Gurbachan Singh vs Khichar Singh and Another

The sole question to be determined in this second appeal is whether Khichar Singh plaintiff-respondent is entitled to succeed to the estate of Smt. Sant Kaur. Facts as are necessary for proper disposal of the appeal may be stated in a narrow compass.

Mehar Singh, a Subedar in the Army, was married to Smt. Sant Kaur and they had a son Jung Singh, Mehar Singh died on active service and his son Jung Sing was allotted to Smt. Sant Kaur as widow of Mehar Singh. She contracted a Karewa marriage with Kishan Singh brother of her deceased husband and from the loins of said Kishan Singh, the plaintiff was born. Jung Singh left no issue or a widow and on partition of the country, the suit land was allotted to Smt. Sant Kaur in lieu of one left by her in Pakistan. She continued in possession of the same till the Hindu Succession Act (hereinafter called the Act) came into force on 17th June, 1956. Smt. Sant Kaur died on 5th December, 1956, and a dispute about inheritance arose between the plaintiff and defendants who are sons of another brother of Mehar Singh.

The plaintiff has based his claim to succeed to the estate of Smt. Sant Kaur on the ground that he is her son and entitled to succeed under clause firstly of Section 15(1)(a). Defendants resisted the suit and on the pleadings of the parties the following issues were framed;

Whether deceased Sant Kaur was not full owner of the property in suit on th date of her demise?

Whether the plaintiff is the son of Sant Kaur?

Whether the plaintiff is in possession of the land in suit? If not, what is its effect?

Relief.

The trial Court found issue No. 1 against the defendants whereas issues Nos. 2 and 3 were decided in favour of the plaintiff with the result that the suit for declaration that the plaintiff is the owner in possession of the suit land as heir to Smt. Sant Kaur was decreed.

An appeal preferred by the defendants before the Additional District Judge, Hissar, met with no success and the finding of the trial Court that the plaintiff is the son of Smt. Sant Kaur was affirmed. Hence the present appeal.

Mr. C. L. Aggarwal, learned counsel for the appellants, concedes that Smt. Sant Kaur, whatever might have been her limitations earlier with regard to her titled to the property, became full owner on the coming into force of the Act, and succession to her estate is regulated by clause firstly of S. 15(1)(a) which is in the following terms:-

"15. (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in S. 16.

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband."

The only argument raised by the learned counsel is the plaintiff could not be treated to be the son of Smt. Sant Kaur as the latter inherited property from her husband Mehar Singh and the plaintiff was not born from his loins. According to the learned counsel the plaintiff would be deemed to be a step-son of Smt. Sant Kaur qua the property of Mehar Singh her first husband. In order to support his submission, he has invited my attention to a Division Bench judgment of the Mysore High Court reported as Mallappa Fakirappa v. Shivappa. AIR 1962 Mys 140, where it is held that the expression "son" in Section 15(1)(a) cannot be construed so as to include a step-son of the deceased.

I am afraid the argument of the learned counsel is without any substance. There can be no manner of doubt that the plaintiff born out of the body of Smt. Sant Kaur is her son whatever his status qua Mehar Singh deceased might be though such status is wholly irrelevant. It is not the estate of Mehar Singh that is involved but that of Smt. Sant Kaur who was an absolute owner of the suit property at the time of her death. The plaintiff is here son and it is immaterial from whose loins he might have been born. It is again fallacious to say that the plaintiff could be described as the step-son of Smt. Smt Kaur or her Pichhlag.

In Mallappa''s case AIR 1962 Mys 140 (supra), the contest was betwen two sons from different wives of one Fakirappa and in that case one could be said to be the step-son of another. That case is therefore, of no assistance. The expression "son" as used in Section 15(1)(a) included both natural and adopted sons. If a female remarries after the death of her first husband or after divorce, her son from the other husband would be her natural son. A son may even be illegitimate when the female from whose body he is born is not the lawfully wedded wife of the person from whose loins such a sons is born but he will still be natural son of his mother when the question of succession on her dying intestate arises. In the matter of succession as regulated by clause firstly of Section 15(1)(a), the expression "son" thus includes the child born from body of the deceased no matter what be the legal relationship between her and the person from whose loins he is born.

In the result there is no merit in the appeal which stands dismissed. Parties are, however, left to bear their own costs.

Appeal dismissed.