PRITAM KAUR Vs. CHANAN SINGH

JUDGEMENT

(1.) This is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of facts recorded by both the Courts below holding that Smt. Sant Kaur alias Santi (for brevity, 'Sant Kaur') was the widow of Banta Singh and plaintiff-appellant and defendant-respondent No. 2 - Gurdeep Singh were born to her from the loins of Banta Singh. It was further held that the plaintiff-appellant has 1/8th share in the land in dispute. However, her suit was held to be not maintainable because no relief of joint possession of the suit land was claimed and no injunction could be issued against the defendant-respondents. It is pertinent to mention that Banta Singh and Bhan Singh were brothers. Pritam Kaur-plaintiff-appellant has claimed that she along with Gurdeep Singh - defendant-respondent No. 2 are the children of Banta Singh. The suit land in dispute admittedly belongs to Banta Singh deceased to the extent of 1/2 share as the other 1/2 share was owned by his brother Bhan Singh. In the Jamabandi Ex. P3 the other 1/2 share is shown to be owned by one Makhan Singh and Chanan Singh is shown to be in possession of the entire land. Makhan Singh is alleged to have purchased the share of Bhan Singh vide sale deed Mark 'X'. However, he has not been impleaded as a party. Therefore, the Additional District Judge dismissed the suit for non-joinder and misjoinder of necessary parties and decided issue No. 7 against the plaintiff-appellant. The view of the Additional District Judge in this regard reads as under :- "The main controversy in this appeal is whether plaintiff and defendant No. 3 (Gurdeep Singh) are the children of Banta Singh deceased whose inheritance is in question in this case or they are the children of Bhan Singh. Admittedly, the suit land was owned by Banta Singh to the extent of 1/2 share and the other 1/2 share was owned by Bhan Singh who was brother of Banta Singh. From the Jamabandi Ex. P3, it is clear that Banta Singh has 1/2 share in the land and the other 1/2 share was owned by Makhan Singh but Chanan Singh is shown to be in possession of the entire land. Makhan Singh is alleged to have purchased the share of Bhan Singh through sale deed mark 'X' which was executed by defendant No. 3 in favour of Makhan Singh. It is clear from this sale deed that Deepa son of Bhanu has sold the land to Makhan Singh and this sale deed is dated 1-8-1980. Mark 'X' is the copy of registered sale deed and the learned counsel for the defendants/respondents has argued that this sale deed has been wrongly marked but it has to be exhibited because it is a photostat copy of the registered document. He has also argued that from the statement of defendant, it is also clear that Gurdip Singh-defendant No. 3 was also known as Deepa and Bhan Singh was also known as Bhanu and from this document, it is proved that Gurdip Singh defendant No. 3 is the son of Bhan Singh and he has sold the share of Bhan Singh to Makhan Singh through this sale deed............. (M) mark 'X' is not certified copy and it is only a photostat copy............ This document can be looked into for the collateral purpose to prove the relationship of defendant No. 3 with Bhan Singh. It is clear from the sale deed that estate of Bhan Singh was sold by Gurdip Singh to Makhan Singh who has been shown in cultivating possession in the Jamabandi Ex. P3 for the year 1987-88. Makhan Singh has not been impleaded as party in this case though, he is a co-sharer. The learned trial Court has held that issue regarding non-joinder of the parties was not pressed at the time of arguments by the learned counsel for the defendants but his statement was not recorded .............. I find substance in this argument because for determining the share of a party in a joint khata, all the co-sharers should be made a party. Since, Makhan Singh has not been impleaded as party, therefore, the suit is bad for non-joinder of necessary parties and this issue No. 7 regarding non-joinder and mis-joinder of necessary parties is decided against the plaintiff."

(2.) Learned Additional District Judge also reversed the findings and accepted the cross-objections holding that plaintiff-appellant-Pritam Kaur is not the daughter of Banta Singh and, therefore, she was not entitled to inherit his estate. He has further held that Sant Kaur is not the widow of Banta Singh but she is widow of Bhan Singh. During the course of arguments, learned Additional District Judge also considered the effect of copy of judgment Ex. P2 in a litigation between one Bhola Singh and Gurdeep Singh-defendant-respondent No. 2. It was on the basis of aforementioned judgment of the civil Court that the trial Court had held that Gurdeep Singh-defendant-respondent No. 2 and the plaintiff-appellant were the children of Banta Singh and not that of Bhan Singh. Placing reliance on the voters list Ex. D4 showing that Gurdeep Singh has been shown to be the son of Bhan Singh and Sant Kaur has been shown to be the wife of Bhan Singh, the learned Additional District Judge held that the judgment Ex. P2 would not be binding on the parties in the instant litigation because neither the plaintiff nor defendant-respondents 1 and 2 were party to that litigation. Reliance in this regard has also been placed on the sale deed Mark 'X' which has been read for collateral purposes of finding out the relationship between Gurdeep Singh-defendant-respondent No. 2 and Bhan Singh. The view of the Additional District Judge concluding that the plaintiff-appellant cannot be held to be the daughter of Banta Singh or Sant Kaur is widow reads as under :- "Now, it is to be seen whether the plaintiff is the daughter of Banta Singh or she is the daughter of Bhan Singh. From the sale deed mark 'X', one thing is clear that defendant No. 3 is the son of Bhanu alias Bhan Singh and he is not the son of Banta Singh. He has not contested this suit which fact further proves that he is not interested in the estate of Banta Singh. From the very beginning, it is known to the parties that the relationship of plaintiff with Banta Singh has been denied by the defendants. So, it was incumbent upon the plaintiff to step into the witness box and prove that she is the daughter of Banta Singh and not the daughter of Bhan Singh. She has herself not entered into the witness box but has examined only Tarsem Singh - Her attorney who is the son of defendant No. 1. Defendant No. 1 has alleged that he had dis-inherited his son Tarsem Singh P.W. 1 and that plaintiff is daughter of Bhan Singh and not the daughter of Banta Singh. PW. 1 Tarsem Singh being the son of defendant No. 1 cannot take a different stand but nevertheless he has stated that she is the daughter of Banta Singh and he has stated in the cross-examination that Bhan Singh was unmarried but he has admitted that Banta Singh had gone to foreign country and at that time, this witness has not attained the age of discretion. He has also stated that he does not know when he has returned from foreign country. He has also admitted that Banta Singh was married with Sant Kaur. However, he denied that Sant Kaur later on married Bhan Singh. He has also admitted that Chanan Singh is in possession of the suit land. Pritam Kaur has not produced any other evidence to prove that she had been calling Banta Singh as her father and that Banta Singh had been treating her as her daughter and that the relations and other persons had been treating them as father and daughter. She has not led any evidence regarding relationship as per requirement of the Evidence Act. On the other hand, the defendants have examined Rajinder Singh DW. 1 and Chanan Singh defendant has appeared as DW. 2 and they have categorically stated that Banta Singh was married to Sant Kaur and out of this wedlock Chanan Singh defendant No. 1 was born and thereafter, Banta Singh went abroad and did not return and he was presumed to be dead and then Sant Kaur effected marriage with Bhan Singh and out of this wedlock, plaintiff and defendant No. 3 were born and that's why the inheritance of Banta Singh was got sanctioned by Sant Kaur in favour of Chanan Singh defendant No. 1 alone by making the statement that he is the only legal heir of Banta Singh and plaintiff is not entitled to inherit any share from his estate. The learned trial Court has placed reliance upon the copy of judgment Ex. P2 between Bhola Singh and Gurdip Singh in which it was held that Gurdip Singh is the son of Banta Singh defendant No. 2 and he is not the son of Bhanu. So, on the basis of this judgment, the learned trial Court has held that the defendant No. 3 and the plaintiff are the children of Banta Singh and not the children of Bhan Singh. This judgment is not binding on the parties in the present case because neither the plaintiff nor defendant Nos. 1 and 2 were parties to that suit. There is a voters list placed on the file which is Ex. D4. It shows that Gurdip Singh has been shown as son of Bhan Singh and Sant Kaur has been shown to be the wife of Bhan Singh. This is a certified copy of the public record which proves that Gurdip Singh defendant No. 3 is the son of Bhan Singh and Sant Kaur defendant No. 2 is the widow of Bhan Singh. From this voters list and from the sale deed mark 'X' which can be used for collateral purpose, it is clear that Gurdip Singh defendant No. 3 is the son of Bhan Singh and from Ex. D4. It is also proved that defendant No. 2 was described as wife of Bhan Singh and, therefore, the evidence of the witnesses of the defendants that the plaintiff was born out of the wedlock of Bhan Singh with Sant Kaur appears to be correct. Chanan Singh has also stated that his mother Sant Kaur married Bhan Singh and out of this wedlock, plaintiff and defendant No. 3 were born and that's why she made statement before the Revenue Authorities in his favour on the basis of which the mutation of inheritance was sanctioned in his favour in respect of the estate of Banta Singh. So, I am of the opinion that the learned trial Court has erred in holding that the plaintiff is the daughter of Banta Singh. I, therefore, hold that the plaintiff is not the daughter of Banta Singh and, therefore, she is not entitled to inherit his estate. I, therefore, also hold that defendant No. 2 is not the widow of Banta Singh but she is the widow of Bhan Singh. In this way, issue Nos. 1, 2 and 9 are decided against the plaintiff and in favour of the defendants."

(3.) Mr. B. R. Mahajan, learned counsel for the plaintiff-appellant has argued that she has lost the right of her share on both counts. According to the learned counsel in the earlier litigation, she was held not to be the daughter of Bhan Singh and no right from the share of Bhan Singh was given to her. The learned counsel maintained that from the impugned judgment and decree, no share is given to her even from the estate of Banta Singh. The learned counsel has pointed out that either she has to be held to be the daughter of Bhan Singh or Banta Singh and she cannot be without parentage.