PARTAP KAUR Vs. HARCHAND SINGH

JUDGEMENT

(1.) Sunder Singh and Sham Singh were occupancy tenants of 204 Kanal and 18 Marlas of land in village Attargarh, district Sangrur in equal shares. Sham Singh made the registered will Exhibit P.A. on November 15, 1929, in respect of his share of 102 Kanals and 9 Marlas of the occupancy holding in favour of his wife Mst. Bishan Kaur as a life estate and after her in favour of his daughter Mst. Partap Kaur plaintiff-appellant. On the death of Sham Singh, mutation in respect of the disputed property was effected in favour of Mst. Bishan Kaur as occupancy tenant thereof. On the coming into force of the Patiala and Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act (3 of 1953) (hereinafter called the Act) by operation of Section 3(a) thereof (which is quoted below), Mst. Bishan Kaur became the owner of the said land which till then formed her occupancy tenancy :-

(2.) Mr. Rajinder Kumar Syngal, Subordinate Judge, III Class, Barnala, who tried the suit, decreed the same, by his judgment, dated July 14, 1960, on recording findings on most of the issues in favour of the plaintiff-appellant. In the appeal preferred by defendants 1 to 3 against the decree of the trial Court, the findings of the learned Subordinate Judge on issues Nos. 1, 5 and 7 alone were questioned. Shri Rajinder Singh, District Judge, Barnala, upheld the finding of the trial Court on issue No. 7, and held that the plaintiff-appellant was not estopped from bringing the suit, but accepted the appeal and dismissed the suit of the present appellant by reversing the decision of the trial Court on issue No. 1, and holding that the will had not been properly proved. The learned Single Judge (P.D. Sharma J., as he then was) rightly reversed the decision of the first Appellate Court on issue No. 1 and found that the learned Single Judge was not justified in holding that the plaintiff had failed to prove that Sham Singh had made the will Exhibit P.A. in favour of Bishan Kaur, and the plaintiff-appellant. It was then sought to be argued before the learned Single Judge that the property in question in the hands of Bishan Kaur was not ancestral qua the parties, but should be deemed to have been the self-acquried property of Bishan Kaur. This plea was rejected by P.D. Sharma, J., on two grounds viz. (i) that in view of the finding of the trial Court regarding the ancestral nature of the property not having been contested by the plaintiff-appellant before the District Judge at the first appellate stage, the said matter became a question of fact, and it was not open to this Court to interfere with the same in exercise of its second appellate jurisdiction, and (ii) that the plaintiff-appellant was bound by her admission made in the plaint to the effect that the property in dispute was ancestral and she could not be allowed at the second appellate stage to go back on that admission and to plead for the first time that the property was non-ancestral. In the opinion of the learned Single Judge, it would have amounted to allowing her to change the particular nature of her claim if she were permitted to show that the land was the self-acquried property of her mother, and that she was entitled to inherit it on that basis.

(3.) Not satisfied with the judgment of the learned Single Judge, the unsuccessful plaintiff has, on a certificate granted by P.D. Sharma, J., come up in this appeal. The first question which calls for decision in this appeal is whether the property which is not the subject-matter of this litigation is ancestral qua the parties or is the self-acquried property of Bishan Kaur. Mr. B.S. Jawanda, the learned Counsel for the contesting respondents, frankly conceded that if the plaintiff could be permitted to claim the property on the basis that it is in law deemed to be the self-acquried property of her mother, and if it is proved to be such self-acquried property, the appellant must succeed. He, however, contested the appeal on various grounds to which reference will hereinafter be made. Before taking up the question of ancestral or non-ancestral nature of the property on its merits, it is necessary to decide whether the two grounds on which the decision of the Courts below on issue No. 4 was upheld by the learned Single Judge are correct or not. First comes the question of admission of the plaintiff contained in her plaint. The admission is said to be contained in paragraph 1 of the plaint. All that the plaintiff has stated therein is that her father Sham Singh was an equal shareholder with his brother Sunder Singh, the late father of defendants 1 to 3, in the ancestral khata, and that after the consolidation, the land in dispute had been allotted in lieu of the land mentioned in that khata. Copy of the Jamabandi for the year 1956-57 was then referred to and attached to the plaint. We are unable to construe the statement contained in paragraph 1 of the plaint to amount to any clear admission of the fact that the land now in dispute was ancestral. There is no doubt that the occupancy rights in respect of the land in dispute possessed by Sham Singh and Sunder Singh were ancesstral properties and were correctly so described in paragraph 1 of the plaint. Nor could it be denied that it was in lieu of the said property (to the change of character of which no reference was made in the plaint) that the land now in dispute was allotted in the consolidation proceedings. But this cannot, in our opinion, be constructed to imply that the plaintiff-appellant took up the plea about the land being ancestral. On the contrary it were the defendants-respondents who had pleaded that the land was ancestral and could not, therefore, be bequeathed by will, and it was this plea which led to the framing of issue No. 4. Nor can it be said that by claiming the land in dispute being non-ancestral in the hands of Bishan Kaur, the plaintiff was seeking to make out a new case. In paragraph 4 of the plaint she has clearly stated as follows :-