AMARSINGH Vs. KARNAIL KAUR

JUDGEMENT

(1.) This is an application by the unsuccessful plaintiffs Amarslngh and Karamsingh for leave to appeal to the Supreme Court under Article 133 (1) (b) and (c) of the Constitution against the judgment and decree of a Bench of this Court dated 13-71955, reversing the judgment and decree of the District Judge. Ganganagar, by which he had decreed the plaintiffs' suit.

(2.) The dispute between the parties in substance and effect relates to the right to succeed to the estate of the deceased Dayalsingh, nephew (being brother's son) of the petitioners, and the husband of opposite party No. 1 Mst. Karnail Kaur. The plaintiffs' case was that Mst. Karnail Kaur was not at all pregnant at the time of her husband's death on the 20th February, 1947, and, therefore, the alleged after- born son Jagrupsingh opposite party No. 2 was an impostor, not being the child of Dayalsingh. There was a further allegation that Mst. Karnail Kaur had contracted a second marriage with Labhsingh, one of the sons of the plaintiff Amarsingh. The plaintiffs' suit was instituted directly to obtain a declaration to the effect above-mentioned. They valued their suit for purposes of jurisdiction at Rs. 10,000/- and paid a fixed court-fee of Rs. 20/- only. The suit was resisted by Mst. Karnail Kaur on the grounds that she was in fact pregnant at the time of her husband Dayal Singh's death and "that Jagrupsingh was her posthumous child and that the version of the plaintiffs that she had entered into a second marriage with Labhsingh son of the plaintiff Amarsingh was entirely false and without any foundation. The trial court found in favour of the defendants on the question of re-marriage but against them so far as the question of Mst. Karnail Kaur's pregnancy at the time of her husband's death was concerned, and in that view decreed the plaintiffs suit. On appeal by the defendants, a Bench of this Court reversed the trial court's finding on the question of Mt. Karnai! Kaur's pregnancy at the time of her husband's death and dismissed the plaintiffs' suit. The plaintiffs have filed this application for leave to appeal to the Supreme Court from the aforesaid decision.

(3.) The application was argued before us mainly on the ground that it was covered by Article 133(1)(b) of the Constitution, that the judgment of this Court was one of variance with that of the Court below and that it would affect the plaintiffs' claim or right respecting property of the value of not less than Rs. 20,000/-. We may point out that the application for leave to appeal appears to us to have been drawn up somewhat vaguely so as also to bring it within Clause (1) (a) of Article 133, but we do not propose to deal with it under that clause as the argument addressed to us was concentrated on Clause (1) (b) of that article. The relevant portion of Article 133 is in these terms:-