Gurdwara Guru Har Gobind Sahib vs Sham Singh

G.R. Majithia, J.—This regular second appeal is directed against the judgment and decree of the first Appellate Court dismissing the appeal being a nullity.

The Facts :-

Land measuring 145 Kanals 13 Marlas was gifted by Munder Singh to Gurdwara Guru Har Gobind Singh situated in village Sur Singh (hereinafter referred to as the defendant). The gift was challenged by Inder Singh son of Mit Singh in the Civil Court, which upheld the same to the extent of 1/10th share and declared that it would not be binding on the reversioners of Munder Singh so far as the rest of the land was concerned. After the death of Munder Singh on February 21, 1972, Smt. Ishar Kaur claiming herself to be real sister of Munder Singh sought possession of the land regarding which the gift was declared bad.

The defendant contested the suit on the ground that it was barred by time; that Ishar Kaur was not the sister of Munder Singh; that Inder Singh had not obtained any decree as alleged and that the suit was not maintainable in view of Act 12 of 1973, by which the Punjab Custom (Power to Contest Alienations) Act was repealed.

Smt. Ishar Kaur died during pendency of the suit. An application under Order 22, Rule 3, Civil Procedure Code, was moved on January 8, 1975, by Sham Singh son of Inder Singh through his Special Attorney Randhir Singh for impleading him as a legal heir of Smt. Ishar Kaur. The application was hotly contested by the defendant and the trial Judge allowed the same by order dated July 26, 1976 and impleaded Sham Singh as legal representative of Smt. Inder Kaur deceased and he was allowed to continue the suit. The suit was decreed by the trial Judge on October 11, 1977. The defendant challenged the judgment and decree of the trial Judge in the first appellate Court. On February 14, 1978, the plaintiff-respondent moved an application for dismissing the appeal on the ground that it was preferred against a dead person. The defendant filed an application under Order 1, Rule 10 and Order 6, Rule 17 of the CPC for amendment of the heading of memorandum of appeal and for impleading Sham Singh as a party respondent to the appeal. The first appellate Court noted that the suit was decided on October 11, 1977. Certified copies of the judgment and decree of the trial Judge was delivered on October 14, 1977. The application to implead Sham Singh as a party respondent to the appeal was moved on March 8, 1978 after the expiry of the period of limitation to file the appeal. It also took note of the fact that by virtue of the provisions of Section 21 of the Limitation Act which mutatis mutandis are applicable to appeals also, where after the institution of a suit new plaintiff or defendant is substituted or added, the suit as regards him shall be deemed to have been instituted when he was so made a party. The proviso to this section, however, empowers the Court to direct that the suit shall be deemed to have been instituted on any earlier date in case it is satisfied that the omission to include a new plaintiff or defendant was due to mistake made in good faith. On the facts of the instant case, it came to the conclusion that it was not inclined to hold that the legal representative of the deceased plaintiff was brought on record on any date prior to the actual date on which he was in fact brought on record. It took note of the fact that a Court official made a mistake inasmuch as Smt. Ishar Kaur, although, dead was shown as a plaintiff in the copy of the judgment. This mistake would not condone the negligence of the defendant for reason that Smt. Ishar Kaur had died during the pendency of the suit and her legal representative Sham Singh was brought on record after considerable contest. It would not be believed that the defendant was not aware of the fact at the time of filing of the appeal that the plaintiff Smt. Ishar Kaur had died during the pendency of the suit and no appeal could be filed against that person.

On the facts and circumstances of the case, I am not persuaded to come to a different conclusion than the one arrived at by the first appellate Court. It was for the first appellate Court to exercise its discretion under the proviso to Section 21 of the Limitation Act and hold that the legal representative of the deceased plaintiff was brought on record of the appeal on a date anterior to his substitution. The view taken by the learned appellate Judge, on the facts of the case, cannot be said to be unwarranted and the same calls for no interference.

Even on merits, the defendant-appellant has no case. The original plaintiff is the sister of the donor. On the death of the donor, succession opened out and she was his only legal heir and was entitled to claim possession of the estate of the deceased donor. The gifted property formed part of the estate of the deceased. Once the gift is declared void qua 9/10th share of the gifted property the same automatically vested in the estate of the deceased leaving it open for the heirs of the deceased donor to recover possession .from the unauthorised occupants and this is what precisely has been done in the instant case by the plaintiff. Looking from any angle, the defendant appellant has no sustainable defence to the claim of the plaintiff.

For the reason stated above, the appeal fails and is dismissed but with no order as to costs.