Madhya Pradesh High Court
Surat Singh vs Gulab Bai on 7 August, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:18543
1 SA-138-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 7 th OF AUGUST, 2025
SECOND APPEAL No. 138 of 2011
SURAT SINGH
Versus
GULAB BAI AND OTHERS
Appearance:
Shri Rajmani Bansal, Advocate for the appellant.
Shri S.S. Kushwaha, Government Advocate for respondent No.3/State.
JUDGMENT
The second appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 8/12/2010 passed by III Additional District Judge,
Vidisha in Regular Civil Appeal No. 11-A/2010, by which the judgment and
decree dated 19/4/2010 passed by Civil Judge, Class-I, Kurwai, District Vidisha in
Regular Civil Suit No. 8A/09 has been set aside.
2. Appellant is the defendant who has lost his case from the appellate Court.
3. Plaintiff/respondent filed a civil suit for declaration of title on the ground
that Khasra Nos. 103, 387, 399/1 total area 3.042 hectares, situated in Village
Fatehpur, Tehsil Kurwai, District Vidisha, is the disputed property. It is the case of
the plaintiff that the name of her father was Khelania, who died about 15 years
back. Khelania had three children i.e. defendant no. 1 and two daughters, namely
plaintiff and Shanti Bai. Shanti Bai has already expired and defendant no. 2 is the
sole legal representative of Shanti Bai. The disputed property belonged to
Khelania. Since the plaintiff is one of the legal representatives of Khelania,
therefore, she has one-third share in the property. The plaintiff and her sister are
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Signed by: ANAND
SHRIVASTAVA
Signing time: 8/23/2025
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NEUTRAL CITATION NO. 2025:MPHC-GWL:18543
2 SA-138-2011
illiterate housewives and have no knowledge about documents, therefore, taking
advantage of the situation, defendant no. 1 has got his name recorded in the
revenue record, which is null and void to the extent of one-third share of
plaintiff. It was further pleaded that the plaintiff and her sister had never
relinquished their share in favour of defendant no. 1. Defendant no. 1 had always
kept them in the dark by falsely informing them that he has got their names
recorded in the revenue record and by also informing them that since they are
residing in their matrimonial homes and would not be in a position to cultivate the
land, therefore, he would continue to give the food grains to them. The plaintiff is
an old lady and somehow managing herself by doing labour work. However, in
October 2008, defendant no.1 has refused to give one-third share in the crop and
claimed that he is the sole owner of property in dispute. Therefore, she obtained
the revenue record and found that name of defendant no. 1 is recorded in the
revenue records. Since defendant no. 2 is not interested in filing a suit, therefore,
he has been impleaded as a formal defendant. Thus, it was claimed that plaintiff
had one-third share in the property in dispute and declaration to that effect was
sought.
4. Defendant no. 1 filed his written statement and it was denied that
plaintiff is his sister. It was claimed that Moolchand was the father of the plaintiff,
who was the uncle of defendant No.1, and under misrepresentation by villagers,
the plaintiff is claiming herself to be the daughter of Khelania. According to him,
Khelania had only one son, i.e., defendant no. 1, and he had no daughter. Khelania
had died about 30 years back i.e. sometime in 1975. Thus, defendant no. 1 had
denied his relationship with the plaintiff.
5. The trial Court, after framing issues and recording evidence, dismissed
the suit but gave a finding that the plaintiff is the daughter of Khelania.
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SHRIVASTAVA
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NEUTRAL CITATION NO. 2025:MPHC-GWL:18543
3 SA-138-2011
6. Being aggrieved by the judgment and decree passed by the trial court,
respondent Gulab Bai filed an appeal, which has been decreed by the appellate
court by impugned judgment and decree dated 8th December 2010.
7. Challenging the judgment and decree passed by the Court below, it is
submitted by counsel for appellant that the suit was filed after 30 years of
mutation, therefore, the suit was barred by time. It is further submitted that since
the plaintiff was not in possession of the disputed property, therefore, the suit was
not maintainable in the light of Section 34 of the Specific Relief Act and proposed
the following substantial questions of law:-
“i) Whether, the learned appellate court erred in law in allowing the
appeal of the plaintiff/respondent no.1 ?
ii) Whether the learned appellate court has erred in law in decreeing the
suit of the plaintiff/respondent no.1 inspite of the fact that the suit is
barred by limitation ?
iii) Whether learned appellate court has erred in law in decreeing the
suit of the plaintiff/respondent no.1 inspite of the fact that the same is
barred by Section 34 of Specific Relief Act ?
iv) Whether the learned appellate court erred in law in shifting the
burden on the defendant no.1/appellant to prove the case ?”
8. Heard the learned counsel for the appellant.
9. Both the Courts below have given a concurrent finding of fact that the
plaintiff is the daughter of Khelania, i.e., real sister of defendant no. 1. During the
course of arguments, the said finding was not challenged by the counsel for the
appellant. Even no substantial question of law in that regard has been proposed by
the appellant. Even otherwise, it is a well-established principle of law that this
Court, in exercise of power under Section 100 CPC, cannot interfere with
concurrent findings of fact unless and until they are shown to be perverse. Even an
erroneous finding of fact cannot be reversed by this Court in exercise of power
under Section 100 CPC.
10. In absence of challenge to the finding with regard to the paternity of the
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NEUTRAL CITATION NO. 2025:MPHC-GWL:18543
4 SA-138-2011
plaintiff, as well as, her relationship with defendant no. 1, it is held that the
plaintiff is the biological daughter of Khelania and the real sister of defendant no.
1. Thus, it is clear that the plaintiff had one-third share in the property.
11. The Supreme Court, in the case of Vineeta Sharma v. Rakesh Sharma
reported in (2020) 9 SCC 1 , has held as under:-
“60. The amended provisions of Section 6(1) provide that on and from
the commencement of the Amendment Act, the daughter is conferred
the right. Section 6(1)(a) makes daughter by birth a coparcener “in her
own right” and “in the same manner as the son”. Section 6(1)(a)
contains the concept of the unobstructed heritage of Mitakshara
coparcenary, which is by virtue of birth. Section 6(1)( b) confers the
same rights in the coparcenary property “as she would have had if she
had been a son”. The conferral of right is by birth, and the rights are
given in the same manner with incidents of coparcenary as that of a son
and she is treated as a coparcener in the same manner with the same
rights as if she had been a son at the time of birth. Though the rights can
be claimed, w.e.f. 9-9-2005, the provisions are of retroactive
application; they confer benefits based on the antecedent event, and the
Mitakshara coparcenary law shall be deemed to include a reference to a
daughter as a coparcener. At the same time, the legislature has provided
savings by adding a proviso that any disposition or alienation, if there
be any testamentary disposition of the property or partition which has
taken place before 20-12-2004, the date on which the Bill was presented
in the Rajya Sabha, shall not be invalidated.
61. The prospective statute operates from the date of its enactment
conferring new rights. The retrospective statute operates backwards and
takes away or impairs vested rights acquired under existing laws. A
retroactive statute is the one that does not operate retrospectively. It
operates in futuro. However, its operation is based upon the character or
status that arose earlier. Characteristic or event which happened in the
past or requisites which had been drawn from antecedent events. Under
the amended Section 6, since the right is given by birth, that is, an
antecedent event, and the provisions operate concerning claiming rights
on and from the date of the Amendment Act.
66. With respect to a Hindu who dies after the commencement of the
2005 Amendment Act, as provided in Section 6(3) his interest shall pass
by testamentary or intestate succession and not by survivorship, and
there is a deemed partition of the coparcenary property in order to
ascertain the shares which would have been allotted to his heirs had
there been a partition. The daughter is to be allotted the same share as a
son; even surviving child of predeceased daughter or son are given a
share in case the child has also died then the surviving child of such
predeceased child of a predeceased son or predeceased daughter would
be allotted the same share, had they been alive at the time of deemed
partition. Thus, there is a sea-change in substituted Section 6. In case of
death of coparcener after 9-9-2005, succession is not by survivorship
but in accordance with Section 6(3). The Explanation to Section 6(3) is
the same as Explanation I to Section 6 as originally enacted. SectionSignature Not Verified
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SHRIVASTAVA
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NEUTRAL CITATION NO. 2025:MPHC-GWL:185435 SA-138-2011
6(4) makes a daughter liable in the same manner as that of a son. The
daughter, granddaughter, or great-granddaughter, as the case may be, is
equally bound to follow the pious obligation under the Hindu law to
discharge any such debt. The proviso saves the right of the creditor with
respect to the debt contracted before the commencement of the 2005
Amendment Act. The provisions contained in Section 6(4) also make it
clear that provisions of Section 6 are not retrospective as the rights and
liabilities are both from the commencement of the Amendment Act.”
Therefore, it is clear that the plaintiff had one-third share in the property left
by her father Khelania, and the property has not been partitioned so far.
11. So far as the contention of the appellant that since suit was filed after 38
years of mutation and therefore the suit is barred by limitation is concerned, the
same is misconceived. It is well established principle of law that mutation entry is
not a document of title and that will neither create nor extinguish any right or title.
12. This Court, in the case of Subhanshu Soni v. State of M.P. & Others
reported in 2023 (3) MPLJ 685 , has held that merely because one of the co-
owner/co-sharers did not take steps to get her name mutated, it would not deprive
her of her title/share in the property in dispute. It has also been held that Article 65
of the Limitation Act would not apply to undivided joint family property, because
every co-sharer is deemed to be in constructive possession irrespective of fact
whether he is in actual possession or not. Unless and until it is successfully shown
by a co-sharer that one of the co-sharer was ousted, there cannot be any hostile
possession against that co-sharer.
13. Under these circumstances, this Court is of considered opinion that the
submissions made by counsel for the appellant that the suit filed by the plaintiff
was barred by time is misconceived because being a co-sharer, the plaintiff is
deemed to be in joint possession of each and every inch of the property in dispute.
14. No other argument was advanced by counsel for the appellant.
15. As no substantial question of law arises in the present appeal,
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SHRIVASTAVA
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NEUTRAL CITATION NO. 2025:MPHC-GWL:18543
6 SA-138-2011
accordingly, the judgment and decree dated 8/12/2010 passed by III Additional
District Judge, Vidisha in Regular Civil Appeal No. 11-A/2010 is hereby
affirmed.
16. The appeal fails and is hereby dismissed in limine.
(G. S. AHLUWALIA)
JUDGE
(and)
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Signed by: ANAND
SHRIVASTAVA
Signing time: 8/23/2025
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