JANG SINGH Vs. LACHHMAN DAS AND OTHER

JUDGEMENT

(1.) When this appeal came up for hearing on October 3, 1969, it was adjourned to today to ascertain from the parties whether Sajjan Singh vendor, who died after the coming into force of the Hindu Succession Act of 1956, has left surviving him his sister, sister's son and mother's sister. Learned counsel for the appellant says that he sent a registered cover to the appellant, but has received no reply and the appellant has not turned up either, but the learned counsel for the respondents has produced an affidavit of Sant Kaur, in which affidavit she claims to be the deceased's mother's sister and she further says that Jangir Singh PW-1 is the deceased's sister's son and she further says that Jangir Singh has a sister named Raj Kaur, who is alive. The question then in this case is : Whether the plaintiff, who is a third-degree collateral of the deceased vendor, can succeed in a suit in the presence of such heirs under the Hindu Succession Act of 1956 ? This is a somewhat important question, because the effect of the recent judgment of the Supreme Court has to be considered. So this case is referred to a Division Bench and will be listed for hearing on any date Before November 29, 1969. The affidavit filed by Sant Kaur will remain appended to this appeal.

(2.) In spite of the findings of the Courts below on all the above mentioned issues being in favour of the appellant, his suit has been dismissed at all stages so far as it was held to be speculative in view of the provisions of the Hindu Succession Act. This Act had come into force on June 17, 1956 before the institution of the suit. On account of the provisions of the Act, the plaintiff ceased to be entitled to inherit the estate of Sajjan Singh because of the proved presence of Jangir Singh PW-1 who is the sister's son of the vendor, and Mst. Sant Kaur widow of Ram Singh who is the sister of the mother of the vendor. It is not disputed that the sister's son and the mother's sister are the heris of Sajjan Singh under the Hindu Succession Act which admittedly applies to the parties in the matters of succession since after June, 1956. Mr. D.S. Keer, the learned counsel for the appellant, made an effort to show that the finding of the learned Senior Subordinate Judge to the effect that Jangir Singh is proved to be the sister's son of the vendor is not supported by any evidence. Mr. Keer has, however, miserably failed in his attempt. Jangir Singh himself appeared as appellant's own witness as P.W. 1 and stated categorically that the vendor was his real maternal uncle. Hari Singh PW-1 who was produced in the post-remand proceedings also admitted that Jangir Singh was the son of the sister of the vendor, but tried to dilute that statement by adding that Sajjan Singh had no real sister. This embellishment made by Hari Singh cannot be believed in the face of the categorical statement of Jangir Singh and also in view of the testimony of Sajjan Singh himself who appeared as DW-1 in the post-remand proceedings. Sajjan Singh, the vendor, made an unequivocal statement on that occasion to the effect that Jangir Singh was his sister's son. Though no specific reference has been made to this evidence by the learned Senior Subordinate Judge, it is obviously on the basis of this evidence that he held Jangir Singh to be the sister's son of Sajjan Singh. No serious effort was made before us by Mr. Keer to show that the finding of the lower appellate Court to the effect that Mst. Sant Kaur is the mother's sister of the deceased is not correct. We have, therefore, no hesitation in upholding the observations of the lower appellate Court to the effect that Mst. Sant Kaur and Jangir Singh who are the nearer heirs of Sajjan Singh were in existence at the relevant time. Even before us it has not been disputed that if the presence of those heirs is proved, the plaintiff-appellant would have no right to succeed to any part of the estate of the vendor.

(3.) Normally this appeal would have failed straightaway on the above findings. A title complication was, however, caused by the death of Sajjan Singh during the pendency of the plaintiff's first appeal in the Court below. When this suit was filed, the Hindu Succession Act had already come into force. If that statute had not been passed, the plaintiff would have been entitled to a decree as the sister's son and mother's sister were not amongst the list of heirs under the customary law which applied to the parties.