Kanwarjit Singh Dhillon vs Hardyal Singh Dhillon And Ors

4. Originally, the suit properties stood in the name of Ishar Singh (paternal grandfather of the appellant) which was subsequently mutated in the name of his two sons, S.Hazara Singh and S.Kirpal Singh. Late S.Kirpal Singh was the father of the appellant. Late S.Kirpal Singh died leaving behind some properties, both movable and immovable comprising agricultural land measuring 48 Kanal 10 Marlas situated at Jallandhar, a residential house bearing No.148, Sector 27A, Chandigarh and two deposits of Rs.20,000/- and Rs.10,000/- respectively [hereinafter referred to as "the suit properties"]. According to the appellant, the suit properties left behind by late S.Kirpal Singh were their ancestral properties. After eight years of the death of late S.Kirpal Singh, the respondent No.1 propounded an unregistered Will left behind by late S.Kirpal Singh and applied for probate thereof in the High Court of Punjab and Haryana. As per the said Will executed by late S.Kirpal Singh, the suit properties, both movable and immovable, were bequeathed by late S.Kirpal Singh in favour of respondent No.1 herein. Only a right of residence was given in favour of the widow of late S.Kirpal Singh and his unmarried daughter. In the aforesaid probate proceeding, objections were, however, filed by the appellant alleging that the said Will was a forged and fabricated one. However, the probate was granted to the respondent No.1 by the High Court and thereafter, the matter came up before this Court which also affirmed the order of the High Court granting probate in respect of the Will executed by late S.Kirpal Singh. Subsequent to the grant of probate of the Will of late S.Kirpal Singh in respect of the suit properties more precisely on 9th of March, 1995, the appellant instituted a civil suit for declaration and injunction wherein the appellant sought a declaration to the effect that the suit properties were joint Hindu family properties.

5. In the suit filed at the instance of the appellant, the respondent No.1 raised a preliminary issue by filing an application saying that after the probate having been granted of the Will executed by late S.Kirpal Singh, the Civil Court had no jurisdiction to proceed with the suit for declaration of title and permanent injunction and accordingly the suit should be dismissed. The preliminary issue framed by the Civil Court is to the following effect :

6. By an order dated 18th of January, 2000, the learned Civil Judge, Jallandhar dismissed the suit on a finding that once the probate was granted by a competent probate court, and in view of the fact that in the suit the appellant had not challenged the probate proceeding, the Civil Court cannot have any jurisdiction to entertain the suit on the aforesaid ground and the suit was dismissed.

9. It is true that probate of the Will executed by late S.Kirpal Singh has been granted by the competent probate court which relates to the suit properties. But we have to look into the allegations made in the plaint. The plaint clearly states that the civil suit was for a declaration to the effect that the suit properties were joint Hindu family properties of the HUF of which the appellant and his two brothers Hardyal Singh Dhillon and Harbans Singh Dhillon, mother Surjit Kaur and unmarried daughter Amarjit Kaur were the members. Consequential relief for permanent injunction was also sought restraining the respondent No.1 from alienating the suit properties, in any manner, whatsoever. Besides claiming that the suit properties were the joint family properties, it was also averred in the plaint that late S.Kirpal Singh was the Karta of the aforesaid HUF and by utilizing the income from their ancestral agricultural land had acquired various properties including the suit properties.

(Emphasis supplied).

12. Such being the position, we, therefore, hold that the High Court as well as the trial court had acted illegally in dismissing the suit of the appellant on the aforesaid sole ground after framing the preliminary issue. For the reasons aforesaid, the judgments of the High Court as well as of the trial court are set aside. The appeal is allowed to the extent indicated above. The trial court is now directed to decide the suit after framing issues, including the issue of maintainability of the suit after the probate being granted, if not already framed in the meantime and dispose of the same within a year from the date of production of a copy of this order before the trial court.

13. Before parting with this judgment, we may express one more aspect. As noted herein earlier, a suit was dismissed by the trial court which was affirmed by the High Court in revision after framing preliminary issue which we have already noted herein earlier. A question may arise whether the preliminary issue could be raised without deciding the other issues and the suit could be dismissed in view of Order XIV, Rule 2 of the Code of Civil Procedure. In view of our decision in this matter, we do not feel it proper to dwell on this aspect which is kept open for future consideration.

14. For the aforesaid reasons, the impugned order is set aside. The appeal is allowed. There will be no order as to costs.