LACHHMAN AND OTHERS Vs. AMAR SINGH AND OTHERS

JUDGEMENT

(1.) THIS appeal is concerned, though somewhat indirectly with the rival claims of a daughter of the last male holder to succeed to his self -acquired property as against his collaterals, the parties being governed by customary law.

(2.) THE suit -property consisting of land measuring 106 kanals and 5 marlas was sold by Smt. Surjo to the three defendant brothers, Amar Singh, Basheshar Singh and Mohar Singh, by a registered sale -deed of 13th of February 1941 for a sum of Rs. 5,000/ -. The transferor had succeeded as widow to the estate of Nikka, who was the last male -holder. The plaintiffs, Lachhman, Bansi Ram and Sunder, alongwith Naraino, brought a suit for declaration to challenge this alienation in the Court of the Subordinate Judge, Kangra, and the suit was decreed against the vendee -defendants on the 11th of March, 1948. The operative portion of the declaratory decree protected the reversionary rights of the plaintiff's in disputed land after the death of Smt. Surjo, it having been held that the sale was without consideration and legal necessity. On Smt. Surjo's death on the 27th of January, 1958 the three plaintiffs' brought a suit for possession. Naraino having died issueless after the declaratory decree had been granted. The possessory suit was founded on the right which according to the plaintiffs accrued to them by virtue of the declaratory decree granted in their favour on the 11th of March 1948. This suit, instituted on the 30th of May 1956, was decreed by the Subordinate Judge, Hamirpur, on the 26th of November 1953. The defendant -vendees in appeal, however, succeeded before the Senior Subordinate Judge, Kangra, who having held that the collaterals had no right of succession as against Ram Dei, the surviving daughter of Nikka, dismissed the suit on the 15th of April 1957. The plaintiffs feeling aggrieved have now come in further appeal to this Court.

(3.) MR . Mahajan contends that Ram Dei has not come forward to challenge the right of the collaterals and it does not therefore, lie with the vendees to use her right as a shield in defence of the possessory suit of the plaintiffs in whose favour a declaration has already been granted. The short answer to this contention is that a person in possession of the disputed property can always say that a rightful heir, whose claims are superior to those of the plaintiffs, is actually in existence. Reference may be made to a Division Bench judgment of Mehr Chand Mahajan and Teja Singh, JJ. in Raja Rajinder Chand v. Kishen Ditta, I.L.R. (1949) 2 E.P. 193. In the penultimate paragraph of the judgment it is stated by Mehr Chand Mahajan, J., that "the rightful heir to the land in dispute is Hakim and not the appellant (Raja Rajinder Chand defendant). The plaintiff (Kishan Ditta), however, is in possession of this land and cannot be ousted from it by anyone except the true owner, namely, Hakim''. By a parity of reasoning it can acceptably be urged, as has been done by Mr. K.C. Nayar for the respondents, that Ram Dei, though not having claimed the property, is still the rightful owner as against the plaintiff -collaterals, who cannot, because of their inferior title to an existing heir oust the vendees in possession.