Mahesh Chand Bhargava Died Thr. ... vs Shri Ramesh Chand Bhargava
2021 Latest Caselaw 8972 MP

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       THE HIGH COURT OF MADHYA PRADESH
                     WP-26818-2021
Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs.
              Shri Ramesh Chand Bhargava

Gwalior, Dated : 20-12-2021

      Shri Santosh Agrawal, Counsel for the petitioners.

      This petition under Article 226 of the Constitution of India has

been filed against the order dated 29.01.2020 passed by

Commissioner, Gwalior Division, Gwalior in Case No.56/16--

17/Appeal, thereby affirming the order dated 06.05.2017 passed by

SDO, Bhitarwar, District Gwalior, by which mutation in favour of the

petitioner has been set aside and the names of all legal

representatives of Moolchandra have been directed to be recorded in

the revenue record.

2.    The necessary facts for disposal of present petition in short are

that Survey No.201 area 0.481 hectares, Survey No. 665, 681, 682

joint area 0.617 hectares, Survey No.889/1 area 0.899 hectares,

Survey No.1180/2, 1182/2, 1183/2 and 1185/7 total area 0.701

hectares, Survey No.905 min area 0.910 hectares, total area 3.608

hectares are situated in village Gohinda, Tahsil Bhitarwar. The said

property was joint property of father of the petitioner as well as his

uncle Moolchandra Tiwari. The father of the petitioner were three

brothers namely Sitaram, Pannalal and Moolchandra. Pannalal had

renowned the world, whereas Moolchandra was bachelor and died

issue-less in the year 1971, whereas father of the petitioner namely
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       THE HIGH COURT OF MADHYA PRADESH
                     WP-26818-2021
Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs.
              Shri Ramesh Chand Bhargava

Sitaram also died in the year 1998. The petitioner was adopted by

Moolchandra and after the death of Moolchandra Tiwari, he filed an

application for mutation of his name in the revenue record on the

strength of adoption deed and by order dated 31.10.1975 passed by

Naib Tahsildar in Case No.75/74-75, name of the petitioner was

mutated in respect of share of his uncle Moolchandra. The order of

Naib Tahsildar was never challenged and father of the petitioner also

died in the year 1998. Thereafter, the respondent, who is the real

brother of the petitioner filed an appeal on 10.03.2015 against the

order dated 31.10.1975 passed by the Naib Tahsildar along with an

application filed under Section 5 of the Indian Limitation Act. The

only ground which was raised by the respondent was that from the

year 1962 onwards the appellant/respondent herein had left his

village Gohinda and shifted to the house of his maternal uncle

Permanand Patel for prosecuting his studies. After completing his

studies, he started practicing as a Lawyer and at present, he is

residing in Gwalior. Till the year 2014, the appellant/respondent

herein was jointly cultivating the land and therefore, he did not get

any suspicion about the misdeeds done by the petitioner and,

accordingly, he never verified from the revenue records. On

05.08.2014 the petitioner started claiming that he is the owner of the

THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

entire land and when the respondent herein was denied his claim then

he was informed that the land which had fallen to the share of

Moolchandra has already been mutated in the name of the petitioner.

Accordingly, the appeal was filed. The application filed under

Section 5 of the Limitation Act was opposed by the petitioner by

filing the written reply. The SDO by order dated 06.05.2017 not only

allowed the application filed under Section 5 of the Indian Limitation

Act and condoned the delay in filing the appeal, but also allowed the

appeal on the ground that the petitioner had failed to prove that he

was adopted by Moolchandra.

3. Being aggrieved by order dated 06.05.2017 passed by the

SDO, Bhitarwar District Gwalior in Case No.16/14-15/appeal, the

petitioner preferred an appeal before the Court of Commissioner,

Gwalior Division, Gwalior and by the impugned order dated

29.01.2020 the said appeal has been rejected.

4. Challenging the order passed by the Courts below, it is

submitted by the counsel for the petitioner that after the death of

Moolchandra, his father Sitaram would have succeeded the property

being Class-II heir of Moolchandra. His father Sitaram never raised

an objection on the adoption of the petitioner by Moolchandra. Under

these circumstances, the respondent had no right to assail the

THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

mutation of the name of the petitioner on the basis of adoption deed.

Furthermore, the respondent had also failed to explain the delay of 40

years in filing the appeal.

5. Heard the learned counsel for the petitioner.

6. So far as the delay in filing the appeal is concerned, Section 17

of the Limitation Act reads as under:-

"17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,--

(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or

(b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or

(c) the suit or application is for relief from the consequences of a mistake; or

(d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him,

the period of limitation shall not begin to run until plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which--

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to

THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

believe, that any fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or

(iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order:

Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be."...................

7. From the plain reading of Section 17 of the Indian Limitation

Act, it is clear that every fraud or mistake is not to be considered as a

sufficient cause unless and until party claiming benefit of the

aforesaid section is succeeded in establishing that in spite of due

diligence, the fraud or the mistake could not be discovered. The

application filed under Section 5 of the Indian Limitation Act reads

as under:-

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THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

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THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

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8. From the plain reading of the application, it is clear that the

respondent had specifically pointed out that during his childhood, he

had shifted to the house of his maternal uncle and from thereafter, he

came to Gwalior and started practicing and till the year 2014, he was

being given his share without any claim by the petitioner over the

land in question, therefore, he never had any suspicion with regard to

THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

the fraud which was being played by the petitioner. Only when the

petitioner started claiming his title over the land in question, the

respondent became suspicious and verified from the revenue record.

9. The only question for consideration is as to whether the claim

of the respondent that he had a faith and belief on the petitioner can

be said to be bonafide or not ?

10. Undisputedly, the petitioner and the respondent are the real

brothers. According to the respondent, he had already shifted to

Gwalior, but he was getting his share in the proceeds earned from the

land in dispute, therefore, he never got suspicious about the fraud

which was played by the petitioner. If a co-owner had not challenged

the title of his brother and he was honestly giving the share to his

brother, then it cannot be said that the respondent should have

verified from the revenue records specifically when every co-owner

is treated to be in possession of the land in dispute unless and until it

is partitioned. Since the right of the respondent was never disputed

by the petitioner till 05.08.2014 and the share of the respondent was

being given by the petitioner without any objection, then there was

no need for the respondent to have some doubt about the honesty of

the petitioner. Under these circumstances, if the respondent never

verified from the revenue records, then it cannot be said that the

THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

respondent was negligent or did not act with due diligence.

11. Under these circumstances, this Court is of the considered

opinion that the respondent had clearly made out his case for

exclusion of time as provided under Section 17 of the Indian

Limitation Act. Furthermore, the authorities below have exercised

their discretion in favour of the respondent and in view of the

observation made by this Court in the earlier part of this order, the

discretion exercised by the authorities in favour of the respondent

cannot be said to be perverse. Accordingly, it is held that the

authorities below rightly condoned the delay of 40 years in filing the

appeal.

12. So far as the question of adoption is concerned, it is well

established principle of law that mutation does not confer any title on

any party. The mutation is done for the fiscal purposes only.

13. The Supreme Court in the case of Jitendra Singh Vs. State of

Madhya Pradesh and others by order dated 06.09.2021 passed in

SLP (C) No.13146/2021 reported in 2021 SCC Online SC 802 has

held that the basic purpose of mutation of name of a person in the

revenue record is "fiscal". Mutation in the revenue record does not

create any right or title. This Court in the case of Ramkali vs.

Banmali and another reported in 2021 SCC OnLine MP 359 has

THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

held that the revenue authorities are not competent to mutate the

name of a person on the basis of a "will" and if the beneficiary wants

to take advantage of a "will" then he has to get his title declared from

the Civil Court. Thus, where-ever a person wants to get his name

mutated dehors the provision of Succession Act, then he has to get

his title declared from the Civil Court. Like "will", a beneficiary is

also required to prove lot of circumstances in order to establish that

he was adopted by the owner of the land.

14. From the order passed by the SDO, it is clear that except the

verbal ocular evidence, nothing was placed on record to show that

the petitioner was adopted by Late Moolchandra. Further, the

petitioner has also not filed a copy of the order dated 31.10.1975

passed by the Naib Tahsildar by which his name was mutated in the

revenue record. It is not known as to whether the petitioner was also

made a party to those proceedings or not. Furthermore, according to

the petitioner himself, the father of the petitioner were three brothers,

i.e., Sitaram (father of the petitioner and the respondent), Pannalal

and Moolchandra. It is also not known as to whether grand mother of

the petitioner was alive on the date of death of Moolchandra or not. It

is also not known as to whether Pannalal was alive on the date of

death of Moolchandra or not. It is also not known as to whether the

THE HIGH COURT OF MADHYA PRADESH WP-26818-2021 Mahesh Chand Bhargava died through LRs Smt. Manko Devi Vs. Shri Ramesh Chand Bhargava

father of the petitioner had any sisters or not. As per Section 8 of the

Hindu Succession Act, mother is a Class-I heir, whereas brother and

sister are Class-II heir falling in category-II. If the grand mother of

the petitioner was alive on the date of death of her son Moolchandra,

then even Sitaram (father of the petitioner) was not entitled to inherit

the share of his brother because the mother of Moolchandra would

take entire share being the Class-I heir of Moolchandra under Section

8 of the Hindu Succession Act. Thus, it is clear that the petitioner did

not lead any evidence to show that whether the share of Moolchandra

could have been succeeded by his father Sitaram alone or not.

15. Viewed from every angle, this Court is of the considered

opinion that the Revenue Courts did not commit any mistake by

setting aside the order dated 31.10.1975 passed by Naib Tahsildar in

Case No.75/74-75.

16. The petition fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Abhi ABHISHEK CHATURVEDI 2021.12.22 17:43:43 +05'30'