Jaswant Kaur and Another vs Devinder Kaur and Others

J.V. Gupta, J.—This is Defendants'' second appeal against whom suit for declaration has been decreed by both the courts below.

Smt. Devinder Kaur, Plaintiff, filed the present suit on 19th December, 1960 for declaration that she is the daughter of Shri Kuldip Singh, deceased and as such was entitled to succeed to his property. It was alleged that Shri Kuldip Singh, father of the Plaintiff died on 6th August, 1957 leaving behind considerable properly moveable as well as immovable. The mutation of immovable property left by Shri Kuldip Singh was sanctioned in favour of Defendants 1 to 6 only who during the proceedings did not admit the Plaintiff to be daughter of Shri Kuldip Singh. This necessitated the filing of the instant suit by the Plaintiff.

The suit was contested inter alia, on the ground that the plaintiff was not the daughter of Shri Kuldip Singh, deceased, as alleged. Objection was also raised as to the maintainability of the suit as such because the Plaintiff was not in possession of any part of the suit property. However, Smt Kirpal Kaur, Defendant No. 6, admitted the Plaintiff to be her daughter from late Shri Kuldip Singh. The relevant issues which were framed by the trial Court on 9th October, 1963 after remand by the High Court are as under:

Whether the Plaintiff is the daughter of Kuldip Singh, and Sardarni Kirpal Kaur Defendant ?.

Whether the Plaintiff is in possession of the property of Kuldip Singh or any part of it. If not, its effect ?

Whether the suit is within time ? Objected to.

What is the share of the Plaintiff in the property of Kuldip Singh ?

Relief

The learned trial Court came to the conclusion that the Plaintiff is the daughter of Kuldip Singh, deceased and Sardarni Kirpal Kaur, Defendant No. 6. Under issue No. 2 it was found that the Plaintiff it proved to be in possession of some of the properties of her deceased father and could, therefore, file a suit for simple declaration without seeking relief of possession. Since the suit was instituted within three years from the date of death of Shri Kuldip Singh, it was held to be within time. Consequently, the Plaintiffs'' suit was decreed. In appeal, the learned Additional District Judge affirmed the laid finding of the trial Court and thus maintained the decree passed in favour of the Plaintiffs. Dissatisfied with the same, the Defendant has filed the present Regular Second Appeal in this Court.

Learned Counsel for the Appellant contended that from the evidence on the record it could not be held that the Plaintiff Devinder Kaur was the daughter of Shri Kuldip Singh from his wife Kirpal Kaur. According to the Learned Counsel the evidence in this behalf has not been properly appreciated. In any case, argued the Learned Counsel, issue No. 2 has been wrongly decided. Mere suit for declaration was not maintainable. At the most the Plaintiff has been found to be in joint possession of the property at Patiala, and, therefore, only suit qua those properties could be decreed. The suit for declaration could not be decreed qua the other properties for which the Plaintiff has failed to be in exclusive possession or in joint possession. Strong reliance was placed on Hakim v. Mt. Ghulam Jannat and Ors. AIR 1917 Lah 73.

On the other hand, the Learned Counsel for the Respondent contended that on appreciation of the entire evidence it has been concurrently held by both the courts below that Devinder Kaur was the daughter of late Kuldip Singh from his wife Kirpal Kaur and this being a finding of fact could not be interfered with in second appeal. As regards the maintainability of the suit for declaration it was submitted that it has been found by both the courts below under issue No. 2 that the Plaintiff was in possession of a part of the suit property and it has been further found that the Defendants have also not shown If they are in physical possession of any of the properties in dispute. According to the findings of the courts below the suit property was in possession of the tenants who will be deemed to be the tenants under the heirs of Shri Kuldip Singh. Reference was made to Jyotirmoyee Debi Vs. Durgadas Banerjee and Others, .

After hearing the Learned Counsel for the parties and going through the relevant evidence on the record and the case law cited at the Bar I am of the considered opinion that there is no merit in this appeal. The entire evidence oral as well as documentary has been discussed in detail by the courts below. On the appreciation of that evidence a firm finding has been given that the Plaintiff is proved to be the daughter of Kuldip Singh, deceased, from his wife Kirpal Kaur. This being a finding of fact could not be interfered with in the Regular Second Appeal.

As regards the maintainability of the suit for declaration the finding given by the lower appellate Court under Issue No. 2 is that the Defendants have also not led any evidence worth consideration to show if they are in exclusive possession of the other properties. Rather it has come in evidence that the agricultural lands owned by Kuldip Singh were in possession of the tenants of his heirs including the Defendants and Kirpal Kaur mother of the Plaintiff. It has been further found that the Defendants have also not shown if they are in physical possession of the property. In such a situation when the Defendants are also not shown to be in actual possession of the suit properties, it has been rightly, held that the suit for declaration qua those properties could not be said to be incompetent. Earlier when this case came to the High Court in S.A.O. No. 48 of 1979 decided on 9th March, 1978 it was observed as under:

It is an established principle of law that a suit for declaration or possession of a share in property cannot be held to be not properly framed in case of a relief of partition is not claimed in it. In the circumstances, it was not necessary that the Plaintiff should have been allowed to amend the plaint and incorporate in it the relief of partition. No other amendment was specifically prayed for. Consequently the direction of the first appellate Court that the trial Court should allow amendment as prayed in the application dated June 10, 1974 was not necessary. The application dated June 10, 1974 was, therefore, liable to be rejected.

Moreover, a suit for partition between the parties is already pending decision in the Civil Court The question as to which particular properties were left by Kuldip Singh, deceased, would be determined in that suit and, therefore, under the circumstances it could not be said that the Defendants have been prejudiced in any way in the present suit for declaration. The judgment relied upon in Hakim''s case (supra) has no applicability to the facts of the present case. The relevant observations made therein are "if any portion of the property is separable from the rest of it and the Plaintiff has no sort of possession over that portion, then he cannot maintain a suit for mere declaration as regards that portion." As observed earlier in the present case the possession over the other properties other than at Patiala is that of the heirs of Shri Kuldip Singh. Once it is found that the Plaintiff being the daughter of Shri Kuldip Singh is one of the heirs, then the said possession will be deemed to be the possession of all the heirs including the Plaintiff. Thus I do not find any infirmity or illegality in the findings of issue No. 2 as well.

Consequently the appeal fails and is dismissed with costs.