R.S.A.No.2301 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.2301 of 2008 Date of Decision : 09.10.2009 Sarla Devi ...Appellant Versus Baljit Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Sanjiv Gupta, Advocate, for the appellant. Mr. Karan Singh, Advocate, for respondent Nos.1 and 2. HEMANT GUPTA, J. (ORAL) Defendant No.1 is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit of the plaintiffs claiming estate of Mam Raj, their father, on the basis of Will dated 10.12.1996, was partly decreed. It is the case of the plaintiffs that the suit property measuring 53 Kanals 17 Marlas was a joint hindu family property in the hands of Mam Raj. He executed a Will dated 10.12.1996 in favour of the plaintiffs i.e. his three sons. Therefore, the plaintiffs are entitled to succeed to the estate of Mam Raj to the exclusion of his two daughters i.e. the present appellant and Darshna Devi, defendant No.2. It was the stand of the plaintiff that the property in the hands of Mam Raj was joint hindu family coparcenery property as well as ancestral. However, in the written statement, the defendant denied the execution of the Will by Mam Raj. It was also denied that the property R.S.A.No.2301 of 2008 2 was a joint hindu family or a coparcenery property. Both the Courts have recorded a concurrent finding of fact that the Will dated 10.12.1996 is not proved to be executed. Both the Courts have also recorded a finding of fact that the property in the hands of Mam Raj was joint hindu family property. Such finding has been recorded on the basis of excerpt Ex.PW-2/A. After returning such finding, it was found that Mam Raj, Baljit, Sanjay and Rohit being members of coparcenary property will have 1/4th share by applying the principle of notional partition just before the death of Mam Raj. After the death of Mam Raj, each of the five sons and daughters of Mam Raj will succeed to 1/4th share of Mam Raj i.e. 1/20 share. Still aggrieved, defendant No.1 is in second appeal. Though learned counsel for the appellant has sought to argue that the finding in respect of the property being joint hindu family property is not sustainable, but having examined the reasoning given by the Courts below, I do not find that there is any substance in such argument. The said finding is based on revenue record and the oral evidence adduced by the plaintiff. There is no evidence that Mam Raj acquired property for the first time. Both the Courts have examined the entire oral and documentary evidence including the statement of the appellant admitting the property to be ancestral property. An argument has been raised by the learned counsel for the appellant that one of the sons of Mam Raj, Rohit has died on 6.8.1998 issueless and unmarried. Therefore, his 1/4th share will devolve upon the remaining brothers and sisters in terms of Section 8 of Hindu Succession Act, 1956. R.S.A.No.2301 of 2008 3 I have heard learned counsel for the parties on the following substantial question of law: “Whether the share of Rohit son of Mam Raj, who has died issueless and unmarried will devolve upon his brothers and sisters i.e. upon the parties to the present lis in equal shares or will devolve upon the plaintiffs-surviving sons of Mam Raj alone?” Learned counsel for the respondents has argued that the property in the hands of Rohit would retain the character of joint hindu family property and, therefore, only two brothers i.e. the plaintiffs shall succeed to the estate of Rohit. I do not find any merit in the argument raised by the learned counsel for the respondents. The principle of notional partition has been rightly applied in respect of estate of Mam Raj. Therefore, the share of estate of Mam Raj in the hands of Rohit would be his self-acquired property particularly when he has died issueless and unmarried. Only in the event of a son born to Rohit, may raise a question of a subsisting coparcenery. After partition, Rohit will not be coparcener with his brothers. Therefore, the share of Rohit will devolve upon the parties to the present lis in equal shares in terms of the provisions of Section 9 of the Hindu Succession Act, 1956.. Consequently, the decree passed by the learned first Appellate Court is modified. It is held that in addition to 1/20th share in the estate of Mam Raj, the estate of Rohit will devolve equally upon the parties i.e. 1/16th share each. It is further clarified that the share of defendant No.2 shall devolve upon the plaintiffs in view of her statement to this effect R.S.A.No.2301 of 2008 4 before the learned trial Court. With the said modification in the decree, the present appeal stands disposed of. 09.10.2009 (HEMANT GUPTA) Vimal JUDGE