Sarwan Simgh and Others vs Shrimati Dhan Kaur and Others

Harbans Singh, J.—One Lehna had two wives Mst. Partabo and Mst. Mehtabo. From Mst. Mehtabo he had one son Babu Singh and two daughters Dhan Kaur and Ind Kaur. There was another son from Mst. Mehtabo who had predeceased Lehna and we are not concerned with him. From Mst. Partapo, Lehna had two sons Kishan Singh and Sarwan Singh. Babu Singh died on 25th of February, 1961, without leaving any widow or children. The dispute is about the inheritance of his estate. Kishan Singh and Sarwan Singh claimed that Babu Singh had executed a will Exhibit D. 1 on 28th of January, 1961 by which he left his entire property to them. On the basis of the will subsequently a mutation was also effected. The genuineness of this will was challenged by Dhan Kaur who impleaded his sister Ind Kaur as pro forma defendant and claimed that she and Ind Kaur are the sole heirs of Babu Singh being the sisters and she therefore filed the suit, out of which the present appeal has arisen, for possession of one-half of the property left by Babu Singh. Defendants Kishan Singh and Sarwan Singh denied that Dhan Kaur and Ind Kaur were the daughters of Lehna. The following two issues were the real issues in the case:-

(1) Whether the plaintiff and defendant No. 2 are the real sisters of Babu Singh deceased ?

(2) Whether on 28th of January, 1961, the said Babu Singh executed a will regarding the suit land in favour of defendant No. 1?

The trial Court found that the will was genuine and, consequently, dismissed the suit. The learned lower appellate Court, after going into all the circumstances of the case, came to the conclusion that the will was a piece of forgery. Both the Courts below held that the plaintiff and Ind Kaur defendant No. 2 were real sisters of Babu Singh deceased and, consequently, the lower appellate Court accepted the appeal and decreed the suit of Dhan Kaur. Kishan Singh and Sarwan Singh have come up in second appeal.2. So far as the will is concerned, the finding of the Court below is a finding of fact arrived at by drawing inferences from the various pieces of evidence that have been brought on the record. At the time when the will was executed Babu Singh was only 46 and there is nothing to indicate that he was not keeping good health. He recites in the will propounded by the defendants that he has no children, but a man at the age of 46 is not altogether hopeless of having children and there appears to be no reason why he should have made a will at that time, and, in any case, the recital in the will that he was being served by his brothers does not appear to be correct because at the age of 46, a man having 89 bighas of land, which is the land in dispute, would not require being looked after by his brothers. He also does not mention why he did not consider his real sisters to have any claim to his bounty. The learned lower appellate Court was not impressed with the evidence of the so-called attesting witnesses. One of the reasons given by him was that they had gone to the length of denying that the plaintiff and defendant No. 2 were the daughters of Lehna. The learned counsel for the appellants urged that these witnesses did not specifically deny this but only stated that they did not know. These witnesses are Lambardar and Sarpanch respectively and I cannot imagine that they would not be knowing whether the two ladies were the daughters of Lehna. The learned lower appellate Court, therefore, was entitled not to rely on their statements because they have not given the evidence qua the relationship of the plaintiff and defendant No. 2 in a straight-forward manner Sitting in second appeal I am not entitled to interfere with this finding of fact which, otherwise, appears to me to be correct.

This now brings us to the question as to whether, in law, Dhan Kaur and Ind Kaur would exclude Kishan Singh and Sarwan Singh from the inheritance of Sabu Singh. Section 18 of the Hindu Succession Act runs as follows:-

Heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other respect.

The learned counsel for the appellants urged that brothers and sisters cannot be said to be persons, the nature of whose "relationship is the same in every other respect." His argument was that as between the sisters, i.e., Dhan Kaur and Ind Kaur, on one side and Bishan Kaur on the other, Dhan Kaur and Ind Kaur would be preferred, but that when the contest is between the sisters on one side and brothers on the other, the nature of relationship between the two cannot be said to be the same, one set being sisters and the other set being brothers. The argument is no doubt ingenious, but I feel that looking at the scheme of the entire Act, no such distinction can be recognised. Apparently all that is meant by saying that the "nature of relationship should be the same" is that they should be equally related. Thus, there should be the same degree of ascent and descent etc. in the same group brothers and sisters fall in entry No. II of class II of the schedule and though there may be some doubt whether son''s daughter''s son, in competition with brothers or sisters, would be governed by the provisions of section 18 or not, there can be no doubt that so far as brothers and sisters are concerned, they must come in the same category Both of them would be children of the deceased father. Therefore, the nature of the relationship must be taken to be same. That being the case, I am of the view that Dhan Kaur and Ind Kaur would exclude not only Bishan Kaur but also Sarwan Singh and Kishan Singh, they being brothers and sister of the half blood.

For the reasons given above, I find that there is no force in this appeal and the same is hereby dismissed. As the parties are very nearly related, there will be no order as to costs.

Appeal dismissed.