Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1640 (RAJ)

Surendra Kumar v. Pramod Kumar Singhania

2018-08-03

G.R. MOOLCHANDANI, K.S. JHAVERI

body2018
JUDGMENT Kalpesh Satyendra Jhaveri, J. - By way of this appeal, the appellant has assailed the judgment and order of the learned Single Judge whereby learned Single Judge has dismissed the writ petition in view of the concurrent findings of all the authorities. 2. The facts of the case are that the appellants being daughter of deceased Chiranji Lal were entitled for their share in the property and the entries made in the revenue record after death of Chiranji Lal in name of the sons alone was illegal as the right of the appellant could not have been taken away. It is alleged that the entries made in the revenue record are not based on Will but on the basis of succession and therefore the provisions of Succession Act apply and the appellants name ought to have been entered in the revenue record for which and on the basis thereof, if the property has been further sold, the appellant's share could not have been sold, therefore, the appellants prayed for injunction against the respondents for not making any construction on the share to which the appellants are entitled. 3. The appellants herein were plaintiff and approached the SDM who vide order dated 11.12.2012 passed the following order:- 4. Thereafter, he has taken us to the order passed by the revenue appellate authority wherein it has been observed as under:- 5. Again, he has also taken us to the order of Board of Revenue wherein it has been held as under:- 6. However, counsel for the appellant has relied upon the Will Annexure-4 of which in first three pages, there were no sign of the testator and he contended that a fraud has been committed by the purchaser in the revenue entry and he sought to rely on the Jamabandi, where entry has been made in column no.16 in the year 1987 where his brother's name is entered however, name of his sister was not there. 7. He also relied upon the provisions of section 213 of Indian Succession Act, 1925 which reads as under:- 213. 7. He also relied upon the provisions of section 213 of Indian Succession Act, 1925 which reads as under:- 213. Right as executor or legatee when established.- (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in 1[India] has granted probate of the Will under which the right is claimed, or has granted letters of administration with the Will or with a copy of an authenticated copy of the Will annexed. 2[(2) This section shall not apply in the case of Wills made by Muhammadans 3[or Indian Christians], or and shall only apply- (i) in the case of Wills made by any Hindu, Buddhist, Sikh or Jaina where such Wills are of the classes specified in clauses (a) and (b) of section 57; and (ii) in the case of Wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962 (16 of 1962), where such Wills are made within the local limits of the 4[ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such Wills are made outside those limits, in so far as they relate to immoveable property situated within those limits.] 8. He further contended that there is no limitation for claiming partition and once on death of his father, daughters are also entitled for their share and there is no requirement for declaration or title by way of operation of law. 9. Counsel for the appellant has relied upon the decision of Supreme Court in Narain Prasad Aggarwal v. State of Madhya Pradesh reported in (2007) 11 SCC 736 wherein it has been held as under:- "19. Record of right is not a document of title. Entries made therein in terms of section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable. Record of right is not a document of title. Entries made therein in terms of section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable. Exhibit P-4 and Exhibit P-6, whereupon reliance has been placed by the learned trial judge to hold that the State had title over the property in question, were documents of year 1920-21, but failed to notice that the documents must have been taken into consideration and/or would be presumed to have been taken into consideration by the Settlement Commissioner when the aforementioned order dated 30.10.1922 (Exhibit P-3) was passed wherein it had categorically been held that no deed of lease having been executed in respect of the land in question, the title of the said Putri Sethani should be deemed to be a permanent lessee." 10. He further contended that in view of the decision of Supreme Court in N. Padmamma v. S. Ramakrishna Reddy reported in (2015) 1 SCC 417 and language of Article 65 of the Limitation Act, there is no limitation in view of the fact that the coowners cannot claim adverse possession. 11. Before proceeding with the matter, it will not be out of place to mention that all these points were referred by the learned Single Judge in his order. However, this is revenue proceedings which are decided on the basis of revenue record and entries which are made in 1987. Admittedly, the father died in 1984 and the daughters wake up after 16+11=27 years therefore, by any stretch of imagination, the person who is belonging to Kumbkaran family, cannot be held entitled for any legal right and no court will support a person of such Kumbkaran family. It is already a settled proposition of law that change of right title and interest, the court will not help after the brother who has cheated the sister and entered name in the revenue record. The third party that has bonafidely purchased the property has a right to enjoy it. Now, with a view to blackmailing the bonafide purchaser, the sister has raised this contention after 27 years. The third party that has bonafidely purchased the property has a right to enjoy it. Now, with a view to blackmailing the bonafide purchaser, the sister has raised this contention after 27 years. No doubt, counsel for the appellant has tried to satisfy us that in the law of partition there is no limitation but partition is to be made when the property was with the brothers and daughters were not a part of the family and therefore claiming partition in their name is not justified. 12. In our considered opinion, this is nothing but to harass the purchaser. At the most, even she has any right, fraud is committed by the brother and not by the purchaser, she again claiming title alongwith brother after death of father but in our considered opinion, she has to establish her right within a period of 3 years and we are not inclined to accept the contention raised by the counsel for the appellant. 13. The appeal as well as stay application stand dismissed.