Parsa Singh and another vs Sampuran Singh and others

Shamsher Bahadur, J.—This is an appeal of the plaintiffs whose suit for possession of one-half of the disputed land measuring 27 bighas and 6 biswas and a house in village Laundran in Kharar tehsil, was dismissed by the Subordinate Judge, Kharar, as also by the District Judge, Ambala, in the appeal preferred by them.

The plaintiffs Parsa Singh and his brother Mal Singh claim as heirs of Hiro, widow, of Partap Singh, the last male bolder of the suit property, one-half of the property in suit, it being conceded that Pritam Singh, defendant No. 1, their uncle, is entitled to the other half. The suit was resisted both by Pritam Singh, defendant No. 1, and Sampuran Singh, defendant No. 2, the latter also claiming to be a nearer heir of Partap Singh deceased. The following pedigree table, which is described as being "no longer disputed" by the lower appellate Court may be reproduced to show the relationship of the parties:

The principal controversy in the litigation related to the right of Sampuran Singh to succeed to the property of Hiro. According to the plaintiffs, Sampuran Singh is just an interloper, his ancestor Bai Singh not being a son of Rai Singh.

Partap Singh, a Jat of Kharar (now Rupar district) died about 40 years ago and was succeeded by his widow Hiro who also died in December 1958. Hiro had succeeded to the estate of her husband as an absolute owner under the Hindu Succession Act. After the death of Hiro, mutation of the estate was sanctioned in favour of Pritam Singh and Sampuran Singh in equal shares. The present suit was brought by Parsa Singh and Mal Singh on 22nd of August, 1960, for possession of half of the estate of Partap Singh on the ground that they are the heirs of Partap Singh and are entitled to share equally with Pritam Singh. Both the Courts below holding that Sampuran Singh had also established his relationship with Partap Singh deceased have, therefore, reached the conclusion that the mutation had been rightly sanctioned in favour of Pritam Singh and Sampuran Singh. The plaintiffs, who are more distantly related to Partap Singh have, therefore, been held not to be entitled to any share of the estate of Partap Singh.

In support of his contention that Sampuran Singh is not a great grandson of Bai Singh, Mr. Pritam Singh Jain, the Learned Counsel for the appellants, has led me once again through the documentary evidence on which reliance has been placed by the Courts below. There is rust the pedigree-table (Exhibit D. 6.) of 1917-18. In this document, Bai Singh, Bir Singh Jassa Singh, Deva Singh and Massa Singh are shown 1.1 juxtaposition and the heirs of each of these five persons are mentioned in the pedigree-table. Sampuran Singh is traced as a great, grandson of Bai Singh, Pritam Singh is mentioned as the great grandson of Bir Singh while the plaintiffs are shown as the sons of Hari Singh, who is a first cousion of Pritam Singh. Partap Singh is shown as the son of Massa Singh. The branch of Jassa Singh ended with one kartar Singh and likewise the branch of Deva Singh ended with one Puja Singh. Mr. Jain has contended that Bai Singh, Bir Singh and Massa Singh, though shown in the same position in the pedigree table are not mentioned to be the sons of the same father Rai Singh.

The other document, on which reliance has been placed by the Courts below is Exhibit P. 4 which is an extract from the Settlement record of 1852. In the entry, Massa Singh, Jassa Singh, Bir Singh and Lakha Singh are shown as the sons of Rai Singh jat of Got Gill. The probative value of this document cannot be questioned and I think this when read with Exhibit D. 6, leads to the inescapable conclusion that Bir Singh, Bai Singh and Massa Singh were in fact brothers.

The next document mentioned in arguments before me is Ex-hibt D. 5, which is an Assamiwar for 1852, the settlement year: Here again, Bir Singh Bai Singh, Lakha Singh and Jassa Singh are shown to be the sons of Rai Singh. It is submitted by the Learned Counsel that the plaintiffs also obtained a certified copy of Exhibt D. 5 in which the name of Bai Singh is omitted. Now, this copy of the document was never put on record before the trial Judge and cannot be received in evidence at this late stage as a circumstance to challange the veracity of the statement contained in Exhibit D.5 which is in harmony with the contents of Exhibits P.4 and D.6 when read together. To reiterate, the evidentiary value of Exhibit P.4 has not been doubted neither in the Courts below nor before me in arguments. It cannot be said, therefore, that on account of the inconclusive nature of the pedigree-table Exhibt D. 6 in so far as the parentage of the five persons mentioned in it is not specifically mentioned, the entire evidence should be discredited. I find that the Courts below have drawn the right conclusion from these documents that Sampuran Singh was the great grandson of Bai Singh, who was a son of Rai Singh like Bir Singh and Massa Singh. In this view of the matter, the right of Sampuran Singh to succeed to the estate of Partap Singh cannot be a matter of speculation or doubt.

It is not disputed that after the institution of the suit Pritam Singh has died. His legal heirs have now been impleaded as respondents. It is submitted that the claim of Pritam Singh was preferred over that of the plaintiffs because of his nearer relationship to Partap Singh, the last male holder. The sons of Pritam Singh are now in parity of relationship with the plaintiffs. An appeal has to be decided according to the facts as they are found to exist at the time of its decision. The relief, in other words, has to be moulded according to the changed circumstances at the time of hearing of the appeal. This is a principle which is firmly established and was reiterated by their Lordships of the Supreme Court in Surinder Kumar v. Gian Chand 1958 S.C.A. 412, where it was observed that :-

In deciding an apeal the circumstances existing at the time when the appeal is being decided must be taken into consideration... An appellate Court is entitled to take into account even facts and events which have come into existence since the decree appealed from was passed.

Now, when the appeal is to be heard, the plaintiffs Parsa Singh and Mal Singh have an equal right with the sons of Pritam Singh, the first defendant.

In the result, the appeal has to allowed only to the extent that half of the estate of Partap Singh would now be shared between the plaintiffs and the sons of Pritam Singh, the first defendent. The plaintiffs would, therefore, be entitled to one-fourth of the estate of Partap Singh and not one-half as claimed by them. Pritam Singh''s descendants and the plaintiffs are entitled to share equally under the doctrine of representation which is an established rule of Punjab custom. In the circumstances, there would be no order as to costs of this appeal.