J.V. Gupta, J. - (1.) This is defendant's second appeal against whom the suit for declaration has been decreed by both the Courts below.
(2.) Shyama was the last male-holder of the suit land. He died on Dec. 19, 1954, leaving behind his widow Prem Kaur and two sons Nidhan Singh and Ishar Singh and a daughter Ishar Kaur. Since he died prior to the coming into force of the Hindu Succession Act, 1956 (hereinafter called the Act) his property was mutated in favour of his widow to the extent of one-third and to the tune of one-third each in favour of the sons. At that time, Prem Kaur, his widow, had only a life estate therein. She died in the year 1971 and on her death, her daughter Ishar Kaur filed the suit on Aug. 3, 1974, for the grant of the declaration to the effect that she was the owner of one-ninth share of the property being the daughter of Prem Kaur, along with the defendants. According to her, her mother Prem Kaur had become the full owner of the property inherited by her from her husband after the coming into force of the Act. The suit was contested by the defendants on the plea that before the coming into force of the Act, the property was mutated in the names of defendants in equal shares. Their mother, Prem Kaur, did not succeed to the property of Shyama at all as she was entitled to the maintenance alone. Thus, it was denied that she had become the full owner of the property. It was also pleaded that the property was given to her by an agreement for her maintenance only. The trial Court found that it had been proved that the plaintiff was the owner of the property to the extent of one-ninth share as Prem Kaur, her mother, had become the absolute owner of the property in her possession after the coming into force of the Act. Consequently, her sail was decreed. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and, thus, maintained lit decree passed in favour of the plaintiff. Dis-satisfied with the same, the defendant has filed this second appeal in this Court.
(3.) The learned counsel for the appellant submitted that earlier, the appellant, had filed a civil suit against his brother Ishar Singh at his mother Prem Kaur, for the grant of the declaration to the effect thar he was the owner of one half share of the land and was, thus, entitled to the same after partition. The said suit was filed on March 31, 1960. The trial Court dismissed the same on March 28, 1961. A certified copy of the judgment therein is, Exhibit P. 2 Appeal against the said judgment and decree was also dismissed by the Additional District Judge vide certified copy of the judgment, Exhibit P.1. Thus, argued the learned counsel, in view of the said judgments, though produced by the plaintiff herself, the decision therein operated as res judicata between the parties as in that suit, Prem Kaur never claimed herself to be the absolute owner of the property. It was also contended that since the property was given to Prem Kaur under an agreement, she did not become the full owner thereof after the coming into force of the Act. In support of the contention reliance was placed on Jaswant Kaur Vs. Major Harpal Singh, 1977 PLR 423 (F.B.) and Sampuran Singh (deceased) and others Vs. Labh Singh, 1976 PLR 785.;