Research › Search › Judgment

J&K High Court · body

2009 DIGILAW 139 (JK)

Raj Kumari v. Sita Devi

2009-04-01

MOHAMMAD YAQOOB MIR

body2009
1. Impugned is the judgment and decree passed by the Ld. 1st Additional District Judge, Jammu, by means of which the suit for declaration filed by the appellant (plaintiff) has been dismissed as being barred by limitation. 2. The admitted factual position is that one Jameet Singh has died in the year 2006, at the time of death was survived by the widow Sita Devi, one daughter Chanchal Devi, then posthumously the plaintiff Raj Kumari got birth, in short was survived by two daughters and a widow. On the demise, the mutation of inheritance has been attested in favour of the widow. By the passage of time, When the appellant (plaintiff) attained majority, she seem to have challenged the mutation order but without any success. The review petition filed before the Financial Commissioner also failed, as is clear from the Order dated 07-08-1998 passed by the Financial Commissioner. Thereafter, the appellant (plaintiff) facing challenge to her rights has instituted the suit for declaration to the effect that the appellant (plaintiff) and the respondents (defendants) each are entitled to inherit the estate of the deceased Jameet Singh. On the basis of respective pleadings, the learned trial Court has framed as many as 10 Issues. The Issue no. l has been treated as preliminary Issue, same is reproduced herein below: - Issue No.l: Whether the suit is time barred? OPD 3. The learned trial Court after hearing both the parties, while making reference to the Article 127 of the Limitation Act has opined that the exclusion of the appellant (plaintiff) started from the date of the attestation of the mutation, which has been attested long back, so in any case, the suit filed is not instituted within the prescribed period of 12 years. 4. Whether the attestation of the mutation of heritance will amount to exclusion as is the word employed in the Article 127 of the Limitation Act, or not, is the sole point to be addressed. 5. Learned appearing counsel for the appellant (plaintiff) rightly while placing reliance on the Judgment reported in AIR 1926 Privy Council, Page 100, has contended that the attestation of mutation is simply for fiscal purposes and it does not determine the title, so as to construe the same as exclusions. 5. Learned appearing counsel for the appellant (plaintiff) rightly while placing reliance on the Judgment reported in AIR 1926 Privy Council, Page 100, has contended that the attestation of mutation is simply for fiscal purposes and it does not determine the title, so as to construe the same as exclusions. It is trite that the mutation proceedings are not judicial proceedings, so do not decide title and by no stretch of imagination can be termed to be the evidence of exclusion from property. In this connection, it shall be quite relevant to quote as to what has been laid down by the Privy Council in the Judgment reported in AIR 1926 Privy Council, Page 100. "If however the Court of appeal meant by the language they have used that these orders were evidence that Lal Bahadur Singh was in possession as sole legal owner in a proprietary sense, to the exclusion of all claims of the other members of the family as co-owners or for maintenance otherwise, they, in their Lordships view, were entirely mistaken." 6. In the referred Judgment opinion regarding the attestation of mutation orders to construe as exclusion was termed to be mistaken opinion. 7. In the backdrop of the aforesaid stated legal position, the opinion of the Trial Court that attestation of the mutation amounts to exclusion is totally erroneous and illegal. 8. Mr. Razdan would contend that in fact the appellant has spent more than 14 years in prosecuting the proceedings before the Revenue Courts and thereafter has instituted the suit that apart prior to the enforcement of Hindu Succession Act, the daughters were excluded from inheriting their father. Whether the plaintiff shall be entitled to inherit or not, is not the issue to be addressed at this stage. Separate Issue has been, framed to that effect, same is left open for determination to the Trial Court. 9. According to the learned counsel, the time would run against the appellant right from the date, she has challenged the mutation order. This contention is rightly repelled by the other side by stating that even if it is so, still the time spent in prosecuting the mutation proceedings before the Revenue Courts has to be excluded as is permissible in terms of Explanation IV to Section 14 of the Limitation Act. Though Mr. This contention is rightly repelled by the other side by stating that even if it is so, still the time spent in prosecuting the mutation proceedings before the Revenue Courts has to be excluded as is permissible in terms of Explanation IV to Section 14 of the Limitation Act. Though Mr. Razdan, would say that these proceedings before revenue officers, were not suffering from error of jurisdiction, or any other cause of like nature, but the same is not acceptable, same shall be to place a narrow interpretation to the wording used. The wording has to be interpreted in the background of its objectives. When technical and substantial justice are pitted against each other, it is the latter which has to be preferred, subject to one rider that sheer negligence or indolence is not attributable to the seeker thereof. 10. In terms of Section 3 of the Limitation Act, if the suit is found barred by limitation same has to be dismissed irrespective whether such plea has been taken or not. Where such plea requires proof and the party raising plea is required to produce the evidence so as to show the actual date of exclusion; in such case issue becomes mixed question of fact and law. So requires trial. 11. Learned Trial Court has scuttled the proceedings of the suit by dismissing the suit on the point of limitation without actually addressing the plea of limitation in its right perspective. 12. The order followed by the decree on the face of it is totally perverse, erroneous as such, unsustainable. 13. Appeal succeeds. The order and decree impugned are set aside. Case remanded back to the Trial Court so as to determine the preliminary Issues, on survival the other factual Issues. It shall also be open for the respondents (defendants) to prove as to how the suit is barred by limitation, as the Issue being mixed question of fact and law, so is left open for its final determination. 14. Registry to prepare a decree. Copy of the judgment and decree be sent to the Trial Court along with the Trial Court record where the learned counsel shall ensure the appearance on 18 of April 2009.