UJAGAR SINGH PIEHHLAG Vs. KEHAR SINGH

JUDGEMENT

(1.) THREE points were urged: first, that inasmuch as Mst. Indo has died, only a suit for possession could lie; secondly, that the suit was, in any case, barred by time and the Courts below were wrong in holding that the same was within time and, thirdly, that in the presence of the sister's son, the suit of the plaintiffs was speculative.

(2.) SO far as the first point is concerned, it is admitted that at the time when the suit was brought, the only relief that was open to the plaintiffs was to file a suit for declaration that the wills will not affect their reversionary rights. During the pendency of the suit Mst. Indo died and ft was certainly open to the plaintiffs to amend the suit and seek the relief for possession but they were certainly not bound to do so. In the plaint the plaintiffs claimed themselves to be brothers' sons of Bishan Singh. This was denied. The only point put in issue was whether they were the collaterals. So the matter as to in how many degrees of ascent they were connected with the last maleholder was not put in issue. From the pedigree-table. Exhibit P. 6 on the record ft is clear that plaintiff No. 1 is the son of Hira Singh, who was certainly a brother of Bishan Singh. The other plaintiffs 2 to 5 claim to be the sons of Rur Singh but their names are not given in the pedigree-table. However, it is clear that plaintiff No. 1 has a right to inherit under the Hindu succession Act along with the sister's son. The sister's son cannot challenge an alienation, and in any case, the presence of sister's son is no bar in the way of plaintiff No. 1 at least seeking a declaratory decree of the type which has been granted to the plaintiffs. In the present case if the suit is converted to one for possession, the entire matter shall have to be reopened as to whether the remaining plaintiffs are the brother's sons or whether there are other heirs of equal degree or not. The present is, therefore, a case in which a declaratory decree would be the proper relief and it will be then open to the heirs to claim shares to which they are entitled. On behalf of the appellants reference was made to a Division Bench judgment of this Court reported in Maghar Singh v. Gujjar Singh, 1964-66 Pun LR 865. This, however, is no authority for the proposition that a declaratory decree cannot be granted if the suit was maintainable in that form at the time when it was brought. No doubt, the Court would be disinclined to grant a declaratory decree if, as a result of the death of the intervening heir, somebody else is the next heir and the person, who has brought the suit, does not represent the immediate heir and in view of the changed circumstances the suit brought by the plaintiff has become speculative. That is not, the case here because, as stated above, plaintiff No. 1 at least is one of the next heirs though it is not possible to say what his share is. In view of the above, therefore. 1 feel that there is no force so far as the first and the last points are concerned.

(3.) THIS now brings us to the question of limitation. Article 1 of the Schedule to punjab Act 1 of 1920 runs as under:-Description period of Time from which of suit limitation period begins to run. A suit for a declare- 6 years Firstly:-- If the alienation tion that an alienation is by a registered deed, the of ancestral immovable date of registration of property will not, accord- such deed. tag to custom, be binding Secondly:-- If the alienation on the plaintiff after the is not by a registereddeath of the alienor ** *. deed----