MANJIT KAUR Vs. GURMAIL KAUR

JUDGEMENT

(1.) The following substantial questions of law arise for consideration in the second appeal:-

(2.) The suit was filed by the plaintiffs as heirs to the 1st plaintiff's husband Nachhattar Singh. The suit proceeded on a plea that her husband was entitled to 1/72th shares in the total extent of properties that the family owned in two villages in Dhaner and Andalu. There were two suits filed by the same plaintiffs for the two villages and while the suit in Dhaner was against Gurmail Kaur, the sister of her husband, yet another suit in Suit No.279 of 1984 was against the sisterin- law and brother-in-law of her husband. Nachhattar Singh's parents were Rattan Singh and Chand Kaur. When the 1st plaintiff claimed her share to the property as heir to her husband and as heirs of Chand Kaur as wife and daughter of her pre-deceased son, Gurmail Kaur set up a Will alleged to have been executed by Chand Kaur on 19.11.1980. The case was put on joint trial of both the suits and the Court found that the Will set up by the defendant was not proved. The Court decreed the suit for joint possession with reference to the properties which was the subject of suit in Suit No.279/1984 but dismissed the suit filed for properties in village Dhaner on the ground that she could not have maintained the action for injunction against the defendant who was also a co-sharer.

(3.) The decision is assailed by the plaintiff-appellant on the ground that an ultimate dismissal of the suit could result in even favourable findings rendered in our favour as regards the Will to be ineffective and the Court having found that the Will was not true, ought to have decreed the suit with reference to the property in her possession. The Counsel would point out to me that the Court has actually found that the plaintiff was in possession of the property but still found that the Chand Kaur's share to the extent to which the latter inherited from her husband as well as from Nachhattar Singh will fall to be divided between the plaintiffs and the defendant as co-sharers and consequently, suit for injunction cannot be maintained. Against the finding rendered by the Court that all the brothers and sisters of the 1st plaintiff's husband, who were sharers with reference to Chand Kaur's estate in the property were not impleaded, the counsel would argue that it was Court's duty to implead all other persons if it was so essential but as far as she was concerned, she was only maintaining for an action for injunction against one sister who was attempting to take a mutation in her name exclusively on the basis of a forged Will and therefore, she was entitled to maintain the action for injunction.