R.S.A.No. 1327 of 1997 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1327 of 1997 Date of decision: 10.11.2009 Satyakar Singh ......Appellant Versus Savitri and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Tacoria, Advocate, for the appellant. Ramesh Hooda, Advocate, for the respondents. **** SABINA, J. Plaintiff Satyakar Singh filed a suit for declaration, which was dismissed by the Additional Senior Sub Judge, Charkhi Dadri vide judgment and decree dated 29.8.1995. In appeal, the said judgment and decree were upheld by the Additional District Judge (I), Bhiwani vide judgment and decree dated 21.12.1996. Hence, the present appeal. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 1327 of 1997 2 Court in para Nos. 2 to 4 of its judgment, are as under:- “2. Ganpat son of Udmi was owner in possession of 7 bighas 19 biswas of land in village Chandeni vide jamabandi entries for the year 1964-65. He had inherited this property after the death of his father Udmi. As such, the property was joint Hindu Family property in the hands of Ganpat. Ganpat died in the year 1964 and Satyakar Singh inherited 3/5th share while Smt.Mahadevi widow of Ganpat, Sajjani, Savitri and Phula daughters of Ganpat. But the revenue authorities, mutated the share of Ganpat in the name of the plaintiff and defendants in equal shares wrongly. The plaintiff was entitled to 3/5th share while the defendants were entitled to inherit 1/10th share from the property of Ganpat as the property was coparcenary property in the hands of Ganpat. In spite of this mutation, the parties owned and possessed the land according to their actual shares. Sajjni died in the year 1974 and 1/10th share belonging to Sajjni was inherited by Smt.Mahadevi. But wrongly treating Smt.Mahadevi as owner of 1/5th share, mutation No.555 was sanctioned in her favour wrongly in respect of 1/5th share. This mutation is wrong and not binding on the plaintiff. When Mahadevi died in the year 1976, the R.S.A.No. 1327 of 1997 3 share of Mahadevi vested in the plaintiff and the defendants in equal shares. But instead of 2/15th share, the revenue authorities mutated the land to the extent of 2/5th share through mutation No.464. Mutation No.464 and 554 are wrong and not binding upon the plaintiff. The plaintiff is owner of 2/9 share in the land measuring 23 bighas 16 biswas while the defendants No.1 and 2 are owners of 1/18th share each in the said land. Mutation No.464, 554 and 555 are not binding upon the plaintiff as they are against law and facts. The suit of the plaintiff for declaration be decreed. 3. Phula Devi defendant No.2 filed the written statement admitting the whole claim of the plaintiff. 4. The suit is contested by Smt.Savitri Devi who alleged that all the mutations had been rightly sanctioned from time to time and that the plaintiff was never in possession of the land to the extent of share now claimed by him in the plaint. She alleged that the parties are in possession of the property according to their shares mentioned in the revenue record and that the suit is barred by time.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is co-owner and in joint R.S.A.No. 1327 of 1997 4 possession of the disputed land, if so to what effect? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the suit is time barred? OPD 4. Whether the suit is bad for non-joinder of necessary parties? OPD 5. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. In the present case, Ganpat was the owner of the property in dispute. He had inherited the suit property from his father Udmi Ram. The plaintiff and defendant No.2 Phula Devi were born out of the wedlock of Ganpat with his first wife. After the death of the first wife of Ganpat, he got married with Mahadevi by way of kareva ceremony. Out of the said wedlock, Sajni and Savitri were born. Ganpat died in the year 1964. Maha Devi died in the year 1976. Sajni died unmarried in the year 1974. It has been held in Smt.Raj Rani vs. The Chief Settlement Commissioner, Delhi and othersU, AIR 1984 Supreme Court 1234 as under:- “Where a Hindu died after the enforcement of the Act leav ing behind him his widow, three sons and three daughters, the devolution of his Mitakshara coparcenary property would be as follows:- R.S.A.No. 1327 of 1997 5 In view of explanation I to Sector 6, he would have got 1/5th interest on partition between him and his wife and three sons. If once his interest was determined to be 1/5th before his death, his interest would devolve upon his widow, three sons and three daughters equally and thus the share of each one of them would be 1/5th x 1/7th that is 1/35th each and as the widow had inherited the interest of her husband after his death her share would be augmented by 1/5th that is 1/35 + 1/5 = 8/35.” Since at the time of death of Ganpat, the parties were in joint possession of the property owned by him, a notional partition can be effected between the parties to determine the shares of the legal heirs. The property in the hands of Ganpat was ancestral property and consequently, if a notional partition is made, Ganpat, plaintiff Satyakar Singh and Mahadevi, widow of Ganpat would get 1/3rd share each. Thereafter, the 1/3rd share of Ganpat would devolve of his wife Mahadevi, daughters Sajni, Savitri, Phula Devi and son Satyakar Singh in equal shares i.e. 1/5th share each out of 1/3rd share of Ganpat. Thus, the plaintiff would get 1/3rd share + 1/5th share out of the property owned by Ganpat. After the death of Sajni, her share was inherited by her mother Mahadevi and after the death of Mahadevi, the share of property of Mahadevi came to Savitri being her daughter. In these circumstances, the mutations in dispute after the death of Ganpat, Sajni and Mahadevi were R.S.A.No. 1327 of 1997 6 correctly sanctioned. Moreover, the mutations were sanctioned i.e. of Ganpat in the year 1978, of Sajni in the year 1977 and of Maha Devi in the year 1977 and the suit was filed by the plaintiff after a long delay in the year 1991. Hence, the suit filed by the plaintiff had been rightly dismissed by the Courts below. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 10 , 2009 anita