VINOD K.SHARMA, J. - (1.) THIS order shall dispose of two regular second appeals bearing Nos. 2056 of 1993 and 2843 of 1980 titled Kuldeep Singh and others v. Gurdial Singh alias Dial Singh and others and Bhajan Singh v. Mehma Singh and another, respectively. For facility facts are being taken from RSA No. 2056 of 1993. Present regular second appeal has been filed against the judgments and decrees passed by the learned courts below vide which a decree of separate possession in favour of the plaintiffs to the extent of 66 kanals 12 marlas out of the ancestral land and to the extent of 1/2 share of 8 kanals 6 marlas was passed.
(2.) THE plaintiff-appellants had filed a suit for declaration claiming therein that the plaintiff Nos. 1 to 5 and defendant Nos. 1 to 11 and 13 are joint owners of the suit property as co-parceners, and being heirs of Mehma Singh and also that plaintiff Nos. 1 to 5 and defendant No. 13 being heirs of Bhajan Singh and consequently the plaintiffs and defendants are entitled to get joint possession of the suit property and also separate possession by partition of their respective shares and that the collusive decree in suit No. 422 of 1978 decided on 5.8.1978 suffered by late Mehma Singh in favour of defendant Nos. 2 to 7 of land mentioned in (c) below and the gift deeds executed by late Mehma Singh in favour of defendant No. 2, on 5.2.1971 in respect of land mentioned at (e) and house at (f) and that the will made by late Mehma Singh on 29.9.1977 or any other date in favour of defendant Gurdial Singh or any other defendant in respect of the suit property or any part thereof, are null and void, illegal and ineffective and that disposal of property by such act of Mehma Singh is not binding on the reversionary rights and rights of heirship of the parties and that land (a) of the plaint placed under mortgage with Bhajan Singh and defendant Gurdial Singh by Mehma Singh deceased, out of the suit land was merged into ownership with the parties according to their shares, on the death of Mehma Singh and also that entires made in the revenue records after setting aside the collusive decree in suit file No. 422 are incorrect and are liable to be corrected. (a) Land 18//5/2 (3-18), 19//1/1 (0-18), 10/2 (3-10), Kittas 3 area (8-6) entered in Khewat Khatoni No. 17/31. (b) Land comprising in 18//17/3/4-4), Khewat Khatoni No. 16/30 (c) 7//23/2 (3-18), 29(11-3), 13//1(7-2), 2(7-2), 3(7-2), 4(6-12), 7/2(2-9), 8/2(6-0), 9(8-0), 10/1(6-4), 12/2(6-12), 13/1(4-6), 14//6/1(1-4), 6/2(6-16), 7(2-4), 18//18(8-4), 19//11/1(0-11), 11/2(1-2), Khasra No. 30 min (0-13), Khasra No. 123 Khata 15/29. (d) (1) 18//15/1(4-12), 5(6-18), 14/2/1(2-18), 15(8-4), Kittas 4 Area 22-12 of Khewat Khata 14/28. (2) 4//22/2(3-0), 23/1(4-12), 7//3(7-15), 4(7-7), 5(7-7), 6(8-0), 7/1(4-16), 8/2(2-18), 14/2(3-0), 15(7-12), 16/2(4-1), 17/1(1-11), Khasra Nos. 28(1-5), 41(2-18), 30Min(0-14), 123(0-2), Kittas 26 Area 67-8 of Khewat Khata 14/28. (e) (1) Khasra No. 50(2-0) of Khewat Khatoni No. 18/32 (2) Khasra Nos. 30Min (0-14), 123(0-2), 211/1(0-14), 18//14/2(2-12), 17/2(0- 5), 23(6-12), 24/1(1-2), 22//22/2(3-6), 3/1(4-16), 9/2(4-14), 9/3(2-10), 13(8-0), 12/1(1-6), 3/2(2-0), 8(7-7), 9/1(1-15), 12/2(3-16), 14/1(2-8), 17/2(2-17), 18(9-13), 18(6-1), 14//4(3-0), 5(7-2), Kittas 23 area 83-3 of Khewat Khatoni No. 18/32, as entered in Jamabandi 1982-83 of village Kheri Bir Singh of Tehsil Sirhind. (f) Residential house bounded as :- East : House of Surmukh Singh defendant purchased by him from Gurdial Singh S/o Jevan Singh. West : Thoroughfare South : House of Gurdial Singh defendant. Hara and Gohara within Abadi area of Kheri Bir Singh, Tehsil Sirhind. The facts giving rise to the present appeal are as under : The pedigree-table of the parties is as under :- See Table Below 131806 It is claimed by the plaintiff that the land mentioned in the head note of the plaint was got in consolidation proceedings in lieu of land which was inherited by Mehma Singh from his grandfahter Narain Singh some fifty years back. As Amar Singh father of Mehma Singh predeceased his father Narain Singh, Mehma Singh also got inheritance of their house mentioned in head note (f) of the heading of the plaint from his grandfather. Mehma Singh was not employed in any service nor he did carry any business, trade or industry. The only profession of Mehma Singh was agriculture of ancestral land. Mehma Singh did add to or acquire any other property by his own earning and efforts except that he got in inheritance from his grandfather Narain Singh which is the subject-matter of this suit. Mehma Singh died on 8.4.1981 intestate at Kheri Bir Singh. At the time of his death, his parents were already dead. Mehma Singh died leaving behind his son Bhajan Singh, Gurdial Singh and his daughter Bhajan Kuar. Bhajan Singh son of Mehma Singh has also died on 28.8.1983, later to the death of his father Mehma Singh at Village Kehri Bir Singh. All the plaintiffs and defendant Nos. 1 to 8, 10 to 13 were born before and were living. Both at the time of the death of Mehma Singh and Bhajan Singh. The land mentioned in the head note at (a), (b), (d) (1) (2) were standing in the name of Mehma Singh at the time of his death as these lands had not been transferred by him in his life time by any mode of transferring instrument or a court decree, collusive or otherwise. The land mentioned in the head note (c) of the plaint, was transferred by Mehma Singh in favour of defendant Nos. 3 to 7 by a collusive decree in 1978. The said decree was set aside by a Civil Court decree in Civil Suit No. 434 of 19.8.1978 decided on 13.2.1981. The land mentioned in the head note (2) and house mentioned in head note (f) of the plaint were given by a so called gift by Mehma Singh to defendant No. 2, vide gift deeds of 5.2.1971. The land mentioned in the head note (e)(1) of the plaint was wrongly entered in the ownership of defendant No. 2, though it was not transferred at any time by any person to defendant No. 2. The land mentioned in the head note (c) of the plaint, transferred by collusive decree by Mehma Singh to defendant Nos. 3 to 7 was set aside subsequently, but it was wrongly mutated in the names of defendant Nos. 3 to 7 in equal shares. In the name of Bhajan Singh deceased 1/3rd. In view of the Civil Court decree in Civil Suit No. 434 decided on 13.2.1981 as aforementioned. All the land mentioned in head note (c) of the plaint should have been reverted to Mehma Singh and he should have been entered as owner in the revenue record after the passing of the decree dated 13.2.1981. Mehma Singh deceased who was indifferently disposed of towards Bhajan Singh his elder son and wife and children of Bhajan Singh is said to have been made invalid and illegal will on 29.9.1977 on any other date in favour of Gurdial Singh in respect of the property, which Gurdial Singh claims to have been left by Mehma Singh at the time of death of the later. The parties are Hindus within the definition of Indian Succession Act, 1955, Hindu Marriage Act, Hindu Adoption and Maintenance Act and Hindu Minority and Gurdianship Act and that the parties are governed by the Mitakeshwra School of Hindu law and also Acts mentioned above are applicable to the parties. As the suit property inherited by Mehma Singh from Shri Narain Singh as a Joint Hindu Undivided Family Property and is coparcenary as regards Mehma Singh and his sons, grandsons and great grandsons or the concerned and none of the coparceners had or has right to transfer any part of the suit land by gift or any other mode of transfer or suffered a collusive decree and also no coparceners or has a right to make disposition share in the suit property by a Will. The gift made by Mehma Singh in favour of defendant Sarmukh Singh in the year 1971 in respect of the property mentioned in the head note of the plaint (e)(2) and head note (f) and the collusive decree suffered by Mehma Singh for the benefit of defendant Nos. 3 to 7 in respect of the land mentioned in the head note (c) of the plaint and also the Will made by Mehma Singh dated 29.9.1977 in favour of Gurdial Singh defendant are illegal, void ab initio, ineffective and are not binding on any of the coparcenaries i.e. plaintiff No. 1 and defendant Nos. 1 to 8, 10 to 13 and the suit properties are to devolve upon all the plaintiffs and defendants according to rules laid in the Hindu Succession Act and the parties to the suit are joint owners of the suit and according to the share under the principles of Mitkeshwara School of Hindu Law as applicable under the Hindu Succession Act. The plaintiffs are not aware of any Will made by Bhajan Singh deceased, but in case any Will by Bhajan Singh in favour of any party to the suit is alleged or set up, will be illegal, void, ineffective, because Bhajan Singh could not make any such will in favour of any person in respect of the suit property, it being undivided Hindu Coparcenary property and if such Will is pleaded or proved, it will have no effect on the reversionary rights of the coparceners and also the right of inheritance of the plaintiffs and others heirs of Bhajan Singh under the Hindu Succession Act. So it is stated that the plaintiffs are entitled to inheritance in accordance with the share as mentioned in para No. 21 of the plaint along with the defendants. The shares of parties in the suit properties left by Mehma Singh have also been indicated therein. Plaintiff Nos. 3 and 4 and defendant No. 11 are married and are living with their husband at the houses of their in-laws and are not entitled to any share from the house as mentioned in the head note of the plaint. Therefore, the house is to be divided in equal shares between the plaintiff Nos. 1 and 2 and defendant Nos. 12 and 13 to the extent of 1/2 share and defendant Nos. 1 to 10 to the extent of half share. Plaintiff No. 1 is minor and is pleaded (impleaded ?) through his mother to the next friend. Likewise defendant Nos. 8, 9 and 10 are minors and they are sued through their respective fathers who are their guardian and have no adverse interest against the rights of the minor.
(3.) UPON notice having been issued to the defendants, defendant Nos. 1 to 7 filed written statement raising preliminary objections i.e. Mehma Singh son of Amar Singh as exclusive owner filed suit No. 226 dated 15.9.1964 against his son Bhajan Singh for possession of land shown by letters D in the head note of the plaint, Bhajan Singh pleaded his ownership of this land by adverse possession and through the family settlement, but the said suit was decreed on 31.7.1965. The appeal against the said Judgment was also dismissed by the District Judge, Patiala on 20.7.1966 and RSA No. 822 of 196 was also dismissed by this Court on 22.3.1977. Bhajan Singh again filed suit No. 41-T/257/1977 against Mehma Singh in respect of the said land for permanent injunction. But the same was dismissed being barred under the principles of res judicata on 30.7.1980 and its appeal was also dismissed by the Additional District Judge Patiala on 24.11.1980. Bhajan Singh filed suit No. 235 on 20.5.1971 under Customary Law to challenge gift dated 5.2.1971 of land mentioned at head note (b), (e) and (f) of the plaint by Mehma Singh to Sarmukh Singh. The suit was decreed on 21.2.1973 and its appeal by Sarmukh Singh was accepted by Additional District Judge, Patiala on 12.8.1973. RSA filed by Bhajan Singh was also dismissed on 11.1.1974. Bhajan Singh again filed suit No. 387 of 10.6.1977 challenging the aforesaid gift to Sarmukh Singh under Hindu Law and prayed for joint possession of land as coparcener. That suit was dismissed as barred by res judicata by the Additional District Judge Patiala on 5.5.1980. RSA filed by Bhajan Singh was also dismissed on 25.9.1980. There is misjoinder of all defendant Nos. 8, 9 and 10 in the presence of their respective fathers who are also defendants in the case. Nor their interest in the suit land can be determined as entered in para No. 21 of the plaint.;