Allowed

Mithu Singh v. Malkiat Singh and Ors.

Punjab & Haryana HC7 Jul 2009RSA/2184/2004

Case brief

AI extract

What is this about?

Allowed an appeal challenging an amended decree declaring the pro-rata share of a deceased brother's estate. Held that appellants and other legal representatives are entitled to equal shares of Mehma Singh's estate, and ordered the decree to be amended accordingly.

What did the court decide?

Decree dated 21.4.2004 declared liable to be amended to show that all legal representatives of Sodhan Kaur and Mohinder Kaur would inherit property of Mehma Singh in equal shares.

Mithu Singh Vs Malkiat Singh and Ors. — Succession and Inheritance | Punjab & Haryana HC (2009)

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R.S.A No. 2184 of 2004

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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R.S.A No. 2184 of 2004 Date of decision : July 07, 2009

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Mithu Singh and another,

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...... Appellant (s)

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Malkiat Singh and others,

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...... Respondent(s)

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CORAM : HON'BLE MR.JUSTICE AJAY TEWARI

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*******

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Present : Mr. S.S.Salar, Advocate for the appellants.

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Mr.Amarjit Markan, Advocate for respondents No. 2 to 5.

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Mr. S.K.Jain, Advocate for respondents No.6 to 10, 14 and 15.

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*******

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1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

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2. To be referred to the Reporters or not ?

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3. Whether the judgment should be reported in the Digest ?

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AJAY TEWARI, J (Oral)

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This appeal has been preferred against an order dated

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17.11.2003 and the amended decree dated 21.4.2004.

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The dispute relates to the estate of Balwant Singh and his brother Mehma Singh. They were originally four brothers, out of whom two died issueless. Balwant Singh was married to Mohinder Kaur and died without there being any offspring from the marriage. The wife of Mehma Singh also died leaving behind six children. Thereafter, Mohinder Kaur

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R.S.A No. 2184 of 2004

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entered into a karewa marriage with Mehma Singh and from that wedlock two children were born who are the appellants herein. The plaintiffrespondent No.1 (Malkiat Singh) filed the instant suit challenging the mutation of inheritance of the estate of Balwant Singh in favour of Mohinder Kaur on the ground that having contracted karewa marriage prior to the coming into force of the Hindu Succession Act, she would have to be held to have forfeited her right in the property. The said suit was ultimately allowed right upto this Court in RSA No.5128 of 2003, which was dismissed on 3.11.2003. Thereafter, the aforesaid Malkiat Singh filed an application for correction of the decree claiming that he and his two brothers were sole legal representatives of Mehma Singh. It is this amendment dated 21.4.2004 which has been challenged in these proceedings.

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Learned counsel for the respondents are not in a position to deny that the appellants and respondent No.2 are also similar legal representatives of Mehma Singh and that even if the appellants are not entitled to the exclusive ownership of Balwant Singh' share, yet they would have to be held entitled for pro-rata share from Mehma Singh's estate. The only question of law raised to resist this appeal is with regard to its maintainability in view of the dismissal of aforesaid RSA No.5128 of 2003.

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Counsel for the appellants has relied upon a decision of this Court in Mohammed Ibrahim Ferozi v. Mst Shafqan and others, AIR 1966 Punjab 531 wherein it was held as follows :-

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“......As a result of amendment the appellant no doubt got a right of appeal to assail the amended decree, but the scope of the appeal filed by him was of a limited

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R.S.A No. 2184 of 2004

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character and was confined only to the matters covered by the amendment. The amendment, in my opinion, could not have the effect of re-opening all matters, including those in respect of which the appellant filed the earlier appeal which was dismissed....”

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It is not disputed that the present appeal is only restricted to matters covered by the amendment. Consequently, I hold the above question of law against the respondents and in favour of the appellants. In this view of the matter, this appeal is disposed of and it is declared that all the legal representatives from the wombs of Sodhan Kaur and Mohinder Kaur viz. the appellants (originally defendants No.5 and 6), respondent No.1(plaintiff), respondents No.2 to 5 (L.Rs of defendant No.1), respondent No.6 (defendant No.2), respondent No.7(defendant No.3) and respondent No.8(defendant No.4), would be entitled to inherit the property of Mehma Singh in equal shares. Consequently, the decree dated 21.4.2004 is liable to be amended, which be drawn up afresh accordingly.

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( AJAY TEWARI ) July 07, 2009. JUDGE `kk'

Mithu Singh v. Malkiat Singh and Ors.

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Mithu Singh v. Malkiat Singh and Ors.

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