Whether Partition of Joint Family Property can be proved by Entries in Revenue Record

Wednesday, 28 August 2019

Whether partition of joint family property can be proved by entries in revenue record?

 The Tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2653 of 1972

Decided On: 21.02.1995

Digambar Adhar Patil Vs.  Devram Girdhar Patil (Died) and Ors.

Hon'ble Judges/Coram:

K. Ramaswamy and B.L. Hansaria, JJ.

Citation: AIR 1995 SC 1728

1. Substitution allowed.

2. This appeal by special leave arises from the judgment of the Bombay High Court in Special Civil Application No. 1097 of 1968 dated April 26, 1972. The respondents filed an application under Section 32G of the Bombay Tenancy & Agricultural Lands Act, 1948, (for short, 'the Act') to determine the price payable to the appellant to purchase 8 acres 26 guntas of land which was admittedly in his possession as a tenant. The Tribunal below under the Act found that the respondent No. 1 was is possession of 54 acres of land. In other words, in excess of 48 acres, which in the ceiling limit prescribed under the Act. Therefore, he was not entitled to purchase the land in question from the appellant. The High Court found that the conclusion reached by the Tribunals was vitiated by personal law, namely, Hindu Law and also by evidence on record.

3. We are concerned in this case with the land held by the respondent's minor son to the extent of 7 acres 34 guntas and the land said to have been allotted to the share of his brother by name, Ram Chander, at a partition between them. The High Court has held that by operation of provisions of Section 32B of the Act, the land which the respondent held as an owner and tenant alone should be taken into consideration in determining the area of ceiling limit. The land cultivated by the respondent belonging to his minor son was not as a tenant but as a guardian of his minor son. The land allotted to his brother was evidenced by the entries in the Record of Rights and, therefore, the oral evidence coupled by those entries established that there was a partition between him and his brother Ram Chander and thereby the said land stood excluded. Even assuming that the land belonging to his minor son and cultivated by the respondent was considered to be either held as a tenant or as a member of the joint family, the total land held by the respondent was within the ceiling limit and therefore, he is entitled to purchase the land of the appellant to the extent of 8 acres 26 guntas cultivated as a tenant by the respondent under Section 32B of the Act. Accordingly, it directed the Mamlatdar to conduct the enquiry under Section 32G and remanded the matter for fixing the price. Thus this appeal by special leave.

4. It is contended for the appellant that three Tribunals below, namely, Mamlatdar, appellate authority and the Land Tribunal concurrently held that the respondent was in possession of 54 acres 23 guntas. In other words, in excess of the ceiling limit. It is a finding of fact based on appreciation of evidence. The High Court, therefore, while exercising the revisional power under Article 227 of the Constitution should not have embarked upon appreciation of evidence to reverse the finding of fact recorded by the Tribunal below. It is also contended that the definition of the person includes joint family and the Act does indicate that the land belonging to the minor son should be included in the holdings held by the respondent-tenant. If that land is included, it would be beyond the ceiling limit. It is also contended that the partition said to have been effected between the respondent and his brother Ram Chander was not evidenced by any documentary evidence which was claimed to be in the possession of respondent but was denied by Ram Chander. Therefore, the High Court was not right in reversing the concurrent findings recorded by the Tribunals below.

5. We find no force in the contention. Section 32B clearly postulates that the land held as an owner or as a tenant alone should be taken into consideration to determine ceiling limit and if the land held as owner or tenant is within the ceiling limit, he shall be entitled to purchase the land held by him as a tenant. Admittedly, the respondent held the land as an owner to the extent of 36 acres 1 guntas. The area of dispute is only in respect of the land held by his minor son and the land allotted at a partition to his brother Ram Chander. With regard to the land held by the son, even assuming that it is a joint family property for the purpose of the Act and it is includible in his holding yet he is within the ceiling limit, namely, 43 acres 35 guntas. As rightly held by the High Court he cultivated it on behalf of his minor son. As to the land allotted to the brother of the respondent, the Tribunals below negatived it on two grounds, namely, in the cultivation column of the Revenue records, it was shown that the respondent had cultivated the land and no documentary evidence of partition was produced before the authorities. The Tribunals below did not advert to the entries in the Record of Rights or to the factum of partition, while the High Court has taken this factor into consideration, which in our considered view had rightly been taken into account. The entries in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given, by the respondent and his brother to prove the factum of partition. Even in the evidence of Ram Chander, he clearly stated that there was a partition but he could not give the date and year in which the partition was effected nor the deed of the partition was produced. Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof. Under those circumstances, when the factum of partition was evidenced by entries in the Record of Rights, which was maintained in official course of business, the correctness thereof was not questioned, it corroborates the oral evidence given by the brother and lends assurance to accept it.

6. The High Court, therefore, was right in its conclusion that the land allotted to the brother of the respondent, namely, Ram Chander should be excluded. If that land is excluded necessary conclusion is that the respondent was within the ceiling limit. Consequently he is entitled to purchase the land of the appellant who is the owner under the provisions of the Act as he is a deemed tenant on the tiller date under Section 32 of the Act. Whether the respondent is in excess of the land or not would be considered while computing the holding as ordered by the High Court in its remand order. The appeal, therefore, does not warrant interference. It is accordingly dismissed.

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC

Certificate Of Purchase Can’t Be Conclusive Proof Of Title In Case Of Joint Family Property: Bombay HC [Read Judgment]

Jun 21st 2018, 15:33, by Sukriti

Nitish Kashyap

The Bombay High Court has held that certificate of purchase cannot be conclusive proof of title vis-à-vis joint tenants of a land.

Justice Anuja Prabhudessai held that in case of a joint family property, the certificate of purchase issued in the name of karta or an elder of the family is actually for or on behalf of the joint family.

Case Background

The court was hearing an appeal against judgment of a Joint District Judge, Thane, dated January 24, 1990, wherein compensation for sale of a land in Thane was directed to be divided equally between descendants of co-tenants Vithu and Gajanan.

The government acquired the said piece of land measuring 1 acre 26 gunthas and 8 annas in 1973 for Rs. 57,000 approximately.

Changa Agaskar was the original tenant of the said land and after his death, his two sons, Vithu and Gajanan, used to cultivate the land together as a joint family property.

Vithu claimed that he had purchased the said land in the proceedings under Section 32(G) of the Bombay Tenancy & Agricultural land Act. He further claimed that upon paying the purchase price, the certificate of purchase under Section 32 M of the Act was issued in his favour on July 20, 1966. The original claimant, therefore, claimed that being the exclusive owner, he was entitled to receive the entire compensation amount.

However, descendants of Gajanan claimed that the land was never partitioned and that even after the death of Changa and Gajanan, they continued to cultivate the land as a joint family property. The respondents denied that Vithu was the sole tenant/purchaser of the property. They have stated that Vithu had paid the purchase price of the acquired land out of the sale proceeds of the joint family land. The respondents, therefore, claimed that being the co-tenants of the property, they were entitled to 50 percent of the compensation.

Judgment

After examining the Bombay Tenancy and Agricultural Land Act, the court noted that it is clear that an undivided Hindu family can be a tenant within the meaning of Section 2(18) of the Act. Thereafter, the court looked at the land survey records, mutation entries and said:

“It is thus clear that the original claimant Vithu was not a tenant of the said land in his personal or individual capacity but had only inherited the tenancy rights upon the death of Changa. The original claimant Vithu had therefore failed to prove that he was the sole tenant of the said property. The claimant had also not adduced evidence to prove that the subject property was partitioned during the lifetime of Vithu and Gajanan or that they were cultivating the property or their respective shares separately. The reference court was therefore perfectly justified in holding that the acquired land was a joint family property.”

The land records revealed that the original claimant Vithu had subsequently got his name entered in the survey records, by bracketing the name of Gajanan. He had also purchased the property under Section 32G and a certificate of purchase was issued in his name. It is to be noted that no notice was given to the respondents before deleting/bracketing the name of Gajanan from the survey records, the court said.

Thus, the court rejected the appeal against judgment of the District Judge in Thane and said:

“Under such circumstances, the certificate of purchase issued in the name of Vithu, would be for and on behalf of the joint family. The said certificate would at the most be conclusive proof of purchase against the owner of the land. The tenancy rights of the joint tenants cannot be negated solely on the ground that the certificate of purchase was issued in favour of Karta of a joint family or any elderly person of a joint family. Hence, the certificate of purchase cannot be the conclusive proof of title, vis-a-vis the joint tenants.”

Read the Judgment Here