Punjab-Haryana High Court
Matu Ram (Deceased) Through Lrs. vs Kartar Singh And Ors. on 15 October, 2003
Equivalent citations: (2004)137PLR569
JUDGMENT V.K. Bali, J.
1. This is defendant's second appeal filed against the judgment and decree passed by learned Additional District Judge, Patiala dated 29.9.1980 reversing the judgment passed by learned Subordinate Judge dated 15.4.1980, thus, dismissed the suit of plaintiffs for declaration that they were co-owners and co-sharers to the extent of one half share in the land in suit and the entries in the jamabandi showing the plaintiff as co-owners to the extent of 3/8th share were wrong. The controversy in the present case is in a very narrow compass. With a view to appreciate, however, the same, it will be useful to reproduce the pedigree table of the parties. The same reads as follows:-
Wazira | |----------------|------------------|-----------------| Kishna Mehma Naraina Santu | | Issueless Issueless | --------------------------------------
| | | |
| Kartar Bant and Ralla
Motu plaintiffs
(defendant)
2. Plaintiffs Kartar Singh, Bant Singh and Ralla Singh sons of Mehma Singh filed a suit seeking decree in the manner, referred to above. Matu Ram was arrayed as a defendant. The dispute pertains to estate of Naraina, who died issueless. As to how the estate of Naraina would develop on the parties, learned appellate court while reversing the judgment passed by learned trial Court held as follows:
"It is admitted that Santu had died and his widow had married Kishna thereby the inheritance of half in favour of Motu and half in favour of Mehma. The copy of the mutation is Ex.D1. It is dated 21.9.1970, Naraina died on 24.8.46. This is proved from the death certificate. The admitted and proved facts in this file are that on the date when Naraina died Motu son of Kishna and Mehma son of Wazira were in existence. Naraina died before the enforcement of the Hindu Succession Act. The estate of Naraina is to be inherited by the brother in preference to Motu son of Kishna i.e. the brother will exclude the brother's son. A perusal of paragraph 43 of the Hindu Law by Mulla clearly shows that the succession takes in order to the degrees as given in this paragraph. The brother excludes the brother's son. So the estate of Naraina would devolve on Mehma alone and Motu defendant would not inherit as his father had died before the death of Naraina. This fact is admitted by Motu defendant when he stated that his father died while he was only six months old. His age is 70 years now. This shows that his father died about 69 years back. Naraina died in 1946. This fact is also apparent from the mutation Ex.D1. The mutation was sanctioned in favour of Motu and Mehma in equal shares. The revenue authorities wrongly applied customary law to the parties and right of representation was given to Motu being the son of Kishna brother of Naraina, This was not the position under Hindu Law. There is nothing on this file to suggest that the parties are governed by customary law. No evidence has been produced on this point nor this fact is asserted. The natural presumption is that the parties being Tarkhanas are governed by Hindu Law, So the mutation was wrongly sanctioned. The estate of Naraina was to go to Mehma alone. The learned counsel for the respondent has argued that the plaintiffs have asserted in the plaint that they were having a co-parcenary with Naraina so the estate would devolve on all the parties. The contention is devoid of force. The plaintiffs as they were stated that their father had a joint co-parcenary property with Naraina deceased. It is asserted that the defendant was one of the co-parceners. So this contention does not help the claim of the defendant."
3. I have heard learned counsel for the appellants but find no illegality or infirmity in the findings recorded by the Appellate Court, as extracted above. Learned counsel representing the appellants, however, relies upon para No. 229 of Principles of Hindu Law by Mulla to urge that the plaintiffs were also entitled to the estate of Naraina in equal share with Matu. Paragraph 229 of the Principles of Hindu Law deals with survivorship. It states that on the death of a coparcener, his interest in the co-parcenary property does not pass by succession to his heirs. It passes by survivorship to the other coparceners, subject to the rule that where the deceased coparcener leaves male issue, they represent his rights to a share on partition, and are his sole legal representatives for purposes of execution of money decrees passed against him. It further states that the rule of survivorship here stated was modified by the Hindu Women's Rights to Property Act, 1937 and it is now subject to the provisions of Section 6 and 30 of the Hindu Succession Act of 1956 in cases where those sections are applicable. Applicability of paragraph 229 aforesaid would have been gone into by the this Court, if perhaps, the appellants had claimed any issue with regard to the property being co-parcenary as, it is only the coparcener's interest, which has been dealt with in paragraph 229. Learned counsel for the appellants contends that no issue with regard to property being co-parcenary was claimed and, thus, not framed by learned trial court. Surely, this aspect of the case could not be determined in omnibus issue, i.e., Issue No. 1, which was with regard to the plaintiffs being owners and co-shares to the extent of 1/2 share in the suit land. It is too well settled that even an admission of a party may not be enough to hold the property to be ancestral or co-parcenary as, to prove the nature of the property, the Court goes only by evidence that may come on the records of the case.
4. Findings no merits in this appeal, the same is dismissed, leaving, however, the parties to bear their own costs.