Bhagat Ram vs Teja Singh

B.S. Yadav, J.—This is defendant''s appeal arising out of the suit filed by the present respondent Teja Singh, for possession of land measuring 140 Kanals 19 Marias, being 1/2 share of the land measuring 281 Kanals 18 Marias, situated in village Nara, Tehsil and District Hoshiarpur.

Teja Singh had filed the suit on the allegations that Kehr Singh was the owner of some land situated in Village Antowali, now forming part of Pakistan. Kehr Singh ''died prior to the partition of India, leaving behind his widow, Kirpo and two daughters, named Santi and Indro (who had been arrayed as defendant No. I in the suit). Kirpo succeeded to the estate of Kehr Singh as life owner. After partition of the country, Kirpo and her daughters migrated to India. In lieu of the land left by her in Pakistan, she was allotted the suit land. She died prior to 1956 and Santi and Indro succeeded to her estate as life owners. On the coming into force of the Hindu Succession Act, 1956 (for short the Act), they became full owners. Santi also died. Teja Singh plaintiff claims himself to be the brother of her deceased husband and laid claim to 1/2 share in the suit land which belonged to her (i.e. Santi).

It was further alleged in the plaint that Bhagat Ram (who had been arrayed as defendant No. 2 and who is now the appellant), was said to have purchased the suit land from Indro. According to the plaintiff, Indro had no right to sell the whole land, as she had only 1/2 share in it.

Only Bhagat Ram contested the suit. He pleaded that only Indro was the daughter of Kehr Singh and Kirpo. Kirpo was the full owner of the land left in Pakistan. Kirpo died in 1961. Indro succeeded to her as, full owner of the suit land. Indro had entered into an agreement with him to sell the land in dispute, but, later on, she resiled from the contract and he had to file a suit for specific performance of the contract of sale and obtained a decree. In execution of that decree, sale-deed in respect of the suit land was executed in his favour. He pleaded ignorance about the fact that the suit land had been allotted to Kirpo in lieu of the land left by her in Pakistan.

Upon the allegations of the parties, the learned trial Court framed the following issues :

Whether Mst. Santi was the owner of 1/2 share of the property in suit ?

If issue No. 1 is proved, whether the plaintiff is sole heir of Mst. Santi?

Whether Smt. Santi remained in possession of the land in suit ? If not, what is its effect ?

Relief.

Under issue No. 1 it was held that Kirpo was holding the land as life-owner and that she died on 24th December, 1951 and her estate was inherited by Santi and Indro in equal shares and they acquired full ownership rights on the coming into force of the Act. Santi was the owner of 1/2 share in the suit land. Under.issue No 2 it was held that as Santi had acquired full ownership rights in respect of her share of the suit land, therefore, the case was governed by section 15(1) of the Act and the plaintiff being her deceased husband''s heir, was entitled to his estate after her death Issue No. 3 was also decided in favour of the plaintiff. As a result of the above findings, the learned trial Court decreed the suit of the plaintiff. Feeling aggrieved, Bhagat Ram filed an appeal which was heard by the Additional District Judge, Hoshiarpur. He did not find any merit in the appeal and dismissed the same

Soma of the facts were not disputed in this Court. These facts are that Kirpo had died on 25.12.1951 and her property was inherited by her daughters Santi and Indro Santi had died after the coming into force of the Act and the plaintiff is her heir, being the brother of her deceased husband.

The learned counsel for the respondent raised a preliminary objection to the effect that the appeal was not properly constituted. According to him, Indro who had been arrayed as defendant in the suit and who was also a party in the appeal filed before the learned lower appellate Court, has not been made a party in the present appeal, I am of the opinion that the above objection of the learned counsel for the respondent will have to be over-ruled. Indro had no interest in the suit land. It had been purchased by the present appellant, Bhagat Ram Therefore, any decision given in this appeal will have no effect upon the interests of Indro. Therefore, she cannot be said to be a necessary or proper party to the present proceedings.

The learned counsel for the appellant argued that in the present case, the only question to be decided is whether Kirpo, had inherited the property in lieu of which the suit land was allotted to her, from her deceased husband, Kehr Singh, as there is no presumption that in the land held by a widow, she has only life-interest. The learned counsel for the respondent argued that the appellant is not entitled to raise that plea at this stage, because, in the Courts below, it was never disputed that Kehr Singh had land in village Antowali, now forming part of Pakistan and that after his death, the said land was inherited by Kirpo, as a limited owner. He also took me through the grounds of appeal filed in this Court in which in paragraph No 10 it was pleaded :

That it is an established fact, admitted by the plaintiff and their witnesses that the original owner of the last was Kartar Singh. On his death his widow Kirpo came into possession. On the death of Kirpo, mutation was sanctioned in favour of Indro alone. The land therefore was inherited by Indro from her father through her mother. In any case Section 14(2) would be applicable and not Section 14(1) of the Act.

(Note:-There are some typographical mistakes in the above, para. In place of the word ''last'', the appellant meant ''land'' and for ''Kartar Singh'', he meant ''Kehr Singh)'' I am of the opinion that the above argument of the learned counsel for the respondent has force.

The judgments of the learned lower Courts show that it was not disputed in those Courts that Kirpo had inherited the property from her husband and in lieu of the same, she was allotted the suit land in India and that she had life interest in the suit land. In fact, the judgment of the trial Court shows that it was admitted before it that Kirpo was allotted the suit land, in lieu of the land left by her in Pakistan. In the grounds of appeal filed in this Court, as noticed earlier, the appellant had clearly admitted that Kehr Singh was the last male-owner of the suit land. Therefore, the plaintiff cannot now be allowed to say that Kirpo did not inherit the land in lieu of which the suit land was allotted to her, from Kehr Singh.

It appears that in the Courts below, the main dispute between the parties was, as to when Kirpo died and whether Santi sister of Indro, had died before or after the death of her mother Kirpo. This controversy had arisen between the parties, because, after the death of Kirpo, mutation, copy Ex. P-4, was sanctioned in 1963 and at that time Indro had stated that she was the only heir of her mother Kirpo and she had died in 1961. The appellant''s contention in the Courts below was that Santi had died before the death of Kirpo and therefore, Indro was the sole-heir of Kirpo who had acquired full-ownership rights in the suit land, on the coming into force of the Act. Stress was laid upon the fact that mutation in respect of the estate of Kirpo was sanctioned in favour of Indro on 30.10.1963, as her sole-heir and that fact completely demolished the plaintiff''s version that Santi was the sister of Indro or that she had died after the death of Kirpo. in paragraph 8 of the grounds of appeal, filed in this Court also it was pleaded by the appellant that it was established by the plaintiff-respondent, that Santi died on 29.11.1968, earlier than the death of Kirpo and therefore, the could not inherit her (i.e. Kirpo''s) estate. However, that controversy has been settled by the findings of the learned Courts below Both the learned Courts below have held, as noticed earlier, that Kirpo had died on 25.12.1951 and that her daughter Santi had died somewhere in the year 1960 or 1961, i.e. after the coming into force of the Act. Therefore, the case was governed by section 15(1) of the Act and Teja Singh plaintiff, being his heir (i.e. Santi''s deceased husband''s) was entitled to inherit her share in the estate.

The learned counsel for the respondent further argued that otherwise also, the defendant-respondent at this stage cannot dispute the fact that Kirpo was the limited owner of the suit property. He referred to paragraphs 3, 5 and 6 of the plaint and the respective replies to these paragraphs, in the written statement filed by Bhagat Ram. For the sake of ready reference, these relevant paragraphs of the plaint and the replies thereto in the written statement are reproduced below :

Paragraphs of the plaint.

Paragraphs of the written state-ment.

That Kehar Singh, the father of defendant No. 1 was the owner and in possession of the lands allotted in village Antowali, Tehsil Shakargarh, Distt. Gurdas-

Para 3 of the plaint is not

denied.

pur.

That Smt- Kirpo, widow of Kehar Singh and mother of deftndant No. 1 succeeded to the aforesaid lands as a limited owner on the death of Kehar Singh.

Para 5 of the plaint is also wrong. Kirpo was the full owner of the property.

That Smt. Kirpo was allo-tted the land in dispute referred to in the head-note of the plaint in lieu of the lands, held by her, on a life tenure, in village Anto-wali, Tehsil Shakargarh, District Hoshiarpur. (It should be Distt. Gurdaspur)

Para 6 of the plaint is so far correct that the lands in dis-pute were allotted to Kirpo, but it is not known in lieu of which lands Kirpo was allotted land in dispute.

On the basis of those replies, the learned counsel for the respondent argued that the contesting-defendant has admitted that Kehr Singh was owner in possession of the land situated in village Antowali. He further argued that in reply to paragraphs No. 5 and 6, which contain many statements of facts, it was not specifically denied that Smt. Kirpo did not succeed to her husband''s estate or that the land in dispute was not allotted to her in lies of the land held by her in life tenure, situated in village Antowali. He, therefore, argued that in view of Order VIII, Rule 5(1) of the Code of Civil Procedure, 1908, the above pleas of the plaintiff will have to be taken as admitted by Bhagat Ram The relevant portion of the Rule reads as follows :

5(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except against a person under disability.

I am of the opinion that the above argument has force. In paragraph 6 of the written statement, it was not denied specifically or by implication that Smt. Kirpo was allotted land in lieu of the land held by her on life tenure in village Antowali.

A reference can also be made to Gurdas Singh Lakha Singh v. Director of Consolidation of Holdings, Punjab AIR 1964 P&H. 117, in which a Division Bench of this Court held that according to the well-known rule of pleadings that a written statement must deal specifically with each allegation of fact or assertion of the opposite party in substance, the truth of which is not admitted. In Sudarshan Kumar v. Sh. Kesar Mal (1980) 82 P.L.R. 666, it was remarked.

This specific averment in the petition was not specifically dented in the written statement. It is well settled that if a specific averment made is not specifically denied, it is deemed to be impliedly admitted and if there is admission on the record, it is not necessary for the parties concerned to still lead other evidence to prove the facts so alleged." For the above observations, this Court placed reliance upon Badat and Co. Vs. East India Trading Co., . In that case it was remarked :

Order VII of the CPC prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing that the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing of a written-statement, the particulars to be contained therein and the manner of doing so; Rules 3, 4 and 5 thereof are relevant to the present enquiry and they read;

Order VII R. 3. It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.

Rule 4. Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of sub-stance. Thus if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it alongwith those circumstances.

Rule 5 Every allegation of fact in the plaint, if not denied specifically, or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written-statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answet the point of substance. If his denial of fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.

The learned counsel for the appellant has argued that the whole pleading of the defendant has to be read to see if a certain plea of fact taken by the plaintiff has been denied, or not. In support of his argument, he has cited Shanker and others v. Manohar Singh and others 1979 All. L. J. 489. There is no dispute with the above proposition. In the present case, as noticed earlier, Bhagat Ram defendant was alleging that Smt. Kirpo was the full owner of the land in dispute, as she had died in 1961. In paragraph 7 of the written statement, Bhagat Ram defendant had made the above allegation. In paragraph 8 of the written statement, it was stated :

Para 8 of the plaint is wrong. Smt. Indro alone succeeded to Smt. Kirpo. She being the only heir alive at the time of death of Smt. Kirpo She succeeded as full owner.

Thus, it is nowhere the specific denial of the contesting defendant of the facts that Kirpo had inherited the property of her husband, situated in village Antowali on a life-tenure and that the suit property was allotted to her in lieu of the land left by her in Pakistan. That appears to be the reason why the contesting defendant did not claim any issue about the nature of interest of Kirpo in the suit land.

In the light of the above discussion, it is held that the appellant cannot now be allowed to raise the plea that Kirpo did not get the land, in lieu of which the suit land was allotted, from her husband on a life tenure.

Evidence led in the case also does not support the appellant. Indro appeared in the witness-box as P.W. 4 and stated that the land in dispute was allotted to Kirpo in lieu of the land which she (i.e. Kirpo) had inherited from Kehr Singh. D.W. 1 Ami Chand has also admitted that fact. The above evidence may be of a weak nature, but when considered in the light of the admission of the appellant made in the written statement, it is sufficient to hold that Kirpo had inherited the land, situated in village Antowali from her husband on a life tenure and the suit land was allotted to her in lieu of that land. In the witness-box appellant has admitted that Kirpo was allotted the suit land in lieu of the land left by her in Pakistan.

For the foregoing reasons, I do not find any merit in the present appeal and the same is hereby dismissed In the circumstances of the case, the parties are left to bear their own costs.