To stake your claim on a property, it is necessary that you are the owner of that property. Now the question is, what is it to be the owner of the property or to have ownership rights over the property?

Different people may have different understandings or misunderstandings for this, a common misunderstanding is that the property, be it a farm, flat or shop or house, its transfer is in my name, so I am its owner.

Many people also say that we have a farm, for which we do not have any other document, but we have been getting its revenue receipts issued for many years, so we became its owner, but here it has to be understood that transfer or mutation is different from ownership and transfer or mutation is not considered proof of ownership.

Today we will try to clarify this situation. In many places, transfer is also called Dakhal Kharij, but both things are the same. You should keep this in mind so that you can understand the subject properly, why is transfer or mutation not considered proof of ownership? Before knowing this, let us try to understand what mutation is.

Whenever you buy a property or you get a property in inheritance, you register your name in place of the previous owner in the government records. For example, suppose there is a farm in the name of your father and your father dies, then you remove your father’s name in the revenue record of that farm

Example: Jamabandi Khatauni etc. and register your name. Similarly, suppose your father or mother has bought a flat in a society, then after the death of the father or mother, the name of their heirs is registered for membership of the society. Or any other property on which a local authority like Municipal Corporation, Municipal Council etc. imposes development tax, then the mutation of such property is with the local authority.

This means that when the name of the heirs or nominee is registered in place of the previous owner after the death of its previous owner in respect of a farm, society, flat or any other house or shop, then it is called mutation or transfer.

Now the purpose of mutation is also limited and that is that the tax determined on any property can be recovered from the person in whose name the property has been transferred. This means that the name of a person is registered in the records of the government, local authority i.e. Municipal Corporation, Municipal Council etc. or any society for a property so that such government, society, local authority etc. can recover tax or fee from that person.

Many people believe that after the death of the father, if they get their name registered in the society flat purchased by the father i.e. if they get mutation done, then it becomes a document of their ownership,

But on the basis of mutation alone, a person cannot be considered the owner of that property and I am not saying this, but the Supreme Court has said this in different cases.

A long time ago, a similar case came before the Supreme Court in 1996, the title of the case was Swaran vs Inder Kaur AIR 1996 Supreme Court 2823. The main point to be determined in this case was whether if mutation has been done in favour of a person in respect of a property, whether such person will be considered the owner of that property.

While determining this, the Supreme Court held that mutation of a property in the revenue records does not create or establish title, nor does it have any presumptive value on the title. It only enables the person in whose favour mutation is ordered to pay the relevant land revenue.

This means that transfer of property in favour of a person in the revenue records neither creates ownership nor does the transfer define his title. Transfer of property in favour of a person cannot presume that that person is the owner of such property.

This decision of the Supreme Court was a landmark decision on the point of transfer, which has been cited hundreds of times by various courts in their judgments after 1996.

Here The Question Naturally Arises That If Mutation Is Not Proof Of Ownership, Then How Will The Ownership Be Proved Or Determined?

A basic principle is that the ownership of every property initially lies with the government and when the government allots a property in favour of a person, then basically the title document of the property is its allotment letter or allotment letter, it is also called patta in many places.

Allotment of a property is done only once by the government or the society, then there can be two-three circumstances for the title to be transferred further, such as the person in whose favour the allotment was done may have sold or gifted that property to someone else or the allottee may have died and in any such situation, the ownership will be transferred according to that situation.

For example, suppose a property has been allotted in favour of Mr. A and Mr. A sold the property to Mr. B in his lifetime, then the ownership will be transferred in favour of Mr. B through the sale deed. On the contrary, if Mr. A did not transfer that property in his lifetime and he dies, then it will be seen whether Mr. A has made any will regarding that property in his lifetime or No

If he has executed a will, the title of the property will go in favour of the beneficiaries of the will as per the will and if the will has not been executed, then the property will go to the heirs of Mr. A after his death as per the succession law and the transfer of ownership of the property will be considered on the basis of succession

In favour of his heirs, the title of the property was originally created by the allotment letter and thereafter the transfer of title can be done by succession law or by sale or gift or by will and such transfers can happen any number of times in future

So whenever you have to prove your title on any property, you will have to tell the court that either the allotment of the property has been done in your favour or the ownership of the property has been transferred to you by will or by succession or by sale or gift

The Supreme Court had given a finding in this regard in the matter of Swarani vs Inder Kaur, there were such facts in that too and in reality it happens many times that a person after the death of his father or mother gets the mutation of that property done i.e. transfer of name He gets the name transfer done in his favour and starts considering himself the owner on that basis but the test of his ownership will be that who were the heirs of his father or mother after the death of his mother or father and what was the legal share of each heir in that property

The ownership of the property will be decided by that only. If a person has four heirs at the time of his death but after his death only two people together get the transfer done in their favour then they cannot say on this basis that they have got the ownership of the entire property

So the point is that ownership of property and name transfer of property are two different things and to prove the ownership, name transfer in your favour will not help but there is one more thing in this, if the will is registered in any court then the property will go in the favour of the person who made the will.