Dharam Pal and Others vs Bhim Kaur and Others

S.N. Aggarwal, J.—Isri was the owner of certain land. He died in 1964, leaving behind his widow Nathia, two sons, namely, Dharam Pal and Ram Chand-appellants, one daughter, namely, Dharam Wati-appellant No.3. Hari Chand, son of Isri had died earlier and at the time of death of Isri, Bhim Kaur-respondent No. 1 widow and two daughters of Hari Chand, namely, Kamlesh (respondent No. 2) and Lachho (respondent No.3) were alive. Therefore, the inheritance of Isri should have been sanctioned as per law in equal shares in favour of Dharam Pal, Ram Chand and Dharam Wati-appellants, Nathia widow of Isri and in favour of Bhim Kaur etc. being the legal heirs of Hari Chand, predeceased son of Isri. It was not so done. The mutation of his inheritance was sanctioned only in favour of other legal heirs of Isri, except respondents No. 1 to 3. These respondents filed the civil suit for declaration that they are the owners in joint possession to the extent of 1/4th share and also for injunction.

The said suit was resisted by the appellants on various grounds. It was pleaded that mutation regarding inheritance of Isri was entered at No. 536 and was sanctioned on 26.9.1965 and since then the appellants are coming in possession as owners. Initially, the relationship of the respondents with Isri and with Hari Chand was denied. It was also denied at one stage if Hari Chand had any relationship with Isri. The plea of limitation was also pleaded. The learned trial Court held that Hari Chand was the predeceased son of Isri. Respondent No. 1 was the widow of said Hari Chand, while respondents No. 2 and 3 were his daughters. Nathia had died after the death of Isri, therefore, respondent No. 1 (Bhim Kaur-widow of Hari Chand) was held to be the owner to the extent of 1/5th share after the death of Isri and was held entitled to the 1/4th share after the death of Nathia relating to the property situated in village Mauza Dahekula and Mauza Manjhavali. However, the suit of the respondents qua the land situated in Kabulpur Khadar Patti Mehtab was dismissed by the learned trial Court vide judgment and decree dated 8.12.2004.

The appellants had filed the appeal. The learned Lower Appellate Court upheld the findings recorded by the learned trial Court. However, relief was modified to the extent that respondent No. 1 was held to be owner to the extent of 1/5th share of the property left by her father-in-law Isri, while she had inherited 1/4th share out of 1/5th share of Nathia. This appeal was accordingly, dismissed by the learned Lower Appellate Court vide judgment and decree dated 21.4.2006.

Hence, the present appeal.

The submission of the learned Counsel for the appellants was that respondent-Bhim Kaur was not in possession and therefore, she could not file suit for declaration without seeking possession. It was also submitted that the mutation was sanctioned in favour of the appellants on 26.9.1965 and the suit was filed by the respondents against the appellants on 22.10.1999, which was highly delayed and barred by limitation. Hence, it was prayed that the appeal be accepted and the judgments of the Courts below be set aside.

These submissions have been considered. It is really surprising that the people have become so greedy over the property that they even deny their relationship. In the present case, even the relationship of Hari Chand who was real brother of the appellants was denied. It was also denied if Hari Chand was the son of their father Isri. Although later on it was admitted by them that Hari Chand was the son of Isri and was the brother of the appellants. In other words the respondents had to lead evidence to prove that Hari Chand was the son of Isri or the brother of the appellants.

It was also denied if respondent No. 1 was the widow of Hari Chand or if respondents No. 2 and 3 were the daughters of Hari Chand. Respondents had to lead evidence even to that effect and both the Courts below have held that Bhim Kaur-respondent No. 1 was the wife of Hari Chand and Hari Chand was the son of Isri. Said Hari Chand had died prior to the death of his father Isri and therefore, Bhim Kaur was the widow of predeceased son of Isri at the time of his death.

The said respondent has filed the suit for declaration that she was the owner in joint possession to the extent of her share. She has also specifically pleaded that she had come to know about the mutation sanctioned in favour of the appellants only on 16.10.1999. Learned Counsel for the appellants drew the attention of this Court to the cross-examination of Bhim Kaur, where she deposed in the crossexamination that after the death of Isri, the land had devolved on Dharam Pal, Ram Chand, Dharam Wati and Nathia and since then they are owners in possession. This line of cross-examination cannot be read in isolation. It has to be read in the context of her statement as a whole. When the statement is read as a whole, it becomes patently clear that she has asserted and deposed that the mutation was sanctioned at her back and she had come to know of this mutation only in October 1999, by which she was denied her legal right. Bhim Kaur has claimed to be in joint possession as coowner.

Therefore, she could have prayed for declaration that she was in joint possession as co-owner to the extent of 1/4th share. Admittedly, Bhim Kaur -respondent being one of the legal heirs of her father-in-law Isri was co-sharer in joint possession of the suit land and therefore, there is no legal infirmity in the claim made by her in the civil suit.

Both the Courts below have held that she had inherited 1/5th share after the death of her father-in-law Isri and she had inherited 1/4th share out of 1/5th share of her mother-in-law Nathia. Bhim Kaurrespondent, has accordingly, been declared co-owner in joint possession to the extent of her share which devolved on her in accordance with law.

There is no ground on the file to disturb the concurrent finding of fact recorded by the Courts below.

No merits. Dismissed.