Harbans Singh vs Dalip Singh and Others

S.P. Kurdukar, C.J.—This civil revision is directed against an order dated 8th May, 1991, passed by the Subordinate Judge, First Class, Nabha, on two applications one filed by the first plaintiff and the other by the defendant. This civil revision is filed by the original defendant challenging the legality and correctness of the impugned ordered dated May 8, 1991.

Suit No. 58 dated 6.4.1989 was filed by the four plaintiffs, namely, Dalip Singh and Rattan Singh, sons of Waryam Singh and Dhara Singh and Banta Singh sons of Wazir Singh against Harbans Singh son of Jagat Singh, the petitioner defendant. The plaintiffs claimed title to the suit property on the ground that the suit property belonged to one Bir Kaur who was said to be the sister of their father. It is stated in the Plaint that she died without leaving any heir and the Plaintiffs being the nearest heirs, have succeeded to the property of Bir Kaur. The Plaintiffs claimed to be the co-sharers having equal shares in the suit property. Rest of the details in the plaint are not necessary to be set out at this stage

The petitioner-defendant claims that Bir Kaur was residing with him and since he looked after her, she has executed a will in his favour on May 4,1986. The defendant also pleaded that during the life time of Bir Kaur he continued to be in possession of the suit property as a tenant.

The second plaintiff, namely, Rattan Singh, died on May 1, 1990. The first Plaintiff, Dalip Singh, being the real brother, on July 23, 1990, made an application for bringing on record the heirs and legal representatives of the deceased Rattan Singh. The defendant filed an application contending that since the heirs of plaintiff No. 2 did not come forward with proper application for bringing them an record, the application of plaintiff No. 1 was not maintainable. In the absence of the heirs and legal representatives of Plaintiff No.2 on record, the whole suit must abate and the suit be dismissed as abated.

It may also be mentioned that the widow of plaintiff No.2 on March 9, 1991, filed an affidavit supporting the application of Plaintiff No. 1 for bringing heirs and legal representatives of Plaintiff No.2 since deceased on record. In the affidavit, she prayed that, "I solemnly declare that there is no other legal heir and representative of Rattan Singh, and mutation of the estate of Shri Rattan Singh deceased Plaintiff has been sanctioned in favour of deponent and her three sons and they are in possession of the estate and are liable to be brought on record as legal representatives and heirs of Rattan Singh since deceased."

Both these applications were heard by the learned Subordinate Judge and vide his impuzned order the learned Subordinate Judge granted the application filed by Plaintiff No.1 for bringing the heirs of deceased plaintiff No.2 on record and dismissed the other application filed by the defendant.

Mr. Nagpal, the learned counsel appearing in support of this civil revision petition urged that since the Plaintiffs have alleged and claimed equal one fourth share in the property of the deceased Bir Kaur, the whole suit must abate and at any rate the suit to the extent of plaintiff''s one fourth share should stand abated. In support of the submission, the learned counsel drew my attention to the decision of this court in Naresh v. Ajmer 1981 P.L.J. 56. The facts of this reported decision show that this was a case arising out of pre-emption suit. The facts are more or less identical, but in my opinion, the law relating to pre-emption is different as far as the issue of abatement is concerned. This judgment, in my opinion, is distinguishable and will have no application to the facts of the present case.

As stated earlier, the plaintiffs have filed this suit for declaration on the allegations that they are the exclusive owners in equal shares meaning thereby that they are the co-sharer in the suit property having equal shares. It is well settled law that one of the co-sharers can always file a suit of this nature. Assuming that the second Plaintiff had died during the pendency of the suit and his legal representatives have not been brought on the record, the cause of action would still survive and the other plaintiffs can continue with the suit. It is in these circumstances, in my opinion, the suit would not abate. The second plaintiff died on May 1, 1990, and the first plaintiff filed an application for bringing the heirs on record of the deceased Plaintiff No.2, on July 23, 1990. This application was admittedly within limitation. From the tenor of the impugned order it appears that the learned Subordinate Judge, First Class, Nabha, read this application alongwith the affidavit of Mohinder Kaur, the widow of second plaintiff, which was sworn on March 9, 1991. This affidavit was read as a part of the application filed by Plaintiff No.1. The learned trial Court granted the application of plaintiff No.1 for bringing the heirs of plaintiff No.2 on record. In my opinion, the course followed by the learned trial Court does not suffer from any procedural illegality or irregularity which needs to be corrected u/s 115, Code of Civil Procedure.

Mr. Nagpal then drew my attention to the decision of the Kefala High Court in Mathevan Damodaran and Others Vs. Saraswathi Amma and Others, Relying upon this judgment, the counsel urged that the application made by the first plaintiff in the present suit was not at all maintainable and in the absence of the application on the part of the heirs of the deceased plaintiff No.2, the trial Court could not have granted the application of plaintiff No.1. This decision again is distinguishable on the facts of this case and it is needless to repeat that it was a suit filed by four co-sharers claiming equal shares. In my opinion, there is no error of jurisdiction in the impugned order. There is no merit in the revision petition. The revision petition fails and is rejected. However, in the circumstances of the case, there will be no order as to costs.