NANAK Vs. BANARSI

JUDGEMENT

(1.) This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of fact recorded by both the Courts below to the effect that the decree dated 10.5.1984 suffered by the defendant-respondent no. 1. Banarsi in favour of defendant-respondent No 2. Arjan did not amount to alienation because defendant-respondent no.2 has been found to be residing with defendant respondent No.1 and there are special ties of relation between them. It is on account of the services rendered by defendant-respondent no.2 that defendant-respondent no.1 suffered the decree in his favour. Therefore, it did not involve the element of alienation. It has further been held that defendant-respondent no.2 could not be considered to be adopted son of defendant-respondent no.1. The nature of the suit property has been fond to be ancestral. It has also been admitted position that plaintiff-appellants are reversioner in relation to the defendant-respondent no.1 as is evident from the following pedi-degree table.

(2.) The lower appellate Court, however, recorded a finding which is fundamental to the whole controversy as it goes to the root of the matter. In paras 22 and 23, the lower appellate Court has held that Plaintiff-appellants have no locus standi to file the suit during the life time of defendant-respondent No.1 Banarsi Dass. The view of the lower appellate Court reads as under:

(3.) Having heard the learned counsel for the parties, I am of the considered view that a collateral like the plaintiff-appellants who are neither class I nor class II heir and they are merely agnates would not have any locus standi to make any claim in the suit property during the life time of defendant-respondent No.1 Banarsi. The question of succession could open only after the death of Banarsi, defendant-respondent no 1. Therefore, the view taken by the lower appellate Court is legally sound and does not call for any interference. The question of application of the provisions of Haryana Succession Act, 1956 or the Customary Law would pale into insignificance till the question of succession opens which can happen only after the death of defendant-respondent no 1.