Mohinder Kaur vs Gurdial Kaur

R.L. Anand, J.

By this judgment I dispose of two Civil Appeals No. 401 of 1996 titled `Mohinder Kaur and others v. Gurdial Kaur through her L.Rs.'' and R.S.A. No. 710 of 1996 titled also `Mohinder Kaur and others v. Gurdial Kaur and others'', as both the appeals have arisen from the judgment and decree dated 25.4.1994 passed by the Court of Additional District Judge, Ludhiana who affirmed the judgment and decree dated 4.3.1994 passed by the learned trial Court.

The brief facts of the case are that Mohinder Kaur (Widow), Tarsem Singh (Son) and Karamjit Kaur, Jagjit Kaur, minor daughters of Bhajan Singh born to Mohinder Kaur from the loins of said Bhajan Singh deceased and Sajjan Singh, (five plaintiffs) filed a suit for declaration to the effect that they are joint owners in possession through tenants of the land in dispute measuring 65 kanals 15 marlas which is one half share of the land measuring 131 Kanals 10 Marlas detailed in the head note of the plaint on the allegations that plaintiff No. 1 Mohinder Kaur is the widow and plaintiffs No. 2 to 4 are the sons and daughters of deceased Bhajan Singh who died about 2 years back before the institution of the suit. Said Bhajan Singh was the owner of the land in dispute, Gurdial Kaur defendant is not the legally wedded wife of deceased Bhajan Singh but she claims herself to be the widow of Bhajan Singh deceased and even she succeeded in getting mutation sanctioned in her favour to the extent of one half share and the remaining one half share was mutated in the name of the plaintiffs. Mutation No. 5118 dated 27.4.1989 in favour of Gurdial Kaur is null and void. Plaintiff No. 1 being a lady and plaintiffs Nos. 2 to 4 being e minors, they were not in a position to cultivate the land in dispute after the death of Bhajan Singh and as such they gave the disputed land on Chakota and they are receiving rent from the Chakotedars and as such they are in possession of the land through chakotedars. Defendant No. 1 Gurdial Kaur wants to take advantage of illegal entries made in her favour and wants to dispossess the plaintiffs from the land in dispute. She also wants to sell the property which she has allegedly acquired on account of the wrong mutation No. 5118.

The suit was contested by Gurdial Kaur. In her written statement she denied that plaintiff No. 1 is the widow of Bhajan Singh or that plaintiffs Nos. 2 to 4 are the sons and daughters of Bhajan Singh. According to defendant Gurdial Kaur she is the legally wedded wife of Bhajan Singh and as such she is entitled to inherit the property in dispute. On merits also, relationship of the plaintiff was denied and it was urged that defendant being the widow of deceased is entitled to inherit the entire property.

Smt. Gurdial Kaur defendant also filed a separate Suit No. 509 regarding the land in dispute and she alleged that she is the legally wedded wife of Bhajan Singh and is the owner of the property. Said Bhajan Singh died in 1985 leaving behind her as sole legal heir. Bhajan Singh died issueless and she being her widow is entitled to inherit the property of Bhajan Singh. Mutation No. 5118 was wrongly sanctioned in her favour to the extent of one half share. Rather it ought to have been sanctioned in its entirety of the estate of Bhajan Singh. Defendants, namely Mohinder Kaur, Tarsem Singh, Karamjit Kaur and Jagjit Kaur have no relationship with the deceased and as such they are not entitled to inherit any property of Bhajan Singh. In this manner, Gurdial Kaur claimed the entire property from Bhajan Singh. During the pendency of the suit, Gurdial Kaur died and her legal representatives were brought on record. Both the suits were consolidated and were disposed of by the trial Court vide judgment and decree dated 4.3.1994 and it was held that in fact Gurdial Kaur was the legally wedded wife of Bhajan Singh deceased. Bhajan Singh during the subsistence of his valid marriage with Gurdial Kaur remarried with Mohinder Kaur which marriage was a nullity in view of the provisions of Section 5 of the Hindu Marriage Act. The children born to Smt. Mohinder Kaur from the loins of Bhajan Singh, however, are entitled to inherit 3/4th share collectively from the estate of Bhajan Singh and remaining 1/4th share would go to Gurdial Kaur. Claim of Mohinder Kaur and her sons and daughters is that with the death of Gurdial Kaur, her interest would revert back to the heirs of her husband who are admittedly the son and daughters namely Tarsem Singh, Karamjit Kaur and Jagjit Kaur i.e. children of Bhajan Singh born from the womb of Mohinder Kaur. Therefore, they would inherit the entire property.

The trial Court granted relief in the suit filed by Mohinder Kaur and others as follows :

``The suit of the plaintiffs is partly decreed and partly dismissed declaring plaintiffs Nos. 2 to 4 i.e. Tarsem Singh, Karamjit Kaur and Jagjit Kaur to be the owners to the extent of 3/4th share in the agricultural land measuring 65 kanals 15 marlas and also in the residential house to that extent and the plaintiffs are also entitled to joint possession of the agricultural land to the extent of 3/4th share. However, the claim of the plaintiffs with regard to the remaining 1/4th share in the agricultural land as well as in the house is ordered to be dismissed on account of defendant Gurdial Kaur being entitled to 1/4th share in the agricultural land as well as the house left by deceased Bhajan Singh.''''

The relief which was granted to Smt. Gurdial Kaur in her suit is :

``The suit filed by Gurdial Kaur is partly decreed and partly dismissed with the declaration that plaintiff Gurdial Kaur is owner to the extent of 1/4th share of the agricultural land measuring 65 kanals 15 marlas and one house as mentioned in the suit and the remaining claim of plaintiff Gurdial Kaur in the agricultural land and in the house and the entire claim with regard to the plot as mentioned at serial No. 3 of the heading of the plaint is ordered to be dismissed and defendant No. 1 is restrained from alienating the agricultural land as well as the house to the extent of 1/4th share to which Smt. Gurdial Kaur is entitled.''''

As I stated above that during the pendency of the suit, Gurdial Kaur died and her legal representatives, namely Sohan Singh son of Bhajan Singh, Karam Singh and Labh Singh were brought on record on the basis of the will. And the point as to whether Gurdial Kaur executed a will during her life time while in sound and disposing mind was not the subjectmatter in issue which has a lot of bearing over the controversy involved in both the suits because if will propounded by Sohan Singh, Karam Singh and Labh Singh is held to be valid, naturally they would inherit 1/4th share of Smt. Gurdial Kaur. If this will is held to be invalid, the interest of Gurdial Kaur would revert to legal heir of her husband Bhajan Singh. Both the Courts below held that Mohinder Kaur was not legally wedded wife of Bhajan Singh. However, from the personal estate of Bhajan Singh, his one son and two daughters were entitled to inherit 3/4th share along with Gurdial Kaur who was held to be the legally wedded wife of Bhajan Singh. In these circumstances, the adjudication of the will relied upon by Sohan Singh, Karam Singh and Labh Singh was necessary for which there was no issue and the parties were not afforded any opportunity to lead any evidence as to whether Gurdial Kaur ever executed any will or not.

Learned counsel appearing on behalf of Mohinder Kaur and other appellants submitted that Smt. Gurdial Kaur did not execute any will and in these circumstances, the suit of son and two daughters of Mohinder Kaur ought to have been decreed in its entirety. While the counsel appearing on behalf of legal representatives of Smt. Gurdial Kaur submitted that as Smt. Gurdial Kaur had executed a valid will during her lifetime while in sound and disposing mind in their favour and, therefore, on the basis of that will they are entitled to succeed 1/4th share. Smt. Gurdial Kaur did not and could not execute any will in favour of son and daughters of Mohinder Kaur as Bhajan Singh deserted his legally wedded wife Smt. Gurdial Kaur and against her consent kept Mohinder Kaur in his house. All these points require adjudication at the hands of trial Court.

In these circumstances, both the appeals are hereby allowed and the judgments and decrees of the trial Court are set aside and both the suits are remanded to the trial Court with the directions to frame proper issues as to the execution of any valid will by Smt. Gurdial Kaur and to decide the matter afresh in the light of my observation contained above. Both the parties, through their counsel are directed to appear before the trial Court on 30.8.1996 and the trial Court shall decide the suits within six months from the above date according to law. Registry is directed to send the records of both the suits No. 303 and 509 immediately by special messenger to the trial Court if it is requisitioned.

Appeals allowed.