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1929 Supreme(SC) 101
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD ATKIN, SIR GEORGE LOWNDES, AND SIR BINOD MITTER.
GANGABAI - Appellant
Versus
FAKIRGOWDA - Respondents
On appeal from the High Court at Bombay.
Decided On : Dec. 3. 1929.
Solicitor for appellants:H. S. L. Polak. Solicitors for respondents: T. L. Wilson & Co.
Revenue records prepared by public servants under statutory duty after public inquiry are cogent, though not conclusive, evidence of the facts recorded, especially when corroborated by the parties' conduct, such as separate residence and independent alienations.
Headnote:(A) Land Record-of-Rights Act (IV of 1903) - Sections 3 and 4; Act of 1913 - Section 135(j); Evidence Act - Section 35 - Evidentiary value of revenue records - Entries made by public servants in the discharge of official duty are relevant to prove the facts recorded therein - Such entries, when made after public inquiry and subject to periodic checking, constitute cogent, though not conclusive, evidence of the facts recorded. (Paras 15-18)
(B) Partition - Proof of partition - Separate residence, separate borrowing of money, and independent alienation of property, coupled with revenue entries recording a private partition, are sufficient to establish that a partition took place between brothers. (Paras 23-28)
(C) Presumption of Title - Entries in the record of rights and register of mutations are presumed to be correct unless the contrary is proved. (Para 31)
Facts of the case:
A dispute arose between the descendants of two brothers regarding the ownership of watan lands. The respondents claimed that the estate remained joint and that no partition had occurred. The appellants contended that a private partition had taken place, allowing one brother to possess and alienate specific lands independently. Evidence included revenue records, mutation registers, and the conduct of the brothers, who lived separately and executed mortgages on their respective shares.
Findings of Court:
The court found that the brothers had been separate in food and residence for a long period. One brother had borrowed money and mortgaged properties in his separate possession, while the other had repeatedly mortgaged and leased lands in his own sole ownership. The revenue records consistently described the brothers as separated. The court rejected the suggestion that these entries were made through collusion.
Issues: Whether a private partition had occurred between the two brothers and whether the entries in the record-of-rights and mutation registers were sufficient to prove such partition.
Ratio Decidendi: Revenue records prepared under statutory duty after public inquiry are cogent evidence of the facts recorded. When such records are consistent over several years and are corroborated by the parties' conduct—such as separate residence and independent financial transactions—they establish a partition. A claim of "mutual arrangement" for maintenance cannot override such evidence without proof.
Result: Judgment and decree of the High Court reversed and that of the Subordinate Judge restored.
Appeal (No. 143 of 1927) from a decree of the High Court (September 15, 1925) reversing a decree of the Subordinate Judge of Dharwar (June 25, 1923).
The appeal arose out of a suit by the respondents, the sons and grandsons of one Somappagowda deceased, against the two widows of his brother Baswantrao, and defendants each of whom also claimed to be the adopted son of Baswantrao. The plaintiffs claimed possession of watan lands in the village of Hallikeri, and a declaration that no adoption had taken place.
The only question material to this report was whether the defendants had established that a separation had taken place between the two brothers. The determination of that question depended in part on the weight to be given to entries in the registers kept under the Bombay Land Record-of-Rights Act (IV. of 1903).
The High Court (reversing the trial judge) held that the separation was not proved, and made a decree in favour of the plaintiffs.
1929. July 12, 15. Dunne K.C. and Colombos for the appellants.
E. B. Raikes K.C. and M. M. Bhatt for the respondents.
Dec. 3. The judgment of their Lordships was delivered by
SIR BINOD MITTER. This is an appeal from a decree of the High Court of Judicature at Bombay dated September 15, 1925, reversing a decree of the Subordinate Judge of Dharwar dated June 25, 1923.
The following pedigree will show the relationship of the parties to the litigation and their ancestors—
Dod-Baswantrao, d. 1893. |
|| Somappagowda. Baswantrao. ||
| |||
Nilapagowda. Fakirapagowda. Second First Wife,
| Plaintiff No. 1. Wife, Gangabai.
| Basava. Defendant
| Defendant No. 1.
| No. 2. |
||
| | | | |
Irbasapgowda Bapusaheb Chikkappa. Virupax Shankargowda.
Defendant Defendant
No. 3. No. 4.
Alleged adopted sons
Dod-Baswantrao died in 1893. He left two sons, Somappa gowda (hereinafter referred to as Somappa) and Baswantrao. Dod-Baswantrao owned and possessed considerable watan land in the villages of Hallikeri and Annigeri, Bhadrapur and Basapur. Somappa died on February 28, 1911, and Baswantrao on October 11, 1911. Baswantrao left two widows, Gangabai, defendant No. 1, and Basava, defendant No. 2. Gangabai is said to have adopted either the 3rd or 4th defendant in litigation between them a compromise was effected by which the adoption of the 3rd defendant was upheld.
Only two questions have been debated before the Board, and they are (1.) was there a partition between Somappa and Baswantrao between the years 1898 and 1900? and (2.) are [@ page LRIA
63] the plaintiffs (the respondents in this appeal) entitled to a declaration that Gangabai did not adopt either defendant No. 3 or defendant No. 4 as a son to Baswantrao ?
After Dod-Baswantraos death Somappa became patel, and he appointed as his deputy, as he was entitled to do, Baswantrao, who resided at Hallikeri and acted as the officiating patel there from 1902 to 1911.
On September 15 and 16, 1896, two self-reducing mortgages were executed by Somappa and Baswantrao jointly of land situated in Bhadrapur and in Hallikeri.
It appears that from and after June 9, 1898, various sums were borrowed by Somappa on his own personal responsibility, and ultimately he executed two self-reducing mortgages, both dated September 26, 1905, of lands situate in Bhadrapur and Basapur. During this time Somappa was living apart from Baswantrao. These last two mortgages recited the previous loans incurred by Somappa. On July 2, 1900, Baswantrao mortgaged some lands in Hallikeri, describing them to be in his sole ownership and his sole enjoyment, and appropriated the moneys so raised to his own use. From the last mentioned date down to December 9, 1910, Baswantrao on many occasions transferred various other plots of land in Hallikeri by executing instrumets of mortgage and lease and appropriated the consideration thereof to his own use, and in many of them he asserted that he was the sole owner of the land and that it was in his sole enjoyment.
After the death of Baswantrao in October, 1
