Dismissed

Tarsem Lal and Ors. v. Sanjiv Kumar and Ors.

Punjab & Haryana HC23 May 2014RSA/2695/2013

Case brief

AI extract

What is this about?

In a second appeal challenging the dismissal of a suit for declaration of ownership and permanent injunction, the High Court dismissed the appeal. The lower courts held the suit time-barred and that the deceased ancestor died before the Hindu Succession Act, 1956, before a daughter could inherit.

What did the court decide?

The appeal was dismissed; the plaintiffs' suit for declaration of ownership and permanent injunction was not set aside.

Tarsem Lal and Ors. Vs Sanjiv Kumar and… — Succession and Inheritance | Punjab & Haryana HC (2014)

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RSA No.2695 of 2013 (O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA No.2695 of 2013 (O&M) Date of decision:23.05.2014

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Tarsem Lal and others

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....Appellants

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Versus

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Sanjiv Kumar and others

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....Respondents

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CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG

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Whether reporters of local newspapers may be allowed to see judgment?

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To be referred to reporters or not?

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Whether the judgment should be reported in the Digest?

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Present:- Mr. Ashish Gupta, Advocate for Mr. Vikram Singh, Advocate for the appellants.

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RAKESH KUMAR GARG, J (ORAL)

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This is plaintiffs' second appeal challenging the judgments and decrees of the Courts below whereby their suit for declaration that they along with defendants No.10 to 12 (Now proforma respondents No.10 to 12) are the owners in joint possession to the extent of 1/9^th share in the suit property, with further relief of permanent injunction restraining the defendants No.1 to 9 from alienating the suit land, was dismissed.

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In the suit, it has been alleged that originally one Ishar Dass was the owner of the suit property measuring 68 kanals 15 marlas as detailed in the head note of the plaint. His estate was inherited by his three sons, namely, Rala Ram, Shankar Dass and

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Kadian Savita 2014.05.30 11:07 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2695 of 2013 (O&M)

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Babu Ram having 1/3^rd share each. All the aforesaid sons of Ishar Dass have died and the suit land has been devolved upon their successors. Plaintiffs and defendants No.10 to 12 are successors of Vidya Devi daughter of Rala Ram son of Ishar Dass having 1/9^th share of the joint land as Rala Ram has three legal heirs, namely, Faqir Chand, Bhag Ram and Vidya Devi. However, the aforesaid share was not entered in the revenue record. Smt. Vidya Devi had died and after her death, the defendants have refused to accept the claim of the plaintiffs. Therefore, the instant suit has been filed.

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The suit was contested by defendant/respondents No.1, 3

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and 4 by filing written statement raising various preliminary objections. It was stated that suit was hopelessly time barred. The mutation of inheritance relating to the property of Rala Ram was sanctioned in favour of Bhag Ram and Faqir Chand sons of Rala Ram on 2.5.1957. It was denied that plaintiffs and defendants No.10 to 12 are owners in possession of the property in dispute. It was further stated that Smt. Vidya Devi daughter of Rala Ram had no right in the estate of her father, who died prior to enforcement of Hindu Succession Act, 1956, as such, neither the plaintiffs nor defendants No.10 to 12 have got any right in the suit property. Denying all other averments, dismissal of the suit was prayed.

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Plaintiff-appellants filed replication denying the contents of the written statement and reiterated those of plaint. From the pleadings of the parties, following issues were

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RSA No.2695 of 2013 (O&M)

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framed:-

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Whether the plaintiffs and defendants No.10 to 12 are owners in possession of 1/9^th share in the suit property? OPP

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Whether the defendants No.1 to 9 are threatening to alienate beyond their share? OPP

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Whether the suit of the plaintiffs is within limitation? OPP

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Whether Rala Ram had died prior to the enforcement of Hindu Succession Act? OPP

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Relief.

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After going through the evidence led by both the parties, trial Court dismissed the suit of the plaintiffs holding that Rala Ram died on 13.06.1956 prior to the enforcement of Hindu Succession Act, 1956, which came into existence on 17.6.1956 and Vidya Devi, mother of the plaintiff/appellants as well as defendants No.10 to 12, was not entitled to succeed to the estate of deceased Rala Ram. It was further found by the trial Court that suit was hopelessly time barred.

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Still not satisfied, plaintiff-appellants filed an appeal before the First Appellate Court which was also dismissed vide judgment and decree dated 27.02.2013. While dismissing the appeal, lower Appellate Court observed as under:-

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“So far as relationship of the parties is concerned, same

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RSA No.2695 of 2013 (O&M)

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is not disputed nor there is any dispute that Rala Ram was owner of the suit property. It is further an admitted fact that the plaintiffs are legal heirs of deceased Vidya Devi, one of the daughters of deceased Rala Ram. The defendants are also legal heirs of said Rala Ram. Mutation about the inheritance of said Rala Ram was sanctioned on 2.5.1957, copy of the same is Ex.P11. It was rightly pointed out that plaintiffs (appellants before this Court), no where alleged the date of death of said Rala Ram in the entire pleadings nor this material fact was anywhere deposed by any of the witnesses examined by them, for the reasons best known to them. Whereas, the respondents, in their written statement, took a specific plea that said Rala Ram had died after the enforcement of the Hindu Succession Act, 1956. During the course of evidence, defendants No.1, 3 and 4 filed an application that according to them Rala Ram had died on 13.6.1956, and therefore, they made a request to appoint an Advocate as a Local Commissioner for recording the statement of a witness to prove the entry made by him in the Bahi, in which Pt. Faqir Chand mentioned the fact of death of Rala Ram and immersion of his last remains in the Gangas. Thereafter, DW1 was appointed by the Court, who went to Haridwara and recorded the

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RSA No.2695 of 2013 (O&M)

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statement of the witness as a Local Commissioner. This statement is part of the judicial file. An entry dated 23.6.1956 regarding immersion of last remains of Rala Ram in holy Gangas at Haridwar was found in the record, kept by Pt. Ramji Pandy of Haridwar. The plaintiffs have not been able to rebut the testimony of said witness or that of Davinder Kumar (DW2). It is most relevant to mention here that plaintiff Tarsem Lal examined himself as PW1 but could not get courage to deny that the ashes of his material grand father were immersed in Haridwar on 23.6.1956 by his maternal uncle Faqir Chand. The Trial Court, on the basis of evidence led before it, came to the conclusion that immersion of the ashes on 23.6.1956 at Haridwar shows that the deceased might have died on 13.6.1956 prior to the enforcement of the Hindu Succession Act, whereas, the plaintiffs (appellants before this Court) failed to show that Rala Ram had died after commencement of the said Act i.e. on 19.6.1956. It is relevant to mention here that Hindu Succession Act came into force on 17.6.1956. Though the trial Court took judicial notice of certain facts regarding the customs prevalent amongst Hindus in this regard, yet, it cannot be shown by the present appellants that last remains of Rala Ram were immersed on the fourth day from his death.

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Kadian Savita 2014.05.30 11:07 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2695 of 2013 (O&M)

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Therefore, the findings recorded by the learned Trial Court that Rala Ram died prior to the commencement of the Hindu Succession Ac, cannot be said to be perverse, rather, the same were recorded after evaluation of the evidence led by the parties, which are correct and legal.” The findings of the trial Court on the question of limitation

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were also affirmed.

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Still not satisfied, the plaintiffs have filed the instant appeal submitting that following substantial questions of law arise in this appeal:-

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i) Whether the findings of the learned Courts below suffering from any apparent perversity as the face of it being contrary to law and facts on record?

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ii) Whether the judgments and decrees of learned Courts below suffer from perversity of approach and misreading of evidence because of ignoring the material piece of evidence have been direct impact on decision of the case?

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iii)Whether the suit of the appellant/plaintiffs is barred by time especially in the circumstance there suit is based upon inheritance?

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iv)Whether the starting point of limitation is from the date of knowledge of sanction of mutation or from the date of sanction of mutation?

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RSA No.2695 of 2013 (O&M)

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v) Whether the learned Courts below are legally justified while passing the judgments and decrees on the basis of its own presumptions and assumptions?

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Learned counsel for the appellants has vehemently argued that the Courts below have wrongly held that Rala Ram died prior to the enforcement of Hindu Succession Act, 1956. According to him, findings of the Courts below are not supported by any evidence and in view of the evidence brought on record, it could not be held that Rala Ram died on 13.6.1956 i.e. prior to the enforcement of the Act. However, both the Courts below on appreciation of evidence recorded a finding of fact that Rala Ram died prior to enforcement of Hindu Succession Act, 1956. In fact, appellants have led no evidence to rebut the assertion of defendants that Rala Ram died on 13.06.1956 and in the absence of such evidence, it cannot be held that findings of Courts below are incorrect.

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Faced with this, counsel for the appellants has further argued that even assuming for the sake of arguments the said Rala Ram died prior to the enforcement of the Hindu Succession Act, 1956, still mother of the appellants was entitled to succeed to the estate of Rala Ram, even if Rala Ram who was absolute owner of the suit property. However, he could not substantiate the same as prior to the enforcement of Hindu Succession Act, 1956, daughter had no right to inherit the estate of father.

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Kadian Savita 2014.05.30 11:07 I attest to the accuracy and integrity of this document High Court Chandigarh

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RSA No.2695 of 2013 (O&M)

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Moreover, counsel for the appellants could not successfully challenge the findings of the Courts below on issue No.3 i.e. the suit is hopelessly barred by limitation. Admittedly, cause of action arose in favour of Vidya Devi on the death of Rala Ram in June, 1956 and thereafter on 2.5.1957 when mutation was sanction in favour of both sons of Rala Ram and she admittedly remained alive for 20 years thereafter but she never claimed the estate of Rala Ram against her brothers for the property in dispute and never challenged the mutation.

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In view thereof, this Court is not inclined to interfere in the findings of the Courts below.

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Thus, no substantial questions of law, as raised, arise in this appeal.

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Dismissed.

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May 23, 2014 savita

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(RAKESH KUMAR GARG) JUDGE

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Kadian Savita 2014.05.30 11:07 I attest to the accuracy and integrity of this document High Court Chandigarh

Tarsem Lal and Ors. v. Sanjiv Kumar and Ors.

Case brief

What is this about?

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Tarsem Lal and Ors. v. Sanjiv Kumar and Ors.

Case brief

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