IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.264 of 2002 (O&M) Date of Decision: 25.5.2010 Balwinder Kaur. ....... Appellant. Versus Gurnam Singh (name of this respondent was struck off vide order dated 25.9.2006) and others. ....... Respondents. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... Present: Shri M.L.Saggar, Senior Advocate with Shri G.S.Brar, Advocate for the appellant. None 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 the Digest? .... Mahesh Grover,J. C.M.No.480-C of 2002 For the reasons stated therein, the application is allowed and the delay of one day in the filing of the appeal is condoned. C.M.No.481-C of 2002 Allowed as prayed for. R.S.A.No.264 of 2002 & C.M.No.483-C of 2002 The plaintiff is in second appeal. She had filed a suit for declaration by pleading that she is widow of Balwant Singh son of Gurnam R.S.A.No.264 of 2002 (O&M) -2- .... Singh, who was arrayed as defendant no.1 and as respondent no.1 in the instant appeal, but his name has been struck off on account of his death and also in view of the fact that his only legal representative,i.e., his wife was already on record as defendant- respondent no.2. It was further pleaded that the parties were governed by Hindu Law and the property in question which stood in the name of Gurnam Singh was his joint Hindu coparcenary property along with his son Balwant Singh. Gurnam Singh was stated to have inherited the said property about more than 35 years ago from his fore-fathers. It was averred that Balwant Singh died in the year 1986 leaving behind his widow, i.e., the appellant, and his mother, i.e., respondent no.2 as his legal heirs. Thus, it was pleaded that the appellant was entitled to 1/6th share in the suit property as fully described in the headnote of the plaint. Defendant-respondent nos. 3 & 4 were stated to have purchased a part of the suit property by a sale deed which was challenged on the ground of it being null & void and not binding on the rights of the appellant. In their written statement, Gurnam Singh and respondent no.2 had pleaded that the appellant had no locus standi to file the suit and that she had remarried after the death of Balwant Singh and, therefore, she had no right to inherit his property. It was further pleaded that Balwant Singh was separate in mess and was residing in the village of his mother where she had some property. The factum of suit property belonging to Gurnam Singh was admitted, but it was denied that he was joint in mess and had constituted a joint Hindu family with his son Balwant Singh. The factum of R.S.A.No.264 of 2002 (O&M) -3- .... Balwant Singh being coparcener was also denied. The sale in favour of respondent nos. 3 & 4 was defended. It was pleaded that after the death of Balwant singh, the appellant had taken away the dowry articles and she was also paid some cash and resultantly, she had relinquished all her rights in the family property. The following issues were struck:- 1. Whether the property in dispute is coparcenary property?OPP 2. Whether Balwant Singh, deceased constituted a joint Hindu family with Gurnam Singh, defendant No.1?OPP 3. If issues No. 1 and 2 are proved in favour of plaintiff, then in what share plaintiff is entitled to succeed?OPP 4. Whether the suit is speculative?OPD 5. Whether the plaintiff has got locus standi to file the present suit?OPD 6. What is the defect of the remarriage of Balwinder Kaur on her succession to coparcenary property?OPD 7. Whether the plaintiff is entitled to declaration prayed for and joint possession of the suit land?OPP 8. Whether the suit is not properly valued for purpose of court fee and jurisdiction?OPD 9. Whether the suit is not properly valued for purposes of court fee and jurisdiction?OPD 10. Relief. R.S.A.No.264 of 2002 (O&M) -4- .... The following additional issues were also framed:- 1A. Whether defendant No.1 is a proper party to the suit?OPP 2A. whether the sale in question by defendant No.1 is the act of good management and for legal necessity and for consideration?OPD After appraisal of the entire evidence on record, the Sub Judge IInd Class, Ludhiana dismissed the suit. The Additional District Judge, Ludhiana, while dismissing the appeal of the appellant, returned a finding that the suit property was ancestral property of Balwant Singh, her husband and Gurnam Singh and his wife, but it was not coparcenary as all the parties were not joint in mess. In the instant appeal, learned counsel for the appellant, while assailing the findings of the Courts below, contended that since the suit property was coparcenary property and by virtue of natural succession, Balwant Singh initially as heir of Gurnam Singh and after his death as his natural successor, was entitled to the share in the suit property. Reliance was placed on a judgment of Bombay High Court in Baburao Parashuram Ukharde, since deceased by his heirs Versus Smt.Laxmibai and another, 1995(2) All India Hindu law Reporter 11 (Bombay). No one has put in appearance on behalf of the respondents. I have considered the contention of the learned counsel for the appellant and have perused the impugned judgments. The appellant, who had pleaded that the suit property was R.S.A.No.264 of 2002 (O&M) -5- .... coparcenary property of Gurnam Singh and Balwant Singh, could not show from any material that it was so. The appellant, while appearing as PW2, deposed in her testimony that she and her husband were separate in mess from Gurnam Singh and his wife. Intakal, Exhibit P1, also reveals that the suit property had been initially partitioned amongst the predecessors-in- interest of Gurnam Singh,i.e., Kahar Singh and Nahar Singh. After such partition, the husband of the appellant being separate in mess, could not claim that that the suit property was coparcenary property. Further, the presumption that a Hindu is joint in estate stands effectively rebutted. Hence, looking at it from any angle, the property could not be considered to be a coparcenary property. In any eventuality, Sections 6 & 24 of the Hindu Succession Act,1956 (for short, `the Act'), if read together, lead to an irresistible conclusion that the appellant was not entitled to any share in the suit property. For reference, these Sections are extracted below:- “6. Devolution of interest in coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary R.S.A.No.264 of 2002 (O&M) -6- .... property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.-For the purpose of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. 24. Certain widows re-marrying may not inherit as widows.- Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married.” Besides, the appellant had abandoned her right in the suit property by executing Exhibit D1, which was a compromise between her and Gurnam Singh & his wife on 28.1.1987 which compromise she admitted in her statement as PW2. The cumulative effect of the material on record shows that the R.S.A.No.264 of 2002 (O&M) -7- .... appellant was not joint in mess with Gurnam Singh & his wife as she and her husband had separated during the life time of Balwant singh and secondly, the suit property even if held to be ancestral, does not entitle the appellant any share therein because of her remarriage. The judgment relied upon by the learned counsel for the appellant is on different facts and does not apply to the facts of the instant case, more so when the property was not coparcenary. The said judgment proceeded on the admitted position that the property was coparcenary in nature. No substantial question of law has been shown to have arisen for consideration of this Court. Consequently, the appeal is dismissed being devoid of any merit. C.M. No.483-C of 2002 which has been moved under Order 39 Rules 1 & 2 read with Section 151 of the C.P.C. is also dismissed in view of the above. May 25,2010 ( Mahesh Grover ) “SCM” Judge