Punjab-Haryana High Court
Smt.Sibo And Others vs Smt. Bhajan Kaur @ Harbhajan Kaur And ... on 17 April, 2012
Author: K.C.Puri
Bench: K.C.Puri
RSA No.293 of 1987 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.293 of 1987
Date of decision 17.04. 2012.
Smt.Sibo and others
...... Appellants.
versus
Smt. Bhajan Kaur @ Harbhajan Kaur and others
...... Respondents.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mr. Swaran Singh Senior Advocate with
Mr. N.S.Rapri, Advocate for the appellants.
None for the respondents.
K.C.PURI, J.
Smt. Sibo and others defendants-appellants have directed the present regular second appeal against the judgment and decree dated 10.9.1986 passed by learned Additional District Judge, Hoshiarpur vide which the appeal preferred by the plaintiff was partly accepted after setting aside the judgment and decree dated 29.8.1985, passed by the Sub Judge IInd Class, Garhshanker and held that the plaintiff/appellant is owner of RSA No.293 of 1987 2 1/5th share in the estate of Smt.Santi deceased and she is entitled to joint possession of her share with the respondents Nauhria, Ram Dass, Parkash sons of Waryama, Darshan, Jarnail and Pappu sons of Kishna and Smt.Chano widow of Kishna whereas her suit regarding her share in the remaining land was dismissed.
2. The case of the plaintiff in brief is that she is the owner in possession of 35 kanals 1 marlas of land out of 63 kanals 19 marlas of land fully detailed in sub head (1) of the head note of the plaint and that she has half share in house property comprising of one room, verandah and courtyard marked as ABCD and fully detailed in the sub head (2) of the head note of the plaint. She has further sought declaration to the effect that she is having ½ share in taur marked EFGH fully detailed in sub head (3) of the headnote of the plaint and ½ share in 2 rooms, Dalan and compound marked IJKL fully detailed in sub head (4) of the head note of the plaint, left by Smt. Santi widow of Milkhi and that defendants 1 to 10 have no right title or interest in the above said land and mutations No.5553 sanctioned in favour of the said defendants is wrong, against law and facts and is ineffective against her rights. She has also sought permanent injunction against the defendants 1 to 9 for restraining them from denying her title over the suit properties and in the alternative, she has sought the possession of all the above said properties.
3. The claim of the plaintiff is that she and Smt.Santi widow of Milkhi were the owners in possession of 63 kanals 19 marlas of the suit land and the house properties mentioned in the headnote of the plaint in RSA No.293 of 1987 3 equal shares. These properties devolved upon them from their husbands. Two years before filing the suit, Smt.Santi died issueless. After her death, the plaintiff being widow of Chanan, the brother of the husband of the above said Smt.Santi entered into the possession of the suit properties as owner being the sole heir of Smt.Santi. The defendants claiming themselves to be the owners of the suit properties in view of a mutation in their favour in respect of the estate of Smt.Santi on the basis of a will, threatened to dispossess her from the suit property. She has alleged that the Will set up by the defendants is not a valid document. The defendants refused to admit the claim of the plaintiff. Hence this suit.
4. Notice of the suit was given to the defendants. Defendants No.2, 4, 6, to 8 and 10 to 12 did not appear despite the service by beat of drum. Accordingly, they were ordered to be proceeded against ex-parte.
5. The other defendants No.1, 3, 5 and 9 filed a joint written statement taking up legal objections.
6. On merits, they alleged that Smt.Shanti deceased was the absolute owner of the properties in suit. The plaintiff had no concern with the suit properties. Smt.Santi sold 17 marlas of land bearing khasra No.1119 during her life time in favour of Bhag Singh vide registered sale deed dated 13.3.1981. The plaintiff is not widow of Chanan, therefore she had no occasion to enter into the possession of the suit properties being legal heir of Smt. Santi under Hindu Succession Act. They served the deceased Smt. Santi, who in turn executed a valid registered Will in their favour on 20.4.1977. They have claimed their favour on 20.4.1977. They have RSA No.293 of 1987 4 claimed their possession over the suit properties on the basis of the said Will. They denied other allegations and prayed for dismissal of the suit.
7. In replication the pleas raised in the plaint have been reiterated whereas the averments of the written statement were denied.
8. From the pleadings of the parties, following issues were framed :-
1. Whether Santi and Bhajan Kaur are owners in possession of the property as alleged ?OPP
2. Whether the plaintiff is an heir of Smt.Santi if so its effect ? OPP
3. Whether the plaintiff has no locus standi to file this suit ?
OPD
4. Whether the suit is not maintainable ? OPD
5. Whether the plaintiff is estopped from filing this suit ?
OPD
6. Whether Smt.Santi executed the valid will dated 20.4.1977 in favour of defendant Nos.1 to 3 and others as alleged ? OPD
7. Whether the suit is bad for mis-joinder of defendant No.7 ?OPD
8. Relief.
9. The parties have led their respective evidence on the aforesaid issues. After appraisal of the same, the trial Court dismissed the suit vide judgment and decree dated 29.8.1985.
10. Feeling dissatisfied with the aforesaid judgment and decree dated 29.8.1985, the plaintiff has preferred the appeal before the First Appellate Court. The First Appellate Court vide judgment and decree dated 10.9.1986 partly accepted the appeal of the plaintiff and decreed for RSA No.293 of 1987 5 declaration that plaintiff/appellant is owner of 1/5th share in the estate of Smt.Santi deceased and she is entitled to joint possession of her share with the respondents Nauhria, Ram Dass, Parkash sons of Waryama, Darshan, Jarnail and Pappu sons of Kishna and Smt.Chano widow of Kishna.
11. Feeling dissatisfied with the judgment and decree dated 10.9.1986 passed by learned Additional District Judge, Hoshiarpur, the present regular second appeal has been directed.
12. Learned counsel for the appellants on 27.9.2011 submitted that following substantial questions of law have arisen in the present appeal for adjudication :-
1. When the legatee pre-deceased the testator, whether the property is to revert to testator or to the heirs of the legatee under Sections 106 and 109 of the Indian Succession Act.
2. Whether the case is covered by Smt.Shanti & others vs. Smt. Bhagwani & Others reported in 1984 (2) Land Laws Reporter 232.?
13. So far as the facts of the present case are concerned, the same are not in much dispute. The inheritance of Smt.Santi is in dispute. The registered Will dated 20.4.1977 has not been disputed. According to the Will Smt. Santi executed Will in favour of Karma and others as she was not having any son or daughter and as per Will, Kishna, Nauhria, Ram Dass, Parkash sons of Waryama were the beneficiaries. According to the recital in the said Will these persons i.e. Kishna, Nauhria, Ram Dass, Parkash sons of Waryama are the sons of brother of husband of Smt.Santi from relation. Smt. Bhajan Kaur @ Harbhajan Kaur widow of Chanan son RSA No.293 of 1987 6 of Rama is the natural heir of said Santi. Karma one of the beneficiary is pre-deceased Santi.
14. The only question for determination in the present appeal is whether 1/5th share of Santi would be inherited by heirs of Karma in view of the Will dated 20.4.1977 or shall be inherited by Smt. Bhajan Kaur @ Harbhajan Kaur being the natural heir ? There is concurrent finding of fact recorded by both the Courts below that Smt. Bhajan Kaur @ Harbhajan Kaur is the natural heir of Santi deceased. That being a finding of fact cannot be interferred.
15. Learned counsel for the appellant has submitted that in view of provisions laid down in Section 109 of the Indian Succession Act, 1925 (in short - the Act), the property will go to the heirs of Karma as he pre- deceased Shanti and not to Harbhajan Kaur the natural heir of Santi.
16. Learned counsel for the appellants has relied upon authority Smt. Shanti and others vs. Smt.Bhagwani and others reported in AIR 1984 Punjab and Haryana page 313 to support his contention. It is contended that intention of Smt. Santi was to give inheritance to Karma or his legal heirs and as such provisions of Section 109 of the of the Indian Succession Act, 1925, would be attracted. The learned First Appellate Court has misapplied Section 107 of the Indian Succession Act, 1925.
17. I have considered the submissions made by learned counsel for the appellants and have gone through the records of the case.
18. In order to properly appreciate the facts of the case, the RSA No.293 of 1987 7 relevant provisions of Sections 107 to 109 of the Indian Succession Act, 1925, are reproduced as under :-
"107. Effect of words showing testator's intention to give distinct shares. - If a legacy is given to legatees in words which shows that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property."
108. When lapsed shares goes as undisposed of. -
Where a share which lapses is a part of the general residue bequeathed by the Will, that share shall go as undisposed of.
109. When bequest to testator's child or lineal descendant does not lapse on his death in testator's lifetime.- Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will."
19. Now, the question arises whether the case of the appellants falls within the ambit of Section 109 of the Act or under Section 107 of the RSA No.293 of 1987 8 Act ? If the case of the appellants is covered by Section 109 of the Act, then the appeal is likely to be accepted and if the provisions of Section 107 of the Act are applicable to the facts of the present case, in that case the appeal is liable to be dismissed.
20. After considering the submissions made by counsel for appellants and after going through the contents of the Will carefully, I am of the considered view that case of the appellants falls within the provisions of Section 107 of the Act and not under the provisions of Section 109 of the Act. Karma is neither the child of the testator nor lineal descendant. According to the recital in the Will, he is the brother's son from relation and not real brother's son of testator. The nearest relation of Santi deceased is plaintiff Bhajan Kaur alias Harbhajan Kaur. So, the intention of Santi was never to bequeath her property in favour of lineal descendant of appellants. Due to death of Karma prior to Santi, one of the beneficiary of the Will, the share of Karma mentioned in the Will would go to the natural heirs in view of Section 107 of the Indian Succession Act. The intention of Santi was to give distinct share to Karma, Nauhria, Ram Dass and Parkash sons of Waryama, Karma pre-deceased Santi. He is neither son nor lineal descendant of the testator. So, the share of Karma mentioned in the Will shall remain undisposed and shall be inherited according to the natural succession.
21. So far as the authority Smt. Shanti and others' case ( supra ) is concerned, that authority is distinguishable to the facts of the present case as in that case the beneficiary was the child of testator. RSA No.293 of 1987 9
22. So, in view of the above discussion, the substantial questions of law raised above, stand determined against the appellants.
23. Consequently, the appeal is without any merit and the same stands dismissed.
24. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
April 17, 2012
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