Rakesh Kumar Jain, J.
1. The substantial question of law involved in this appeal is that in case a testator bequeaths his property jointly to two lineal descendants by way of a Will and if one of the legatees dies during the life time of the testator, whether the bequeathed property would be taken away by other surviving legatee in terms of Section 106 of the Indian Succession Act, 1925 (in short 'the Act') or if the legatee dies during the life time of the testator leaving behind his mother as Class-I heir and has no lineal descendant, should the mother take the share of that legatee in view of Section 109 of the Act and whether mother is a lineal descendant.
2. The facts first
The appellant is the mother-in-law of respondent Bhupinder Kaur;
Kartar Singh (deceased) had two sons called Ujjagar Singh and Saudagar Singh. Ujjagar Singh had a wife Surjit Kaur and two sons Harinder Singh and Avtar Singh. Harinder Singh had a wife Bhupinder Kaur and a minor son Amritpal Singh, whereas Avtar Singh was Bachelor and issueless. The pedigree table is as under: Kartar Singh(died on 27.2.1994)----------------------------------| |Ujagar Singh (Wife Surjit Kaur) Saudagar Singh(died on 8.12.1992)| |Harinder Singh (son) Avtar Singh (son)(died on 24.8.1998) (died on 8.12.1993)|Bhupinder Kaur (Plaintiff)(Wife)
Amritpal Singh (son). 2. Bhupinder Kaur filed the present suit for joint possession against Surjit Kaur alleging that the plaintiff is the widow of Harinder Singh, Kartar Singh, the original owner of the suit land executed a registered Will on 25.3.1987 in favour of his grand sons Harinder Singh and Avtar Singh. Avtar Singh was unmarried and had died issueless on 8.12.1993 and left no lineal descendant. Avtar Singh pre-deceased Kartar Singh who died on 27.2.1994, Ujagar Singh died on 8.12.1992 and Harinder Singh died on 24.8.1998. It was claimed that the Will was executed jointly in the names of Avtar Singh and Harinder Singh and since Avtar Singh pre-deceased Kartar Singh without leaving any lineal descendant, therefore, the entire estate of Kartar Singh bequeathed by way of Will dated 25.3.1987 devolved upon Harinder Singh. It was averred that Mutation No. 425 of Village Bhagwanpur regarding the estate of said Kartar Singh was wrongly sanctioned in favour of Harinder Singh and Avtar Singh on 21.4.1994, though Avtar Singh had expired and had pre-deceased Kartar Singh and on the basis of wrong entries in the revenue record on the basis of mutation No. 425 in favour of Avtar Singh, mutation No. 437 of the said village has been sanctioned in favour of Surjit Kaur regarding the estate of Avtar Singh. It was asserted that the plaintiff is the owner of the share recorded in the name of the defendant but on the basis of wrong entries in the revenue record, the defendant has started claiming her ownership over the suit land and is taking steps to alienate it.
3. On notice in the suit, defendant appeared and filed the written statement in which besides preliminary objections, it was averred on merits that the pedigree table has not been correctly depicted in the plaint since daughters of Kartar Singh have not been shown. It was alleged that the plaintiff has wrongly mentioned the date of death of Kartar Singh. It was further denied that after the death of Avtar Singh, who died unmarried and issueless, his property devolved upon his mother Smt. Surjit Kaur, therefore, mutation on that basis has been wrongly sanctioned in her favour.
4. On the pleadings of the parties, following issues were framed by the trial Court:
1. Whether the plaintiff is entitled to the joint possession as prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable in the present form? OPD
3. Whether the suit of the plaintiff is bad for mis-joinder and non-joinder of necessary parties? OPD
4. Whether the suit of the plaintiff is estopped by her own act and conduct? OPD
5. Whether the suit of the plaintiff is barred under Order 2 Rule 2 CPC OPD
6. Relief.
5. The plaintiff examined Sher Singh as PW-1 and herself appeared into the witness box as PW-2 whereas the defendant examined Gurcharan Singh as DW-1 and Bhajan Singh as DW-2.
6. The learned trial Court dismissed the suit of the plaintiff, whereas the learned first Appellate Court reversed the judgment and decree of the trial Court and decreed the suit of the plaintiff. Thus, defendant is in appeal.
7. Mr. Bhag Singh, learned Counsel appearing for the appellant has submitted that the facts of this case are not much in dispute.
8. The admitted facts are that Kartar Singh had executed a Will jointly in favour of his both the grand sons, namely, Harinder Singh and Avtar Singh. Avtar Singh died on 8.12.1993 during the lifetime of said Kartar Singh, who died on 27.2.1994. It is also admitted fact that Avtar Singh had no issue but has left behind his mother (appellant) as his heir.
9. It is contended by the counsel for the appellant that since Avtar Singh has left behind his mother as his heir who was alive during the life time of the testator Kartar Singh, then she would succeed in terms of the provisions of Section 109 of the Act. As against this, Mr. Ashok Sharma Nabhewala, learned Counsel for the respondent submitted that mother being only an heir cannot be termed as a lineal descendant and cannot inherit and thus provisions of Section 109 of the Act would not be applicable and rather provision Section 106 would apply. In order to appreciate the controversy between the parties, certain provisions of the Act need to be noticed. The word 'Lineal consanguinity' is defined under Section 25 of the Act.
25. Lineal consanguinity.- (1) Lineal consanguinity is that which subsists between two persons, one of them is descended in a direct line from the other, as between a man and his father, grandfather and great-grand father, and so upwards in the direct ascending line or between a man and his son, grandson, great-grandson, and of downwards in the direct descending line.
(2) Every generation constitutes a degree, either ascending or descending.
(3) A person's father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great-grandson in the third degree, and so on.
106. 'Legacy does not lapse if one or two joint legatees die before testator.- If a legacy is given to two persons jointly and one of them dies before the testator, the other legatee takes the whole.
109. 'When bequest to testator's child or lineal descendant does not lapse on his death in testator's lifetime.- Where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the lifetime of the testator, but any lineal descendant of his survives the testator, the bequest shall not lapse, but shall take effect as if the death of the legatee had happened immediately after the death of the testator, unless a contrary intention appears by the Will.
10. In order to further buttress his arguments, Mr. Bhag Singh learned Counsel for the appellant relied upon a judgment of this Court delivered in the case of Smt. Shanti and Ors. v. Smt. Bhagwani and Ors. and submitted that the provisions of Section 109 of the Act shall apply to the facts and circumstances of the present case. I have perused the reported judgment. In the said case, the facts were that one Raghunath had a wife, two sons and five daughters. He executed a Will in favour of his sons Ishwar and Ram Kishan. Ram Kishan pre-deceased his father leaving behind his widow and a daughter. In 1977, Raghunath also died. The widow, four daughters and children of 5th daughter of Raghunath filed the civil suit to claim succession to the half share of his estate on the ground that since Ram Kishan legatee predeceased the testator Raghunath then half share had reverted to the estate of Raghunath under Section 107 of the Act and they were entitled to share in that half share in accordance with the provisions of Hindu Succession Act, 1956. The widow and daughter of Ram Kishan contested the suit and pleaded that provisions of Section 109 of the Act would apply and not the provisions of Section 107 of the Act. It was pleaded by them that bequest made to Ram Kishan did not lapse and by fiction of the same took effect as if the death of legate happened immediately after death of the testator.
11. In the present case, the controversy is not with regard to Section 107 of the Act because according to Section 107, if a legacy is given to legatees categorically which would show that the testator intended to give them distinct shares, then, if any legatee dies during the life time of the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property.
12. It is not the dispute in the present case because in the case of Smt. Shanti (supra) there were two daughters of the legatee, who were to succeed to the property as a lineal descendant. Therefore, Section 109 of the Act was applied. In the present case, however admittedly, Avtar Singh had no child. The words in Section 109 require that where a bequest has been made to any child or other lineal descendant of the testator, and the legatee dies in the life time of the testator but any lineal descendant of his survives the testator, the bequest shall not lapse but shall take effect as if the death of the legatee had happened immediately after the death of the testator unless a contrary intention appears by the Will. It means that right to succeed is conferred upon lineal descendant of the legatee who survives the testator. Since Avtar Singh had no son or daughter at the time when Kartar Singh died, therefore, his line of succession is blocked and his mother being Class-I heir as per the Hindu Succession Act, 1956 cannot be termed as a lineal descendant for the purpose of Section 109 of the Act. Needless to say, had Avtar Singh got a son or daughter, then the provisions of Section 109 of the Act would have applied.
13. In view of the above discussion, it is held that the question posed in the beginning of this judgment is answered in the terms that where a will is executed by the testator jointly in the name of two legatees and one of the legatee dies during the life time of testator leaving behind no lineal descendant who could survive the testator, the provisions of Section 109 of the Act, shall not apply, rather provisions of Section 106 of the Act, would apply and the mother who is an heir and not a lineal descendant cannot succeed under Section 109 of the Act.
14. With the above observations, I do not find any merit in the present appeal and the same is dismissed without there being any order as to costs.