Sushil Kumar Bhatia (Advocate) 11 January 2009
vikas mishra (ADVOCATE) 11 January 2009
No, mere entry in the register of the local body does not prove the ownership
AEJAZ AHMED (Legal Consultant/Lawyer) 11 January 2009
Entry of a Person's Name against certain Proprty in the "Records of Local Bodies" such as " Gram Panchayat" " Muncipal Records" and "Revenue Records " is not the "TITLE".
There are several Rulings/Judgments by Supreme Court and High Courts on this fact.
rupareliya (advocate) 11 January 2009
i m agree with mr.AEJAZ AHMED
I M SENDING U SOME CASE LAW FROM S.C.
JULY 11, 2008
Cases Referred to :
2008 (10) Scale 60 : JT 2008 (8) SC 159
THE OTHER ONE IS
2006 (1) G.L.H. 171
A. M. KAPADIA, J.
Kantibhai Ishwarbhai Patel Through His Heirs and Legal Representatives ...Petitioner
Chandrakant Ishwarbhai Patel ...Respondent
First Appeal No. 7100 of 1995
Civil Application No. 6201 of 1995*
* An Appeal u/S. 96 of the CPC, 1908 against the judgement and decree passed by the Learned Civil Judge (SD), Vadodara, dismissing the suit for partition filed by the appellant herein
[A] Suit Valuation Act, 1887 - S.8 - Bombay Court Fees Act, 1959 - Ss. 6(iv) (j) and (vii) - Bombay Civil Courts Act, 1869 - S. 26 - Valuation of suits - Determination of jurisdiction of the Appellate Court - Suit for partition valued at Rs. 37,000/- for the purpose of Court Fees - Plaintiff paid Court fees on his 1/3 share of Rs. 12,500/- - On the date of filing of the suit, the pecuniary jurisdiction of the Civil Judge (SD) was exceeding Rs. 20,000/- - Held, in deciding, whether appeal lies to the High Court or not, valuation for the purpose of jurisdiction would be material - From the Judgement and decree of Civil Judge (SD), appeal lies to the High Court.
On a perusal of para 6 of the plaint, there is no manner of doubt that the suit was valued at Rs.37000/- for the purpose of Court Fee Act and claiming 1/3rd share from the same and the plaintiff had paid the Court fee Stamp of Rs.925/- of his share of Rs.12500/- (1/3rd of Rs. 37000/-) and also paid Rs. 21/- Court fees by claiming 1/3rd share in the agricultural land. Therefore, obviously, the plaintiff had valued the suit exceeding Rs.37000/- and, on the date of filing of the suit, the pecuniary jurisdiction of the Civil Judge (SD) was exceeding Rs.20000/-. (Para 13)
On having looked at the judgement of Filoma Pathubhai Patel and others, the suit was filed on court fee stamp of Rs.30/- only and was valued for the purpose of court fees u/S. 6(iv)(j) of the Bombay Court Fees Act, 1959 and, therefore, this Court has held that valuation for the purpose of court fee would govern the valuation for the purpose of jurisdiction and, therefore, the suit will have to be treated by deeming fiction of S. 8 of the Suit Valuation Act to be valued for the purpose of jurisdiction also on that basis and therefore the appeal would lie to the District Court. (Para 15)
In the instant case the plaintiff has not valued the suit on fixed court fee stamp of Rs.30/- but, as observed earlier, the suit was valued for the purpose of court fee also at Rs.37000/- and plaintiff had paid court fee stamp of Rs.925/- of his share of Rs.12500/- (1/3rd share of Rs.37,000/-). Therefore, the preliminary contention advanced by Mr. N. K. Majmudar has no merits. (Para 16)
At this stage, it would be advantageous to refer to the judgement rendered by a Division Bench of this Court in the case of Manubhai Khandubhai Naik v. Sumantrai Ranchhodji Naik, 2004 (1) GLR 488, wherein, this Court has held that, for the purpose of deciding whether the appeal lies or not to the High Court, the value for the purpose of jurisdiction would be material.... (Para 17)
Applying the principle laid down by the this Court in the above referred to decision, to the facts of the present case, at the cost of repetition, be it stated that, in the instant case also, the plaintiff had valued the suit at Rs.37000/- for the purpose of court fee u/S. 6 of the Bombay Court Fees Act and paid the court fee stamp of Rs.920/- of his notional share on valuation of Rs.12500/-. Therefore, obviously, the appeal would lie to this Court. (Para 18)
In view of the specific provisions contained in the Court Fees Act, S. 8 of the Bombay Civil Courts Act, 1979 will have no application to the present suit.... (Para 20)
[B] Hindu Law - Mitakshara Coparcenary Property - Hindu Succession Act, 1956 - Ss. 6 and 8 - Father inherited the suit properties from Grandfather - Suit properties were mortgaged once upon a time, which came to be redeemed by father - Father had no independent source of income out of which he could have acquired the suit properties - Father redeemed the suit properties from income earned by cultivating the suit properties - Held, merely because the father had redeemed the suit properties, would not change the characteristics of the suit properties - Once it is admitted that the suit properties were inherited from Grand-father, they continue to be coparcenary properties, unless a partition is effected - Further held, on the death of the father, a notional partition is presumed to have taken place amongst four coparceners, out of which three sons would be entitled to 1/4th share each and 1/4th share of the deceased father would be divided amongst three sons and two daughters.
In this connection, on having perusal of the oral as well as voluminous documentary evidence, there is no manner of doubt that the suit properties were inherited by the deceased father from his grandfather. There is also evidence on record that the father had no independent source of income out of which he could have acquired the suit properties. It is, however, true that the suit properties were mortgaged once upon a time which came to be redeemed by the deceased father. However, the same were redeemed by the income earned by cultivating the suit properties. But merely because the father had redeemed one of the suit properties, would not change the characteristics of the suit properties. Once it is admitted that the suit properties were inherited by the father from his grandfather, the suit properties become coparcenary properties and unless a partition by metes and bounds is effected, the suit properties continue to be coparcenary properties and none of the coparcener has any exclusive right to deal with the suit properties or dispose of the same to the prejudice of the rights of the other coparcener. Once it is admitted that no partition had ever taken place during the life time of the father, on his death a notional partition would be presumed to have been effected as per the provisions of Ss. 6 and 8 of the Act. (Para 25)
Applying the principle laid down by the Supreme Court in abovereferred to judgement as well as statutory provisions contained under Ss. 6 and 8 of the Act, to the facts of the present case, the father died leaving behind him three sons and two daughters. Therefore, on the death of the father a notional partition is presumed to have taken place, under which, four coparcener would be entitled to 1/4th share in the properties left by the deceased father. Therefore, three sons would be entitled to 1/4th share each and out of the 1/4th share of the deceased father, as per Explanation I to S. 6 of the Act, it would be divided amongst three sons and two daughters. Therefore, each of the heirs of the deceased father would be entitled to claim 1/20th share in 1/4th share of the deceased father. In this view of the matter, the plaintiff is entitled to claim share in the suit properties, which were ancestral properties at the hands of the deceased father. Therefore, it has to be held that the plaintiff is entitled to 1/4th share + 1/20th share in the suit properties. To put it more precisely, the plaintiff, in all, is entitled to 30% share in the suit properties. (Para 27)
[C] Hindu Law - Mitakshara Coparcenary Property - Bequeath by Will by father - Father inherited the suit properties from Grandfather - Suit properties were coparcenary properties in his hand - Suit properties were never partitioned by metes and bounds during his life time - Held, father could not have bequeathed the suit properties by Will, because the suit properties continued to be coparcenary properties till his death - Plaintiff, being one of the sons of the deceased father has a right in the suit properties.
It is settled proposition of law that the deceased father as a coparcener, could not have claimed any properties out of the suit properties as his self acquired properties or the properties exclusively owned by him because, he had inherited the suit properties from his father as an heir of the deceased grandfather of the plaintiff. Therefore, the suit properties were coparcenary properties in his hand. It is also an admitted position on record that the suit properties were never partitioned by metes and bounds during his life time. The suit properties were coparcenary properties in the hands of the father and, therefore, could not have bequeathed any of the suit properties by will. (Para 29)
Applying the principle laid down by the Supreme Court in abovereferred to judgement, to the facts of the present case, since no partition was effected during the lifetime of the deceased father, the deceased father could not have executed any will in respect of the suit properties because, the suit properties continued to be a coparce-nary properties till his death. (Para 31)
The aforesaid judgement is also squarely applicable to the facts of the present case. Therefore, in aforesaid premises, it has to be deduced that the suit properties were ancestral properties at the hands of the deceased father which was never partitioned and he has no right to execute the will in favour of any of his three sons and, therefore, the plaintiff has a right in the suit properties to the extent of 1/4th + 1/20th share. (Para 33)
[D] Bombay Land Revenue Code, 1879 - S.135 (j) - Indian Evidence Act, 1872 - S.114 - Entry in the Record of Rights - Evidentiary value - Revenue Records have no evidentiary value - They are made only for fiscal purpose - Title to the properties cannot be decided on the basis of mutation entry effected in Revenue Records - It has only presumptive value - Presumption is rebuttable - Civil Court has jurisdiction to decide the question as to title to land irrespective of mutation entry effected in the Revenue Records - Plaintiff is not estopped from raising the dispute in a suit, though he has not raised such a dispute at the time when mutation entry was effected - Estoppel does not apply to the plaintiff.
It is settled proposition of law that the revenue record has no evidentiary value. They are made only for the fiscal purpose and, title to the properties cannot be decided on the basis of the mutation entries effected in the revenue record. Such entries are required to be effected in view of the provisions of Section 135C of the Code. Mutation entries have only presumptive value as provided under S. 135J of the Code, (Para 35)
On having perusal of the provisions contained u/S. 135J of the Code, an entry made in the revenue record raises a presumption and, such entry is presumed to be true until contrary is proved. In the instant case, the presumption is rebutted by documentary evidence adduced on record of the case and, therefore, it stands rebutted. (Para 36)
In this connection, it would be appropriate to refer to the decision of the Supreme Court in the case of Sankalchand J. Patel, wherein, the Supreme Court has held that, it is settled law that mutation entries are effected only to enable the State to collect revenues from the persons in possession and enjoyment of the properties and that the right, title and interest as to the properties should be established dehors the entries. The mutation entries are only one of the modes of proof of the enjoyment of the property. Mutation entries do not create any title or interest in the entries. (Para 37)
In view of the settled principles laid down by the Supreme Court in above referred to judgement, there is no manner of doubt that, if any dispute is not raised while effecting the mutation entry, it will not adversely affect the right of the plaintiff to challenge the said mutation entry at a subsequent stage. If the title to the land is claimed on the basis of such mutation entry, the Civil Court has jurisdiction to decide the question as to title irrespective of such mutation entry effected in the revenue record. In the present case the presumption has been rebutted by oral as well as documentary evidence adduced in the case. Even in the oral evidence the concerned defendants have admitted this fact. Once the question as to title to the suit land is raised the learned Civil Judge is required to decide the question as to title on the basis of the evidence that is led in the suit independently of the mutation entry and in light of the law laid down by the Supreme Court and this Court. In view of the law laid down by the Supreme Court, the mutation entry effected in the revenue record will be required to be either cancelled or suitably modified as per the decision rendered by the Civil Court and therefore the defendants are not entitled to raise such contention that the plaintiff is estopped from raising such a dispute in the suit as he has not raised the dispute at the time when the mutation entry was effected.... (Para 38)
Cases Referred :
U CAN CALL ME
Sanjeev Tewatia (Advocate) 12 January 2009
Yes, if any name is recorded as a owner of the any property in the records of the municipal committee/corporation it's not shows that the said person is the owner of the said property and now the many corporation's are clearly write on their bills for house-tax or payment recepit that the name as mentioned on the such document not shows the proof of their ownership.
Sushil Kumar Bhatia (Advocate) 13 January 2009
The property in dispute inherited by two sons after the death of father elder son had got his name mutated in Municipal corp.and that behalf he has taken huge ammount of loan from the bank and he has not paid loan ammount Bank has given notice under SURFEAS Act and published auction sale for general public.Second son is poor and is unable to pay the loan ammount and he is in possession of half portion of property in dispute.whether a case of fraud against the bank can be filed and how the sale proceeding can be stayed please advice .
AEJAZ AHMED (Legal Consultant/Lawyer) 13 January 2009
Why didn't you asked the entire question once?
Your question is lokking like in instalments !!!
Sir, How can you file a Case/Suit against the Bank and that too with the allegation of Fraud ?
You First Try to file a Injuctionction Suit immediately on behalf the son(Second Son as per you), whose name is not entered in the Records, gainst the (i) Bank(ii) Elder Son , and get "INTERIM STAY" against the "Auction/Sale Proceeding ".
But, with all the relevant documents:
(i) Document, which shows his late father was the Original Owner;
(ii) Death Certificate of his Father;
(iii) Legal Heir Certificate;
(iv) All the supporting Documents: Election Identity Card, Ration Card, Any Bank A/c OR any documents on the name of the said Second Son, but on the "ADDRESS OF HOUSE IN QUESTION", which shows that, he is also residing in the same house and one of the owner of that House.
****At the later stage fraud itself come out, who with fraudulent intention (a) cause enter the only name in the record and (b) obtained Huge Loan Amount by showing the property.
Mr. Bhatia, you first do as above.
But, as per me some doubt;
** Why the Second Son didn't object when his elder brothers named only entered in the records?
** Does the fact about obtaining of Loan amount by his Elder son is in the knowledge of this Second Son?
And one more, if as per you the Second son is poor, might be the Elder one by filing any forged document of "NO OBJECTION" from this Second Son, caused "Mutation of his Name in MC" and further taken Loan. If and if as above then, Bank can't be held liable.
So, first try to get "Interim Stay " as above.
Joy Kumar Roy (Manager) 09 September 2010
My father died in the year 1979. He was having a self acquired property. In the revenue records the property remain in the name of my father. In the year 1999 my mother devided the property jointly amongst three sons and a daughter nad her self with equal share. In a case the prosecution submitted a document from Revenue Authority which also shows that the property muted jointly in the name of 5 shareholders in the year 1999, but counting the assets as 1/5th share from 1990 without any documnetary proof. I want that assets created on or after 1999 as per Revenue Record should be counted. What I should do?