DARSHAN SINGH Vs. APPAR SINGH AND ANOTHER

JUDGEMENT

(1.) The defendant is in appeal against the judgment and decree of the lower Appellate Court.

(2.) In brief, the case of the plaintiffs is that one Piara Singh was the owner in possession to the extent of 4/15 share out of the land measuring 18 kanal 9 marlas. He was without any issue being unmarried and died on 17.07.1999. He had three brothers and one sister, namely, Banta Singh, Jawand Singh, Harbans Singh and Dhanni. All of them pre-deceased Piara Singh. Banta Singh was also issueless as he was not married, Jawand Singh left behind the plaintiffs and Harbans Singh left behind his widow Joginder Kaur but without any issue. Dhanni also died leaving behind the defendant as her successor. As per the plaintiffs, Piara Singh was living with them at village Shikar, Tehsil Dera Baba Nanak and was used to be looked after by them. He, out of love and affection and in sound disposing mind, executed his last Will on 15.05.1999 in favour of the plaintiffs bequeathing his entire land in their favour in equal shares and, thus, after the death of Piara Singh, they have become owner of the land in dispute, i.e. 4/15 share, in equal shares, but the defendant, in collusion and in conspiracy with the revenue officials, got the mutation of inheritance of the estate of Piara Singh sanctioned in favour of Dhanni and Jawand Singh in equal shares, but the said mutation is stated to be illegal because both Dhanni and Jawand Singh had pre-deceased Piara Singh and mutation of inheritance in their favour could not have been sanctioned and is void ab-initio. The plaintiffs, thus, prayed for declaration and consequential relief of permanent injunction and in the alternative, if they are dispossessed from the suit land or not found to be in possession thereof, they would be granted the relief of possession. It was also prayed that as per Schedule II of the Hindu Succession Act, 1956, the plaintiffs and the defendant were entitled to inherit the estate of deceased Piara Singh in equal shares, i.e. 2/3 share by the plaintiffs and 1/3 share by the defendant out of entire 4/15 share and, thus, the plaintiffs were entitled to 8/45 share of Piara Singh in case they are not found to be entitled for first relief of declaration, as prayed for.

(3.) In the written statement, it was admitted by the defendant that Piara Singh had expired, but denied that her brothers and sisters had predeceased him. The suit was contested on the ground that it was bad for nonjoinder of the necessary parties as Joginder Kaur was proper and necessary party to the suit, who was not impleaded as a defendant. It was denied that any valid and final Will was executed by Piara Singh in favour of the plaintiffs, rather it was submitted that mutation has already been sanctioned on the basis of inheritance with the consent of the plaintiffs and they are now estopped by their own act and conduct to challenge the mutation and to file the present suit.