Mst. Dani and another vs Natha Singh and others

Surinder Singh, J.—For a better appreciation of the dispute, Short pedigree table to connect the parties may be recited. Two brothers Mihan Singh and Ram Singh owned half share each in land measuring 75 Bighas and 19 Biswas Mihan Singh was previously married to Mst. Punjab Kaur and out of this Wedlock was born a daughter Harnam Kaur. The latter after her marriage with one Gaijan Singh had four children, namely, Mst. Dani, Man Singh, Pal Singh and Gurdev Singh. These four children are the Plaintiffs in the suits. Their case as set out in the plaint is that Mihan Singh, after the death of their maternal grandmother Punjab Kaur had contracted a second marriage with Mst. Mahan Kaur, Mihan Singh had died and his property had devoted upon his widow Mahan Kaur. Mahan Kaur also died but after her death, her property had been mutated in the name of Natha Singh Defendant Respondent son of Ram Singh, who in turn, was the brother of Mihan Singh. The Plaintiffs claimed that their mother Rannam Kaur having already died, they were preferential heirs to the property of Mahan Kaur deceased as against Natha Singh who was Mahan Kaur''s husband''s brother''s son. The Plaintiffs, therefore, claimed possession of the property left by Mahan Kaur.

The party arrayed on the other side, i.e. Natha Singh had different story to tell. According to him, the deceased Mahan Kaur was previously married with his father Ram Singh and he (Natha Singh) was their offspring After the death of his father Ram Singh, his mother Mahan Kaur contracted a marriage with Mihan Singh, brother of Ram Singh, Natha Singh, therefore, assreted that being the son of Mahan Kaur deceased though from the lions of her earlier husband Ram Singh, he had a preferential right to the property in dispute as against, the Plaintiff-Appellants who were not direct descendants of Mahan Kaur. Apart from this contention, as is usual in such suits, the relationship of the Plaintiffs with Mihan Singh through his first wife Punjab Kaur was also disputed. As a counter-blast, the Plaintiffs disputed the relationship of Natha Singh as a son of Mahan Kaur deceased. The confrontion between the parties led to the framing of the following issues:

(1) Whether the Plaintiff No. 1 (Mst. Dani) is the daughter and other Plaintiffs are the sons of Harnam Kaur. The daughter of Mahan Singh, the last male holder of the property in, dispute and hence they are nearest heirs ?

(2) Whether the Defendant is the son of Mahan Kaur from Ram Singh who she is alleged to have married before marrying Mihan Singh, if so, what is its effect ?

(3) Whether the Defendant has not been in possession of the land in dispute as an owner after the death of Mihan Singh, husband of Mahan Kaur deceased, if so, what is its effect ?

The trial Court found issue No. 1 in favour of the Plaintiffs and under issue No. 2 it was concluded that Natha Singh was not proved to be the son of Mahan Kaur. Issue No. 3, which appears to have been wrongly worded, was also decided in favour of the Plaintiffs with a finding that Mahan Kaur was in possession of the land in dispute as owner, after the death of her husband Mihan Singh. The suit of the Plaintiffs for possession of the property in dispute was consequently decreed. Against the judgment and decree of the trial Court, Natha Singh pressed an appeal and was duly rewarded with a reversal of the decree of the, trial Court and dismissal of the suit of the Plaintiffs. While declaring the same, the lower appellate Court came to a concrete finding that Natha Singh was proved to be the son of Mahan Kaur from the loins of her first husband Ram Singh. On the basis of this finding, it was further held that by virtue of the provisions of Section 15(1)(a) of the Hindu Succession Act, I956 Natha Singh being the son of Mahan Kaur deceaaed would be her sole heir on her death intestate, and the Plaintiffs, who are daughter''s children of Mahan Kaur''s co-Wife had no claim to the inheritance in the presence of Natha Singh. The present is a second appeal in which the claim in the suit is reiterated by the Plaintiffs.

At the outset it may be observed that the finding of the Courts below on issue No 1 in regard to the relationship of the Plaintiffs with Mihan Singh, the last holder of the property, is not disputed. Similarly, the finding under, issue No. 2 by the lower appellate court about the, paternity of Natha Singh has not been contested though a faint and futile attempt has been made to impugn the fact that Natha Singh is the son of Mahan Kaur from her previous marriage with Ram Singh. In this behalf, a reference is made to the report dated May 10, 1960 (Exhibit P. 1), wherein Natha Singh had averred that he was the sole heir to the estate of Mahan Kaur, widow of Mihan Singh who had died leaving no issue. This report has been very rightly construed by the lower appellate Court to mean that Natha Singh was obviously making a reference to Mahan Kaur having left no children from the loins of Mihan Singh. The report does not, therefore, in any way contradict the stand taken by Natha Singh in this ligation. The finding of the trial Court in this behalf is, therefore, affirmed.

The controversy boils down to the solitary point as to whether Natha Singh can be termed as a son of Mahan Kaur so as to be entitled to inherit her estate. u/s 15(1) (a) of the Hindu Succession Act, the property of a female Hindu dying intestate has to devolve firstly upon her son/ s. Shri Y.P. Gandhi, Learned Counsel for the Appellants has vehemently urged that the term sons '' which finds place in the aforesaid provision has reference only to the off spring of the deceased female from the loins of the husband from whom she inherited the property and not to the previous husband. The submission is that if every offspring of the deceased female could claim a right of inheritance, then even an illegitimate son could assert his right to the same. The Learned Counsel has pressed into service a reported decision of this Court in Mota Singh and Ors. v. Prem Parkash Kaur 1961 ILR P&H. 614 which was affirmed by the Supreme Court in Gulraj Singh and other v. Mota Singh 1964 Cur. L.J. (S.C.) 181. This case is, however, of no advantage as it is distinguishable by the glaring fact that it was a case under the Punjab Pre-emption Act for which the considerations are quite different. In any case the point under consideration in that authority, was, whether an illegitimate son of daughter of the female vendor could be said to be a ''son or daughter'' as mentioned in the Pre-emption Act. While delivering the judgment of the High Court, Dua, J. (as the then was) observed that for interpreting statutory instruments one must get at the intention of the legislature expressed by the words used in the enactment. It was also noticed that the predominant idea as disclosed from the language of Sub-clause (a) of Sub-section (2) of Section 15 of the Punjab Preemption Act appeared to be that the property must not go outside the line of the last male holder and the right to pre-empt is given to his male lineal descendants. In view of this and the other considerations it was held that the words ''son or daughter'' as used in the Pre-emption Act cannot be hold include an illegitimate son or daughter This view was upheld by the Supreme Court in appeal as already noticed but a clear observation was made by the Supreme Court in this behalf as follows:

No doubt, there might be express provision in the statute itself to give these words a more extended meaning as to include also illegitimate children and Section 3 (j) of the Hindu Succession Act (Act XXX of 1956) furnishes a good illustration of such a provision. It might even be that without an express provision in that regard the context might indicate that the words were used in a more comprehensive sense as indicating merely a blood relationship apart from the question of legitimacy.

Section 3 (j) of the Hindu Succession Act, to which a reference has been made by the Supreme Court extracted above, defines the word '' related '' as to mean related by legitimate kinship. Viewed in the light of this definition, a son born from wedlock with a previous husband can by no means be said to be an illegitimate son for the purposes of succession under the Hindu Succession Act. A son would be son if he is the offspring of a valid marriage and this is what Natha Singh is in the present case. This point was directly under consideration in a Bombay case in which the facts were absolutely on all fours. The reference is t Rama Ananda Patil Vs. Appa Bhima Redekar and Others, Desbpande, J. delivering the judgment for the Division Bench thrashed out the objection that the heirs of the Hindu female from the husband from which such female inherited the property should oust the heirs from her earlier husband as they were not blood relations of the husband from whom the property had devolved, as the same was not found to be impressive and it was concluded that there was no warrant to assume that the Legislature intended to deprive the sons and daughters from inheritance of the property left by a female Hindu dying intestate, merely because they were born to her from some other husband than the one from whom the property in dispute was inherited by her. In another case reported as Gurbachan Singh Vs. Khichar Singh and Another, single Judge of this Court expressed the same view and in fact went a step further to hold that even an illegitimate or an adopted son would also fall within the expression ''son'' as used in Section 15(l)(a) of the Hindu Succession Act. There is no need to go into this extended scope in view of the facts of the present case. To conclude, therefore, there is no difficulty in holding that Natha Singh is without doubt a preferential claimant to the property left by Mahan Kaur deceased, to the exclusion of the Plaintiffs, two of whom are Appellants and the other two as proforma Respondents in this appeal.

The appeal is dismissed but with no order as to costs.