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PUNJAB & HARYANA HIGH COURT
S.S.Dulat and S.B.Capoor JJ.
Gurbinder Singh
Versus
Lal Singh
Second Appeal No. 263-P of 1952,
Decided On : MAY 21, 1958
SUCCESSION - DASTUR-UL-AMAL OF 1893 - FARIDKOT STATE - DAUGHTER AND DAUGHTER'S SON - RIGHT TO SUCCEED - OCCUPANCY TENANCY - SECTION 59, PUNJAB TENANCY ACT - APPLICABILITY - RES JUDICATA - SECTION 11, EXPLANATION IV, CODE OF CIVIL PROCEDURE - TRANSFER OF PROPERTY ACT (IV OF 1882), SECTION 41 - LIMITATION ACT (IX OF 1908), ARTICLES 141 AND 144.
Fact of the Case:
Raj Kaur was in possession of 851 kanals 18 mar-las of land in village Dhaipai which was then in the Faridkot State. Of this area, 481 kanals 7 marlas was occupancy tenancy, the landlord being the Raja Sahib of Faridkot, while the remaining land was held by Raj Kaur as adna malik, again the ala malik being the Raja. Sometime about the year 1953 Bk. (corresponding to 1893) Raj Kaur adopted her daughters son Bakhshi Singh, and he took possession of the land. Later he transferred some of the land to his cousin Partap Singh son of the second daughter of Raj Kaur.
Finding of the Court:
1. Prem Kaur was the daughter of Raj Kaur, and Lal Singh and Partap Singh were the sons of Raj Kaurs second daughter, Mahan Kaur; that Prem Kaur as well as Lal Singh and Partap Singh were entitled to succeed to Raj Knurs property in preference to the Raja of Faridkot; that the plaintiffs were not estopped from and that the decisions in the previous suits brought by the Raja did not operate as res judicata. 2. On the fifth issue regarding limitation, the Court found that the suit of Prem Kaur was barred by limitation, while the suit of Lal Singh and Partap Singh was not so barred, and in the result the trial Court dimissed the suit of Prem Kaur but decreed the suit by Lal Singh and Partap Singh and granted them a decree for possession of one-half of the suit land. 3. The learned District Judge considered the matter and affirmed the conclusions of the trial Court on all the issues and thus dismissed both the appeals as well as the cross-objections, but left the parties to their own costs throughout.
Issues: 1. Whether Smt. Prem Kaur plaintiff is the daughter of Smt. Raj Kaur deceased and entitled to succeed to the property left by the latter? 2. Whether Lal Singh and Partap Singh plaintiffs are the sons of the daughter of Smt, Raj Kaur deceased, and are entitled to succeed to the property left by the latter? 3. Whether the suits of Smt. Prem Kaur, and Lal Singh and Partap Sing plaintiffs are within time? 4. Whether the plaintiffs Smt. Prem Kaur, Lal Singh and Partap Singh or cither of them are estopped from suing? 5. Whether Kehar Singh is a bona fide purchaser, and if so, what is its effect? 6. Whether the decision in the suit filed by His Highness of Faidikot against Bakhshi Singh and others for possession of the land in dispute operates as res judicata against Partap Singh defendant?
Ratio Decidendi: 1. A daughter and a daughters son are heirs within the meaning of the dastur-ul-amal. 2. Section 59 of the Punjab Tenancy Act did not govern succession to the occupancy tenancy left by Raj Kaur, and that under the ordinary rule a daughter and a daughters son were entitled to succeed and the Raja of Faridkot as landlord had no right in the presence of such heirs. 3. The plea that the decision of the suit for possession brought by the Raja against Bakhshi Singh and Partap Singh should operate as a bar to the present claim of Partap Singh cannot be allowed. 4. The transferee, i. e., Kehar Singh, could not have failed to discover that the Raja had acquired possession in the course of litigation & that the property had originally belonged to Raj Kaur and Raj Kaurs daughter and daughters sons were 111 existence, & further that the Rajas possession was in no manner with the consent of the true owners. 5. Article 141, Limitation Act, would not be applicable to the suit of Prem Kaur, because this was not a suit by a Hindu as such for the possession of property left by a Hindu female, the argument being that such suit must be founded on some rule of Hindu Law. 6. The suit of Lal Singh and Partap Singh was competent within twelve years of the death of the Hindu female on whose death alone the reversioner could claim the property.
Final Decision: The two appeals as well as the cross-objections fail and I would dismiss them all, but in view of all the circumstances again leave the parties to their own costs in this Court.
S.S.Dulat, J.
1. The following pedigree table will help in understanding the facts of this case :
RAJ KAUR (Widow of Bir Singh) ________________|___________________ | | Prem Kaur (Plaintiff) Mahan Kaur | ____________|_____________ Bakhshi Singh | | Lal Singh Pratap Singh (plaintiff) (plaintiff)
Raj Kaur was in possession of 851 kanals 18 mar-las of land in village Dhaipai which was then in the Faridkot State. Of this area, 481 kanals 7 marlas was occupancy tenancy, the landlord being the Raja Sahib of Faridkot, while the remaining land was held by Raj Kaur as adna malik, again the ala malik being the Raja. Sometime about the year 1953 Bk. (corresponding to 1893) Raj Kaur adopted her daughters son Bakhshi Singh, and he took possession of the land. Later he transferred some of the land to his cousin Partap Singh son of the second daughter of Raj Kaur.
In the meantime, however, and during the lifetime of Raj Kaur, the Raja of Faridkot brought a suit to avoid the adoption and in that suit Raj Kaur and Bakhshi Singh were impleaded as defendants. This suit succeeded and the adoption was declared invalid. Raj Kaur died in Bhadon, 1987 Bk. (corresponding to August, 1930) and about three years after that the Raja of Faridkot brought two suits for possession--one regarding the occupancy tenancy and the other concerning the adna malkiat and in those suits Bakshi Singh and Partap Singh were made defendants.
Both the suits were decreed and, in execution, the Raja took possession of the entire land in Assauj, 1995 Bk. (corresponding to October, 1938), and some years later the Raja sold the entire land to one Kehar Singh for Rs. 84,357/8/-. Gurbindar Singh and others brought a suit to pre-empt this sale in favour of Kehar Singh and succeeded in getting a decree. Before that, however, Mst. Prem Kaur, daughter of Raj Kaur, brought a suit on the 5th Kartik, 2005 Bk. (corresponding to the 23rd October, 1948) for possession of the entire land against Kehar Singh as well as the Raja of Faridkot, claiming that she was the legal heir of Raj Kaur and entitled to the possession of the land and that the defendants were mere trespassers-
About a year later, i.e. on the 6th Phagan, 2006 Bk. (corresponding to the 17th February, 1950) Lal Singh brought a similar suit against Kehar Singh ami the Raja of Faridkot, again claiming possession on the ground of title as an heir to his mother Mahan Kaur, who had in the meantime died in Har, 1995 Bk. (corresponding to July, 1938). In this suit Partap Singh was first made a defendant but later joined as a plaintiff.
These two suits were consolidated and tried together. The Raja of Faridkot was struck off as a defendant as he had no longer any interest in the property while Gurbinder Singh and others, who had succeeded in the pre-emption suit, were joined as contesting defendants, Kehar Singh had filed a written statement and that was adopted by Gurbinder Singh and others.
2. These two suits -- one by Prem Kaur and the other by Lal Singh and Partap Singh--were resisted on a number of grounds. It was denied that Lal Singh and Partap Singh were the sons of Raj Kaurs daughter and also denied that Prem Kaur was Raj Kaurs daughter. It was pleaded that, in any case, neither Prem Kaur nor the sons of Mahan Kaur were legal heirs to the properly. It was further pleaded that both the suits were barred by time, having been brought more than twelve years after Raj Kaurs death. It was said that the plaintiffs in both the suits were estopped from suing and that the decision in the previous litigation started by the Raja of Faridkot operated as res judicata, and finally that Kehar Singh was a bona fide purchaser for valuable consideration and was protected as such. On these pleadings the trial Court framed the following six issues:-
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(1) Whether Smt. Prem Kaur plaintiff is the daughter of Smt. Raj Kaur deceased and entitled to succeed to the property left by the latter?
(2) Whether Lal Singh and Partap Singh plaintiffs are
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