RA No.16-C of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RA No.16-C of 2009 (O&M) and RSA No.548 of 1991 Date of Decision: 25.05.2009 Tara Singh ..Applicant Vs. Raghbir Singh & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Arun Jain, Sr.Advocate, with Mr.Anupam Sharma, Advocate, for the applicant/appellant. Mr.M.L.Sarin, Sr.Advocate, with Ms.Alka Sarin, Advocate, for respondents No.1 and 2. Vinod K.Sharma,J. (Oral) CM No.4044-C of 2009 Allowed. The applicant is permitted to file typed copy of judgment. RA No.16-C of 2009 Tara Singh appellant challenged the judgment and decree RA No.16-C of 2009 (O&M) 2 passed by the learned lower appellate court vide which suit filed by the plaintiffs was partly allowed and the plaintiffs were held entitled to joint possession of 3/8th share in the land measuring 78 kanals 16 marlas as described in sub-para B of the head note of the plaint. The impugned judgment and decree passed by the learned lower appellate court was challenged on the following substantial question of law:- “ Whether the judgment and decree passed by the learned lower appellate court is the outcome of misreading of Will Ex.D.2 and thus perverse? The appeal was dismissed by placing reliance on the judgment of Hon'ble Lahore High Court in the case of Smt.Shiv Devi and Ors. Vs. Nauharia Ram AIR 1940 Lahore 318 interpreting Section 105 of the Succession Act. The appellant filed a review application under Order 47 Rule 1 read with section 151 of the Code of Civil Procedure primarily on the ground that the judgment suffers from error apparent on the face of record as reliance was placed on the judgment of Hon'ble Lahore High Court in the case of Smt. Shiv Devi and Ors. Vs. Nauharia Ram (supra) which is contrary to the law laid down by Hon'ble Supreme Court in the case of S.Jhansi Lakshmi Bai and Ors. Vs. Pothana Appa Rao and Ors AIR 1969 SC 1355, wherein Hon'ble Supreme Court was pleased to lay down as under:- “11. We are concerned to construe the provisions of Section 105 of the Indian Succession Act. That section enacts that a RA No.16-C of 2009 (O&M) 3 legacy shall lapse and form part of the residue of the testator's property if the legatee does not survive the testator except where it appears by the will that the testator intended that the legacy shall on the legatee not surviving him go to some other person. We are unable to agree that the intention of the testator that a legacy shall not lapse may be given effect to only if the legatee dies during his lifetime the legacy shall go to some other person, and that intention to exclude lapse can not be inferred. Section 105 (1) does not say, nor does it imply that the testator must have expressly envisaged the possibility of lapse in consequence of the legatee dying during his lifetime and must have made a provision for that contingency.” Review was sought on the ground that as the judgment of Hon'ble Lahore High Court being contrary to the law laid down by Hon'ble Supreme Court, could not be relied, to nonsuit the appellant. Notice of the review application was issued. The contention of Mr.M.L.Sarin, learned senior counsel appearing on behalf of the respondents is that the judgment reported in S.Jhansi Lakshmi Bai and Ors. Vs. Pothana Appa Rao and Ors (supra) is not applicable to the facts of the present case as in Ex.D.2 it was not clearly stated that son of Smt.Chinti i.e. Tara Singh would succeed to property in case Chinti was to die before the testator. The contention raised, therefore, is that the judgment of Hon'ble Supreme Court is distinguishable. It is also the contention of the learned senior counsel for the RA No.16-C of 2009 (O&M) 4 respondents that Will Ex.D.2 reveals that there was no such intention of testator that even if Chinti predeceased the testator, property could not be treated as intestate property qua share of Smt.Chinti. It was contented that the judgment in the case of Smt. Shiv Devi and Ors. Vs. Nauharia Ram (supra) was fully applicable to the facts of the present case, and was rightly applied to dismiss the appeal. On consideration of the matter, I find force in the contention raised by the learned counsel for the appellants. Reading of Ex.D.2 shows that the executant had clearly mentioned that after his death the ownership of 79 kanals would pass on to Smt. Chinti who shall have no right to alienate the property and after the death of Smt.Chinti this property was to pass on to Tara Singh. It was also mentioned that Raghbir Singh, Janak Singh and Gurbachan Singh will have no concern with this property. The reading of Ex.D.2 leaves no manner of doubt that the property was bequeathed to the appellant with no right to Smt.Shanti Devi to alienate. Therefore, in view of the judgment of Hon'ble Supreme Court in the case of S.Jhansi Lakshmi Bai and Ors. Vs. Pothana Appa Rao and Ors. (supra) reliance was wrongly placed on the judgment of Hon'ble Lahore High Court in the case of Smt. Shiv Devi and Ors. Vs. Nauharia Ram (supra). The judgment passed by this court, therefore, suffers from error apparent on the face of record. Consequently, this review petition is allowed. Judgment and decree dated 21.3.2009 is set aside. The RA No.16-C of 2009 (O&M) 5 substantial question of law is answered in favour of the appellants. Consequently, RSA No.548 of 1991 is allowed. The judgment and decree passed by the learned lower appellate court is set aside and that of learned trial court is restored but with no order as to costs. 25.05.2009 (Vinod K.Sharma) rp Judge