Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Succession-Right of inheritance-Land of two brothers. i |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Succession-Right of inheritence-Land of two brothers in possession of descendants of one brother-Suit by collateral claiming succession to the land-Other brother not heard for 7 years-Date of his death not proved- Descendants got their names mutated after denying the title of collaterals- Suit rejected by Trial Court on the ground of adverse possession-First Appellate Court and High Court granted decree to the extent of estate of the other brother presuming his death on the date of filing of the suit-On appeal-Held, collaterals not entitled to succeed since the descendants had perfected their title after ousting the title of the collaterals and collaterals could not prove the date of death-Adverse Possession. Adverse Possession-Applicability of-On land in possession of co- sharer-Held, the possession cannot be deemed to be adverse in respect of other co-sharers unless they have been ousted by denying their title. Evidence Act, 1872-Section 108. Death of a person-Claim of-Burden to prove-Is on the person who makes such a claim. Presumption as to death-Exact date of death cannot be presumed- High Court presuming it to be on the date of filing of suit-Contrary to law. 'H' was in possession of the suit land which included share of his brother since he absconded. After death of 'H', wife of a collateral took possession of the land and got it mutated in her name, which was questioned by the adopted son of 'H'. In litigation between the adopted son and the wife of collateral, court decided in favour of the son and the entire land was mutated in his name. After his death, appellants, his grand sons got their names mutated in respect of entire land. Respondent No. 1, a sixth degree collateral of the other brother challenged the mutation unsuccessfully.Thereafter Respondent No. 1 filed present suit for declaration that he was entitled to succeed to the land being collateral of 'H' and his brother. There was no pleading or averment regarding death of the brother. Trial Court dismissed the suit holding that the adopted son and his successors were in adverse possession of the land. On appeal, the First Appellate Court granted decree in favour of respondent only in respect of land of the brother holding that the adopted son was entitled to inherit only the land of 'H'; and that since the brother had not been heard for more than 7 years, could be considered to be dead on the date on which the suit was filed ; and the plea of adverse possession was rejected. High Court upheld the decision of the First Appellate Court. In Letters Patent Appeal High Court upheld the decree with modification that the land of the brother would be divided between Respondent No. I and Respondent Nos. 2 to 7 (other collaterals). Hence this appeal. |
Judge | Hon'ble Mr. Justice S.N. Phukan |
Neutral Citation | 2002 INSC 9 |
Petitioner | Darshan Singh And Ors. |
Respondent | Gujjar Singh(dead) By Lrs. And Ors. |
SCR | [2002] 1 S.C.R. 91 |
Judgement Date | 2002-01-08 |
Case Number | 5 |
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