- (1.) These appeals are directed against a common judgment of a learned Single Judge of the Punjab and Haryana High Court disposing of three Second Appeals filed under Section 100 of the Code of Civil Procedure, 1908 (in short 'CPC'). All the three appeals and the cross objections filed related to certain acts of one Shivdev Singh. All the appeals and cross objections were dismissed except with certain modifications.
(2.) The background facts in a nutshell are as follows: Shiv Dev Singh was allotted land measuring 811 kanal 14 marlas out of which he effected sale of 440 kanals earlier. The said sale is not disputed in the present proceedings. Shiv Dev Singh earlier married Harbans Kaur and from the said wedlock one son i.e. plaintiff Lt. Col. Rattan Singh, and four daughters who are also plaintiffs along with Lt. Col. Rattan Singh in Civil Suit No.172 of 3.9.1994 were born. Smt. Harbans Kaur died in the year 1986. Shiv Dev Singh thereafter married Iqbal Kaur and from wedlock of Shiv Dev Singh with Iqbal Kaur, Jaspal Singh, Lakhwinder Kaur, Sukhjinder Kaur and Baljinder Singh and Balwinder Singh were born. The dispute in these appeals is in respect of the land measuring 337 kanals 10 marlas. Shiv Dev Singh executed a gift deed on 19.12.1962 in favour of Jaspal Singh, one of the sons of Shiv Dev Singh in respect of land measuring 10 kanals 5 marlas. The said gift deed was disputed by his another son Lt. Col. Rattan Singh and four daughters in Civil Suit No172 of 3.9.1994. Regular Second Appeal No.2550 of 2000 before the High Court arose out of the said suit. The said suit was for declaration to the effect that they are co owners in joint possesson to the extent of = share, and that the property in the hands of Shiv Dev Singh was ancestral. In the written statement, the defendant denied that the land was ancestral. It was asserted that same was self acquired property of Shiv Dev Singh. It was pleaded that since 19.12.1962 when Shiv Dev Singh gifted the land in his favour, possession was delivered to him and ever since he is continuing in possession as owner of the suit land. Jaspal Singh, the donee, was minor at the time of execution of gift deed. The learned trial Court recorded a finding that the suit land was ancestral in the hands of Shiv Dev Singh and that alienation of ancestral property effected by father of a Hindu governed by Mitakshara law could be challenged in terms of Article 109 of the Limitation Act, 1963 (in short the 'Limitation Act') within 12 years from the date when alienee takes possession of the property alienated. Since Jamabandi for the year 1973-74, (Exhibit D-8) Jamabandi for the year 1978-79 (Exhibit D-9), Jamabandi for the year 1983-84 (Exhibit D-10) record Jaspal Singh as a person in possession, the Court returned a finding that Jaspal Singh came into possession more than 12 years before the filing of the suit and thus, the suit is beyond the period of limitation. Shiv Dev Singh also executed two separate sale deeds on 25.2.1980 and 27.3.1980 in respect of land measuring 73 kanals 11 marlas in favour of Pritam Kaur, widow of Thakur Singh, who happened to be sister of Iqbal Singh, wife of Shiv Dev Singh. After the death of Pritam Kaur on 1.4.1990, the same devolved upon defendant Baljinder Singh, minor son of Jaspal Singh i.e. grandson Shiv Dev Singh by virtue of will dated 30.1.1984. The said sale deeds were disputed by Lt.Col. Rattan Singh in Civil Suit No.171 of 6.9.1994. Regular Second Appeal No.2549 of 2000 before the High Court arose out of said suit. In the said suit, the challenge is to the sale deeds dated 25.2.1980 and 27.3.1980 whereby Shiv Dev Singh has sold the land in favour of Pritam Kaur, his sister-in-law through his attorney Jaspal Singh. In the said suit it was alleged that the suit land was ancestral having been inherited from his forefathers and that the sale deeds were without legal necessity and thus null and void. It was alleged that the defendant, son of Jaspal Singh is in illegal and unauthorized possession of the suit land without any legal right for the last four years. The plaintiff alleged that the cause of action accrued in the year 1993 when the share of compensation amount in respect of the land acquired by the Improvement Trust was not allowed to be withdrawn by the plaintiff at the instance of Iqbal Kaur, second wife of Shiv Dev Singh. The defendant in written statement pleaded that the sales in question are not in any way illegal, without consideration and/or void. Shiv Dev Singh was the sole owner of the suit land. The suit land remained in possession of Smt. Pritam Kaur as owner ever since the sale in her favour. It was alleged that cause of action, if any, arose to the plaintiff to challenge the alienation on the date of execution of the sale deeds. The learned trial Court dismissed the suit holding that the suit is barred by limitation governed by Article 109 of the Limitation Act as revenue record since Jamabandi 1983-84 (Exhibit D-5) records the name of Pritam Kaur in the column of ownership and cultivation. The said Jamabandi entry was recorded after mutation in favour of Pritam Kaur and was sanctioned in the year 1980. Shiv Dev Singh also executed a registered will dated 1.8.1969 in favour of his wife Iqbal Kaur. At the time of death of Shiv Dev Singh on 9.6.1988 he was owner of land measuring 107 kanals 13 Marlas. Lt. Col. Rattan Singh and his four sisters filed suit for declaration to claim = share of the said land on the basis of natural succession and for joint possession in Civil Suit No.170 of 3.9.1994. Regular Second Appeal No.2548 of 2000 before the High Court arose out of the said suit. The said suit was for declaration and in the alternative for joint possession filed, inter alia, on the ground that they are owners of = share of the land. It was averred that Shiv Dev Singh son of Sahib Singh was owner of 107 kanals 13 marlas of land which was inherited from his forefathers and it was ancestral. Shiv Dev Singh died on 9.6.1988 leaving behind plaintiffs and defendants Nos. 1 and 4 to 6 and Smt. Lakhwinder Kaur as his legal heirs. Lakhwinder Kaur died on 18.6.1993 leaving behind defendants Nos. 2 and 3 as her legal heirs. It was averred that defendant no.1 has claimed a will in her favour. The deceased Shiv Dev Singh has not executed any valid will in favour of defendant No.1 and the alleged will is false and fabricated. It was further alleged that the plaintiffs have succeeded to the estate of Shiv Dev Singh to the extent of = share and the defendants succeeded to the remaining = share of his estate. Defendant No.1 relied upon will dated 1.8.1969 and claimed that she has become the exclusive owner in possession of the suit land. In evidence, the defendants produced son of the scribe and one of the attesting witnesses of the will. The trial Court held that the said will is proved to have been executed and is not surrounded by suspicious circumstances. One of the reasons for coming to such view by the trial Court was that Lt. Col. Rattan Singh has got 8 acres of land earlier and thus, the plaintiffs cannot make any grievance.
(3.) However, in three separate appeals, the first Appellate Court reversed the findings recorded by the trial Court. The first Appellate Court held that Civil Suit No.171 and 172 of 1994 are within the period of limitation as cause of action arose to them when they were excluded from the Joint Hindu Family property in the year 1992. However, in respect of the will, the first Appellate Court held that it is surrounded by suspicious circumstances and consequently decreed the suit holding that the estate of Shiv Dev Singh will vest on the coparceners Rattan Singh, Jaspal Singh and Iqbal Kaur wife of Rattan Singh in equal shares and thus plaintiff Lt. Col. Rattan Singh would have 1/3rd share and the defendants Jaspal Singh and Iqbal Kaur would have 2/3rd share.;