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1996 Supreme(P&H) 1159
PUNJAB & HARYANA HIGH COURT
R.L.Anand, J.
Dasondha Singh
Versus
Zalam Singh
Regular Second Appeal No. 2644 of 1982,
Decided On : AUGUST 6, 1996
A declaratory decree declaring an alienation of ancestral property to be void enures for the benefit of all the reversioners.
Headnote:
WILL - VALIDITY - ANCESTRAL PROPERTY - ALIENATION - DECLARATORY DECREE - EFFECT - POSSESSION - SUIT FOR - LIMITATION - ADVERSE POSSESSION - BURDEN OF PROOF.
Fact of the Case:
Saun Singh, father of the plaintiffs, sold ancestral land to Gurnam Singh and Parsin Kaur. The plaintiffs filed a suit for declaration that the sales were void and did not affect their rights. The suit was decreed in 2000 B.K. Gurnam Singh and Parsin Kaur died, and the defendants, their legal representatives, continued in possession of the land. The plaintiffs filed a suit for possession in 1982, claiming that Saun Singh had died in 1976 and that they were entitled to possession as reversioners. The defendants claimed adverse possession and limitation.
Finding of the Court:
The court held that the plaintiffs' suit was not barred by limitation as it was filed within three years of Saun Singh's death. The court also held that the defendants had not proved adverse possession. The court further held that the declaratory decree obtained by the plaintiffs in 2000 B.K. enured for the benefit of all the reversioners and that the defendants had no right to continue in possession of the land. The court also held that Saun Singh had the right to make a will of the property in dispute and that the will in favor of the plaintiffs was valid.
Issues: 1. Whether the plaintiffs' suit was barred by limitation? 2. Whether the defendants had proved adverse possession? 3. Whether the declaratory decree obtained by the plaintiffs in 2000 B.K. enured for the benefit of all the reversioners? 4. Whether Saun Singh had the right to make a will of the property in dispute? 5. Whether the will in favor of the plaintiffs was valid?
Ratio Decidendi: 1. The court held that the plaintiffs' suit was not barred by limitation as it was filed within three years of Saun Singh's death, relying on the principle that a suit for possession of ancestral property by a reversioner must be filed within three years of the death of the last male holder. 2. The court held that the defendants had not proved adverse possession, relying on the principle that the burden of proving adverse possession lies on the person claiming it. 3. The court held that the declaratory decree obtained by the plaintiffs in 2000 B.K. enured for the benefit of all the reversioners, relying on the principle that a declaratory decree declaring an alienation of ancestral property to be void enures for the benefit of all the reversioners. 4. The court held that Saun Singh had the right to make a will of the property in dispute, relying on the principle that a person who has a subsisting interest in property has the right to make a will of that property. 5. The court held that the will in favor of the plaintiffs was valid, relying on the principle that a will is valid if it is executed in accordance with the requirements of the law.
Final Decision: The court dismissed the defendants' appeal and allowed the plaintiffs' appeal. The court modified the judgment and decree of the first appellate court and passed a decree for possession of the entire suit land in favor of the plaintiffs and against the defendants Nos. 1 to 8 by restoring the judgment and decree of the trial court.
R.L.Anand, J.
1. By this judgment I dispose of two Regular Second Appeals bearing No. 2645 of 1982 titled Jhujar Singh and Anr. v. Dasonda Singh and Ors. and R.S.A. No. 2644 of 1982 titled Dasondha Singh and ors. v. Zalam Singh and Ors. as both the appeals have arisen from the judgment and decree dated 8.9.1982 passed by the Court of Additional District Judge, Sangrur, who partly allowed the appeal of the defendants and the judgment and decree dated . 13.5.1981 passed by the Court of Sub Judge Ist Class, Dhuri was modified in the way that instead of a decree for possession of 3/5th share only out of the land in dispute was passed in favour of the plaintiffs and against the defendants No. 1 to 8. The suit with regard to the remaining 2/5th share of the suit land was, however, dismissed. In the present two appeals, the plaintiffs want that the entire suit should be decreed as decreed by the trial Court and the defendants have prayed that the suit of the plaintiffs should be dismissed in toto.
2. The brief facts of the case are that Saun Singh father of Dasondha Singh, Jangir Singh and Mukhtiar Singh plaintiffs was the owner of the land comprising in Khasra Nos. 2024, 2043, 2029, 2411 and 1866. He sold land measuring 4 Bighas 15 Biswas comprised in khasra No. 2024 to Gurnam Singh for a consideration of Rs. 210/-; land measuring 14 Bighas 17 Biswas comprised in Khasra Nos. 2043 and 2029 for a sum of Rs. 824/- and land measuring 11 Bighas 11 Biswas comprised in Khasra Rs. 2411 for a sum of Rs. 90/- to the above said Gurnam Singh and the land measuring 3 Bighas 2 Biswas comprised in Khasra No. 1886 to Parsin Kaur wife of Gurnam Singh. All these transactions were made through various sale deeds. Both Gurnam Singh and Parsin Kaur have died and defendants No. 1 to 8 namely Zalam Singh, Jhujar Singh , Surjit Kaur, Gobinder Singh, Gurmit Singh, Raghbir Singh, Gurmail Kaur and Mukhtiar Kaur are the legal representatives of Gurnam Singh and Parsin Kaur. According to the plaintiffs, the land in suit was allotted in lieu of the above said khasra numbers sold by Saun Singh to Gurnam Singh Parsin Kaur. The plaintiffs also filed a suit for declaration alleging that the sales made by Saun Singh in favour of Gurnam Singh and his wife Parsin Kaur were without consideration and legal necessity and these sale deeds are void and do not affect the rights of the plaintiffs. That suit was decreed on 25.3.2000 B.K. with the directions that the plaintiffs would be entitled to the possession of the land by paying Rs. 210/- after the death of Saun Singh. The plaintiffs are thus entitled to the possession of the land by paying Rs. 210/-. Gurnam Singh and Parsin Kaur filed an appeal against the judgment dated 25.3.2000 B.K. and the said appeal was also dismissed on 22.12.2000 B.K.
3. Plaintiffs case is that Saun Singh died on 18.10.1976 and as such the plaintiff are entitled to the possession of the land and defendants No. 1 to 8 have no right to continue in possession of the disputed land. The plaintiffs are the sons of Saun Singh. Defendant No. 9 Gurdial Kaur is the daughter of Saun Singh and defendant Rs. 10 is the widow of Saun Singh. During his life time, Saun Singh deceased also executed a will in the year 1975 in favour of the plaintiffs. For this reason, the defendants No. 9 and 10 have been impleaded as a party being a proper party in the suit. An application was presented by the plaintiffs before the Collector, Malerkotla for the possession of the land which was accepted on 16.2.1978. The amount was deposited before the Collector. The defendant No. 1 to 8 filed a suit against the order of Collector and also sought injunction from the Court. Defendants were requested to receive a sum of Rs. 210/- and to deliver the possession of the land in dispute but they have failed to do so, hence the suit.
4. The suit was contested by defendants No. 1, 3, 4, 7 and 8 who filed written statement taking preliminary objections that the suit of the plaintiffs
