STATE OF PUNJAB CHAND SINGH Vs. BALWANTSINGH:BALWANTSINGH

JUDGEMENT

(1.) These are defendants' appeal and special leave petition arising out of a suit for possession brought by Balwant Singh - the plaintiff. In the Special Leave Petition, we condone the delay and grant leave. The suit was dismissed by the Court of first instance and the dismissal was affirmed by the appellate Court but decreed by the High Court in the second appeal.

(2.) The issue raised in the appeal is of considerable importance and it relates to the construction of Section 15 of the Hindu Succession Act, 1956 ('the Act'). One Smt. Mahan Kaur, wife of Jaimal Singh inherited from her husband certain agricultural land measuring 110 kanals 12 marlas situate in village Hamhal, Jakhe-Pal in Sangrur District. Some of the lands were under mortgage and are in possession of defendants 2 to 6. After coming into force of the Act Mahan Kaur died intestate. On being informed that there was no heir entitled to succeed to her property the Revenue Assistant Collector sanctioned mutation in favour of the State. Balwant Singh claiming to be a legal heir of Mahan Kaur brought the suit out of which the present appeal arises. The suit was for possession of the property of the deceased and also for a declaration decree that he was entitled to redeem the mortgaged property from defendants 2 to 6. The suit was resisted by the State on the ground that the intestate has left behind no heir to succeed and the mutation effected in favour of the State was valid. Defendants 2 to 6 contended that the right to redeem the mortgage has been extinguished and they have become the owners of the property by being in possession for more than sixty years.

(3.) The trial Court held that the plaintiff was not entitled to succeed to the property of the deceased since the property was inherited from her husband. The issue relating to subsistence or otherwise of the mortgage was left open to be decided later as agreed upon by counsel for both the parties. The suit was accordingly dismissed by the trial Court. The plaintiff's appeal against the decree was dismissed by the District Judge, Sangrur. The second appeal preferred by the plaintiff was, however, accepted by the High Court. The High Court decreed the suit for possession even against defendants 2 to 6. That part of the decree has been challenged by defendants 2 to 6 in S.L.P. (Civil) No. 13923 of 1985. Their grievance is that the High Court ought not to have decreed the suit against them since the plaintiffs right to redeem the mortgage was not adjudicated by the trial Court and by agreement, the question was expressly left open. The submission of the defendants 2 to 6 appears to be correct and the decree against them made by the High Court is plainly untenable. There is indeed no controversy on that aspect of the matter.