Harjinder Kaur & Anr. v. Mehar Singh & Ors.

CORAM : HON'BLE MR.JUSTICE MAHESH GROVER .... Present : Mr.Yogesh Goel, Advocate for the Appellants. ..... MAHESH GROVER, J. Delay condoned. This is plaintiffs' appeal against he judgments of the learned trial Court dated 1.4.2005 and that of the first Appellate Court dated 9.11.2009. The plaintiffs/appellants claimed a right to succeed to the alleged estate of Harnam Kaur whom they pleaded to be their grandmother. The respondents, on the other hand, claimed that they were owners in possession of the property having got the same by way of a registered Will executed by one Harjinder Kaur in their favour as also on the basis of a consent decree dated 4.11.1995. Briefly, the facts of the case may be noticed that Karam Singh, who was an occupancy tenant over the suit property acquired tenancy rights in the year 1961. He died on 11.10.1961 and was R.S.A.No.773 of 2010 (O&M) -2- issueless. He was survived by his wife Harjinder Kaur and mother Harnam Kaur.

The mutation of the entire suit property was sanctioned in favour of Harjinder Kaur who entered the possession thereafter and continued to be in possession till her death. Harnam Kaur, mother of Karam Singh died in 1982. The suit was filed by the plaintiffs/appellants in 1997 claiming that they had a right to succeed to the estate of Harnam Kaur as the appellants are brothers of Karam Singh whose property was in possession of Harjinder Kaur wife of Karam Singh. The respondents are nephews of Harjinder Kaur. Both the Courts below determined that the appellants had failed to establish that they were the legal representatives of Harnam Kaur or that they had any right to succeed to the estate of Karam Singh. A counter claim was also preferred by the respondents in which they pleaded their title on the basis of a Will and a consent decree dated 4.11.1995. The counter claim was decreed by both the Courts below while the suit of the plaintiffs was dismissed.

In this Regular Second Appeal learned counsel for the appellants contended that there is an oblique admission made by the respondents regarding his relation with Harnam Kaur and this itself is sufficient to conclude that they were the successors-in-interest of Harnam Kaur and consequently their suit ought to have been decreed qua the share of Harnam Kaur in the suit property. It was contended that after the death of Karam Singh the estate ought to have been devolved in equal shares in the names of Harjinder Kaur and Harnam Kaur, who were the only surviving heirs of Karam Singh but the same was not done and in any eventuality the appellants had a right to R.S.A.No.773 of 2010 (O&M) -3- succeed to the share of Harnam Kaur. It was further pleaded that there is no limitation to claim succession and consequently the Courts below have gone wrong in recording a reasoning that since the succession opened in the year 1992 after the death of Harnam Kaur and since the appellants have not taken any steps to retrieve the possession from deceased Harjinder Kaur, they were now precluded from claiming the same.

I have heard learned counsel for the appellants and have perused the impugned judgments. The facts which are to be noticed are that in 1961 Karam Singh died issueless and intestate. He was survived by his wife Harjinder and mother Harnam Kaur. The entire property stood transferred and mutated and possessed by Harjinder Kaur who continued to be in possession to the knowledge of all including Harnam Kaur and the present appellants. Harnam Kaur herself died in 1982 and during her life time she did not make any attempt to retrieve her share from the possession of Harjinder Kaur. The appellants too did not raise any dispute regarding the estate of Harnam Kaur after her death and at the time when succession actually opened in their favour, if the averments and the stand taken by the appellants is to be accepted. The suit was filed for the first time after the death of Harjinder Kaur when she already had alienated the property by way of a registered Will and a consent decree in favour of the respondents.

The validity of the Will has been accepted and so as the decree. It was alleged by the appellants that the decree is a result of fraud. However, Harjinder Kaur, who suffered the decree, remained alive for at least R.S.A.No.773 of 2010 (O&M) -4- two years after suffering the same and she did not question the decree or the Will. In such an eventuality, the onus to prove that the appellants had any right to succeed to the estate of Harnam Kaur was heavily on the appellants. They did not lead any positive evidence to this effect that they are grandsons of Harnam Kaur and rather chose to rely on a very oblique content of the pleadings made by the respondents which by no stretch of imagination can be a substitute of positive evidence which should have flowed from the appellants. That apart, the father of the appellants never questioned the succession and possession of the estate of Karam Singh in favour of Harjinder Kaur during her life time and it was only now after the death of Harjinder Kaur that the present appellants have woken up to say that they have an interest in the estate of Harnam Kaur who was allegedly their grandmother.

Thus, in the absence of any material to show that the appellants were entitled to succeed to the estate of Harnam Kaur and also in view of the fact that the father of the appellants never questioned the succession of Harjinder Kaur to the estate of Karam Singh as also the conduct of Harnam Kaur herself, who did not question likewise, the appeal is totally without any merit and the same is dismissed. Consequently, the stay application is also dismissed.

8.3.2010 (MAHESH GROVER) JUDGE