Kura And Anr. vs Jag Ram And Ors.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 14 October 1953

Coram: B.K. Mukherjea, Bose, J.

In this matter the suit was instituted by the son, identified as Kura, with the purpose of setting aside a conveyance that had been executed by his father more than thirty-nine years earlier. The conveyance in question took place on the fifth day of September 1907, while the suit was presented to the court on the twenty-sixth day of November 1946.

The party who alienated the property was Harnama, who at the time of his death left two male heirs: Kura, who appears as the plaintiff, and his brother Sawan. Sawan was initially joined in the suit as a nominal defendant, but in the first appellate proceeding he was erroneously listed as a plaintiff and a decree was rendered in favour of both brothers. That decree was later set aside by the Union High Court at Patiala, prompting an appeal by the plaintiffs.

It is necessary to note at the outset that the parties conceded that Sawan, having been transposed to the position of plaintiff, could not in any event be awarded a decree. Any interest he might have possessed in the disputed property was barred by the limitation period, and the passage of time could not be revived merely because his brother, who at the relevant time was under a personal disability, was permitted to invoke the extended limitation period. The extended limitation was granted to Kura on the basis of his military service, a personal privilege that could not be enjoyed by his brother. Consequently, the claim against Sawan’s one-half share of the property must fail, and for the purpose of the remaining discussion it is appropriate to treat Kura alone as the plaintiff, disregarding Sawan’s erroneous transposition.

The plaintiff asserted that the land forming the subject of the suit was ancestral property belonging to his father, and that the alienation of that land had been carried out without any legal necessity. The matter was not governed by Hindu law; rather, the applicable rule was the customary law of the locality. Under that custom, the plaintiff could succeed only if he was able to demonstrate that the land was indeed ancestral.

The trial court concluded that there was no evidence to establish that the property was ancestral, and consequently dismissed the suit. On appeal, the learned District Judge reversed that finding, holding that the land was ancestral. Acting on that conclusion, the Judge transposed Sawan as a plaintiff and awarded a decree in favour of both brothers for the entire property.

The matter then proceeded to a second appeal before the Union High Court at Patiala. The High Court reversed the decree of the appellate court, agreeing with the trial court that the land was not ancestral and dismissing the plaintiff’s suit. Because Section one hundred of the Civil Procedure Code did not apply, the High Court was entitled to examine the factual material in the second appeal. The judges of the High Court, however, did not address the issue of legal necessity that had been raised, nor did they decide whether the plaintiff was alive at the time of the alleged alienation.

The only evidence that the plaintiff produced to establish the ancestral character of the land consisted of a document referred to as a “Kafait Dehi,” which was exhibited as Exhibit PB. This document was prepared during the settlement proceedings of 1904-06 and purports to trace the history of the village back to “ancient times,” extending well beyond the year 1803-04. At the time the document was compiled, which was sometime in 1904-06, all members of the plaintiff’s branch of the family, except the plaintiff himself, were deceased.

At the time of the settlement carried out between 1904 and 1906 a document was prepared that traced the history of the village from what it described as “ancient times” and extended the narrative well before the year 1803-04. The record indicates that when this document was drawn up, in the period sometime during 1904-06, every member of the plaintiff’s branch of the family, with the sole exception of the plaintiff himself, had already died. The village in which the land pleaded to be owned is presently identified as Kukar Majra. According to the same settlement document, in those “ancient times” a different settlement called Balaspur existed near the location of the present village, but Balaspur later became deserted and its surrounding area fell into waste. Subsequently, two families settled on the reclaimed land; one of these families, designated as family No. 2 in the document, was the family of the plaintiff. This family was then headed by Sahib Rai, whose name appears in the family tree annexed as Exhibit PC, which is also part of the settlement records of 1904-06. The other family, referred to as family No. 1 and headed by Dianat Rai, is not relevant to the present matter. After the initial settlement, families numbered three through seven joined the settlement, and later an eighth family also arrived. Some time before the year 1803-04 these families divided the newly founded village into two portions, or pattis, called Dhariwal and Ujjala. The division was reported in Exhibit PB as being equal, each receiving one half of the village. The plaintiff’s family obtained a share in the Dhariwal Patti, although the precise extent of that share at the moment of division is not recorded. What is known is that around 1803-04 the village, now consisting of the two pattis, was divided among the eight families and was given the name Kukar Majra.

The lands that form the subject of the plaint comprise fifty-four bighas and eleven biswas and are situated within the village of Kukar Majra. No direct evidence has been produced to establish that these lands lie within the Dhariwal Patti; however, that assumption formed the basis of the arguments advanced, and for the purposes of this adjudication the assumption is accepted. Consequently, the only matter demonstrated by the settlement document is that an ancestor of the plaintiff, five generations removed, participated in the founding of the village of Kukar Majra, possessed a share in the Dhariwal Patti and presumably held some land therein. The document does not disclose the magnitude of that ancestor’s share, nor does it specify the exact lands held by Sahib Rai or the extent of those holdings. A later document, Exhibit PC, dated also to the years 1904-06, presents Sahib Rai’s pedigree and indicates the position of his descendants at that time. From the pedigree it is ascertained that Sahib Rai had four sons: Marika, Amar Singh, Sardoola and Kaur Singh. The records further reveal that the descendants of these four sons collectively owned two-thirds of the Dhariwal Patti during the years 1904-06.

In the records, it is shown that Amar Singh died without leaving any descendants and that, while he was alive, he possessed a share of the Dhariwal Patti. The same records indicate that his share was not passed down in the usual manner, which would have divided it equally among the three surviving branches of the family, each receiving one-third. Instead, the document reveals that Amar Singh’s share was split evenly between the two surviving brothers, Sardoola and Kaur, while the third brother, Marika, received nothing. The document then proceeds to list the shares held by each of the three branches of the family and the corresponding extent of land that each branch possessed within the Dhariwal Patti. The first branch, which descended from Marika, held one-sixth of the Patti and possessed a total of 121 bighas and 17 biswas of land; at the relevant time, the only living member of this branch was the plaintiff’s father, Harnama. The second branch, which descended from Sardoola, held a combined share of one-fourth of the Patti, derived from two equal portions of one-eighth each, and owned 101 bighas and 9 biswas of land, together amounting to an aggregate of 201 bighas and 4 biswas when the separate parcels are added. The third branch, which descended from Kaur Singh, also held a total share of one-fourth of the Patti, calculated as the sum of one-twenty-fourth, one-twelfth and one-eighth, and possessed 35 bighas and 1 biswas of land, together with additional parcels that summed to a total of 210 bighas and 14 biswas. The branch of Amar Singh was, as already noted, extinct at the time of the record. Adding together the lands held by the three surviving branches, which together constitute the two-thirds share of the Patti, yields a total of 533 bighas and 15 biswas. This collection of facts represents the entirety of the evidence concerning the division of the Patti and the extent of the land held by each branch, and both parties base their arguments on this same set of data.

The plaintiff argues that the documents demonstrate three principal points. First, they show that the plaintiff’s ancestor, Sahib Rai, founded the village and, when the village was later divided into two Pattis, received a share in the Dhariwal Patti. Second, the records for the years 1904-06 indicate that the plaintiff’s family, as a whole, possessed a two-thirds share of the Patti, amounting to 533 bighas and 15 biswas; the plaintiff therefore contends that this two-thirds share and the land included therein must have descended directly from Sahib Rai. Consequently, the one-sixth share that the plaintiff’s father, Harnama, held in 1904-06 must form part of the 533 bighas and 15 biswas, and the alienated parcel of 54 bighas and 11 biswas must be part of the 121 bighas and 17 biswas attributed to the Marika branch. In this view, the alienated property was ancestral in the hands of Harnama. The plaintiff further reinforces this contention by noting that Amar Singh is shown in the documents to have held a share; therefore, the plaintiff could have obtained only one-sixth of the whole Patti—equivalent to one-fourth of the two-thirds share—if the entire two-thirds share had indeed originated from Sahib Rai. The subsequent increase in the shares of the Sardoola and Kaur branches, each rising from one-sixth to one-fourth because Amar Singh’s one-sixth share was divided equally between them, matches precisely the situation recorded in 1904-06. The defendant, however, challenges the plaintiff’s conclusions, arguing that each step of the plaintiff’s reasoning involves a substantial assumption. The defendant points out that the exact extent of Sahib Rai’s original share is unknown, and that the fact that the family as a whole possessed a two-thirds share in 1904-06 does not necessarily mean that Sahib Rai owned an identical share a century earlier, nor does it preclude the possibility of later acquisitions of land.

In this case the defendant argued that the observation that the family possessed five hundred thirty-three bighas and fifteen biswas in the year nineteen hundred four to nineteen hundred six did not demonstrate that Sahib Rai’s share had been exactly the same amount a hundred years earlier, nor did it prove that no later acquisitions had taken place. He further maintained that the mere existence of a total holding of five hundred thirty-three bighas and fifteen biswas in the later year could not be taken as proof that the remote ancestor had possessed precisely the identical parcel of land a century before, because it was possible that some of the land had been acquired after Sahib Rai’s time. The defendant reinforced this line of reasoning by referring to the documents on record, which, in his view, showed that the property had not descended in the manner that would be expected if it were truly ancestral land passing down from Sahib Rai. He noted that the plaintiff’s father held one sixth of the estate, which would have been his share if the branch of Amar Singh had still existed; however, since Amar Singh died without issue, the plaintiff’s father should have acquired one third of Amar Singh’s one sixth share. Instead, the plaintiff’s branch received nothing, and Amar Singh’s one sixth share was divided equally between the other two branches, raising each of their shares to one fourth (that is, one sixth plus one twelfth). The defendant then drew attention to the disparity in the size of the holdings. He calculated that, if the entire five hundred thirty-three bighas and fifteen biswas had descended from Sahib Rai, the plaintiff’s one fourth share would amount to one hundred thirty-three bighas and nine biswas. Yet the plaintiff’s father actually possessed eleven bighas and twelve biswas less than that figure. According to the defendant’s computation, each of the other two branches should have held three-eighths of the total, which is one fourth of their own share plus one eighth derived from Amar Singh, amounting to two hundred four bighas and four biswas. In reality, the records showed that they possessed two hundred one bighas and four biswas, and two hundred ten bighas and fourteen biswas respectively. The defendant acknowledged that, should the plaintiff’s premise be accepted—that Sahib Rai owned a two-thirds share in the Dhariwal Patti and that the lands now possessed by the family derived from that share—the apparent disparity could be explained by differences in land quality or other factors, because the differences would not be stark once it is accepted that Amar Singh’s share had been divided by mutual consent among the remaining branches. However, the Court agreed with the High Court that such assumptions were unfounded. Firstly, there were eight families in the village, and if Sahib Rai had been allotted a two-thirds share of half the village, his overall share would represent one third of the whole, a proportion that appeared disproportionate. While it was possible that he might have received such a large portion for various reasons, the Court found no justification for assuming that this actually occurred. Secondly, the document titled Kafait Dehi (Ex. PB) observed that, under the stated circumstances, the pattidari form of the village was “imperfect,” and a subsequent note explained that, in the scheme of collecting “Bachh,” the village was treated as a “Bhaia Chara,” meaning that the share of tenure entered in the pedigree table represented only the share in the communal land (shamlat). This implied that the shares shown in Ex. PC related solely to the jointly held portion and did not reflect the exclusive lands occupied by each family. Consequently, the Court could not presume that the lands presently found in the family’s possession were the same lands held by Sahib Rai merely by correlating them with the shares shown against each branch in the shamlat lands, especially since the extent of the lands was unequal when matched with those shares. Therefore, no presumption could be drawn in favour of the lands being of ancestral character.

In the record the entry that the village “is imperfect” is followed by a note stating that, for the purpose of collecting “Bachh,” the village was regarded as being of the “Bhaia Chara” type and that the share of tenure entered in the pedigree table now represents only the share in the shamlat. During oral argument it was explained that Bhaia Chara denotes a situation where the village is not divided into fixed shares; instead each individual is deemed to own whatever piece of land he actually occupies. The note therefore indicates that the shares shown in Exhibit PC pertain solely to the portion of land held jointly by the parties and do not relate to the other lands that each branch occupies exclusively. Accordingly, the Court cannot simply infer that the lands now in the family’s possession are the same lands that were held by Sahib Rai merely by matching them with the shares recorded against each branch in the shamlat. Moreover, when the actual extent of the lands is compared with the recorded shares, the disparity is evident and no presumption can be drawn in favour of an ancestral character. It is likewise impossible to reach a conclusion with any reasonable degree of certainty that there has been no change over the span of a hundred years, or that the parcels of land shown as being in the plaintiff’s possession in the years 1904-1906 were not later acquisitions made by Harnama. In the view of the Court, the documents filed as Exhibits PC and PM do not advance the case in either direction.

The burden of proof rests with the plaintiff, and the Privy Council, on two occasions, has held that in Punjab it is insufficient to demonstrate merely that the name of a common ancestor appears in the revenue pedigree. The appellant must also establish that the descendants of that common ancestor possessed the land in ancestral shares and that, at the time of the dispute, the land occupied by the proprietors had descended to them by inheritance, as articulated in the decisions of Mt Subbani v Nawab and Imam Din v Said Bibi. The Court concurs with the High Court’s assessment that the plaintiff has failed to meet this evidentiary burden. Consequently, the appeal is dismissed and the costs are awarded against the appellant.