INDER SINGH Vs. KARNAIL SINGH

JUDGEMENT

(1.) This appeal has been filed by the plaintiffs against the judgment and decree of the Additional District Judge, Karnal, dated November 22, 1967.

(2.) Briefly, the facts of the case are that Budh Kaur widow, Gurbax Singh son and Surjit Kaur daughter of Kundan Singh sold the land in dispute in favour of defendants 4 to 9 by a sale deed dated June 10, 1965, for a consideration of Rs. 21,000/-. The plaintiffs instituted a suit for possession by pre-emption on the ground that they were real brothers of Kundan Singh, deceased and had, therefore, superior right of pre-emption. The defendants contested the suit and denied the allegations of the plaintiffs. They inter alia pleaded that the plaintiffs had no superior right of pre-emption. Some other pleas were also taken but they are not relevant for the decision of this appeal. The trial Court held that the plaintiffs being brothers of Kundan Singh had superior right of pre-emption. It consequently decreed the suit for possession by pre-emption on payment of Rs. 22,348.50 (Rs. 21,000 as sale price plus Rs. 1260/- as stamp and registration charges). The vendees went up in appeal against the judgment and decree of the trial Court before the Additional District Judge, Karnal who held that the plaintiffs were entitled to pre-empt the share of Gurbax Singh alone and not the shares of Budh Kaur and Surjit Kaur. Consequently, he partly accepted the appeal and modified the decree of the trial Court. The plaintiffs have come up in appeal against the judgment and decree of the appellate Court to this Court.

(3.) The only question that arises for determination is whether the plaintiffs can pre-empt the sale by Budh Kaur and Surjit Kaur. It is not disputed that after the death of Kundan Singh, the land was inherited by his widow, son and daughter. There is, however, a dispute about the time of death of Kundan Singh. The learned counsel for the vendee-respondents stated that Kundan Singh died before coming into force of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). On the other hand the learned counsel for the appellants has argued that in fact he died after coming in force of that Act. It was the duty of the plaintiff-appellants to have alleged and proved in case they wanted to say that Kundan Singh died after coming into force of the Hindu Succession Act. In case they have not done so, the benefit of that goes to the vendees. In the aforesaid circumstances it cannot be held that Kundan Singh died after coming into force of the Hindu Succession Act. The learned counsel for the parties were frank enough to admit that in case Kundan Singh died prior to the Hindu Succession Act, Budh Kaur and Surjit Kaur inherited life estate in that property.