JAGIR SINGH Vs. SUKHDEV KAUR

JUDGEMENT

(1.) THE second appeal has been admitted without framing any substantial question of law. The counsel were directed to make submission on the following substantial question framed in their presence. They were prepared to argue on the question framed: -

(2.) THE suit was filed by the plaintiff on a plea that the plaintiff and the defendants 1 and 2 were the son and daughters respectively through the lawful marriage of their father Sunder Singh with their mother Sahib Kaur. The properties had originally belonged ancestrally to the grandfather Bhupa and was jointly enjoyed along with three sons Sunder Singh -the plaintiff's father, and two other sons, namely, Chetu and Partapa. Chetu died unmarried in 1955 and Partapa left the village and not known to be alive. The property, which had been entered in the revenue records as falling to the share of the plaintiff representing Sunder Singh and Partapa, was fraudulently changed by the defendants on 19.01.1978 treating the defendants as the heirs and legal representatives of Partapa. The cause of action for the suit was, therefore, an alleged fraudulent mutation recording the defendants as the legal representatives of Partapa. The plaintiff had been in possession of property in assertion of his open, notorious and hostile title to the rights and interest of Partapa and had perfected title to the property by statutory period of limitation. The suit was filed on a statutory presumption which was raised by the plaintiff as arising on the date when the mutation proceedings were started on 22.09.1977. The defendants would contend that they are daughters of Partapa and not of Sunder Singh. The latter had three other daughters Bhago, Gurmail Kaur and Lajo. Lajo had died leaving behind her legal representatives and all of them were necessary parties. As the respective contentions have emerged, if the defendants were the daughters of Partapa through Sahib Kaur, they would alone be the legal heirs in respect of Partapa's share. If, on the other hand, the defendants were the plaintiff's own sisters, the claim to heirship to Partapa could not be validly made and, therefore, the plaintiff was entitled to a full right as a person to whom the right had survived as a coparcener.

(3.) THE learned counsel for the appellant -plaintiff would refer to the following circumstances as clearly establishing that Sahib Kaur did not marry Partapa after the death of Sunder Singh, as contended by the defendants: (i) In the voter's list for the year 1976, Sahib Kaur had been shown as the wife of Sunder Singh and not of Partapa; (ii) In the sale deed executed by Sahib Kaur on 21.02.1968 under P1, she had been described herself as the widow of Sunder Singh and not of Partapa; and (iii) If Partapa had gone away absconding from the village and not known to be alive from the year 1955, no change had been made in the revenue entries till the year 1978 and till after the death of Sahib Kaur and, therefore, the defendants were attempting to assert a new right which they did not take courage to do during the lifetime of Sahib Kaur as alleged children of Partapa.