Dharma Devi Others v. Narain Prasad Jaiswal — 1988 DIGILAW 568 (ALL)

JUDGMENT S. Saghir Ahmad, J. - This is defendant's appeal from the judgment and decree dated 1977 passed by Civil Judge, Sultanpur cancelling the sale deed dated 18671 (Ext. 1), executed by Srimati Hubraji (appellant no. 2) , in favour of appellant no. 3, as also the sale deed dated 14272 (Ext. 2) executed by appellant no. 3 in favour of appellant no. 2. 2. The suit giving rise to this appeal was filed by the respondent (hereinafter referred to as, the plaintiff) against the appellants (hereinafter referred to as, the defendants) for cancellation of the sale deeds mentioned above The facts, as set out in the plaint, are briefly given below, 3. The plaintiff gave the following pedigree in the plaint : PARAG Ramanand =Smt. Chhitna Srimati Sukhdei = First wife of Lala Parag Din Trijugi Prasad alias Trijugi Narain (died issueless) Doodh Nath (died in childhood) Smt. Ram Kali = Second wife of Lala Parag Din Narain Prasad, Born from Ram Kali (Plaintiff) 4. There is another pedigree given in the plaint which may also reproduced below: RAMLAL I Gajadhar Smt. Hubba (Hubraji) Smt. Chhitna = amanand 5. Ramanand was the owner of the house in dispute. At the time of his death, his son, Trijugi Prasad, was a minor. He lived with his pother, Srimati Chhitna, under her guardianship. Trijugi was the nearest heir of Ramanand and in that capacity he inherited the properties left by Ramanand. Since there was none in the family of Ramanand (Except his widow, nanpely, Trijugi Chhitna and the minor son, Trijugi) to look after the outside affairs, Lala Parag Din, (Plaintiff's father), used to look after their affairs and render every possible help and assistance to them. Smt. Chhitna had her inclinations towards her Maika. She had an account in the post office in which she had mentioned her brother's son, namely, Badri Prasad (son of Gajadhar) as her nominee. She had also transferred some of the properties during the minority of Trijugi Narain although the properties were inherited by Trijugi Narain and Smt. Chhitna had no title in those properties. Srimati Chhitna's benaviour towards Trijugi Narain was not affectionate and, therefore, Trjijugi Narain left the house and went way to Kanpur where he died in 1961 as a result of poisoning. Srimati Chhitna's benaviour towards Trijugi Narain was not affectionate and, therefore, Trjijugi Narain left the house and went way to Kanpur where he died in 1961 as a result of poisoning. Smt. Chhitna died in 1960 without leaving any heir and, therefore, the plaintiff's mother, namely, Srimati Sukhdei, who was the real sister of Ramanand, became the owner of the property in dispute by inheritance. Srimati Sukhdei executed a registered sale deed in respect of the said property in favour of the plaintiff in 1968 and since then the plaintiff is in possession of the said property as owner thereof. In this sale deed the eastern and the southern boundaries had been wrongly mentioned which were later corrected by a supplementary deed. The upper portion of the house was let out to tenants. The ground floor was let out to Sri Surendra Dev Misra, husband of defendant no. 3 (Smt. Dharma Devi), on rent payable at the rate of Rs. 60 p.m. with effect from 15371, He fell into arrears of rent which he did not pay inspite of demands and, therefore, his tenancy was terminated by a notice under Section 106 of the Transfer of Property Act and after the expiry of the period of notice a suit for ejectment and for recovery of arrears of rent was filed against him in the court of Judge, Small Causes, Sultanpur where it was registered as Small Cause Case no. 63 of 1973. On the date of institution of the present suit (out of which this appeal has arisen) the aforesaid suit was pending in the court of Civil Judge, Sultanpur. Sri Surendra Dev Misra (husband of defendant no. 3) in reply to the notice issued under section 106 of the Transfer of Property Act as also in the written statement filed in the aforesaid suit for ejectment, denied the right and title of the plaintiff as also his mother, Srimati Sukhdei and pleaded that the property in question belonged to Srimati Hubraji (defendant no. 1) who was the second wife of Ramanand and had executed a sale deed in favour of Ram Pal Dubey (defendant no. 2). The plaintiff denied the title of Srimati Hubraji and further pleaded that the sale deed executed by her in favour of Ram Pal Dubey (defendant no. 2) or by the latter in favour of defendant no. 3 was not binding on him. 2). The plaintiff denied the title of Srimati Hubraji and further pleaded that the sale deed executed by her in favour of Ram Pal Dubey (defendant no. 2) or by the latter in favour of defendant no. 3 was not binding on him. On coming to know of the above sale deeds, the plaintiff obtained the certified copies thereof from which he came to know that Srimati Hubraji, who was the widow of Gajadhar, had executed a fictitious sale deed in favour of defendant no. 2 (Ram Pal Dubey), who was a relation of Sri Surendra Dev Misra. This sale deed was executed long after the execution of the sale deed by Srimati Sukhdei in favour of the plaintiff as also long after the death of Srimati Chhitna, who was the only widow of Ramanand. Srimati Hubraji had wrongly described herself as widow of Ramanand and had also wrongly described that she had received the amount of consideration. Subsequently on 14272 defendant no. 2 executed a sale deed in favour of defendant no. 3 although defendant no. 2 had not become the owner of the property in question under the sale deed dated 18671 executed in his favour by Srimati Hubraji. He had also not entered into possession over the property in dispute. The sale deed dated 14272 was also a fictitious document and no sale consideration had passed from the executant (Ram Pal Dubey) to Srimati Dharma Devi (defendant no. 2). The plaintiff, therefore, instituted the suit and sought the cancellation of the sale deeds on the grounds set out in para 10 (together with its sub paras) of the plaint as also on the basis of facts and grounds given in other paras of the plaint. 6. The suit was contested by the defendants who filed the written statement in which they denied the plaint allegations and pleaded that Gajadhar was the real brother of Ramanand's first wife, namely, Smt. Chhitna and after the death of Gajadhar, he (Ramanand) married Gajadhar's widow, namely, Smt. Hubraji in Dharawwa form which was permissible in Kalwar community. Srimati Hubraji was, therefore, his legally wedded wife. She gave birth to two sons, namely, Trijugi Prasad and Doodh Nath. Doodh Nath died during her life time while Trijugi Prasad died in 1961. Srimati Hubraji was, therefore, his legally wedded wife. She gave birth to two sons, namely, Trijugi Prasad and Doodh Nath. Doodh Nath died during her life time while Trijugi Prasad died in 1961. Srimati Hubraji, therefore, became the sole owner of the property in question which she transferred in favour of Ram Pal Dubey (defendant no. 2) for a sum of Rs. 15,000 by executing a registered sale deed on 18.6.71. Defendant then executed a sale deed in favour of defendant No. 3 on 14.2.72 for a sum of Rs. 17,000 out of which Rs. 5,000 were paid in cash before the SubRegistrar. Defendant No. 3 was thus full owner of the house in suit and was in occupation of that house as owner thereof and not as a tenant. Srimati Hubraji had let out the house In question to Sri Surendra Dev Misra on rent payble at the rate of Rs. 25 p. m. The rent was paid to Srimati Hubraji who issued receipts to Sri Surendra Dev Misra. After the execution of sale deed by Srimati Hubraji in favour of Ram Pal Dubey defendant No. 2), the latter started realising the rent. The defendants denied that Srimati Sukhdei was the heir of Trijugi Prasad or that she was the owner of the house in question. 7. It was further pleaded that defendant No. 2 was a bona. fide purchaser. Defendant No. 3 was also pleaded to be the bona fide purchaser for valuable consideration who had invested a sum of Rs. 11,000 in the repairs of the house in question and, therefore, the sale deeds were not liable to be cancelled. 8. After recording the statements of the learned counsel for the parties under Order 10 Rule 2,CPC the trial Court proceeded to frame necessary issues which are reproduced below: 1. Whether Smt. Sukhdei was the sole owner of the suit property with absolute right, and she executed a sale deed in favour of the plaintiff on 23.5.68 and thereby mad him absolute owner of the property transferred? 2. Whether plaintiff is entitled to get the two impugned sale deeds dated 18.6.71 and 14.2.72 cancelled, as prayed for? 3, Whether Smt. Hubba widow remarried with Ramanand the lifetime of Smt. Chhitna, first wife of Ramanand, somewhere in between 194042? 4. whether Smt. Hubba became the sole owner after the death of all concerned viz. 2. Whether plaintiff is entitled to get the two impugned sale deeds dated 18.6.71 and 14.2.72 cancelled, as prayed for? 3, Whether Smt. Hubba widow remarried with Ramanand the lifetime of Smt. Chhitna, first wife of Ramanand, somewhere in between 194042? 4. whether Smt. Hubba became the sole owner after the death of all concerned viz. husband and Smt. Chhitna and entitled to transfer the property? 5. Whether defendant No. 3 is a bona fide purchaser for value in actual physical possession with effect from 14.2.72having purchased suit property from defendant No. 2? 6. Whether the suit is undervalued? 7. Whether court fee paid is insufficient? 8. Whether defendant No. 3 has invested a huge amount after purchase of suit property in good faith and in all bona fide and is entitled to the protection of Section 51 T.P. Act ? 9. Issues nos. 6 and 7 were decided as preliminary issues by the trial court vide its order dated 1.5.76. Under issues nos. 3 and 4 the trial court held that Smt. Hubraji was not married to Ramanand and was not his widow and, therefore, she did not become the owner of the property in question. The trial court also found that Srimati Sukh Dei was the sole owner of the property in suit and that she had validly executed the sale deed in favour of the plaintiff on 23.5.1968. The trial court also found that defendant No. 3 was not the bona fide purchaser for valuable consideration. Under Issue No. 8 it was held that the defendant No.3 had not invested the amount of Rs.11000 in the repairs of the house as there was no documentary evidence to support the plea. In view of these findings the trial court decreed the suit of the plaintiff for the cancellation of the sale deeds dated 18.6.71 and 14.2.72. It is from this decree that the present appeal has been filed. 10. We have heard the learned counsel for the parties. 11. Shri G.P. Bhargava, learned counsel for the appellant, has questioned before us the correctness of the findings recorded by the trial court on all the issues except issue nos. 6 and 7. He has contended that the suit filed by the plaintiff was liable to be dismissed as he had failed to establish that Smt. Sukhdei was the sole owner of the property in question. 6 and 7. He has contended that the suit filed by the plaintiff was liable to be dismissed as he had failed to establish that Smt. Sukhdei was the sole owner of the property in question. She could not, there fore, it is further contended, execute the sale deed in respect of the said property in favour of the plaintiff. He has contended that Smt. Sukhdei was not a Class I heir under the Hindu Succession Act, 1956 and, therefore, it was the duty of the plaintiff not only to plead but also to show that there was no nearer heir available who could have succeeded Trijugi Narain or Smt. Chhitna in preference of Smt. Sukhdei. It is further contended that the evidence on record, particularly that of the plaintiff, clearly showed that Trijugi Narain was married and therefore, his widow who was a Class 1 heir would exclude Smt. Sukhdei, a ClassII heir, from inheriting the property left by him as also, at a later stage, by Smt. Chhitna. In this situation the suit, it is contended, was liable to be dismissed particularly as the plaintiff would not get title to the property in suit on the basis of the sale deed dated 23.5.68 executed in his favour by Smt. Sukhdei who herself had not become the owner of that property at any time on the basis of the inheritance set out and detailed in the plaint on account of the intervention, in the line of succession, by Trijugi's widow regarding whom a deliberate silence was maintained in the plaint. 12. As against the above, the contention of Sri Rajeshwari Prasad, learned counsel for the plaintiff respondent, is that there was sufficient evidence available on record to indicate that no other intermediary or nearer heir was available who could have excluded Smt. Sukhdei from inheriting the property and that the mere statement of Smt. Sukhdei that Trijugi was married, was not sufficient in law to establish the existence of the widow on the date of death of Trijugi Narain in 1961 or in 1968, at the time of Smt. Chhitna's death. In any case, since two of the defendants witnesses I have stated in their cross examination that Trijugi's widow had remarried, she was disqualified from inheriting the property in question left by Trijugi, who died in 1951 and his Mother, Smt. Chbitna who died in 1968. In any case, since two of the defendants witnesses I have stated in their cross examination that Trijugi's widow had remarried, she was disqualified from inheriting the property in question left by Trijugi, who died in 1951 and his Mother, Smt. Chbitna who died in 1968. It is further contended that on her exclusion on account of disqualification incurred as a result of remarriage the property in question has been rightly held by the trial court to have devolved upon Smt. Sukhdei who, it is claimed, had validity executed a sale deed in favour of tiie plaintiff. 13. These submissions are covered by issue No. 1 framed by the trial court which is in two parts as indicated below :(1) Whether (a) Smt. Sukhdei was the sole owner of the suit property with absolute rights, and (b) She executed a sale deed in favour of the plaintiff on 23.5.68 and thereby made him absolute owner of the property transferred. 14. It is obvious that if Smt. Sukhdei became the absolute owner of the suit property in accordance with the mode of devolution set out in the plaint, she would get the right to transfer the property in favour of the plaintiff. 15. Let us examine the question of succession, inheritance and disqualification under the Hindu Succession Act. 16. Section 8 of the Hindu Succession Act provides as under : 8. The property of a male Hindu dying Intestate shall devolve according to the provisions of this Chapter (a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule ; (b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule ; (c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased ; and (d) lastly, if there is no agnate, then upon the cognates of the deceased, 17. ClassI and ClassII of the Schedule are reproduced below : ClassI Son; daughter, widow; mother; son of a predeceased son; son of a predeceased daughter; daughter of a predeceased daughter, widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predecease son. ClassII Father II. ClassII Father II. (I) Son's daughter's son (2) sons's daughter's daughter, (3) brother, (4) sister. III. (1) Daughter's son, (2) daughter's son's daughter, (3) daughter's daughter's son (4) daughter's daughter's daughter. IV(1) Brother's son (2) sister's son (3) brother's daughter, sister's daughter. V. Father's father; Father's mother. VI. Father's widow ; brother's widow. VII. Father's brother; father's sister. VIII. Mother's father, mother's mother. IX. Mother's brother ; mother's sister. Explanation In this Schedule references to a brother or sister do not include reference to a brother or sister by uterine blood, 18. It is provided by Section 9 that amongst the heirs specified in the Schedule, those of Class I shall take simultaneously and to the exclusion of all other heirs. It is also provided that the heirs mentioned in the first entry in Class II shall be preferred to those in the second entry; and so on in succession. 19. Section 10 provides for the distribution of property amongst the heirs mentioned in Class 1 of the Schedule. Rule I specified in Section 10 lays down that the widow or of there are more widows than one, all the widows together, shall take one share. Rule 2 provides that the surviving sons and daughters and the mother shall each take one share. We are not concerned with Rules 3 and 4 specified in Section 10. 20. A perusal of the provisions of Section 8 together with the Schedule quoted above would indicate that on the death of a male Hindu dying intestate, the property would devolve first upon the heirs mentioned in Class I of the Schedule and thereafter, if there was no heir of class I, upon the heirs specified in Class II. 21. Son and widow are placed in Class I. They would, therefore, exclude the heirs of Class II. 22. Obviously, if Trijugi had left a widow, she would exclude Srimati Sukhdei who is a Class 11 heir. 23. A perusal of the plaint would show that in the pedigree set out therein, Trijugi was shown to have died issueless. The case of the plaintiff therefore, was that on the death of Trijugi (who died issueless) followed by the death of Srimati Chhitna, all the Class I heirs became extinct and the property came to Srimati Sukhdei, in her capacity as sister of Ramanand, as a Class II heir. 24. The case of the plaintiff therefore, was that on the death of Trijugi (who died issueless) followed by the death of Srimati Chhitna, all the Class I heirs became extinct and the property came to Srimati Sukhdei, in her capacity as sister of Ramanand, as a Class II heir. 24. The words Lawald Faut which translated into English, mean died issueless were mentioned just below the name of Trijugi in the family pedigree set out in the plaint. Died issueless mean that a person had died without leaving any issue or leneal descendant. This would mean that a person was either married but no son or daughter were born to him or that he had not married at all and, therefore, there was no question of any issue being born to him. The two situations are distinctly different and therefore, in a suit based on inheritance, either of the two situation has to be clearly and specifically pleaded. 25. The use of the words died issueless is indicative of the fact that Trijugi had died without leaving any issue. It was not specified in the plaint that he was married and no issue was born to him. The pleadings were kept vague. Even the trial court did not, in this regard, seek any clarification although it did record the statements of the parties' counsel under order X Rule 2 C P C. The plaintiff also did not say that Trijugi had left behind a widow. 26. The defendants also in their written statement were silent and had not stated anything about Trijugi's marriage or his wife/widow being available so exclude Smt. Sukhdei from inheriting the property in question, in the absence of the pleadings, an issue was also not framed by the trial court on the question whether Trijugi was married and whether his wife/widow was available on the date of his death so as to inherit the property in question left by him or to succeed Smt. Chhitna on her death. This question cropped up in evidence. The main witness of the plaintiff, namely, Smt. Sukhdei (PWI) herself stated in her examinationinchief that Trijugi was married. 27. Plaintiff's other witnesses, namely, PW2 Bhagwati Prasad, PW3 Badri Prasad and PW4 Narain Prasad did not state anything about Trijugi's marriage. 28. This question cropped up in evidence. The main witness of the plaintiff, namely, Smt. Sukhdei (PWI) herself stated in her examinationinchief that Trijugi was married. 27. Plaintiff's other witnesses, namely, PW2 Bhagwati Prasad, PW3 Badri Prasad and PW4 Narain Prasad did not state anything about Trijugi's marriage. 28. When defendants' witnesses entered the witness box, they al o did not say anything about Trijugi's marriage in their examinationinchief but the plaintiff cross examined some of them, namely, D.W. 2 Ramanand and D.W. 4 Mahadeo to be precise) on this question whereupon they spoke of Trijugi's marriage. Significantly, the questions about Trijugi's widow or her remarriage were not put to any of the contesting defendants who were parties to the suit but to Ramanand and Mahadeo who were only produced as witnesses. 29. DW2 Ramanand did not say a word about Trijugi's marriage in his examination inchief but the plaintiff cross examined him on this question who stated (See page 45 of the appellant's paper book) that Trijugi's was married. He further stated that after Trijugi's death, his wife contracted a second marriage but he could not say where had she remarried. Similarly D.W. 4 Mahadeo had not stated a word about Trijugi's marriage in his examinationinchief but during cross examination on behalf of the plaintiff he stated that he had attended Trijugi's marriage and that Trijugi was major at the time of his marriage. He further stated that Trijugi's marriage had taken place two or three years before his death. He also stated that he had seen Smt. Hubraji for the first time in Trijugi's marriage. 30. Why was Trijugi's marriage introduced in evidence when there was no pleading, is a question which cannot be ignored. If Trijugi was married, then he had a wife who would exclude others from inheriting the property of Trijugi as she would be a Class I heir. The plaintiff by introducing this question at the stage of evidence had allowed his own title to be clouded. What induced the plaintiff to introduce the question of Trijugi's marriage at the stage of evidence, is not very material or significant but what is significant or important is thatTrijugi was married which raises the possibility of his having left behind his widow as nobody, and not even the plaintiff's witnesses, stated that she had predeceased Trijugi. What induced the plaintiff to introduce the question of Trijugi's marriage at the stage of evidence, is not very material or significant but what is significant or important is thatTrijugi was married which raises the possibility of his having left behind his widow as nobody, and not even the plaintiff's witnesses, stated that she had predeceased Trijugi. On the contrary, it was tried to be shown (through the crossexamination of the witnesses produced on behalf of the defendants) that she had remarried Even the trial Court has recorded a finding that Trijugi's widow bad remarried after his death and, therefore, she was disqualified from inheriting the property in question which thereafter came to be vested in Smt. Sukhdei by inheritance Thus title of Smt. Sukhdei has been found to be established by the trial court only because Trijugi's widow who was a preferential heir, was found excluded on account of remarraige. 31. The finding recorded by the trial court on issue No. 1, wherein it has also considered the effect of the presence of Trijugi's wife, may now be considered. The relevant portion of the finding recorded by the Trial Court may be reproduced below: It has become admitted that Smt. Sukhdei was real sister of Ramanand, We have seen above, under issues 3 and 4 that Smt. Hubraji was not married with Ramanand. Thus it also has become evident that Trijugi Prasad, son of Ramanand, had died during the lifetime of Smt. Chhitna. It also has come in evidence that Trijugi Prasad was married and after his death, his wife remarried with someone also. Thus, from the evidence on record it is established that after the death of Trijugi Prasad Smt. Chhitna became owner in possession of the property in suit. Learned counsel for the defendants argued that it was the duty of the plaintiff to plead that the wife of Trijugi Prasad remarried after his death and if he did not plead this fact, there is defect in his title and if there is any defect in the title of the plaintiff, he cannot get the relief claimed. 32. The trial court thereafter discussed certain reported decisions of different High Courts including this Court, and proceeded as under: There is no dispute about these legal position. 32. The trial court thereafter discussed certain reported decisions of different High Courts including this Court, and proceeded as under: There is no dispute about these legal position. But these case do not help the defendants in the present case because as we have seen above, from the evidence on record it is amply clear That Smt. Hubraji did not remarry with Ramanand. Thus under the Hindu Succession Act, sister Smt. Sukhdei became sole heir of the property of deceased Ramanand on the death of Smt. Chhitna. The defendant cannot take any advantage from this fact that plaintiff did not plead that wife of Trijugi Prasad had married after his death because even the defendants also did not say this thing in their written statement. Admittedly Trijugi Prasad died during the life time of Smt. Chhitna and just after the death of Trijugi Prasad his wife remarried. Then it was but natural that the property would have devoloved on Smt. Chhitna as heir of Trijugi Prasad. Therefore, those intermediaries who were not present and whose title was extinguished, there was no sense for pleading the same. I, therefore, do not find any force in this argument of the learned counsel for the defendants. As Smt. Chhitna had no issue at the time of her death it was but natural according to Succession Act, that the property in dispute devolved on Smt. Sukhdei, the real sister of deceased Ramanand, the husband of Smt. Chhitna. Thus, Smt. Sukhdei was sole heir and owner of the property in suit with absolute right and she executed the sale deed in favour of plaintiff on 23.5.68 and thereby made him absolute owner of the property transferred. Issue is decided in favour of the plaintiff. 33. The trial court thus recorded a categorical finding that Trijugi was married and his widow had remarried after his death. 34. It is not disputed that Trijugi's widow will be a preferential heir under the Hindu Succession Act but the trial court excluded the preferential heir by holding her to have remarried. 35. Once it was found by the trial court that Trijugi had left behind a widow, it ought to have considered the effect of the presence of that widow on the question of succession. 35. Once it was found by the trial court that Trijugi had left behind a widow, it ought to have considered the effect of the presence of that widow on the question of succession. It was contended before the trial court that it was the duty of the plaintiff to have accounted for the widow of Trijugi in the plaint itself before claiming succession in favour of Srimati Sukhdei, his predecessorininterest but the trial court very lightly brushed aside the contention by observing that even the defendants did not plead in the written statement that there was Trijugi's widow in whose presence Smt. Sukhdei could not have inherited the property in suit. 36. The finding that Trijugi had left behind a widow, which is based on the admission of Smt. Sukhdei (PWI) plaintiff's predecessorininterest, that Trijugi was married, has not been assailed before us either on behalf of the plaintiff or the defendants, both of whom have, however, put forward their respective contentions as to the legal effect of the presence of Trijugi's widow. 37. It is contended by Sri G.P. Bhargava that the facts that Trijugi was married and that he had left behind a widow were material facts which ought to have been specifically pleaded by the plaintiff particularly as Trijugi's widow was an intervening heir in whose presence Smt. Sukhdei, plaintiff's predecessorininterest, could not have inherited the property in suit Since this was not done and the exclusion of Trijugi's widow was not pleaded, the suit, it is contended, is liable to be dismissed. 38. It is an elementary principle of law that where a person claims relief on the basis of title, he has to establish the title. If he claims title to a property on the basis of inheritance, he has not only to show that he would inherit the property, but also that there was no other preferential heir alive who would exclude him. It will be useful to reproduce here a few sentences from Mogha's treatise on the Law of Pleadings In India 13th Edition : Page 17, as under: It is common to plead that the plaintiff is the legal heir of the deceased. This is an inference of law. What the plaintiff should show is how he is connected with the deceased. He should also account for other relations who were nearer to the deceased than the plaintiff. 39. This is an inference of law. What the plaintiff should show is how he is connected with the deceased. He should also account for other relations who were nearer to the deceased than the plaintiff. 39. Nonexistence of a nearer heir has to be proved by the plaintiff but what will be quantum of evidence required to prove this fact will depend upon the facts of each case. 40. In Chandan Singh v. Bhabhuti Singh (AIR 1915 Oudh 10) it has been laid down as under: But where a person claims as a nearest reversioner to a deceased Hindu, he must establish that there was no intermediate heir in existence with a better claim to succeed in the property of the deceased. 41. An earlier decision of the Oudh Chief Court in Mathura Prasad Singh v. Bhutan Singh, (1912) 15 Oudh Cases 364) = 14 Indian Cases 339, has been relied upon in support of the above principle. 42 To the above effect is also the law laid down by this Court in Mt. Chunna Kunwar v. Lala Mukat Behari Lal (AIR 1934 All 117). The Court observed that the correct rule is that the plaintiff should establish not only his own relationship with the last male holder, but also, prima facie, that no nearer heirs are alive. The Court further observed at a later stage as under: In many cases it may be enough for a plaintiff to give his own evidence to the effect that to the best of his knowledge no nearer heir is alive. Having regard to the special means of information which the plaintiff, if an adult, possesses, no one is in a better position to know if a nearer heir exists. 43. In this case two decisions, one of this Court in Javitri v. Genda Singh (AIR 1927 All 767) and the other of the Madras High Court in Rama Row v. Kuttiya Gaundan (1917) 40 Madras 654) have been referred to. In the Madras decision it was laid down as under : It is no doubt incumbent on a plaintiff seeking to succeed as a reversioner to establish affirmatively the particular relationship which he puts forward. He is also bound to satisfy the Court that, to the best of his knowledge, there are no nearer heirs. He cannot be expected to do anything more. He is also bound to satisfy the Court that, to the best of his knowledge, there are no nearer heirs. He cannot be expected to do anything more. It is for those who claim that their kinship is nearer than that of the plaintiff to prove that relationship. 44. A Privy Council decision in Girdhari Lal Roy v. The Bengal Government (196769) 12 MIA 448 (PC) was also referred to and the following portion from the Privy Council judgment was extracted : It lay upon the plaintiff to prove, at least prima facie, that Woopendro Chunder Roy died without heirs; and, on the other hand, the appellant was entitled to defend his position not only by proof of his own title but by setting up any justertii that might exist. 45. The Allahabad decision in Mt. Chunna Kunwar (Supra) was relied upon by the Patna High Court in Dulhin Mahabati Kuer v. Raghunandan Prasad Singh and others ( AIR 1958 Pat. 249 ). The Madras decision in Rama Roy's case (supra) was also referred to. It was then laid down as under: before the defendants are called upon to prove the case made by them, it was incumbent upon the plaintiff to prove also that to the best of her knowledge no nearer heir existed at the time when the succession opened. What will be the quantum of evidence to prove the nonexistence of nearer heir will depend upon the facts of each case. But in many cases it will be enough if the plaintiff comes to the witness box and states that to the best of his or her knowledge no nearer heir was alive. Unless such evidence is adduced, it cannot be said that the plaintiff has discharged the onus that initially lay upon him to prove prima facie his case. 46. The law, therefore, is that where the plaintiff claims title to the property on the basis of inheritance, he has not only to show that he succeeded to the property but also that no nearer heir was available to exclude him from inheriting the property and that if this not done, the suit would fail. 47. 46. The law, therefore, is that where the plaintiff claims title to the property on the basis of inheritance, he has not only to show that he succeeded to the property but also that no nearer heir was available to exclude him from inheriting the property and that if this not done, the suit would fail. 47. The present suit is based, not on inheritance or succession, but on the sale deed dated 23.5.68 executed by Smt. Sukhdei in favour of the plaintiff who, on its basis, has filed the present suit for cancellation of the sale deeds executed in favour of defendants 2 and 3. The principles set out above will not, therefore, strictly apply to the present suit and the plaintiff cannot be nonsuited on this technical plea. It is another matter that the title of Smt. Sukhdei, based on inheritance, is itself not found established ultimately. 48. Sri Rajeshwari Prasad, counsel for the plaintiff, contended that the defendants' witnesses have themselves stated that Trijugi's widow had remarried after the death of her husband and, therefore, she would be excluded from inheriting his property under the provisions of section 24 of the Hindu Succession Act. Section 24 provides as under: 24. Certain widows remarrying may not inherit as 'widows Any heir who is related to an intestate as the widow of a predeceased son, the widow of a predeceased son of a predeceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has remarried. 49. This section and two other sections, namely, section 25 and 26 deal with the heirs who are disqualified from inheriting the property of the intestate. Since the section contains a rule of exclusion, it has to be strictly construed. 50. The word intestate has been denned in section 3 (1) (g) as under : (g) Intestate A person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. 51. This indicates that the Rule of Exclusion contained in this section is to be applied to the heirs of the person who last held the property and on whose death the succession has opened. 52. 51. This indicates that the Rule of Exclusion contained in this section is to be applied to the heirs of the person who last held the property and on whose death the succession has opened. 52. The disqualifying factor is the remarriage and the heirs who are disqualified (on their remarrying) are those who are related to the intestate either as a : (a) widow of a predeceased son or; (b) widow of a predeceased son of a predeceased son or; (c) widow of a brother, 53. No other female heir is excluded on account of remarriage. 54. In order to operate as a disqualifying factor, the remarriage should have taken place before the succession was opened. The reason is that a widow of a person ceases to be a widow if she remarries. A widow would inherit on account or her being related to the intestate as a widow of a predeceased son or widow of a predeceased son of a predeceased son or widow of a brother. On remarriage, the widow would cease to be the widow of a predeceased son or the widow of predeceased son of a predeceased son or the widow of a brother. In the case of the widow of the intestate, there can be no question of remarriage before the succession opens. 55. It is also obvious that if on the date the succession opens, a widow has not remarried, she would inherit the property of the intestate and once the property has vested in her on account of succession or inheritance, there can be no divestment by reason of remarriage at any time subsequent to such succession or inheritance. The crucial factors are, therefore, the time of remarriage and the date on which the succession opens. 56. The principles of law set out above are left to the trial c6urt to apply to the facts as they are found by it to have been established. 57. Sri Rajeshwari Prasad next contended that Trijugi's widow would be excluded from inheriting the property at least on the day on which succession to the properties left by Srimati Chhitna opened. His contention is like this. 58. Ramanand, admittedly, was the original owner of the house in suit. He died in 1954 or 1955 when Hindu Succession Act was not in force. His contention is like this. 58. Ramanand, admittedly, was the original owner of the house in suit. He died in 1954 or 1955 when Hindu Succession Act was not in force. He had left behind a widow Smt. Chhitna (assuming that Srimati Hubraji was not his widow) and a son, Trijugi. Srimati Chhitna would get the property in question to the extent of half share under the provisions of the Hindu Women's Right to Property Act, 1937. The other half share would be inherited by Trijugi. Smt. Chhitna's limited interest in the half share will mature into full rights under section 14 of the Hindu Succession Act with effect from 17.6.1956, i.e. the date of enforcement of the said Act. On the death of Trijugi, his half share would be jointly inherited by Smt. Chhitna as also by his widow, i.e. Trijugi's widow would get 1/4th share and the other 1/4th would go to Smt. Chhitna whose share would swell to 3/4th. On the death of Smt. Chhitna in 1968 her 3/4th share would go to Smt. Sukhdei and not to Trijugi's widow who, having remarried, would be excluded from inheritance under section 24 of the Hindu Succession Act. 59. Mr. Rajeshwari Prasad has contended that Trijugi's widow was related to Ramanand as the widow of a predeceased son and since she had remarried she would not inherit the property in question. 60. The contention cannot be considered only in the context of the provisions contained in Section 24. It has to be considered in the light of the provisions of Sections 15 and 16 of the Act, In determining who would succeed Smt. Chhitna, regard shall be had to the heirs indicated in Section 15, of which the relevant portion is quoted below: 15 (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16, (a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband; (b) . (d) (e) . It is conceded by the counsel for the parties that clause (a) of subSection (1) of Section 15 would not be applicable and it is clause (b) which would apply to the facts of the case. 61. Mr. (d) (e) . It is conceded by the counsel for the parties that clause (a) of subSection (1) of Section 15 would not be applicable and it is clause (b) which would apply to the facts of the case. 61. Mr. Rajeshwari Prasad has contended that Trijugi's widow being the widow of a predeceased son would not inherit the properties left by Smt. Chhitna which would be inherited by Smt. Sukhdei in her capacity as the heir of Chhitna's husband. As pointed out earlier, we have to find out the heirs of the husband of Smt. Chhitna, a hindu female, who bad died intestate. Section 16 Rule 3 provides as under: Rule 3 The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub section (1) and in subsection (2) of section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's, as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death. 62. The words and such persons had died intestate in respect thereof immediately after the intestate's death used in the last portion of the Rule quoted above are significant. 63. Since it is provided by Section 15 read with the provisions contained in Section 16 Rule 3 that the property would go to the heirs of husband, father or the mother (as the case may be), such person namely the husband, father or the mother (as the case may be) has to be treated, by legal fiction, to have died immediately after the death of the female Hindu. 64. In Mahadevappa Shankerappa v. Gauramma (AIR 1973 Mysore 142) it has been laid down that if a Hindu female dies intestate and without leaving behind any issue the property inherited by her from her father would devolve upon the heirs of the father who in view of Rule 3 of Section 16 will be fictionally treated to have died immediately after her death. 65. In an unreported decision of the Supreme Court in Ramchandra Pillai v. Arunachala Thammal and others (1970 Unreported Judgments (SC) 390) in which it was observed as under : The Rule specifies a method of determining the preferential heir, and for that purpose creates a fiction. 65. In an unreported decision of the Supreme Court in Ramchandra Pillai v. Arunachala Thammal and others (1970 Unreported Judgments (SC) 390) in which it was observed as under : The Rule specifies a method of determining the preferential heir, and for that purpose creates a fiction. The heir of the father, mother or the husband, of the propositus who would have taken the estate if he had immediately died after death of the propositus is the heir to the propositus. 66. The impact of Section 15(1) read with Section 16 Rule 3 was again considered by the Supreme Court in Bajiya v. Smt. Gopika Bai and another AIR 1978 SC 793 in which it was laid down as under: The next question is. whether the heirs of the husband in S. 15 are to be ascertained with reference to the date of Puniya's demise in 1936, or with reference to the date of Shrimati Sarji's death on November 6, 1956, when succession opened out. There appears to be some divergence of opinion among the High Courts on this point. We are however of opinion that once it is found that the case falls under section 15 (2) (b), the fiction envisaged in R. 3 of S. 16 is attracted, according to which, for the purpose of ascertaining the order of devolution, it is to be deemed as if the husband had died intestate immediately after the female intestate's death. Bearing this fiction in mind we have, then, to go to the Schedule under S. 8 of the Act to find out as to who would be the heirs of Smt. Sarji's husband on the date of her death. 67. In view of the above, the law of succession, therefore, is that where a female died intestate, her property will devolve: (i) first upon the sons and daughters (including the children of any predeceased son or daughter) and the husband and in their absence. (ii) upon the heirs of the husband and thereafter (iii) upon the heirs mentioned in other clauses (in the order in which they are given) with which we are not concerned in this case. (iv) For determining the heirs of the husband, the latter shall be treated to have fictionally died immediately after the death of the female aforesaid. (ii) upon the heirs of the husband and thereafter (iii) upon the heirs mentioned in other clauses (in the order in which they are given) with which we are not concerned in this case. (iv) For determining the heirs of the husband, the latter shall be treated to have fictionally died immediately after the death of the female aforesaid. (v) The determination of the heirs of the husband shall be done in accordance with the provisions of Section 8 read with the schedule. 68. Having decided this question, we leave it to the trial court to apply the principles set out above to the facts of the present case as they are ultimately found by it to have been established. 69. Learned counsel for the plaintiff urged that since Trijugi's widow had remarried she would be disqualified under section 24 and would not inherit Smt. Chhitna's share. 70. It will be noticed that it was not pleaded in the plaint that Trijugi was married or that he, on his death, left behind a widow who had remarried and was, therefore, disqualified under Section 24 of the Hindu Succession Act from inheriting Smt. Chhitna's share in the house in suit. 71. In the absence of pleadings relating to these vital facts in the plaint, the court had no occasion to frame the issue or to call upon the parties to lead evidence on the question of remarriage of Trijugi's widow. 72. As pointed out earlier, Trijugi's marriage was introduced by Smt. Sukhdei herself in her examinationinchief as P.W. 1 wherein she stated that Trijugi was married. Two of the defendants' witnesses have, in their cross examination, stated that Trijugi's widow had remarried and the trial court has recorded a finding that Trijugi's widow had remarried. After excluding her from succession on account of remarriage, it held Srimati Sukhdei to have succeeded to the property in question. This finding could not have been legally recorded by the trial court without first seeking clarification of the vague pleadings and framing an issue whether or not Trijugi had left behind a widow and further whether his widow had remarried on the date on which succession to the property left by Srimati Chhitna had opened. 73. Perhaps this necessity would not have arisen had exclusion of Smt. Sukhdei been claimed on account of the presence of a class I heir who does not become disqualified. 73. Perhaps this necessity would not have arisen had exclusion of Smt. Sukhdei been claimed on account of the presence of a class I heir who does not become disqualified. But the exclusion was claimed on account i of the presence of a Class I heir who, by reason of remarriage, incurs disqualification i.e. if it was found, as has been found by the trial court, that the intervening heir was disqualified from succeeding to the properties left by Smt. Chhitna, Smt. Sukhdei would immediately succeed to the said property to the extent of Smt. Chhitna's share. This possibility had to be investigated and adjudicated upon by the trial court with reference to the time of remarriage, as two of the defendant's witnesses had admitted Trijugi's widow to have remarried. 74. We have already observed above that the pleadings with regard to the marriage of Trijugi were kept vague and the court itself had not sought any clarification from the plaintiff on this question, not even after P. W. 1 Smt. Sukhdei stated that Trijugi was married. The mere statement of Smt. Sukhdei that Trijugi was married cannot conclusively be treated to lead to the inference that he left behind a widow at the time of his death and that the said widow was also available at the time when succession to the property left by Smt. Chhitna had opened. For this reason also clarification of the pleadings was necessary. The finding recorded by the trial court on the question of remarriage of Trijugi's widow and her consequent exclusion from succession had, to say the least, taken the defendant by surprise particularly as they had no occasion to contest this vital question. 75. Let us now come to the second part of Issue No. 1 which relates to the execution of the sale deed by Smt. Sukhdei in favour of the plaintiff. This question has been disposed of by the trial court cursorily in a few lines which are quoted below: Thus, Smt. Sukhdei was sole heir and owner of the property in suit with absolute right and she executed the sale deed in favour of plaintiff on 23568 and thereby made him absolute owner of the property transferred. Issue is decided in favour of the plaintiff. 76. Issue is decided in favour of the plaintiff. 76. While recording this finding the trial court has completely ignored the averments made by the defendants in their written statement questioning the validity of the sale deed. 77. In para 7 of the written statement the defendants denied the execution of the sale deed with the further averments that even if the sale deed was held proved, it was a fictitious deed without any sale consideration, particularly as Smt. Sukhdei, who was the step mother of the plaintiff, lived with the plaintiff and was being maintained by the plaintiff. 78. In para 21 of the written statement the defendants again stated that Smt. Sukhdei had not become the owner of the house in suit nor had she any right to transfer the house and if any sale deed was executed it was fictitious and collusive, on the basis of which the plaintiff did not become the owner of the said house. 79. These questions set out in the written statement relating to the validity of the sale deed executed by Smt. Sukhdei in favour of the plaintiff were totally ignored by the trial court and it did not frame any issue whether the sale deed was void on account of the pleas set out by the defendants in their written statement, specially with regard to the fictitious and collusive nature of the deed which, the defendants claim, have been executed without any sale consideration. 80. We would not conclude without first quoting another portion of the judgment of the trial court as below : It may be noted that it has come in evidence that Trijugi Pd. was married but it has come also in the evidence that after his death his wife remarried with someone. It is not the case of defendants also, that the wife of Trijugi Pd. is owner of the property in suit. When this is not the case, it cannot be argued on behalf of the defendants that Trijugi Prasad's wife has become owner of the property in suit after the death of Trijugi Pd. It is not the case of defendants also, that the wife of Trijugi Pd. is owner of the property in suit. When this is not the case, it cannot be argued on behalf of the defendants that Trijugi Prasad's wife has become owner of the property in suit after the death of Trijugi Pd. The only two causes before us arise; one put up by the plaintiff that after the death of Smt. Chhitna, Smt. Sukhdei, real sister of Ramanand became the sole heir of Ramanand and the other case is that after the death of Smt. Chhitna, Smt. Hubraji the other widow of Ramanand became his sole heir. Therefore, we are only to consider these two things whether Smt. Hubraji was remarried with Ramanand. If it is not established, it would naturally follow that Smt. Sukhdei the real sister of Ramanand became the sole heir. Therefore, it will have no effect on the merits of the case if it was not pleaded by the plaintiff that the wife of Trijugi Prasad has remarried after the death of Trijugi Prasad. 81. A perusal of the above portion of the trial court's judgment exhibits not only that the trial court's approach was basically wrong, but that it does not possess adequate knowledge of the law of pleadings. 82. The present suit was filed by the plaintiff on the basis of his title. It was not necessary for the defendants to set up title in somebody else. It was, as pointed out earlier, sufficient for them merely to deny plaintiff's title and put him to proof of it. It is another matter that in the instant case defendants pleaded title in Smt. Hubraji but that would not mean that if Smt. Hubraji's title was not established, the plaintiff's title would stand proved. If it came to light that there was a preferential heir who would exclude plaintiff's predecessorininterest e.g. Smt. Sukhdei, from inheriting the property in question, it was the duty of the court to have considered the impact of the presence of such an heir on the plaintiff's title and the question could not have been ignored merely on the ground that defendants have themselves not claimed title in that preferential heir, namely, Trijugi's widow. 83. 83. For the reasons stated above we are clearly of the opinion that there had not been a fair trial in the court below and that it would be in the interest of justice to set aside the decree and remand the case for a fresh trial. 84. The appeal is, accordingly, allowed and the judgment and decree passed by the trial court are set aside. The suit is remanded to the trial court for a fresh trial in accordance with law in the light of the observations made above. The parties shall be allowed to amend their pleadings and the court shall seek necessary clarification of their pleadings and frame further issues. The trial court shall also allow the parties to lead further evidence in addition to the evidence already recorded by it at the time when the suit was first pending before it. There will be no order as to costs. [Appeal allowed]