Mohinder Singh vs Jagir Singh

G.C. Garg, J.

Petitioner herein filed a suit for declaration with joint possession and for permanent injunction. Respondents 2 to 6 moved an application under Order 1 Rule 10 of the Code of Civil Procedure for being impleaded as parties to the suit, which application was considered and allowed by the trial court by order dated 15.11.1996.

In order to understand the controversy raised in this revision, it may be noticed that Nihal Singh had four sons, namely, Inder Singh, Sunder Singh, Mohinder Singh and Amar Singh. Jagir Singh defendantrespondent is the son of Inder Singh. Dispute in this case is to the estate of Amar Singh who died issueless. Mohinder Singh who is the brother of Amar Singh filed the suit noticed above against Jagir Singh as the latter was claiming title to the property on the strength of a will alleged to have been left by Amar Singh in his favour. Applicantrespondents 2 to 6 are the heirs of Sunder Singh. Their application for being impleaded as defendants to the suit has been allowed by the trial court by order dated 15.11.1996 and it is this order against which the plaintiff has filed the present revision.

Learned counsel for the petitioner submitted that Amar Singh died on 18.6.1995 and Sunder Singh had died even before the death of Amar Singh and thus even if Amar Singh died intestate, the heirs of Sunder Singh are not entitled to succeed to the estate of Amar Singh in preference to the brother, i.e. the plaintiff in this case and therefore, they could not be ordered to be impleaded as defendants in the suit.

Learned counsel for the respondents on the other hand submitted that Sunder Singh died after Amar Singh and, therefore, the heirs of Sunder Singh are entitled to succeed to the estate of Amar Singh if the Will alleged to have been left by Amar Singh is not accepted.

Learned counsel for the parties have been heard but none of the counsel could show by reference to any material on record that Sunder Singh had predeceased Amar Singh and as a matter of fact no assistance has been rendered by the counsel for the parties. Learned counsel for the petitioner submitted that Sunder Singh died prior to the death of Amar Singh whereas learned counsel for the respondents submitted that Sunder Singh died after the death of Amar Singh. By reference to application under Order 1 Rule 10 of the Code of Civil Procedure or the order passed by the trial court, nothing could be ascertained about the date of death of Sunder Singh. If Sunder Singh had died before the death of Amar Singh, then obviously his heirs are not entitled to the estate of Amar Singh, even if it is accepted that he died intestate, in preference to the brother of Amar Singh. In such a situation, the applicantrespondents are not required to be impleaded as defendants in the suit. However, if Sunder Singh died after the death of Amar Singh, then no exception can be taken to the order passed by the trial court. Since the factum of death of Sunder Singh, whether he died prior or after the death of Amar Singh is not known, I have no option but to set aside the impugned order and direct the trial court to dispose of the application under Order 1 Rule 10 of the Code afresh in accordance with law and it is so ordered. Parties through their counsel are directed to appear in the trial court on 14.8.1997. Revision petition stands disposed of the above terms.