MATU RAM (DECEASED) THROUGH LRS Vs. KARTAR SINGH

JUDGEMENT

(1.) This is defendant's second appeal filed against the judgment and decree passed by learned Additional District Judge, Patiala dated 29.9.1980 reversing the judgment passed by learned Subordinate Judge dated 15.4.1980, thus, dismissed the suit of plaintiffs for declaration that they were co-owners and co-sharers to the extent of one half share in the land in suit and the entries in the jamabandi showing the plaintiff as co-owners to the extent of 3/8th share were wrong. The controversy in the present case is in a very narrow compass. With a view to appreciate, however, the same, it will be useful to reproduce the pedigree table of the parties. The same reads as follows:-

(2.) Plaintiffs Kartar Singh, Bant Singh and Ralla Singh sons of Mehma Singh filed a suit seeking decree in the manner, referred to above. Matu Ram was arrayed as a defendant. The dispute pertains to estate of Naraina, who died issueless. As to how the estate of Naraina would develop on the parties, learned appellate court while reversing the judgment passed by learned trial Court held as follows:

(3.) I have heard learned counsel for the appellants but find no illegality or infirmity in the findings recorded by the Appellate Court, as extracted above. Learned counsel representing the appellants, however, relies upon para No. 229 of Principles of Hindu Law by Mulla to urge that the plaintiffs were also entitled to the estate of Naraina in equal share with Matu. Paragraph 229 of the Principles of Hindu Law deals with survivorship. It states that on the death of a coparcener, his interest in the co-parcenary property does not pass by succession to his heirs. It passes by survivorship to the other coparceners, subject to the rule that where the deceased coparcener leaves male issue, they represent his rights to a share on partition, and are his sole legal representatives for purposes of execution of money decrees passed against him. It further states that the rule of survivorship here stated was modified by the Hindu Women's Rights to Property Act, 1937 and it is now subject to the provisions of Section 6 and 30 of the Hindu Succession Act of 1956 in cases where those sections are applicable. Applicability of paragraph 229 aforesaid would have been gone into by the this Court, if perhaps, the appellants had claimed any issue with regard to the property being co-parcenary as, it is only the coparcener's interest, which has been dealt with in paragraph 229. Learned counsel for the appellants contends that no issue with regard to property being co-parcenary was claimed and, thus, not framed by learned trial court. Surely, this aspect of the case could not be determined in omnibus issue, i.e., Issue No. 1, which was with regard to the plaintiffs being owners and co-shares to the extent of 1/2 share in the suit land. It is too well settled that even an admission of a party may not be enough to hold the property to be ancestral or co-parcenary as, to prove the nature of the property, the Court goes only by evidence that may come on the records of the case.