Dasondha Singh v. Zalam Singh

R.L Anand, J.:— By this judgment I dispose of two Regular Second Appeals bearing No. 2645 of 1982 titled Jhujar Singh v. Dasonda Singh and R.S.A No. 2644 of 1982 titled Dasondha Singh… v. Zalam Singh… as both the appeals have arisen from the judgment and decree dated 8.9.1982 passed by the Court of Additional District Judge, Sangrur, who partly allowed the appeal of the defendants and the judgment and decree dated 13.5.1981 passed by the Court of Sub Judge Ist Class, Dhuri was modified in the way that instead of a decree for possession of 3/5th share only out of the land in dispute was passed in favour of the plaintiffs and against the defendant Nos. 1 to 8. The suit with regard to the remaining 2/5th share of the suit land was, however, dismissed. In the present two appeals, the plaintiffs want that the entire suit should be decreed as decreed by the trial Court and the defendants have prayed that the suit of the plaintiffs should be dismissed in toto.

2. The brief facts of the case are that Saun Singh father of Dasondha Singh, Jangir Singh and Mukthiar Singh plaintiffs was the owner of the land comprising in Khasra Nos. 2024, 2043, 2029, 2411 and 1866. He sold land measuring 4 Bighas 15 Biswas comprised in khasra No. 2024 to Gurnam Singh for a consideration of Rs. 210/-; land measuring 14 Bighas 17 Biswas comprised in Khasra Nos. 2043 and 2029 for sum of Rs. 824/- and land measuring 11 Biswas comprised in Khasra No. 2411 for a sum of Rs. 90/- to the above said Gurnam Singh and the land measuring 3 Bighas 2 Biswas comprised in Khasra No. 1886 to Parsin Kaur wife of Gurnam Singh. All these transactions were made though various sale deeds. Both Gurnam Singh and Parsin Kaur have died and defendants Nos. 1 to 8 namely Zalam Singh, Jhujar Singh, Surjit Kaur, Gobinder Singh, Gurmit Singh, Raghbir Singh, Gurmail Kaur and Mukthiar Kaur are the legal representatives of Gurnam Singh and Parsin Kaur. According to the plaintiffs the land in suit was allotted in lieu of the above said khasra numbers sold by Saun Singh to Gurnam Singh and Parsin Kaur. The plaintiffs also filed a suit for declaration alleging that the sales made by Saun Singh in favour of Gurnam Singh and his wife Parsin Kaur were without consideration and legal necessity and these sale deeds are void and do not affect the rights of the plaintiffs. That suit was decreed on 25.3.2000 B.K with the directions that the plaintiffs would be entitled to the possession of the land by paying Rs. 210/- after the death of Saun Singh. The plaintiffs are thus entitled to the possession of the land by paying Rs. 210/-. Gurnam Singh and Parsin Kaur filed an appeal against the judgment dated 25.3.2000 B.K and the said appeal was also dismissed on 22.12.2000 B.K

3. Plaintiffs's case is that Saun Singh died on 18.10.1976 and as such the plaintiffs are entitled to the possession of the land and defendants No. 1 to 8 have no right to continue in possession of the disputed land. The plaintiffs are the sons of Saun Singh. Defendant No. 9 Gurdial Kaur is the daughter of Saun Singh and defendant No. 10 is the widow of Saun Singh. During his life time, Saun Singh deceased also executed a will in the year 1975 in favour of the plaintiffs. For this reason, the defendants Nos. 9 and 10 have been impleaded as a party being a proper party in the suit. An application was presented by the plaintiffs before the Collector, Malerkotla for the possession of the land which was accepted on 16.2.1978 The amount was deposited before the Collector. The defendant Nos. 1 to 8 filed a suit against the order of Collector and also sought injunction from the Court. Defendants were requested to receive a sum of Rs. 210/- and to deliver the possession of the land in dispute but they have failed to do so, hence the suit.

4. The suit was contested by defendants Nos. 1, 3, 4, 7 and 8 who filed written statement taking preliminary objections that the suit of the plaintiffs was not maintainable as the plaintiffs have filed the suit on the basis of the order of Asstt. Collector Malerkotla dated 16.2.1978; that the suit is not properly valued for the purposes of court fee and jurisdiction. On merits, the stand of these defendants are that Saun Singh was the owner of the property in dispute. He sold it in favour of Gurnam Singh and Parsin Kaur. After the death of these two persons, defendants Nos. 1 to 8 have succeeded their interest. Defendants denied that the suit land was allotted in lieu of the land sold by Saun Singh to Gurnam Singh and Parsin Kaur. The defendants, however, admit that the plaintiffs filed a suit for declaration to the effect that the sales effected by Saun Singh were without consideration and legal necessity. The defendants also admit that Saun Singh had died but his date of death has been disputed. Defendants have also denied the execution of the will by Saun Singh in favour of the plaintiffs. The defendants also took a stand that Gurdial Kaur and Sant Kaur have not been joined as plaintiffs in the suit, therefore, the suit is not maintainable. Separate written statements were also filed by defendants Nos. 5 and 6 and their stand was common with that of his co-defendants.

5. The plaintiffs filed rejoinder to the written statements in which they reintereated their allegation while denying those in the written statement and from the above pleadings of the parties, the learned trial Court framed the following issues;

(1) Whether the suit land has been allotted during consolidation operation, in lieu of the land mentioned in Para No. 2 of the plaint?

(2) Whether Saun Singh died on 18.10.76?

(3) Whether Saun Singh had executed a valid will in favour of the plaintiffs?

(4) Whether the plaint does not disclose any cause of action?

(5) Relief.

6. The parties led oral and documentary evidence in support of their claim and on the conclusion of the trial suit of the plaintiffs for possession of the land measuring 54 Kanals 19 marlas as detailed in the head-note of the plaint was decreed. The defendants filed an appeal which was partly allowed vide impugned judgment and decree dated 8.9.1982 and the first Appellate Court granted a decree for possession to the extent of 3/5th share out of the above land and for the remaining 2/5th share, the suit of the plaintiffs was dismissed. Aggrieved by the judgment and decree dated 8.9.1982, now the defendants and the plaintiffs have filed two separate sets of appeals which are being disposed of by this judgment.

7. I have heard Shri R.K Battas, Sr. Advocate on behalf of the appellant in R.S.A No. 2645 of 1982 and Shri K.S Grewal, Advocate for appellate in R.S.A No. 2644 of 1982 and with their assistance have gone through the record of this case.

8. As I stated at the outset that the effort of Shri R.K Battas before me was that the suit of the plaintiffs should be dismissed in toto; whereas the stand of Mr. Grewal is that the suit of the plaintiffs ought to have been decreed in its entirely as done by the trial Court.

9. First of all I would like to deal with the arguments raised by Shri R.K Battas, who submitted at the first instance that the suit of the plaintiffs was time barred as it has not been filed within 3 years of the death of Saun Singh. His second contention was that the plaintiffs had failed to fix the identity of the property by leading cogent and reliable revenue entries and thirdly he submitted that this Court cannot make out a case under Order 41 Rule 33 of the Code of Civil Procedure in favour of Smt. Gurdial Kaur and Smt. Sant Kaur because no prayer was ever made by the plaintiffs that a decree to the extent of 2/5th share be also passed in their favour. He submitted that there is no equity in favour of the plaintiffs to make a prayer that they are entitled to the decree of possession for the entire suit property

10. On the contrary, Shri K.S Grewal, Advocate, submitted that the trial Court rightly decreed the suit for possession of the entire property in favour of the plaintiffs when there was no contest given by Smt. Gurdial Kaur and Smt. Sant Kaur. He also submitted that death of Saun Singh has been duly proved vide death certificate Ex.P-2. The property was held to be ancestral and Saun Singh could not alienate the same. The earlier decree enures for the benefit of reversioners. With the death of Saun Singh, the will gets life, and therefore, the suit of the plaintiffs ought to have to be decreed in its entirety. In the alternative it was also argued by Mr. Grewal that it was a fit case where the provisions of Order 41 Rule 33 C.P.C ought to have been invoked by the first Appellate Court and it fell in error by modifying the judgment and decree of the trial Court.

11. In order to appreciate the rival contentions of the parties, I would like to deal with both these issue-wise. Issue No. 1 was to the effect “Whether the suit land had been allotted during consolidation operation in lieu of old land”. In this case, earlier the defendants filed a suit against the plaintiffs and in para No. 2 of the plaint a specific reference was made that disputed land was allotted in lieu of old khasra numbers sold by Saun Singh during consolidation proceedings.” Both the parties contested the earlier suits and they were unanimous on this point that the land in the present suit was carved out in lieu of old khasra Numbers during consolidation proceedings. The plaintiffs have also produced on record excerpts Ex.P.2/2 in order to connect the suit land with the old khasra numbers. It is the admission of the defendants themselves in the previous suit that the present suit land was allotted in lieu of the land sold by Saun Singh. There is no rebuttal led by the defendants to prove that the identity of the suit land has been lost. In these circumstances, the only argument raised by the learned counsel for the appellant on issue No. 1 stands repelled.

12. On issue No. 2 the criticism of Mr. Battas was that by simply placing on record the death certificate or Saun Singh without the death entry, it is not proved that Saun Singh died on 18.10.1976 According to Mr. Battas, certified copy of death certificate is not per se admissible in evidence under Section 35 of the Indian Evidence Act. This arguments is again devoid of merit. A persual of the statement of Jangir Singh P.W.1 would show that he categorically stated that his father Saun Singh died on 18.10.1976 and he produces Ex.P.2 the death certificate. This statement clearly suggests that by Ex.P.2 the death of Saun Singh was sought to be proved and he died on 18.10.1976 There was no rebuttal to the contrary. Also Ex.P.2 was taken into evidence without any objection. It has been held in Bhagwan Dass v. Khem Chand, AIR 1973 Punjab & Haryana 477 that objection as to the mode of proof of execution of documents must be taken at the trial before it is marked as an exhibit and not in appeal. Even otherwise, Ex.P.2 was admissible in evidence by virtue of Sections 35 and 77 of the Indian Evidence Act. It has been held in Mehan v. Kishi, 1969 (71) PLR 225, that “birth and death register from which entry is produced is maintained by the Police Station and the entries are presumed to have been made therein by the Police Official in the discharge of his official duties. The contents of the entry stand automatically proved under Section 77 of the Indian Evidence Act particularly when no objection as to authority of the copy is raised. The certified copy is to be of an entry in the register which is a public document which is open to inspection and has been duly certified by the officer having the custody of the register according to law.”. In view of the above settled position of law it has to be inferred that Saun Singh died on 18.10.1976 The present suit has been clearly instituted within three years from his death and is thus within limitation.

13. On issue No. 3 it stands proved that Saun Singh executed a will Ex.P.1 in favour of the plaintiffs. Jangir Singh plaintiff made his own statement to that effect. Gurbax Singh is the attesting witness. He also stated on oath that Saun Singh executed the will Ex.P.1 on 11.6.1975 This will is a registered document. As per the statement of Gurbax the will was read over and explained to Saun Singh who thumb marked the same in the presence of attesting witnesses after admitting the contents of the will. By this will Saun Singh would bequeath the property in favour of the plaintiffs and ignored defendants Nos. 9 and 10 i.e his daughter Gurdial Kaur and his wife. Both these defendants did not give any contest to the suit. Thus it is also held that the will Ex.P.1 was executed by Saun Singh on 11.6.1975 The effect of this will be discussed in the subsequent portion of the judgment in the light of the earlier decrees dated 25.3.2000 B.K and 22.12.2000 B.K

14. The parties did not address argument on issue No. 4 and rightly too because the present suit disclosed cause of action to the plaintiffs to claim the relief on the basis of the earlier decrees and the will.

15. The parties were at serious contest with regard to the reliefs granted by the trial Court and modified by the first Appellate Court. It is a matter of common knowledge that declaratory decree only declares the rights of the parties and it enures for the benefits of those who have right, title or interest in the property. Earlier decrees dated 25.3.2000 B.K affirmed on 22.12.2000 B.K gave a declaration that transactions made by Saun Singh could not bind the interest of the plaintiffs. Admittedly, it has been proved on record that Saun Singh died on 18.10.1976 It is also proved on record, as I have discussed above that Saun Singh executed will Ex.P.1 on 11.6.1975 in favour of his sons dis-inheriting his wife Sant Kaur and daughter Gurdial Kaur. Even if the decrees dated 25.3.2000 B.K affirmed on 22.12.2000 B.K were there, their effect would have come into operation with the death of Saun Singh w.e.f 18.10.1976 and by that time Hindu Succession Act had already come into force. By passing all the decrees referred to above the competency of Saun Singh to execute a will does not extinguish because by their simple passing the interest of Saun Singh in the suit land did not divest to his sons.

16. Learned counsel Shri R.K Battas submitted that the plaintiffs Dasondha Singh, Jangir Singh and Mukthiar Singh have acquired possession of the entire land measuring 54 kanals 19 marlas and they have not made any prayer in favour of Smt. Gurdial Kaur and Smt. Sant Kaur, therefore, the suit could not be decreed in its entirety but to the extent of 3/5th share as rightly done by the first Appellate Court. This was the alternative argument of Battas who earlier made an effort in an unsuccessful manner for the entire dismissal of the suit. Mr. Battas also submitted that with the death of Saun Singh, the right to file the suit accrued to Smt. Sant Kaur and Smt. Gurdial Kaur. I do not agree with the argument of Mr. Battas as I had held earlier that by simple procurement of decrees by the plaintiff, no right, title or interest passes in their favour because this decree was to take effect with the death of Saun Singh w.e.f 18.10.1976 As on 11.6.1975 Saun Singh's competency to execute the will had not been taken away with the passing of those decrees. He executed a genuine will Ex.P.1 which has been duly proved on record from the statement of Gurbax Singh in favour of his sons. Smt. Gurdial Kaur and Smt. Sant Kaur have not given a contest to the will. In these circumstances with the death of Saun Singh, his interest in the property devolves upon his three sons (plaintiffs) on account of the will Ex.P.1 I do not agree with the argument raised by the learned counsel for the appellants that with the will by Saun Singh in favour of Dasonda Singh, Jangir Singh and Mukthiar Singh plaintiffs, Shri Saun Singh had no subsisting right at the time of the will. The said transfers by way of will, mortgage or otherwise, was without any legal necessity and held to be void and as such no right, title or interest passed in favour of the vendee-mortgages and all rights remained with Saun Singh and the declaratory decrees earlier obtained was to take effect simultaneously with the death of Saun Singh and were passed for the benefit of all the reversioners. Having subsisting right in his favour Saun Singh executed a will Ex.P.1 dated 11.6.1975

17. Learned counsel for the respondents has drawn my attention to the citation reported in Giasi Ram v. Ramji Lal, 1969 (71) PLR 996 (S.C), a judgment of the Hon'ble Supreme Court, where it was held as follows:—

“That, though under the customary law the wife and the daughters of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor, yet a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the effect of restoring the property alienated to the estate of the alienor. Hence the female heirs are competent to sue for possession of the land alienated by the holder”.

18. Learned counsel also referred to Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383 : AIR 1978 Supreme Court 1239, wherein it was held as follows:—

“The widow's share in coparcenary property must be ascertained by adding the share to which she is entitled at a notional partition during her husband's lifetime and the share which she would get in her husband's interest upon his death.

In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent or the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be” the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before the death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial state for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imatinagion to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcneray property at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition”.

19. Yet my attention has been invited to Teg Singh v. Charan Singh, (1977) 2 SCC 732 : AIR 1977 Supreme Court 1699, wherein it has been held as follows:—

“Although after the passing of the Punjab Customs (Powers to Contest) Amendment Act 12 of 1973 a suit to contest, under the customary law, an alienation of immovable property may not lie, declaratory decree already obtained by a reversioner would continue to be operative as the Amending Act does not render such a decree a nullity. Consequently after such a decree has been passed a suit for possession of property gifted earlier, by a reversioner is not barred under Section 7.”

20. A perusal of the above case law would clearly strengthen my observation that the declaratory decree no doubt enures for the benefit of all the reversioners but its effect would be with the death of the last male holder and till the day of his death, he would be in a position to make a testamentary disposition. The only challenge which could be given to the will could come from the quarters of Smt. Sant Kaur or Smt. Gurdial Kaur, but both of them opted to remain absent from the suit itself making a clean path for the plaintiffs to get a decree for the entire suit land.

21. Even otherwise, the first Appellate Court in the present case ought to have invoked the provisions of Order 41 Rule 33 of the Code of Civil Procedure. Admittedly, Gurdial Kaur and Sant Kaur were made by the plaintiffs as defendants 9 and 10. No doubt, the plaintiffs did not make a specific prayer in their suit that decree for possession should also be passed in favour of defendants Nos. 9 and 10 generally with them. But Order 41 Rule 33 C.P.C gives ample power to the Appellate Court to pass any decree and make any order which ought to have been passed or made and to pass or make such further order either decree or order as the case may require, and this power could be exercised by the first Appellate Court notwithstanding that the defendants filed the appeal against the judgment and decree of the trial Court. It has been held in Mahant Dhangir v. Madan Mohan, 1987 Supp SCC 528 : AIR 1988 Supreme Court 54 that in order to invoke the provisions of Order 41 Rules 33 and 22, C.P.C the Appellate Court should see that parties before the lower Court should be there before it. The question raised must properly arise out of the judgment of the lower Court. It these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal.

22. The first Appellate Court held “since Saun Singh had sold the property in dispute, he was left with no interest in this property and the alienation qua him were not set aside. So Saun Singh after he had made the alienation was no more owner of the property in dispute. The declaratory decree obtained by the plaintiffs did not have the effect of reverting Saun Singh with the ownership of the property in dispute. The only effect of this decree was that it was not binding against the reversioners who could claim possession of the property in dispute after the death of Saun Singh. At the time of death of Saun Singh the property was to be considered to have reverted to Saun Singh only notionally so as to find out who were the persons entitled to inherit his property and were consequently entitled to get possession of the property in dispute. It cannot by any stretch of imagination be said that Saun Singh who was no more owner of the property in dispute could make a will of the same so as to change course of succession in respect of this property.”

23. These reasons adopted by the first appellate Court, in my opinion, are faulty. The first appellate Court fell in error in ignoring the effect of the declaratory decrees obtained in the year 2000 B.K The first appellate Court also did not take note of the provisions of order 41 Rule 33, C.P.C It ought to have dismissed the appeal in toto.

24. Shri R.K Battas, learned counsel, however, has relied upon Nirmala Bala Ghose v. Balai Chand Ghose, AIR 1965 SC 1874; Choudhary Sahu (Dead) By Lrs. v. State Of Bihar, (1982) 1 SCC 232; Dhonavakonda Gopalarao v. Thatha Venkatadri, AIR 1957 AP 19; Kirpal Singh v. Surjan Singh, AIR 1970 P&H 519; Badri Narain Lal v. Ramji Lal, AIR 1954 All 49 and submitted that plaintiffs had not made out a case under Order 41, Rules 22 and 33, C.P.C, and their suit could not be decreed along with defendants Nos. 9 and 10. The argument is devoid of any force. I have already highlighted the essential ingredients for invoking the provision of Order 41 Rules 22 and 33, C.P.C in view of the ratio given by the Hon'ble Supreme Court in the cases referred to supra. Even in Nirmala Bala Ghose's case (supra), relied upon by Shri Battas, Hon'ble the Supreme Court was pleased to hold that the scope of Order 41 Rule 33, C.P.C, is quite wide but it has to be applied with discretion and to cases where inference in favour of the appellant necessitate the interference also with a decree which has by acceptance or acquiescence become final, so as to enable the Court to adjust the rights of the parties. Defendants Nos. 9 and 10 were parties to the suit as well as they were made parties in the appeal. The rights of widow and the daughter of Sawan Singh could be adjudicated upon along with three plaintiffs. I have already stated above that the first appellate Court ought to have decreed the suit in its entirety, as rightly done by the trial Court. In the alternative the relief of possession to the extent of 2/5th share in the suit property could also be given in favour of defendants Nos. 9 and 10. The authority of Choudhary Sahu's case (supra) is not attracted to the facts, in hand. Similarly, the reliance of Shri R.K Battas, Advocate, on the other authorities is also misplaced as those authorities are peculiar to their own facts.

25. Shri Battas also placed reliance on Sarwan Singh v. Ashok Kumar, AIR 1983 P&H 366, and submitted that mere production of a copy of birth entry would not, as a matter of law connect the entry with the person claiming the birth entry of his own. This authority is also distinguishable on facts in view of the categorical statement of Jagir Singh plaintiff, who produced Exhibit P2 and the death entry of Sawan Singh and also made a stated on oath that Sawan Singh died on 18.10.1976 There is no rebuttal to the statement. Moreover Exhibit P2 was taken into evidence without any objection regarding which proper discussion has already been made in the earlier portion of this judgment.

26. Shri Battas then finally relied on Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum, (1978) 3 SCC 383 : AIR 1978 SC 1239, and drew my attention as to how the shares of heirs in the property of a deceased co-parcener are to be ascertained. There is no quarrel about the proposition of law, as held by the Hon'ble Supreme Court in this citation. In the earlier portion of this judgment I have already held that at the time of the execution of the will (Exhibit P1) Sawan Singh had the subsisting interest in the property to make testamentary disposition in favour of his sons. That will could only challenged by his widow or by his daughter. Both these persons were made as defendants and they did not contest the suit nor the will. Neither the widow nor the daughter have claimed any interest in the suit property for themselves.

27. Resultantly, I dismiss R.S.A No. 2645 of 1982 filed by the client of Shri R.K Battas and allow R.S.A No. 2614 of 1982 filed by the client of Shri K.S Grewal. I further modify the judgment and decree of first appellate Court and pass a decree for possession of the entire suit land in favour of the plaintiffs and against the defendants Nos. 1 to 8 by restoring the judgment and decree of the trial Court. There shall be no order as to costs for both the appeals.