recorded tenant in the suit property as per
the Survey Settlement of 1964, the suit property was his self acquired property.
The said contention is legally misconceived since entries
in the revenue records do not confer title to a property, nor
do they have any presumptive value on the title. They only
enable the person in whose favour mutation is recorded, to
pay the land revenue in respect of the land in question.
As a consequence, merely because Mangal Kumhar’s
name was recorded in the Survey Settlement of 1964 as a
recorded tenant in the suit property, it would not make him
the sole and exclusive owner of the suit property.NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5919 OF 2011
Prahlad Pradhan Vs Sonu Kumhar
Dated: October 16, 2019
Author: INDU MALHOTRA, J.
1. The present dispute arises out of a Civil Suit filed by the
Respondents for a Declaration that the Sale Deed dated
22.10.1973 executed by one Etwari Kumharin in favour of
the Appellants was void and illegal, and a further declaration
of the Respondents’ title over the Suit Property.
2. Briefly stated, the present Civil Appeal arises in the following
factual matrix :–
2.1 Radhanath Kumhar was the owner of agricultural land
and a house in Mouza Nalita, P.S. Toklo (Singhbhum).
Radhanath Kumhar died intestate, and his
property devolved upon his legal heirs and
descendants. The genealogy of Radhanath Kumhar’s
family is set out hereinbelow for ready reference :–
Radhanath Kumhar
Joto Pandu Sabran Haradhan Sonu Anand
Mangal Kumhar Etwari Kumharin Sabran Kumar
w/o Mangal Kumhar
Phuljhari Babi Mini (dead) Sonu Kumhar
(R1)
Langru Sibu Kumhar Haradhan Kumar
(R2)
Anand Kumhar
(R3)
2.2 The present case pertains to Plot No. 614 admeasuring
35 decimals in Khata No. 145, Mouza Nalita, P.S. Toklo
(Singhbhum) (hereinafter referred to as the “Suit
Property”), which was a part of the estate of Radhanath
Kumhar.
2.3 After Mangal Kumhar’s death, his widow Etwari
Kumharin purported to sell the suit property for a
consideration of Rs. 1,000/to
the Appellants vide a
registered Sale Deed dated 22.10.1973.
2.4 Respondent Nos. 1 to 3 who are legal heirs of two sons
of late Radhanath Kumhar i.e. Sonu and Anand filed
Title Suit No. 14/1986 before the Court of Munsif at
Chalibasa, Jharkhand against the Appellants on the
ground that the Suit Property was ancestral property,
and Etwari Kumharin had no right to sell it.
The Plaintiffs/Respondents herein impleaded the
legal heirs of Mangal Kumhar and Etwari Kumharin
i.e. daughters viz. Phuljhari and Babi, and grandchildren
viz. Kamla and Rangu as proforma
defendants.
The Plaintiffs/Respondents herein inter alia
prayed for a Declaration that the Sale Deed dated
22.10.1973 was void and illegal; Declaration of title of
the Plaintiffs and proforma defendants over the suit
property, and confirmation of their possession over the
suit property, or in the alternative, for recovery of
possession from the Appellants.
Since Respondent Nos. 1 to 3 were minors at the
time of filing the Suit, the Suit was filed through their
next friend Sibu Kumhar. Respondent No. 2 is the
brother of Sibu Kumhar, and Respondent Nos. 1 and 3
are the nephews of Sibu Kumhar.
Sibu Kumar was subsequently discharged as next
friend vide Order dated 29.08.1989, after the
Plaintiffs/Respondents herein attained the age of
majority.
2.5 The Trial Court decreed the Suit in favour of the
Plaintiffs/Respondents herein vide Judgment and
Decree dated 09.02.1990. It was held that the Suit
Property was a part of the joint family property of the
common ancestor Radhanath Kumhar. Since there was
no partition of the properties owned by Radhanath
Kumhar between his legal heirs, the widow of Mangal
Kumhar had no right to sell a part of the ancestral
property. Furthermore, Mangal Kumhar’s share in the
joint family property was not specified, and hence, he
could not be considered to be the exclusive owner of
the suit property.
The Trial Court further held that upon Mangal
Kumhar’s death, his widow Etwari Kumharin did not
acquire any exclusive right, title or interest in the suit
property, and was not competent to transfer the suit
property in favour of the Appellants vide Sale Deed
dated 22.10.1973.
It was further held that Etwari Kumharin was not
a necessary party in the Suit because after executing
the Sale Deed dated 22.10.1973, she had no interest in
the suit property.
It was further held that the daughters of Mangal
Kumhar and Etwari Kumharin had not executed the
Sale Deed dated 22.10.1973, nor given any No
Objection for the sale.
The Trial Court passed a Decree declaring the
Sale Deed dated 22.10.1973 to be void and illegal, and
confirmed the possession of the Plaintiffs/Respondents
herein and the proforma defendants over the suit
property. It was further directed that if the
Plaintiffs/Respondents herein and the proforma
defendants are found to have been dispossessed from
the suit property during the pendency of the Suit, they
shall be at liberty to recover possession after getting
the decree executed though process of the court.
2.6 Aggrieved by the aforesaid Judgment and Decree, the
Appellants filed Title Appeal No. 8/1990 before the
Additional District Judge, Fast Track Court Vth, West
Singhbhum at Chalibasa, Jharkhand.
The Appellate Court dismissed the Appeal vide
judgment dated 19.05.2004. It was inter alia held that
the Appellants had failed to adduce any evidence to
prove that the suit property was selfacquired
property
of Mangal Kumhar. As a consequence, Etwari
Kumharin had no exclusive right over the suit
property, and was not entitled to execute the Sale Deed
in favour of the Appellants.
It was further held that the legal heirs of Mangal
Kumhar i.e. his daughters and grandchildren,
had
supported the case of the Plaintiffs/Respondents
herein.
2.7 Aggrieved by the aforesaid judgment, the Appellants
filed Second Appeal No. 378/2004 before the
Jharkhand High Court.
The High Court vide impugned Judgment and
Order dated 28.04.2009 dismissed the Second Appeal
on the ground that no substantial question of law had
arisen for consideration.
3. Aggrieved by the judgment in the Second Appeal, the
Appellants have filed the present Special Leave Petition. This
Court vide Order dated 22.07.2011, granted special leave to
appeal.
4. The Courts below have found on the basis of the evidence
adduced by the parties, that the Appellants had failed to
prove that the suit property was the selfacquired
property of
Mangal Kumhar.
The burden to prove that the Suit Property was the selfacquired
property of Mangal Kumhar was on the Appellant –
Purchasers. Reliance is placed on this Court’s judgment in
Adiveppa & Ors. v. Bhimappa & Ors.1 (2017) 9 SCC 586.
wherein it was held
that :–
“22. It is a settled principle of Hindu law that
there lies a legal presumption that every Hindu
family is joint in food, worship and estate and in
the absence of any proof of division, such legal
presumption continues to operate in the family.
The burden, therefore, lies upon the member
who after admitting the existence of jointness in
the family properties asserts his claim that some
properties out of entire lot of ancestral properties
are his selfacquired
property. (SeeMullaHindu
Law, 22nd Edition Article 23 “Presumption as to
coparcenary
and self acquired property”
pages
346 and 347).”
(emphasis supplied)
The Appellants have failed to discharge the burden to
prove that the suit property was separate or selfacquired
property of Mangal Kumhar.
5. The contention raised by the Appellants is that since Mangal
Kumhar was the recorded tenant in the suit property as per
the Survey Settlement of 1964, the suit property was his selfacquired
property.
The said contention is legally misconceived since entries
in the revenue records do not confer title to a property, nor
do they have any presumptive value on the title. They only
enable the person in whose favour mutation is recorded, to
pay the land revenue in respect of the land in question.2
As a consequence, merely because Mangal Kumhar’s
name was recorded in the Survey Settlement of 1964 as a
recorded tenant in the suit property, it would not make him
the sole and exclusive owner of the suit property.
2 Bhimabai Mahadeo Kambekar (D) th. L.R. v. Arthur Import and Export Company & Ors.,
(2019) 3 SCC 191; Narasamma & Ors. v. State of Karnataka & Ors., (2009) 5 SCC 591;
Balwant Singh & Anr. v. Daulat Singh (dead) by L.Rs. & Ors., (1997) 7 SCC 137; Sawarni
(Smt.) v. Inder Kaur, (1996) 6 SCC 223.
6. The Appellants have failed to adduce any evidence
whatsoever, apart from the Survey Settlement of 1964 to
establish that the suit property was the selfacquired
property of Mangal Kumhar.
7. Since Mangal Kumhar did not have an exclusive right, title or
interest in the suit property, his widow Etwari Kumharin was
not legally competent to sell the suit property to the
Appellants, purporting to be the sole owner of the property.
Reliance is placed on Eureka Builders & Ors. v.
Gulabchand & Ors.,3 wherein this Court held :–
“40. It is a settled principle of law that a person
can only transfer to other person a right, title or
interest in any tangible property which he is
possessed of to transfer it for consideration or
otherwise.
41. In other words, whatever interest a person is
possessed of in any tangible property, he can
transfer only that interest to the other person
and no other interest, which he himself does not
possess in the tangible property.
42. So, once it is proved that on the date of
transfer of any tangible property, the seller of
the property did not have any subsisting right,
title or interest over it, then a buyer of such
property would not get any right, title and
interest in the property purchased by him for
3 (2018) 8 SCC 67.
consideration or otherwise. Such transfer would
be an illegal and void transfer.”
(emphasis supplied)
8. It is pertinent to record that the other legal heirs of Mangal
Kumhar i.e. his two daughters viz. Phuljhari and Babi, were
not parties to the execution of the Sale Deed dated
22.10.1973. Etwari Kumharin was not entitled to execute the
Sale Deed in question as the sole owner of the suit property.
The two daughters of Mangal Kumhar were joined as
proforma defendants in the Suit filed by the Respondents
herein. Summons were duly served upon the proforma
defendants. The proforma defendants filed a common written
statement wherein they have fully supported the case of the
Plaintiffs/Respondents herein, and have prayed that the
claims of the Plaintiffs are true, and that the Suit is liable to
be decreed.
The said averments have been duly considered by both
the Trial Court and the First Appellate Court, while decreeing
the Suit in favour of the Plaintiffs/Respondents herein.
9. The Courts below have clearly held that the suit property was
not the separate or selfacquired
property of Mangal Kumhar.
Furthermore, Etwari Kumharin had no exclusive right to
execute the Sale Deed dated 22.10.1973 in favour of the
Appellants. The said Sale Deed is not legal or binding upon
the Plaintiffs/Respondents herein and the proforma
defendants.
10. The nonjoinder
of Etwari Kumharin in the Suit filed by the
Respondents would not be of any consequence, as Etwari
Kumharin had no surviving interest in the suit property after
the execution of the Sale Deed dated 22.10.1973.
11. The concurrent findings of the Trial Court and the First
Appellate Court are based on a proper appreciation of the
pleadings and evidence on record.
The High Court held that no substantial question of law
arose, and rightly dismissed the Second Appeal.
In light of the aforesaid discussion, the Judgment and
Order dated 28.04.2009 passed by the High Court is
confirmed, and the present Civil Appeal is dismissed.
The Decree dated 09.02.1990 passed by the Trial Court
in Title Suit No. 14/1986 stands affirmed.
All pending Applications, if any, are accordingly disposed of.
Ordered accordingly.
.....................................J.
(INDU MALHOTRA)
.…...............………………J.
(KRISHNA MURARI)
New Delhi;
October 16, 2019
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