KISHAN KAUR Vs. MUKHTIAR SINGH

JUDGEMENT

(1.) After the death of Kishan Singh, the mutation regarding the inheritance of his property was entered in favour of his nine heirs by the order of the revenue authority, dated 26th November, 1970, which order was maintained in appeal and revision. The contention of Mukhtiar Singh and Mohinder Singh plaintiffs (now respondent Nos. 1 and 2) that they were entitled to the property of Kishan Singh on the basis of a will dated 13th March, 1968, was rejected. These two respondents consequently filed a suit for declaration challenging the mutation in favour of the above-mentioned nine heirs and claiming their rights on the basis of the said will on the plea that they were in possession of the suit land. In the alternative, they prayed for a decree for possession. During the pendency of the suit, Lal Singh, one of the defendants, out of the nine heirs in whose favour the mutation had been sanctioned, died on 13th April, 1974. Three applications were made by the plaintiffs for bringing the legal representatives of the said Lal Singh on record on 10th October, 1974. In these applications the widow, mother, two sons and one daughter of the deceased were sought to be impleaded as his legal representatives. Subsequently, however, the names of the two sons and one daughter were given up voluntarily by the plaintiffs. In these applications it was averred that the plaintiffs were not aware of the death of Lal Singh and that they came to know of his death on 14th September, 1974. Though the trial Court came to the conclusion that the application for bringing the legal representatives of Lal Singh on record was time barred, inasmuch as the delay after the plaintiffs had knowledge of the death of Lal Singh had not been explained, yet it was held that in the circumstances of the case there was no abatement. This order has been challenged by some of the heirs of Kishan Singh, who were defendants in the trial Court and some of the legal heirs of Lal Singh in this revision petition.

(2.) The contention of the learned counsel for the petitioners that the suit of the plaintiffs-respondents both for declaration and in the alternative for possession is based on the alleged will be the last owner in their favour, and as such there is no question of partial abatement, is not without merit. If the suit is decreed in the absence of the legal representatives of Lal Singh, it will result in contradictory decrees, because the alleged will be held to be valid qua the other eight defendants and invalid qua defendant No. 1 who had died during the pendency of the suit. Reliance for this proposition has been placed on Smt. Bahuria v. Smt. Amarbas, 1944 AIR(Pat) 38 Swaran Singh Puran Singh v. Ramditta Badhawa, 1969 AIR(P&H) 216, and Kartar Kaur v. Dhan Kaur, 1970 AIR(P&H) 556. The ratio of these decisions if fully applicable to the facts of the present case. The cause of action for the plaintiffs is the same against all the defendants and it is not possible to split them up. Therefore, the question of partial abatement does not arise.

(3.) It was contended by the learned counsel for the respondents that defendant No. 1, Lal Singh, who died during the pendency of the suit was not a necessary party and that the suit could be filed by the plaintiffs against the remaining eight defendants. This contention is without substance. Mutation of succession had been entered in favour of all the nine defendants as heirs of Kishan Singh against the claims of Mukhtiar Singh and Mohinder Singh. The mutation order would either stand or fall qua all the defendants. The mutation of succession cannot be held valid qua some of the defendants and invalid qua the others, because the claim of the plaintiffs was based on the alleged will. Even otherwise the suit having been filed against all the nine heirs, it is not open now to the plaintiffs to take up the position as if the suit had been filed only against eight heirs leaving the ninth heir.