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1919 Supreme(SC) 101
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD SHAW OF DUNFERMLINE, LORD PHILLIMORE, MR. AMEER ALI, AND SIR LAWRENCE JENKINS.
NAGESHAR BAKHSH SINGH - Appellant
Versus
GANESHA - Respondents
On Appeal From the Court of the Judicial Commissioner of Oudh.
Decided On : Dec. 19. 1919.
Solicitors for appellant:Barrow, Rogers & Nevill. Solicitors for respondent: T. L. Wilson & Co.
In a joint Hindu family, the presumption of jointure is strong. Revenue records indicating shares are insufficient to prove partition, and settlement decrees reserving the rights of other shareholders do not extinguish reversionary interests in undivided ancestral property.
Headnote:(A) Hindu Law - Joint Family Property - Presumption of Jointure - The presumption that a Hindu family continues to be joint is peculiarly strong and remains until the contrary is proved. A definition of shares in revenue and village papers affords, by itself, only a very slight indication of an actual separation in a Hindu family and is insufficient evidence to find, contrary to the presumption in law, that the family had separated.
(B) Revenue Records - Evidentiary Value - Records kept for revenue purposes are not conclusive evidence of title. While they may form part of the testimony as to fact or supply gaps in evidence, they cannot independently establish a partition of joint family property or defeat the title of another person.
(C) Settlement Decrees - Interpretation - A decree granting superior proprietary rights that is expressly passed subject to the rights of other shareholders conserves reversionary and ownership rights inherent in the succession to joint family property. Such a decree is consistent with the property remaining joint and undivided and does not constitute an affirmation of partition or separation.
Facts of the case:
A suit was instituted to recover possession of a village by seeking the cancellation of a sale deed executed by three widows of former proprietors. The appellant argued that the ancestral property had been partitioned into specific shares, as reflected in revenue records and a settlement decree, thereby granting the widows absolute ownership of their respective shares. The respondent, a daughter of one of the former proprietors, contended that the property remained joint undivided family property and that the sale was invalid as it was executed without consideration or legal necessity.
Findings of Court:
The court found that the property remained joint and undivided at the time of the sale. The settlement decree, by reserving the rights of other shareholders, negated the idea that a partition had extinguished other proprietary rights. The revenue records were held to be insufficient to overcome the legal presumption of jointure. Additionally, concurrent findings established that the sale deed was granted without consideration and without legal necessity.
Issues: Whether the ancestral property was joint and undivided at the date of the sale, and whether revenue records and a settlement decree granting rights subject to other shareholders were sufficient to prove a partition of interests.
Ratio Decidendi: The court ruled that the strong legal presumption of jointure in a Hindu family cannot be rebutted solely by entries in revenue records, which are maintained for revenue rather than title purposes. Furthermore, a settlement decree that grants rights while expressly reserving the rights of other shareholders protects the interests of reversioners and is entirely consistent with the existence of joint and undivided property.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
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family law
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hindu law
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joint family property
- partition
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joint family property
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hindu law
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property law
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land tenure
- zamindari settlement
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land tenure
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practice and procedure
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evidence
- revenue records
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evidence
Judgement
Appeal from a judgment and decree of the Judicial Commissioner of Oudh (August 8, 1916) reversing a decree of the Subordinate Judge of Gonda (December 23, 1913).
The suit was instituted by the respondent to recover possession of the village of Sonahra from the appellant. The main question for determination in the appeal was the validity of a deed of sale of the village executed on December 30, 1871, in favour of the appellants predecessor in title by three Hindu ladies, Musammats Basanta, Rani and Maharani. The facts appear from the judgment of their Lordships.
The respondent by her plaint alleged that Gokaran and Sheo Dayal were joint in estate, that on the death of Gokaran the estate passed by survivorship to Sheo Dayal, and that on the death of the widows (the three ladies above referred to) the respondent, as Sheo Dayal’s daughter, succeeded.
The appellant by his written statement contended (inter alia) (1.) that Musammat Basanta, as widow of Gokaran, was entitled to an 8-anna share, and that the plaintiff did not claim in her plaint to be heir to Gokaran; (2.) that the vendors had an absolute interest in the property by custom and under the decree of the Settlement Assistant Commissioner, dated December 6, 1869.
The terms of that decree were as follows " It is ordered that the claim of the 1st and 3rd set of plaintiffs for superior rights in the village Sonahra be dismissed, and that a decree for superior rights in favour of Rani and Maharani, wives of Sheo Dayal, and Basanta, wife of Gokaran, be passed, subject to the rights of the other shareholders."
The khewat of the village Sonahra, relied on by the appellant, was headed "statement relating to the division of shares in a zamindari mahal which, having been verified in the present settlement, was filed with settlement papers." It recorded in the first column as the "name of sadar malguzar," " Musammat Basanta, wife of Gokaran" ; and in the columns devoted to the names of the possessors and amount of shares it recorded the name of Basanta " in her own right, 8 annas," and Rani and Maharani, " in equal shares, 8 annas." The original khewat was stated as verified on May 30, 1870.
The wajib-ul-arz was verified in November 23, 1870, and stated "every shareholder has a right to transfer his share by mortgage or sale."
The Subordinate Judge found, inter alia, that Sheo Dayal survived Gokaran, that the plaintiff had no right to sue, that the vendors were in possession as full owners, and that by custom widows took an absolute estate. He accordingly dismissed the suit".
The plaintiffs appealed to the Court of the Judicial Commissioner, which delivered judgment on December 1, 1915, finding that Gokaran and Sheo Dayal were joint in estate, with the result that Sheo Dayal took by survivorship to the exclusion of Basanta. The learned judges in dealing with the settlement decree said "In their plaint"—i.e., at the settlement—"the ladies claimed the village on the strength of an antecedent title, describing it as having been granted to the ancestors of their husbands by Raja Dat Singh. The decree granted by the Settlement Court expressly stated that the village was granted to them subject to the rights of their co-sharers. In other words, while conceding superior proprietary rights (haq-ala), as distinguished from an under-proprietary tenure, it declared that the village was to go to the ladies and to all other persons who might be entitled to the same on the strength of their antecedent rights. The ladies were given the village as representing a certain stock or body of proprietors, with the details or particulars of which the Government, when releasing the property, did not care to concern itself. No grant to an indefinite or indeterminate body of individuals could be effective, and the object of the reservation of the rights of co-sharers evidently was to leave the antecedent title of persons, not claiming adversely to the persons who got the decree, undisturbed. The lad
