Ratno and others vs Inder Singh and others

Rajendra Nath Mittal, J.—This appeal has been filed by the plaintiffs against the judgment and decree of the Additional District Judge, Ferozepur, dated February 3, 1970. The facts of the present case are that Sucha Singh who was the owner of the land in dispute mortgaged the same in favour of the plaintiffs. Sucha Singh, mortgagor, died about 10/12 years back. The plaintiffs who are in possession of the land in dispute are entitled to remain in its possession as mortgagees. The defendant who is a resident of village Chirak declares that he will forcibly take possession of the aforesaid property of Sucha Singh. He has got no connection with the land and is not an heir of Sucha Singh deceased. He, however, says that the mother of Sucha Singh, deceased, had contracted Karewa with Sawan Singh and he was born from that wed-lock. The plaintiffs instituted the suit for declaration that they are in possession of the land in dispute as mortgagees and that the defendant be restrained from interfering in their possession. The defendant contested the suit. He inter alia pleaded that the plaintiffs are not the mortgagees of the land in dispute, that he is owner thereof and that he was the only heir of Sucha Singh. On the pleadings of the parties, the following issues were framed :--

Whether the plaintiffs are the mortgagees of the land in suit ?

Whether the defendant is the legal heir of Sucha Singh deceased ; if so its effect ?

The trial Court held that the plaintiffs are the mortgagees in possession of the land in dispute and that the defendant is not an heir of Sucha Singh, deceased and is not entitled to redeem the land. It, consequently, decreed the suit of the plaintiffs. The defendant went up in appeal before the Additional District Judge, Ferozepur, who affirmed the finding of the trial Court on issue No. 1 and held that the plaintiffs are the mortgagees of the land in dispute but upset the finding thereof on issue No. 2. He held that the defendant is cognate of Sucha Singh and is entitled to succeed to his property. Consequently, he partly accepted the appeal and modified the judgment and decree of the trial Court. The plaintiffs have come up in appeal against the judgment and decree of the Additional District Judge, Ferozepur to this Court.

A preliminary objection has been raised by the learned counsel for the respondent that no appeal is maintainable in this Court as the decree of the trial Court has been affirmed by the first appellate Court. He further submits that the plaintiff-appellants do not get a right of appeal to this Court merely because the first appellate Court has reversed the finding of the trial Court on issue No. 2 which is not material for decision of the suit.

I have heard the contentions of the learned counsel for the parties at considerable length. In order to appreciate the arguments of the parties, it will be necessary to reproduce the relevant portion of the decrees passed by the trial Court as well as the first appellate Court, which are as follows :--

Trial Court.

It is ordered that the suit is decreed for declaration that the plaintiffs are the mortgagees of the suit property and further issue permanent injunction restraining the defendants from interfering in the possession of the plaintiffs in any way. The suit is decreed with costs.

First Appellate Court.

It is ordered that the appeal be and the same is hereby partly accepted and the judgment and decree of the trial Court are modified as under :--

A decree for the declaration is hereby passed in plaintiffs'' favour that they are mortgagees of the suit land and they are entitled to remain in possession of this land till the defendant redeems it. Injunction by way of consequential relief is also issued against the defendant restraining him from interfering in the plaintiffs'' possession until he lawfully redeems the land from them. The parties are left to bear their own costs throughout.

It was stated by the appellants in Civil Misc. No. 1796/C of 1970 that during the pendency of the suit of the appellants in the court of Sub-Judge, 2nd Class, Moga, Inder Singh sold the land in dispute to Dilbagh Singh, Gurdev Singh, Kulwant Singh sons of Ganga Singh; Nand Singh son of Mahana Singh, Gurmel Singh son of Gurmukh Singh and Harchand Singh son of Rur Singh, residents of village Lande, Tehsil Moga, who applied for redemption of the land in dispute in the court of Collector, Moga, but those applications for redemption were withdrawn when the suit of the plaintiffs was decreed from the court of Sub Judge, Moga, on August 13, 1968. Again the said vendees put in applications for redemption of the land dispute in the court of Collector, Moga, basing their claim upon the decree of the Additional District Judge, Ferozepur, dated February 3, 1970. It has been stated at the bar that the Collector Moga has ordered redemption of the Land. The order of the Collector has not been challenged by the appellants as required by section 12 of the Punjab Redemption of Mortgages Act, 1913. This Court while disposing of the civil miscellaneous application stayed dispossession of the appellants till the decision of the appeal. The question that arises in the circumstances of this case is whether the decree of the trial Court has been modified by the first appellate Court and whether the decree under appeal in spite of the dismissal of the appeal will adversely affect the appellants. I have already reproduced the decrees of both the courts above and a reading of the aforesaid decrees clearly shows that the first appellate Court intended to modify the decree of the trial Court on the ground of reversal of finding on issue No. 2.

It appears from the contentions of the parties that in fact the main dispute between the parties was as to whether Inder Singh was an heir to Sucha Singh and entitled to redeem the property. No doubt it is an established principle of law that if the adverse finding on an issue does not affect the decree in the suit, no appeal can be filed against that finding. The aforesaid proposition is based on a rule that an unnecessary or irrelevant issue, decision of which either way will not affect the decision of the suit cannot be said to have been directly and substantially in issue and, therefore, cannot operate as res judicata. In this view of the matter I am supported by following judgments : Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy AIR 1922 PC 324, Sheo Shankar Das and Another Vs. Ram Tahal Koeri and Others , Kumarappa Chetti and Others Vs. Muthuvijaya Raghunatha Muthukumara Vanangamudi Valuvatti Thevar (dead) represented by Thangammal Aeeyar, , Obla Subbier v. Ramaswami Konar AIR 1932 Mad 541 Ali Ahmad v. Amarnath AIR 1951 P&H 444 . The Commissioners for the Port of Calcutta Vs. Bhairadinram Durga Prosad, , and Sri Pal and Others Vs. Swami Nath and Others, . But the aforesaid proposition does not apply to the facts of the present case as on the basis of the finding on issue No. 2, the Collector has ordered the redemption of the land and the appellate Court has modified the decree of the trial Court. I am fortified in this view by Union of India, Ministry of Food and Agricultural (Dept. of Food), New Delhi v. Pearl Hosiery Mills and others AIR 1961 P&H 281 (DB). In that case the suit against defendant No. 3 had been dismissed. He filed an appeal against the decree of the trial Court to this Court. The counsel for the plaintiff-respondent read a preliminary objection that respondent No. 3 had no locus standi to file appeal because the decree under appeal was against defendant No. 3 and as a matter of fact the relief claimed by the plaintiff against defendant No. 3 had been specifically refused in the decree. It was observed by the learned Bench that if preliminary objection is sustained that will result in multiplicity of proceedings because the appellant will in that case be driven to file a separate suit against defendant No. 2 to enforce a right which has already been determined by the trial Court and against which that appeal had been filed and in the subsequent litigation there was likelihood of complications arising due to the possible pleas of res judicata being raised by defendant No. 2. It was further observed as follows :--

Section 96 does not prescribe that it is only that person against whom a decree has been passed or against whom a relief has been granted, who can come in appeal. Any person who can show that he is aggrieved by the decree, can file an appeal against the same. For determining as to who is an aggrieved person, one has to look to all the circumstances of the case and the substance of the decree passed.

Similar view was expressed by Madras High Court in Raghava Aiyangar and Another Vs. Irula Thevan and Others, . In case the appeal is dismissed, various complications will arise as the order of the Collector of redemption of land has become final. In the circumstances I do not find sufficient force in the contention of the learned counsel for the respondent and reject the same.

The first contention of the learned counsel for the appellants is that as Sucha Singh died without leaving any heir, Bhola Singh, his father will be treated as propositus and the property will go to his heirs. He submits that Inder Singh, defendant respondent No. 1, cannot be said to be an heir of Bhola Singh, deceased. In order to appreciate the contention, a few admitted facts may again be given. Bhola Singh died leaving Sucha Singh, son and Smt. Dini, widow. Sucha Singh inherited his property. Smt. Dani, contracted Karewa with Sawan Singh during the lifetime of Sucha Singh. Inder Singh is the son of Mst. Dani from loins of Sawan Singh. In Digest of Customary Law by Rattigon, 14th edition, at Page 103 it has been stated that there are four leading canons governing succession to an estate amongst agriculturists. The second canon which is relevant for the purposes of the decision of this appeal is as follows :--

When the male line of descendants had died out, it is treated as never hiving existed, the last male who left descendants being regarded, as the propositus.

This principle has been followed in various decisions of Lahore Chief Court and High Court. It has been held in Gholam Muhammad v. Muhammad Bakhsh 4 PR 891 (FB), that the property of a man who dies without issue first reverts to the ancestors and then descends. It is further observed that every descendant who leaves issues becomes in his turn an ancestor qua the particular portion which forms his own inherited estate. The above view was followed by another Full Bench in Sita Ram and others v. Raja Ram 12 PR 1992 at page 62. In Mamun and others v. Mst. Jowai, Mst. Bano ILR 8 Lah 139, it was observed that the general principle governing succession to an estate among agriculturists is that where the male line of descendants dies out it is treated as never having existed so that succession is then reckoned with reference to the last male owner who died leaving descendants. Same proposition has been enunciated in AIR 1934 781 (Lahore) . As Smt. Dani contracted Karewa during the life-time of Sucha Singh, she lost all rights to inherit his estate after his death. Article 22 of the said Digest deals with mother''s life estate. It is as follows :--

In default of male lineal descendants and of a widow, the mother of the deceased succeeds to a life interest, provided she has not remarried.

The aforesaid Article is based on the principle that mother succeeds to the estate of his son not as mother but as the widow of her deceased husband. In this view I am supported by AIR 1928 983 (Lahore) , wherein it was observed that mother succeeds as widow of her deceased husband and not as mother of her son. It is further observed that a widow who has remarried before the death of her son is no longer the widow of her deceased husband and she is not an heir entitled to succeed upon the death of her son. Same view was taken in AIR 1934 781 (Lahore) . It is also a settled principle of customary law that a widow forfeits all rights in the estate of her husband in case she marries a stranger. It is an admitted case of the parties that Sawan Singh was not related to Bhola Singh in any way. In the circumstances Smt. Dani was not entitled to inherit the land belonging to her previous husband Bhola Singh after the death of Sucha Singh. As she was not entitled to the property in dispute, therefore, her son from Sawan Singh, cannot be said to be entitled to inherit the property of Sucha Singh after his death. Mr. Sarin has vehemently urged that the appellants have not pleaded that case and they cannot be allowed to set up new case in second appeal. In the written statement the respondent has averred that he was an heir of Sucha Singh and it is for him to show that he is entitled to inherit his property as an heir. The learned counsel for the respondent has further urged that Inder Singh being a cognate is entitled to inherit the property of Sucha Singh. He in support of his contention has placed reliance on AIR 1940 416 (Lahore) , AIR 1948 113 (Lahore) Balwant and others v. Mt. Bhullar AIR 1949 EP 275 and Amar Singh and others v. Lal Singh (1950) 53 PLR 97. In Balwant and other''s case (supra), the dispute was between the daughters of the collaterals and the strangers. Similar were the facts in Tara Singh''s case (supra). In Fazal Hag''s case (supra), a step daughter contested alienation of her step mother. In Lal Singh''s case (supra), a suit for pre-emotion was instituted by a pre-empton who was related to the vendor through his grand-mother. The observations in the aforementioned cases are not applicable to the facts of the present case. In the circumstances I am of the view that the contention of the learned counsel for the appellants has substance. The learned first appellate Court has not decided issue No. 2 correctly and I am unable to uphold its finding.

As a result of the above discussion, I am of the view that the finding of the learned first appellate Court on issue No. 2 is erroneous and that Inder Singh is not an heir to Bhola Singh from whom the succession is to be seen. I, therefore, upset the finding of the first appellate Court on issue No. 2 and hold that Inder Singh has got no right to inherit the property in dispute.

For the reasons recorded above, I accept the appeal, reverse the decree of the first appellate Court and restore that of the trial Court. In the circumstances of this case, I make no order as to costs.