RSA No.61 of 1985 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.61 of 1985 Date of Decision: 9.02.2010 Gurcharan Singh & ors. ..Appellants Vs. Smt.Bachint Kaur & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Punia, Advocate, for the appellants. Mr.Amit Jhanji, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This regular second appeal is directed against the judgment and decree dated 18.10.1984, passed by the learned lower appellate court vide which suit filed by the plaintiff/appellants for declaration to the effect RSA No.61 of 1985 2 that Baldev Singh plaintiff was owner in possession of land measuring 20 kanals 2¾ marlas i.e. 1/4th share of land measuring 80 kanals 11 marlas and Gurcharan Singh and Mohan Singh, plaintiffs were owners in possession in equal shares of land measuring 13 kanals 8 ½ marlas i.e. 1/6th share of land measuring 80 kanals 11 marlas situated at village Dhande Tehsil Samrala, District Ludhiana with all other rights appurtenant thereto, on the basis of Will dated 17.8.1972, stands dismissed. Pleaded case of the plaintiff/appellants was that Arjan Singh was owner of the suit land. He, in addition, had 57 kanals 9 marlas of land in village Neelon Khurd and also land in village Lall Kalan. Plaintiff/ appellants and defendant No.2 were the sons of Arjan Singh deceased, while Bachint Kaur was his widow. Arjan Singh had one more son Sukhdev Singh who predeceased him. Arjan Singh had two daughters, one had died before the death of Arjan Singh and other daughter was Jagdish Kaur who was married. Arjan Singh had purchased seven killas of land at village Neelon Khurd in the name of his daughter Smt. Jagdish Kaur and also gave sufficient amount in cash and dowry to her. Late Arjan Singh used to live with Sohan Singh and all other sons and daughters were also serving him and he had great love and affection for all his children. On 17.8.1972 Arjan Singh executed a valid registered Will in favour of all his five sons out of love and affection. Previous Will made by Arjan Singh was cancelled in view of the Will dated 17.8.1972. The case of the plaintiffs was that Arjan Singh had given his whole land of 2¾ killas situated at village Lall Kalan to Sohan Singh defendant through a RSA No.61 of 1985 3 declaratory decree. The land situated at village Neelon Khurad and Dhande was in possession of the appellants and defendant No.2 as mentioned in the registered Will dated 17.8.1972. Sukhdev Singh was not given any share in the land situated at village Neelon Khurd in view of the fact that he had been given 2¾ killas of land exclusively in village Lall Kalan. Possession of the land was handed over by Arjan Singh much prior to the execution and registration of Will dated 17.8.1972 to each of his legal heirs. Baldev Singh plaintiff was given half share in the land at village Dhande and other two plaintiffs were given equal share i.e. 1/6th share each. Will dated 17.8.1972 was said to be in possession of Sukhdev Singh defendant who was residing with his mother. The case of the plaintiffs was that original Will was being withheld by Sukhdev Singh with an intention to swallow the land falling to the share of Smt.Bachint Kaur. Mutation dated 21.9.1977 sanctioned by Assistant Grade First Class, Samrala was also challenged. Suit was contested by the defendant/respondents by raising preliminary objections that the suit was bad for non-joinder of necessary parties as Smt.Jagdish Kaur daughter of Arjan Singh, Jaswant Singh son of Sukhdev Singh son of Arjan Singh, Smt.Baljit Kaur, Paramjit Kaur daughters of Sukhdev Singh were necessary parties to the suit being legal heirs of Arjan Singh. Suit was said to be time barred. Plea of estoppel on account of act and conduct of the plaintiffs was also taken. Plaintiffs were said to be not in possession of the suit land. On merits, ownership of Arjan Singh deceased qua the land in dispute was admitted. It was also admitted that Arjan Singh had five sons, RSA No.61 of 1985 4 out of which Sukhdev Singh predeceased. It was also admitted that Smt.Jagdish Kaur was married by Arjan Singh during his life time. It was admitted that Arjan Singh deceased purchased seven killas of land for his daughter Smt.Jagdish Kaur but it was averred that the amount was spent by Sohan Singh, defendant. The case set up by the defendants was that Arjan Singh had executed a valid registered Will dated 7.5.1969 in favour of the contesting defendants and other legal heirs. Land of Lall Kalan was transferred to Sohan Singh defendant through a gift deed. Execution of Will dated 17.8.1972 was denied. It was pleaded case of the defendants that the plaintiffs had already given up alleged Will when they transferred share of Sukhdev Singh in favour of Jaswant Singh through the court. Arjan Singh had died on 8.7.1976, therefore, mutation was rightly sanctioned by the revenue officers. On the pleadings of the parties learned trial court framed the following issues:- 1. Whether the suit is bad for misjoinder of necessary parties? OPD 2. Whether the suit is within limitation? OPP 3. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPP 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiffs are in possession of the suit land? OPD RSA No.61 of 1985 5 6. Whether the plaintiffs are entitled to the declaration as prayed for? OPP 7. Whether Arjan Singh deceased had executed a valid will dated 17.8.72? OPP 8. Whether Arjan Singh deceased had executed a valid will dated 7.5.69 in favour of the answering defendants?OPD 8. Relief. On appreciation of evidence, learned trial court held that the suit was not bad for misjoinder of necessary parties. Suit was held to be within limitation. It was also held that the plaintiff/appellants were not estopped by their conduct from filing the present suit. Suit was also held to be maintainable. Learned trial court also recorded a finding that the plaintiff/appellants were in possession of the suit land and therefore, they were held entitled to declaration sought for. On issue No.7, it was held that Arjan Singh deceased had executed a valid Will dated 17.8.1972. On issue No.8, it was held that the Will dated 7.5.1969 was not proved in accordance with law and in view of the findings recorded, the suit of the plaintiff/appellants was decreed. In appeal, before the learned lower appellate court findings on issue No.1 only were challenged. Learned lower appellate court reversed the findings recorded by the learned trial court on issue No.1 by recording as under:- “10. I find support in submission of the learned counsel for the defendant that heirs of Arjan Singh as mentioned in the RSA No.61 of 1985 6 preliminary objection of the written statement as detailed above are necessary parties irrespective of the fact of their having been excluded in the registered will. The suit could not be decided on the basis of the will in the absence of other heirs of Arjan Singh, namely, Jagdish Kaur, Jaswant Singh son of Sukhdev Singh predeceased son of Arjan Singh, Baljit Kaur and Paramjit Kaur daughters and Surinder Kaur widow of Sukhdev Singh. In spite of the objections taken in the written statement, the plaintiff has not added them as parties and rather their stand that since the present suit is on the basis of the registered will dated 17.8.1972 according to which the above stated heirs of Arjan Singh are not entitled to any share out of the property in dispute, is not tenable because the dispute regarding the property of Arjan Singh cannot be completely adjudicated in the absence of above stated heirs, namely, Jagdish Kaur and son and daughters widow of Sukhdev Singh predeceased son of Arjan Singh. 11. The learned trial court has held that since the plaintiffs has been able to prove the will dated 17.8.72, therefore, the above stated persons are not necessary parties is liable to be set aside because the validity of the will could not be decided in their absence. Learned Sub Judge was of the view that share of Sukhdev Singh deceased was already transferred to son Jaswant Singh who has no more interest in the land but again this RSA No.61 of 1985 7 question could not be determined in the absence of Sukhdev Singh his heir. I, therefore, reverse the findings on issue No.1.” Consequently, on reversal of findings on issue No.1 suit of the plaintiffs was ordered to be dismissed and the judgment and decree of the learned trial court was set aside. Mr.G.S.Punia, learned counsel appearing on behalf of the appellants raised following substantial question of law for consideration by this court:- 1. Whether the suit filed by the plaintiffs could be dismissed in violation of Order 1 Rule 9 of the Code of Civil Procedure, as it was open to the court to have adjudicated the inter se dispute between the parties who were before the court? In support of the substantial question of law, the contention of the learned counsel for the appellants was, that under a registered Will the property was bequeathed to the plaintiff/appellants and persons who were not impleaded as party were not beneficiaries under the Will as the property falling to their share had been transferred during the life time of executant. It was further contended, that daughters being not beneficiary in the Will and specifically excluded were also not a necessary party, or a party in the absence of whom the suit could not proceed. Learned counsel for the appellants referred to the Order 1 Rule RSA No.61 of 1985 8 9 of the Code which lays down that no suit shall be defeated by the reason of misjoinder or non-joinder of parties and the court may, in every suit, deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The contention of the learned counsel for the appellants, therefore, was that learned trial court was right in holding that non-joinder of legal heirs of Sukhdev Singh and Smt.Jagdish Kaur etc was not a bar to adjudication of the dispute raised in the suit. In support of this contention, learned counsel for the appellants placed reliance on the judgment of this court in the case of Saroop Singh & Ors. Vs. Hazara Singh and Ors. (1986-2) PLR 99. However, on consideration, I find no force in the contentions raised by the learned counsel for the appellants. By way of Code of Civil Procedure Amendment Act, 1976 a proviso was added to Order 1 Rule 9 of the Code which reads as under:- “Provided that nothing in this Rule shall apply to non-joinder of necessary party.” Natural heir cannot be treated to be merely a proper party but a necessary party when a Will is set up by the party to claim property under the Will to the exclusion of natural heir. The judgment of this court in the case of Saroop Singh & Ors. Vs. Hazara Singh and Ors. (supra) relied upon by the learned counsel for the appellants, therefore, would have no application to the case. RSA No.61 of 1985 9 This Court in the case of Raghbir Kaur Vs. Gurmej Singh 1984 (II) All India Land Laws Reporter 422, has been pleased to lay down that non-joinder of proper parties cannot be made a ground for dismissal of the suit, whereas non-joinder of necessary parties would result in the suit being defeated. Hon'ble Supreme Court Court in the case of Profulla Chorone Requitte and Ors. Vs. Satya Choron Requitte AIR 1979 SC 1682, was pleased to lay down as under:- “51. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as Shebaits, then also, those among them who were not family members of descendants of the founder, renounced and relinquished their shebaiti rights., if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co- shebaits, will be void.” Hon'ble Andhra Pradesh High Court in the case of P.Govinda Reddy and others Vs. Golla Obulamma AIR 1971 Andhra Pradesh 363. was pleased to lay down that in a suit for recovery of mortgage debt by one of the heirs of mortgagee, if other co-heirs are not impleaded within period of limitation, the suit would be held to be defective and such a defect being of substance is not curable under Order 1 Rules 9 and 10 of the Code. The learned lower appellate court, therefore, was fully justified in dismissing the suit filed by the plaintiffs/appellants on account of non- RSA No.61 of 1985 10 joinder of necessary parties. Substantial question of law raised is answered against the appellants by holding that the suit filed by the plaintiffs was rightly dismissed as no protection under Order 1 Rule 9 of the Code was available to the plaintiffs/appellants, as the plaintiffs had failed to join the necessary parties. The suit filed was bad for non-joinder of necessary parties. For the reasons stated, there is no merit in this appeal which is ordered to be dismissed but with no order as to costs. 9.03.2010 (Vinod K.Sharma) rp Judge