Dismissed

Sardar Omkar Singh v. S. Sarbhajeet Singh

Telangana HC16 Sept 2022AS/1713/2001

Case brief

AI extract

What is this about?

Appeal in a partition suit where the trial court decreed a half share for grandsons of Prem Kaur. The High Court upheld the lower court's finding that Pre Kaur self-acquired the property and held will deeds unproven, dismissing the appeal.

What did the court decide?

The decree of the lower court confirming the preliminary decree for half share in favor of the plaintiffs is confirmed and the appeal is dismissed.

Sardar Omkar Singh Vs S. Sarbhajeet Singh — Partition | Telangana HC (2022)

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[³²⁵⁸ ]

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAT)

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FRIDAY, THE SIXTEENTH DAY OF SEPTEIVBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

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APPEAL SUIT NO: 1713 OF 2001

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Appeal under Section 96 of CPC against the Judgment and decree dated 0110412001 made in OS No.186 of 1995 on the file of the Court of the Principal Senior Civil Judge, Warangal.

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Between:

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Sardar Omkar Singh, S/o Ram Singh R/o Shikwadi, Kishanpura, Hanmakonda, warangal District

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...A''ELLANT (3RD DEFENDANT) AND

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Sardar Sarbhajeet Singh, S/o lr/ajor Singh Rl/o Khalikh Village, Ludhiana District, Punjab State.

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lnderjeet Kaur, D/o A/ajor Singh R/o Khalikh Village, Ludhiana District, Punjab State. (Plaintiffs)

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S. Mccna Bai, aliasChatter Kaur, Wo Dayal Singh Sukhmani Dushmesh Hospital Compound, Gate No. 2, Hazur Sahib, [V'laharastra.

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S. Ram Singh, Ri/o D.No. 2-2-342, Naim Nagar, Hanamkonda, Warangal District.

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Ramesh, Mechanic Rl/o H.No. 14-8-127, Charbouli Warangal, Warangal District.

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Pasha, Fruit Vendor R/o D.No. 14-8-127, Charbouli, Warangal, Warangal District.

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(RR 5 & 6 disd. for default vide Court Order dated 20l1ol'11) ...(DEFENDANTS 1,2,4 AND 5) RESPONDENTS

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For the Appellant : SRI P.PRABHAKAR REDDY, Advocate

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For the Respondent Nos.1 & 2 : SRI G.RATVIACHANDRA REDDY, Advocate

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For the Respondent No.4 : SRI V.JITHERNDER RAO, Advocate

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Forthe Respondent Nos.3, 5 & 6 : NONEApPEARED

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The Court made the following: ORDER

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_----------..--/

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/ (1

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HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

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A.S.No.1713 0f 2001

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JUDGMENT

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Aggrieved by the Judgment and Decree in O.S.No.1B6 of 1995 before the Principal Senior Civil Judge, Waranagal, dated 01-04-2001 by which the trial Court decreed the Paftition Suit filed by the respondents No.1 and 2/plaintiffs No.l and 2 and granted a Preliminary Decree for half share in the plaint Items No.1 and 2 under A schedule^property, the defendant No.3 in the said suit preferred the present appeal. The respondents No.1. and 2 are plaintiffs in the main suit. Respondents Nos.3 to 6 herein are defendants L,2,4 and 5 in the said suit. As per the record, respondents No.1 and 2 as they were minors at the time of filing the suit were represented by their^paternal uncle, filed the suit and sought for partition of the plaint schedule property and for half share therein.

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Before discussing the^grounds on which the present appeal is filed, it is better to see what was the case of plaintiffs and defendants before the Court below. For convenience sake, I will refer the parties as they are^arrayed in the suit before the trial Co u rt.

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SSRN,J AS.No l7i3 of200l

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The plaintiffs No.1 and 2, who are represented by their next friend have filed suit stating that they are grand children of one Sardar Kushal Singh and Prem Kaur. According to their case before the Court below, the said Kushal Singh and Prem Kaur are husband and wife. They got two daughters namely Nana Bai and Meena Bai. The said Meena Bai is shown as defendant No.1 in the original suit. Nana Bai was married to one Sardar Major Singh. The plaintiffs are children of Nana Bai and Sardar Major Singh. Their father Sardar Singh died in an accident and later their mother Nana Bai died at Warangal. The^plaintiffs have claimed that after the death of their mother, they were residing with their paternal uncles at Kalikh, Dhillion Tahasil, Ludhiana District, Punjab State. They have also claimed that Kushal Singh and Prem Kaur are no more and their^parents are also^{no more} at^{the time} of filing the suit thereby, being^grand children of^Kushal Singh and Prem Kaur through their daughter Nana^{Bai, they have half} share in the suit schedule^property.

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D1 and D3 have filed written^statement which was adopted by D2. The defendants^{have taken a specificstand} that originally Prem Kaur was wife of one^{Hazura Singh,} they have got one son by name Ram Singh and two daughters namely Meena Bai and Ratan Kaur. The defendants have claimed that Prem Kaur

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SSfu.J AS \n IT ll ol200l

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purchased the suit schedule property with her own funds thereby she is the absolute owner of property. As per the statement filed by the defendants, it was pleaded that^prem Kaur purchased open site under a registered sale deed dated 24-10-1952 and she purchased item No.2 of the plaint schedule under another registered sale deed dated 16-04-1951.

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The defendants further pleaded that prem Kaur contracted an illegal marriage with Kushal Singh who was already married to one Kesara Bai. According to the defendants, Nanak Kaur was born to Kesara Bai through Kushal Singh. Therefore, the plaintiffs mother who is Nanak Kaur is not the daughter of prem Kaur. They have also pleaded that since prem Kaur herself acquired the property, the plaintiffs being sons of Nanak Kaur, who was born to Kushal Singh and Kesara Bai cannot acquire right over the property, thereby they sought for dismissal of the suit.

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In addition to that they have pleaded that during her llfe time, Prem Kaur executed a registered will document No.3/86 on 24-02-1986 and bequathed the plot out of item No.1 and a room in the favour of Santh Kaur the daughter of Ratan Kaur. They have also claimed that Prem Kaur executed another will document No.1648184 on 29-06-1984 and bequeathed item No.2 to the defendant No.l. The defendants further pleaded that prem

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{

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SSRN,J AS No lTll^of200l

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Kaur died in March, 1889. fhereafter, the defendants got mutation of the above said^properties as per the will deeds referred above. Therefore, the defendants sought for dismissal of the suit. Initially, the following issues were framed by the trial

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Court:

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1 Whether the suit properties were the self acquired properties of late Sardar Kushal Singh?

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2 What are the properties open for partition? 3 Whether the plaintiffs are entitled to^partition and for allotment of half of the share in the suit schedule properties?

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4 Whether the schedule properties were the self-acquired properties of Prem Kaur?

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5 To what relief.)

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It appears from the record that subsequently, the next friend and guardian of^plaintiffs was examined as PW.1 on behalf oF plaintiffs and they have examined two^{more witnesses in} support of their claim and marked Exs.A1 to A3.^Defendant No.3 was examined as DW.1. One Gurusagar Singh^was examined as DW.2. The defendants^marked Exs.B1^{to 89. After conclusion} of the evidence, the^{plaintiffs Filed} an^{Interlocutory Application} vide I.A.No.422 of 2001^with a^prayer to^{recastthe issues.} They have also filed another^{Interlocutory} Application^{vide LA.No.423} of 2001 for amendment of^{the plaint} to add^{one more paragraph} to the pleadings to the effect^that though the suit^property is in the name

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SSRN.J AS.\o lT ll of 2001

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of Prem Kaur, the plaintiffs are entitled to succeed the property being grand children oF Prem Kaur through one of her daughters Nana Bai. The Court allowed the Interlocutory Application and issues were recasted and the suit was decided in favour of the respondents/pla intiffs.

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B. The defendant No.3 filed the present appeal stating that the trial Court failed to appreciate that plaintiffs have no right over the A schedule property because they cannot claim themselves to be legal heirs of Prem Kaur. They have no relation with Prem Kaur. The defendant No.3 has pleaded that the suit schedule properties were acquired by Prem Kaur with her own earnings. She has executed a registered will deed bequeathing the properties to the defendants. The plaintiffs cannot claim any right over the property. The defendant No.3 also pleaded that the trial Court committed an error in deciding the marriage of^prem Kaur with Kushal Singh is a valid one. The trial Court failed to assign any reasons for discarding Ex,B9 will. The Court below failed to see the plaintiffs could not discharge the burden caste upon them and failed to establish that they are legal heirs of prem Kaur. The oral and documentary evidence placed before the trial Court were not properly appreciated. The relationship of the plaintifF with Prem Kaur was not^properly appreciated by the Court

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SSRN,J AS.No.lTll^of200l

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below. The lower Court ought to have placed the burden on the plaintiff in as much as the assertions of the plaintiff in this regard were denied by the defendants. No proper issues were framed, thereby, the Court below committed an error in passing preliminary decree in favour of the plaintiffs and sought For setting aside the preliminary decree.

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I have heard both parties.

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Now the following points arose for consideration are :

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1 Whether the marriage between Kushal Singh and Prem Ka u r is valid ?

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2 Whether Prem Kaur was legally wedded wife of one Hazura Singh as claimed by the defendants?

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3 Whether Prem Kaur gave birth to one son by name Ram Singh and two daughters namely Meena Bai and Rathan Kaur through Hazura singh as claimed by the defendants?

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1. Whether the said Kushal Singh married one Keesra Bai and have a daughter by name Nanak Kaur who is the mother of pla intiffs?

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5 Whether the said Prem Kaur executed registered will deed bequeathing properties to Shanta Kaur who is her alleged grand daughter and D1?

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As per the evidence adduced by both^parties and as per the documents marked on their behalf, the plaintiffs sought for a share in the suit schedule properties on the basis of their relation with Prem Kaur and Kushal Singh. According to their pleadings and evidence, it was averred that Kushal Singh and Prem Kaur are wife and husband, they got suit schedule^properties during their life

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SSR.J AS \o lT ll oll00l

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time. They have got two daughters by name Nana Bai and Meena Bai and plaintiffs No.1 and 2 are sons of Nana Bai. They have also pleaded that their father died in an accident, later their mother also died at Warangal.

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L2. Therefore, according to the plaintiffs, their mother Nana Bai has got half share in the properties of Kushal Singh and Prem Kaur, thereby, they sought for a preliminary decree in respect of their half share. Whereas, the defendants have claimed that Prem Kaur herself acquired the suit schedule property out of her earnings. Prem Kaur was married to one Hazura Singh and she got two daughters and one son, but subsequenUy, she developed illegal intimacy with Kushal Singh. He was already married to Kesara Bai. They have also pleaded that plaintiffs are the children of Nana Bai who was daughter of Kushal Singh and Kesara Ba i.

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Therefore, according to these defendants, . the properties were originally acquired by prem Kaur. The plaintiffs cannot claim any right over property by way of succession. In addition to that they have claimed Prem Kaur during her life time bequeathed executed two will dees in favour of grand children through the alleged son ofthe Ram Singh and Meena Bai.

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SS RN.J AS No.l7l I of200l

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Therefore, the plaintiFfs have to prove their relation with Prem Kaur and also their right to claim share over the property by virtue of succession. Similarly, the defendants are supposed to prove that Prem Kaur was originally married to Hazura Singh and they got 3 children including son. The burden of proving the registered will deeds was also on the defendants.

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As per the evidence placed before the Court and as per the Judgment of the trial Court, it is very clear that the^properties were originally acquired by Prem Kaur during her life time. It appears from the Judgment, Prem Kaur was an employee, she was worked as mid-wife during Nizam days and retired at Pakkal. The defendants have marked the original sale deeds through which Prem Kaur purchased the^properties as Exs.82 and 83. The Court below gave the finding that these two documents clearly shows Prem Kaur has^purchased the properties out of her earnings. There is no serious dispute about this finding and as^per the appeal grounds, it was not the case of defendants that the property was acquired by Kushal Singh or the alleged^husband of Prem Kaur, Hazura Singh. Therefore, the evidence clearly shows that the property was purchased by Prem Kaur.

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The appellant herein and other defendants have pleaded that the plaintiffs are children of Nana Bai. According to

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SSRN,J {S No.lTll of200l

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their contention, the said Nana Bai was daughter of Kesara Bai, the areged first wife of Kushar Singh whereas, the praintiffs preads that the Nana Bai was daughter of prem Kaur and Kushal Singh. The defendants preaded that prem Kaur was married to Hazura Singh, but the record placed before the Court including the registered sare deed and death certificate of prem Kaur indicates her as wife of Kushal Singh and no where the name of Hazura singh was shown as her husband. The trial Court righfly held that the evidence produced by both parties shows that prem Kaur was the wife of Kushal Singh in the absence of any proof about the marriage of^prem Kaur with Hazura singh. Therefore the contetin of defendatns that prem Kumar had 3 children throuh Hazura singh must fail to the ground. The defendants have admitted the relation of plaintiffs with Nana Bai. The evidence of pWs.1 and 2 also shows that praintiffs No.1 and 2 are sons of Nana Bai and the said evidence clearly shows that Kushal Singh and prem Kaur have got two daughters namery Nana Bai and Meena Bai. In view of the finding that^prem Kaur herself acquired the property and in view of the finding that except these two daughters, they have no sons, the plaintiffs are entitierd to craim harf share in the properties of Prem Kumar they have no sons.

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SSRN.J AS No.lTll^of200l

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L7. In case the defendants failed to establish the relation with Prem Kaur through the alleged first husband Hazura Singh, they cannot claim any right over the property by application of Succession Act. They have claimed right on the suit schedule properties by virtue of registered will deeds. The Court below did not accept the contention of defendants and clearly held that they failed to prove the execution of will deeds. The evidence of^DW.1 clearly indicates that he has furnished the information for^issuing death certificate of Prem Kaur and in that death certificate,^{she has} been show as wiFe of Kushal Singh. The defendants could^not place any other record to show or to prove the marriage of Prem Kaur with Hazurath Singh. Ex.B9 is certified^{photo copy} of^will supposed to have been executed by^{Prem Kaur} on^29-06-1984. The Court below found that in Ex.B9 also the said Prem Kaur^is shown as wife of Kushal Singh. Though it is^mentioned in^Ex.89 that Prem Kaur had two daughters and son through^{her. first} husband, the name of first respondent^{is not mentioned} in^the document. Unless the^{defendants are able to proveEx.B9 was} actually executed by Prem Kaur, they^{cannot claimany share on} the property by virtue of the will deed.

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The record shows that the defendant did not^produce original will deed but filed a certiFied copy of the^{will and they have}

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SS R,.J AS No l71l of200l

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pleaded that as per the procedure in Maharashtra State, the original will deed will be retained with the authorities and a certified copy of the will deed will be give to the parties. The record further shows that in view of the objection raised for marking the document, the trial Court considered the objection and marked the will subject to the defendants proving the alleged procedure at Maharashtra. It further shows that the defendants could not place any oral or documentary evidence in support of their claim that original will deed will be retained by the registration authorities by providing a certified copy of will. It further shows that in the cross-examination oF PW.1 stated that original of Ex.89 was misplaced. Therefore, he obtained a certified photo copy. It was elicited from PW.1 that the said Prem Kaur took the original of Ex.89 and handed over itto D1. Therefore, the Court below rightly observed that the contention of defendants with regard to Ex.89 is in correct. There was no reason explained by the defendants in their failure to file original of Ex.89. If really the original is with registration authorities as rightly observed by the Court below, they could have summoned the same from the registration authorities by taking appropriate steps.

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Therefore, the contention of the defendants that original of Ex.89 was at the registration authorities is in correct.

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SSRN.J AS.No l7l3 of200l

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They failed to produce the origtnal will deed. Ex.89 was not proved through an authenticated evidence. In the absence of any proof that they have got relation with the prem Kaur through the said Hazura Singh and in the absence of proof about the execution of will deeds, they cannot claim any right over the properties. The defendants could not explain why two registered will deeds said to have been executed by Prem Kaur. If there are number of will deeds only the will executed by the deceased just before the death i.e., last will of deceased alone will be considered. The will deeds cannot be considered as gift deeds. Therefore, the alleged grand daughter of Prem Kaur cannot claim any right in suit schedule property by virtue of Ex.89. There is no dispute about the relationship between Prem Kaur and Meena Bai who is shown as D1. Therefore, the evidence available on record clearly shows that Prem Kaur is the original owner of the suit schedule properties. Her husband is Kushal Singh. She has got two daughters by name Nana Bai and Meena Bai. Plaintiffs No.l and 2 are the children of Nana Bai. Whereas, the first defendant is the second daughter of Prem Kaur. Therefore, the plaintiff being grand children of prem Kaur through her daughter Nana Bai have got right on half share of the property. Therefore, the Court below rightly decreed the suit while dismissing the claim of defendants. The defendants

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t-l SSRN.J ,a.S \0 lTll oll00l

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could not substantiate their case with regard to marriage of^prem Kaur with Hazura Singh or about the birth of a son and two daughters through Hazura Singh. Similarly, they could not place any record to show that Kushal Singh was husband of Kesara Bai and they are the parents of Nana Bai, the mother of the plaintiff herein. Therefore, they failed to establish their contentions before the trial Court as such, the Court below righily passed a preliminary decree. Therefore, there are no merits in the appeal and is liable to be dismissed.

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In the result, the appeal is dismissed.

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Consequently, Miscellaneous applications if any, are closed.

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There shall be no order as to ci;sts.

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Sd/-K.SRINIVASA^RAO JOINT REGISTRAR //TRUE COPY// { SECTION OFFICER

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To '1 . The Principal Senior Civil^{Judge, Warangal(wi]h records)} ,. d;'ib'ilSri^{nFiaurrar<arR6oov,Advocate [oPU^c]} 5. o;; ca i;^{ari G.RamachandraR-edov' Advlcate{oPUCl}

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;. o;; cc i"^{Sri v.JithenderRao, Advocate[oPUC]}

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Two CD^CoPies

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One SPare^CoPY

HIGH COURT

DATED:1610912A22

JUDGMENT

AS.No.1713 of 2001

1ri i:"i 2.gp
..i i'
't

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DISMISSING THE AS WITHOUT COSTS,

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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[³²⁵⁸¹

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FRIDAY, THE SIXTEENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE SAMBASIVA RAO NAIDU

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APPEAL SUIT NO: 1713 OF 2001

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Between:

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Sardar Omkar Singh, S/o Ram Singh Rl/o Shikwadi, Kishanpura, Hanmakonda, warangal District'

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...A''ELLANT (3RD DEFENDANT)

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AND

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Sardar Sarbhajeet Singh, S/o Major Singh Fl/o Khalikh Village, Ludhiana District, Punjab State.

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lnderjeet Kaur, D/o [,4ajor Singh R:/o Khalikh Village, Ludhiana District, Punjab State. (Plaintiffs)

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S. Mccna Bai, aliasChatter Kaur, W/o Dayal Singh Sukhmani Dushmesh Hospital Compound, Gate No. 2, Hazur Sahib, [Vlaharastra.

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S. Ram Singh, R/o D.No. 2-2-342, Naim Nagar, Hanamkonda, Warangal District.

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Ramesh, Mechanic Rl/o H.No. 14-8-127, Charbouli Warangal; Warangal District.

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Pasha, Fruit Vendor Rlio D.No. 14-8-127, Charbouli, Warangal, Warangal District.

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(RR 5 & 6 disd. for default vide Court Order dated 20110111)

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...(DEFENDANTS 1, 2, 4 AND s) RESPONDENTS

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Appeal under Section 96 of CPC against the Judgment and decree of the Court of the Principal Senior Civil Judge, Warangal in OS^No.'l 86 of^1995.

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ORDER: This appeal coming on for hearing and upon^perusing the^{grounds of} appeal, the Judgment and decree of the Lower Court and the material^papersin the suit and upon hearing the arguments of Sri P.Prabhakar Reddy, Advocate^{for the} appellant and of Sri G.Ramachandra Reddy, Advocate for the^{Respondent Nos.1} and 2 and of Sri V.Jithernder Rao, Advocate for the Respondent^No.4.

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This Court doth Judgment and decree that the decree of^{the Lower C6urtbe} and hereby is confirmed and this Appeal^is dismissed.

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This Court doth further Order and decree that there shall be no Order as to costs in this Appeal.

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Sd/-K.SRINIVASA RAO JOINT REGISTRAR //TRUE COPYII t' SECTION OFFICER

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1 . The Principal Senior Civil Judge, Warangal 2. . Two CD CopiesOne Spare Cop

HIGH COURT

DATED:1 6/09/2022

DECREE

AS.No.1713 ol 2001

DISMISSING THE AS WITHOUT COSTS.

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\o XDD--

Sardar Omkar Singh v. S. Sarbhajeet Singh

Case brief

What is this about?

What did the court decide?

Sardar Omkar Singh v. S. Sarbhajeet Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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