The defendants contested the suit by taking the customary pleas of maintainability, limitation, locus standi and non-joinder of necessary party. On merits, it was contended that suit property was not owned by Jaswant Singh but by Gurnam Kaur, who had purchased the same from her brother Dial Singh. The trial Court on the basis of the aforementioned evidence dismissed the suit but the lower Appellate Court partly decreed the same to the extent that plaintiff Major Singh (since deceased) represented through LRs will be co-sharer to the extent of 1/5th share and remaining 4/5th share by defendants and their sister, on the premise that the defendants failed to place on record any documentary evidence to show that whether Dial Singh was the owner he could have passed on the title to Gurnam Kaur. Mr. Amit Aggarwal, learned counsel appearing on behalf of the appellants submitted that the judgment and decree of the lower Appellate Court is not sustainable in the eyes of law as Gurnam Kaur was not their mother as she was second wife of Jaswant Singh, therefore, did not have got right in the property as she had no pre-existing right. As per the Hindu Succession Act, 1956, the ancestral property devolves upon only sons and therefore, the sons are entitled to 1/3rd share instead of 1/5th share, thus, the finding of the lower Appellate Court is liable to be set aside.
