ARUN PALLI, J. - (1.) FOR the reasons stated in the application, delay of 44 days in re -filing the appeal is condoned. Application stands disposed of. RSA No.1875 of 2012 (O & M) Suit filed by the plaintiff was decreed by the trial Court vide judgement and decree dated 05.03.2009. The appeal preferred against the said decree failed and was accordingly dismissed by the learned First Appellate Court vide judgement and decree dated 07.11.2011. That is how, defendant No.1 -A is before this Court in this Regular Second Appeal. Parties to the lis, hereinafter, would be referred to by their original positions in the suit.
(2.) IN a suit filed by the plaintiffs, it was claimed that Balbir Kaur daughter of Pritam Singh was owner in possession of the land to the extent of 1/3rd share. Giano, widow of Pritam Singh was owner of 1/6th share out of land measuring 101 kanal 7 marlas. Balbir Kaur was the wife of plaintiff No.1 and mother of plaintiff No.2. Consequently, Giano was the mother -in - law of plaintiff No.1 and maternal grandmother of plaintiff No.2. Balbir Kaur died on 03.01.2002 and her 1/3rd share in the suit land was inherited by the plaintiffs in equal shares. Therefore, the plaintiffs had become owners in possession to the extent of 1/6th share each in the suit land. However, the mutation of inheritance of Balbir Kaur, bearing No.1182A of village Balran, Tehsil Moonak, was wrongly sanctioned in favour of plaintiff No.2 and Smt.Giano. It was averred that Giano had already died. Giano was owner to the extent of 1/6th share out of the land measuring 101 kanals 7 marlas. The mutation of inheritance of Giano widow of Pritam Singh, bearing No.1190, sanctioned in favour of defendant No.1 -A was illegal and void. Defendants in their defence, admitted the relationship of plaintiff and Balbir Kaur and maintained that mutation No.1182A was rightly sanctioned. Additionally, the defendants by way of counter claim also challenged mutation bearing No.6214 dated 14.07.1969 qua the estate of Pritam Singh. It was pleaded that the property in the hands of the Pritam Singh was joint Hindu family coparcenary property and therefore mutation No.6214 was not liable to be sanctioned in favour of Balbir Kaur. On an analysis of the matter in issue and the evidence on record, learned trial Court was of the view that the defendants failed to prove that the property in the hands of Pritam Singh was joint Hindu family coparcenary property. In support of their plea, defendants only led oral evidence and no revenue record prior to the year 1969 was produced to substantiate that the land in question was inherited by Pritam Singh from his father. In the absence of any evidence, least cogent or convincing, it could not be concluded that the suit land in the hands of Pritam Singh was joint Hindu family coparcenary property. Therefore, the learned Court was of the view that mutation No.6214 in favour of Balbir Kaur, Giano and Ajaib Singh was rightly sanctioned. Concededly, the relationship of plaintiffs No.1 and 2 with Balbir Kaur was not in dispute. Plaintiffs claimed the estate of Balbir Kaur by way of natural succession. Provisions of Section 15(1)(a) of Hindu Succession Act, postulates that the property of a female Hindu dying intestate, shall devolve firstly upon the sons and daughters and husband. So, after the death of Balbir Kaur, plaintiff No.1 being husband and plaintiff No.2 being son of Balbir Kaur were entitled to succeed in her estate as per Section 16 of the Hindu Succession Act.
(3.) AS the plaintiffs had also challenged mutation No.1190 in respect of the share of Giano, mother of Balbir Kaur, mutation Ex.P3 was examined by the Court and it was accordingly held that the estate of Giano was sanctioned in favour of Charanjit Kaur wife of Ajaib Singh to the extent of 1/6th share on the basis of a registered Will dated 19.02.1998. So, Giano did not die intestate and resultantly there was no occasion for plaintiff No.2 i.e.Parmanand minor son of Balbir Kaur to succeed to her estate. Since the plaintiffs had not assailed the Will executed by Giano in favour of defendant No.1 -A, the issue was accordingly decided against the plaintiffs. Resultantly, the trial Court vide judgement and decree dated 05.03.2009 decreed the suit of the plaintiffs and the counter claim preferred by the defendants was also dismissed.;