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2000 DIGILAW 1544 (PNJ)

Kesro alias Shanti v. Gurdial Singh

2000-12-15

JAGDISH SINGH KHEHAR

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JUDGMENT J.S. Khehar, J. - The present controversy relates to the dictum of the prayer of the petitioner/plaintiff for an interim injunction based on the alleged right to inherit or succeed to the estate of Khazanu, son of Lehnu, who died on 15.4.1949. It is not a matter of dispute that at the time of death of Khazanu, his wife had pre-deceased him and further that he had died without a male child. 2. Khazanu had only daughters. In the suit filed by the petitioner/plaintiff, plaintiff No. 1 is Kesro (one of his daughters) and plaintiffs No. 3 to 5 are daughters of Khazanus deceased-daughters, Bua Wati and Kaushalya. The case set up by the petitioners/plaintiffs was that during the life time of Khazanu, petitioner/plaintiff No. 1 Kesro was unmarried and looked after his estate, alongwith the father(s) of the defendants. Each of the daughters used to be given a share from the estate of Khazanu. 3. In the suit for declaration filed by the petitioners/plaintiffs, they claimed to be co-owners in possession of the suit land, which was filed on 15.6.1995, more than five decades after the death of Khazanu, the petitioners/plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure, asserting therein that the compensation payable under the Land Acquisition Act should not be released to the respondents- defendants in view of the fact that the petitioners/plaintiffs had a superior right of inheritance over the estate of Khazanu. The Civil Judge (Junior Division), Pathankot, by his order dated 16.12.1995 allowed the respondents- defendants to accept the compensation from the Land Acquisition Collector, but to deposit the entire amount received or account of compensation in lieu of the estate of Khazanu in the shape of a fixed deposit in a nationalised bank within two working days of receiving it from the Land Acquisition Collector. 4. Dissatisfied with the order passed under the application moved by the petitioners/plaintiffs under Order 39 Rules 1 and 2 CPC by the trial Court, the respondents-defendants preferred an appeal. The said appeal was accepted by the Additional District Judge, Gurdaspur vide his order dated 19.1.1998, wherein the ad-interim injunction granted by the trial Court was set-aside and the application moved by the petitioners-plaintiffs under Order 39 Rules 1 and 2 of the Code of Civil Procedure was dismissed. The said appeal was accepted by the Additional District Judge, Gurdaspur vide his order dated 19.1.1998, wherein the ad-interim injunction granted by the trial Court was set-aside and the application moved by the petitioners-plaintiffs under Order 39 Rules 1 and 2 of the Code of Civil Procedure was dismissed. The petitioners/plaintiffs have approached this Court by filing the instant petition, wherein they have impugned the order of the lower Appellate Court dated 19.11.1998. 5. While rejecting the claim of the petitioner/plaintiffs, three factors primarily weighed with the lower Appellate Court; firstly as a matter of fact, the lower Appellate Court came to the conclusion that despite various entries in the revenue records, the petitioners/plaintiffs did not claim any right or title to the estate of Khazanu despite the passage of more than 50 years after his death. In this respect, it was pointed out that Khazanu died on 15.4.1949, whereas the petitioners/plaintiffs had preferred the suit on 15.6.1995. Secondly, it was found that the petitioners/plaintiffs had not approached the Court with clean hands. The express case set up by plaintiff No. 1 - Kesro was that she was unmarried at the time of death of her father Khazanu on 15.4.1949. However, on the basis of the evidence recorded by the trial Court, the lower Appellate Court found that one of the witnesses of the petitioners/plaintiffs namely Shiv Singh had admitted that Ajit Singh, a son was born to Kesro on 11.4.1947 i.e. at least two years before the death of. Khazanu. In the aforesaid view of the matter, the lower Appellate Court arrived at the conclusion that the petitioners/plaintiffs had not approached the Court with clean hands and, therefore, were not entitled to any discretionary relief. Last of all, the lower Appellate Court came to a prima facie conclusion that at the time of death of Khazanu on 15.4.1949, the provisions of Hindu Succession Act, 1956 were not applicable. It was only after the applicability of the provisions of the Hindu Succession Act, 1956 that daughters were vested with a preferential right of inheritance over collaterals in the property of their father by declaring them to be Class I heirs. Prior thereto, daughters had a limited right to the estate of their father i.e. a mere right of maintenance. It was only after the applicability of the provisions of the Hindu Succession Act, 1956 that daughters were vested with a preferential right of inheritance over collaterals in the property of their father by declaring them to be Class I heirs. Prior thereto, daughters had a limited right to the estate of their father i.e. a mere right of maintenance. After deliberating on the three issues, referred to above, the lower Appellate Court arrived at the conclusion that in case compensation received by the respondents/defendants from the Land Acquisition Collector, no irreparable loss or injury was to be suffered by the petitioners/plaintiffs. In this view of the matter, the lower Appellate Court felt that in case the petitioners/plaintiffs succeeded in the litigation, in the Civil Courts, they could easily be refunded the compensation received from the Land Acquisition Collector, in lieu of the estate of Khazanu alongwith interest etc. 6. I have considered the submissions advanced by learned counsel for the petitioners/plaintiffs. First of all, it is submitted that there is no period of limitation prescribed for a suit for possession on the basis of inheritance. Reliance in this behalf has been placed by the learned counsel for the petitioner/plaintiffs on a decision rendered by a Division Bench of this Court in Mohinder Singh v. Kashmira Singh, AIR 1985 Punjab and Haryana 215. It is also submitted that even prior to the Hindu Succession Act, 1956, on account of the fact that Khazanu did not have any male issue, the petitioner/plaintiffs had a right of inheritance to his estate. It would not be proper for this Court to adjudicate on these issues at this stage. It is, therefore, that this Court is not drawing any inference on any of the issues raised by the petitioners/plaintiffs, while disposing of the instant petition. 7. So far as the present petition is concerned, it is sufficient to examine the two conclusions drawn by the lower Appellate Court; firstly that the petitioner/plaintiffs did not approach the Court with clean hands. In this behalf the conclusion drawn by the lower Appellate Court is based on the fact that Kesro must be deemed to be married before the death of her father on 15.4.1949, in view of the fact that she was blessed with a son, Ajit Singh, two years prior to the death of Khazanu on 11.4.1949. In this behalf the conclusion drawn by the lower Appellate Court is based on the fact that Kesro must be deemed to be married before the death of her father on 15.4.1949, in view of the fact that she was blessed with a son, Ajit Singh, two years prior to the death of Khazanu on 11.4.1949. The birth of the son Ajit Singh to Kesro on 11.4.1947 has not been disputed by the petitioners/plaintiffs either in the grounds of revision or during the course of arguments, thus leading to the inference that the petitioners/plaintiffs conceded to the aforesaid factual position. Despite the fact that Kesro had been married well before the death of her father, in the suit it was pleaded that she was unmarried at the time of death of her father Khazanu on 15.4.1949. It is, therefore, crystal clear that the petitioners/plaintiffs had not approached the Court with clean hands and are, therefore, certainly not entitled to the discretionary relief under Order 39 Rules 1 and 2 of the Code of Civil Procedure. 8. Secondly, the payment receivable on account of the State of Khazanu from the Land Acquisition Collector is a definite monetary consideration. Even if the payment is released by the Land Acquisition Collector to the respondents- defendants, who have been depicted as owners in possession of the estate of Khazanu in the revenue records all along after the death of Khazanu on 15.4.1949, no irreparable loss would be caused to the petitioner/plaintiffs as in the case of their eventual success in the suit preferred by them, the amount received from the Land Acquisition Collector can be refunded to the petitioners/plaintiffs. In view of the position expressed above, I find no good ground to interfere with the order of the lower Appellate Court. Accordingly, the instant petition is dismissed. There shall, however, be no order as to costs. Petition dismissed.