JUDGMENT
R.L. Anand, J.
1. Defendant Ajit Singh has filed the present appeal, which has been directed against the judgment and decree dated 14.8.1991 passed by the Court of Additional District Judge, Kapurthala, vide which the said learned Court accepted the appeal and set aside the judgment and decree dated 30.8.1988 passed by the Court of Shri K.L. Chopra, Sub Judge Ist Class, Phagwara (trial Court) and decreed the suit of the plaintiffs-respondents by giving them a declaration that they are the owners in joint possession to the extent of 2/3rd share in the property measuring 68 Kanals 7 Marlas as described in the head note of the plaint. The first appellate Court, however, dismissed the suit of the plaintiffs regarding the perpetual injunction. However, defendant No. 2 Ajit Singh was restrained from alienating the property which he purchased from Smt. Bhago defendant No. 1 more than her share. The first appellate Court also made the observation that Ajit Singh appellant is at liberty to alienate one-third share of the property in dispute which he purchased from Smt. Bhago because Smt. Bhago was held to be the owner of the suit land to the extent of one third share only.
2. Brief facts of the case are that Ramail Singh and Karnail Singh, minor sons of Bachint Singh, through their guardian Kewal Singh son of Lachhman Singh filed a suit for declaration and for injunction against Smt. Bhago (mother of plaintiffs No. 1 and 2 and widow of Bachint Singh) (defendant No. 1), Ajit Singh (defendant No. 2) and Kuldip Singh (defendant No. 3) to the effect that the plaintiffs, who are the minor sons of Bachint Singh, are the owners in possession to the extent of 7/9 share in the property in dispute measuring 68 Kanals 7 Marias and that the sale deed executed by defendant No. 1 Smt. Bhago in favour of defendant No. 2 Ajit Singh on 14.1.1986 is illegal, void and is liable to be set aside. The plaintiffs also prayed for injunction praying that defendants No. 1 and 2 be restrained from alienating, transferring the suit land and dispossessing the plaintiffs from the suit land forcibly. The case set up by the plaintiffs was that they are the minor sons of Bachint Singh deceased and the suit is being filed through their guardian Kewal Singh. Said Bachint Singh was the owner of the land measuring 68 Kanals 7 Marlas, fully described in the head note of the plaint. Defendant No. 1 Smt. Bhago is the mother of the plaintiff. Though she is the natural guardian, but the interests of the plaintiffs and defendant No. 1 are clashing with each other, so the said suit has been filed through their next friend Kewal Singh. The plaintiffs alleged that they are the owners to the extent of 7/9 share of the land. Bachint Singh deceased had two wives, namely Smt. Bant Kaur and Smt. Bhago. After the death of Bachint Singh, the plaintiff became entitled to the extent of two-third share but imitation No. 674 dated 28.2.1978 of village Baran and mutation of village Bhak Baran showing the plaintiffs as owner to the extent of one-half share was wrongly sanctioned and the said mutation has no effect upon the lawful rights of the plaintiff of the property in dispute and the said mutation had no effect upon the legal rights of the plaintiffs of the property in dispute and that mutation Nos. 547 and 747 dated 3.2.1986 of the properties left by the deceased Bant Kaur, were wrongly sanctioned in favour of the other widow, namely, Smt. Bhago, whereas after the death of Smt.Bant Kaur, the plaintiffs have be come owner of the land to the extent of 7/9 share, as they have succeeded to the interests of their step-mother Smt. Bant Kaur. According to the plaintiffs, Smt. Bhago had 2/9 share in the property of the Bachint Singh deceased. She had already sold 9 Kanals and 2 Marlas out of her share and thereafter she was owning only 7 Kanals 10 Marlas. However, she sold 19 Kanals 19 Maria vide sale deed dated 14.1.1986 in favour of defendant No.3 and the said sale deed is illegal, void and ineffective upon the rights of the plaintiffs because Smt. Bhago was not the owner to that extent and she could not pass a better title. The plaintiffs further alleged that defendants Nos. 2 and 3 are bent upon dispossessing them on the basis of the illegal sale dated 14.1.1986 Defendant No. 1 to 3 were called upon several times to admit the claim of the plaintiffs, but to no effect. Hence the suit.
3. Notice of the suit was given to the defendants. Defendant No. 1 Smt. Bhago did not appear inspite of the service and she was proceeded ex parte. The suit was contested by defendants Nos. 2 and 3 On the ground that Kewal Singh – the so called guardian of the plaintiffs has no locus standi to file the suit on behalf of the plaintiffs. Said Kewal Singh is not related to the plaintiffs. Rather he wants to grab the property of the plaintiffs. The suit is not properly valued for the purposes of court fee and jurisdiction; that it is bad for non-joinder of necessary party; that it has been filed in collusion between the plaintiffs and defendant No. 1. It was also pleaded by defendants No. 2 and 3 that the plaintiffs are not the owners to the extent of 7/9 share. Rather they are the owners to the extent of one-half share and Smt. Bhago defendant No. 1 was also the owner to the extent of other half share and she has rightly executed the sale deed dated 14.1.1986 in favour of defendant No. 2. It was also pleaded that Smt. Bant Kaur was not the owner to the extent of one-sixth share, but she was owner of 2 share which has devolved upon the plaintiffs and defendant No. 1. Defendants Nos. 2 and 3 also pleased that there was oral settlement between Smt. Bhago defendant No. 1 and Smt. Bant Kaur. By virtue of family settlement defendant No. 1 Smt. Bhago became the owner to the extent of 1/2 share in the said property. After the death of Smt. Bant Kaur her share does not devolve upon the plaintiffs. Mutation No. 674 dated 28.2.1978, mutation No. 573 and mutation No. 743 dated 3.2.1986 have been legally and correctly sanctioned. It was also pleaded by defendants No. 2 and 3 that Smt. Bhago did not sell the property more than her share. She received a sale consideration of Rs. 40,000/- out of which Rs. 20,000/- was paid earlier and Rs. 20,000/- were paid before the Sub Registrar. Defendant No. 1 Smt. Bhago delivered the possession of the land sold by her to the answering defendants, who are not entitled to any declaration or injunction, as prayed for.
4. From the pleadings of the parties, the learned trial Court framed the following issues :-
1. Whether Kewal Singh is guardian of the plaintiffs and also custodian of the property of the minors and he has compiled with the provisions of Order 32 C.P.C.? If so, its effect? Onus on parties.
2. Whether the plaint is properly valued for the purposes of Court-fee and jurisdiction? OPP
3. Whether the suit is bad for mis-joinder of necessary parties, as alleged? OPD.
4. Whether the suit is conclusive between defendant No. 1 and, the plaintiffs, as alleged in the written statement? If so its effect? OPD
5. Whether the plaintiffs are owners in possession to the extent of 7/9 share in the disputed property, as alleged in the replication? OPD
6. Whether the sale deed dated 14.1.1986 is illegal, void and is liable to be cancelled and set aside as alleged in the plaint? OPP
7. Whether defendant No. 2 owner in possession of the suit property since the date of its purchase vide sale deed dated 14.1.1986? OPD
8. Whether there was family settlement between the parties and Bant Kaur had relinquished her share in the suit property in favour of Smt. Bhago, as alleged? OPD
9. Whether the plaintiffs are entitled to the declaration and injunction prayed for? OPP
10. Relief.
The parties led oral and documentary evidence in support of their case. It would be useful for me at the first instance to incorporate the findings of the trial Court on each issue.
5. While deciding issue No. 1 it was held by the trial Court that Kewal Singh has no locus standi to file the suit on behalf of the minors. He is not the next friend of the minors. Resultantly, issue No. 1 was decided against the plaintiffs. Issue No. 2 was decided in favour of the plaintiffs. Issue No. 3 was, however, decided against the plaintiffs and in favour of the defendants by holding that the suit was bad for mis-joinder of necessary parties, as the plaintiffs did not implead the daughters of Bachint Singh deceased. Under issue No. 4 it was held that the suit was filed in a collusive manner between the plaintiff and defendant No. 1. While disposing of issue No. 5 it was declared by the trial Court that the plaintiffs are the owners to the extent of two-third share in the suit property and one-third share goes to Smt. Bhago and that Smt. Bhago was the owner to the extent of 13 Xanals and 13-2/3 Marlas but she has sold more than her interest, i.e., 29 Kanals and Maria and then any sale is excess of her share does not confer any valid title in favour of defendant No. 2 (appellant). It was held under issue No. 6 that sale deed dated 14.1.1986 executed by defendant No. 1 in favour of defendant No. 2 is valid upto 13 Kanals 13 2/3 Marlas. Under issue No. 7, it was held by the trial Court that defendant No. 2 is the owner and in possession of the land measuring 13 Kanals 13 2/3 Marlas only a joint owner. Issue No. 8 was decided in favour of the defendants and it was held that Smt. Bank Kaur had relinquished her share in the suit property in favour of Smt. Bhago and in this manner Smt. Bhago was the owner to the extent of one-third share. Issue No. 9 was decided against the plaintiffs and finally the suit was dismissed.
6. The plaintiffs filed an appeal before the Court of Additional District Judge, Kapurthala, who vide judgment and decree dated 14.8.1991 partly allowed the appeal by setting aside the judgment and decree of the trial Court and suit of the plaintiffs was decreed by declaring that the plaintiffs are the owners in joint possession to the extent of two-third share in the suit property measuring 68 Kanals 7 Marlas. The suit of the plaintiffs for permanent injunction, as prayed for, was dismissed. However, defendant No. 2 (now appellant) was restrained from alienating the property, which he purchased from Smt. Bhago more than her share. The first appellate Court also declared that defendant No. 2 was at liberty to alienate one-third share of the property, in dispute, which he purchased from Smt. Bhago. Aggrieved by the judgment and decree of the first appellate Court, the present appeal by defendant No. 2 Ajit Singh.
7. I have heard the counsel for the parties and with their assistance have gone through the record of this case. The first submission, which was made by the learned counsel for the appellant on issue No. 1, was that Kewal Singh had no locus standi to file the suit under Order 32 C.P.C. Learned counsel also submitted that, in fact, Smt. Bhago defendant No. 1 had put up Kewal Singh, who is claiming himself to be the next friend of the minors and the suit has been filed in a collusive manner between the plaintiffs, defendant No. 1 Smt. Bhago and Kewal Singh. In support of his reasons, the learned counsel for the appellant referred to the statements of P.W. 1 Jit Singh, P.W. 2 Surinder Singh and P.W. 3 Kewal Singh. Reference has been made to the statement of Kewal Singh pertinently when he admitted that Bachint Singh deceased had four brothers, including Hari Singh, who left behind four daughters. It has also been admitted by this witness that Smt. Bant Kaur had left behind a nephew. The counsel also stated that it has been admitted by Kewal Singh that his sons purchased land from Smt. Bhago, which fact goes to indicate that the interest of Kewal Singh was adverse to the minors and that said Kewal Singh once grabbed the share of the plaintiffs by pretending himself to be the next friend of the minors. Further it has been admitted by P.W.I. Jit Singh as well as P.W. 2 Surinder Singh that five daughters of Bachint Singh are alive. The counsel relied upon an authority of the Kerala High Court reported as Narayani Amma v. Bhaskaran Pillay and others, A.I.R. 1969 Kerala 214.
8. On the contrary it was argued by the learned counsel for the respondent that interest of Kewal Singh was not adverse to the plaintiffs irrespective of the fact that some land out of the suit land was purchased by his sons from Smt. Bhago, as rightly been held by the first appellate Court.
9. After considering the rival contentions of the parties, I am of the considered view that the arguments raised by the learned counsel for the appellant are devoid of any merit. Order 32 Rule 1,C.P.C., lays down that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Order 32, Rule 4(1) lays down that any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit, provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. The object of Order 32 Rule 4(1) is that the next friend should not work adversely to the interest of the minors. Now it is to be seen from the evidence led by the parties whether Kewal Singh’s interest were adverse to the interests of the minors or not. Smt. Bhago is the natural guardian of the minors and the case set up by the plaintiffs was that she alienated more land than that of her share. If that was so, certainly Smt. Bhago was working adversely to the interests of the plaintiffs. No doubt the sons of Kewal Singh, next friend of the rninors, purchased some other parcel of the land from Smt. Bhago but that sale is not under challenge in the present suit, for the reasons that Smt. Bhago was competent at that time to sell that parcel of the land in favour of the sons of Kewal Singh because she had the title over the property. In the present suit the sale in favour of defendant No. 2 has been questioned by the plaintiffs. Smt. Bhago has not contested the suit for the obvious reason that she did not have overall title with regard to the land measuring 19 Kanals 19 Marlas, as per sale deed dated 14.1.1986 in favour of defendant No. 2. It is the admitted case of the parties that total land owned by Bachint Singh was 68 Kanals 7 Marlas. Said Bachint Singh died leaving behind two wives, namely, Smt. Bhago and Smt. Bant Kaur and two sons, namely, the plaintiff. The estate of Bachint Singh was to be divided into three shares, i.e. two shares to the plaintiffs and one share as a whole was to go to Smt. Bant Kaur and Smt. Bhago. If Smt. Bhago has sold in excess of her interest in the estate of Bachint Singh, she was definitely working against the interest of the plaintiffs and in these circumstances if Kewal Singh has come forward to challenge the sale in favour of defendant No.2 (appellant), it cannot be said that he has working against the interests of the plaintiff or that he has no locus standi to file the suit on behalf of the plaintiffs. In fact, the suit has been filed in the name of the plaintiffs and Kewal Singh simply acted as a next friend. If ultimately the present suit is decreed, Kewal Singh is not going to have any interest or share. The decree has been passed by the first appellate Court for the benefit of the minors, declaring that they are the owners to the extent of two-third share in the estate of Bachint Singh deceased and one-third share goes to Smt. Bhago. While dealing with issue No.l learned first appellate Court has rightly held that if Kewal Singh had purchased some land from Smt. Bhago out of the her share, that does no mean that Kewal Singh was having any adverse interest against the minors. I fully endorse this reason and repel the first argument of the learned counsel for the appellant when he argued that Kewal Singh had no locus standi to become the next friend of the minors for the purposes of filing of the suit. The authority of the Kerala High Court cited by the learned counsel for the appellant is not applicable in the present case because it is not proved on the record that Kewal Singh wants to achieve his some object in the present suit. I have already stated above that ultimately the decree is for the benefit of the minors and not for the benefit of Kewal Singh.
10. The second argument which was raised by the learned counsel for the appellant in this case was that defendant No.2 (appellant) was the bona fide purchaser for consideration and that he should not be penalised if any wrong mutations have been effected in the revenue record on the death of Bachint Singh. The argument is devoid of any merit. Firstly in the written statement, no such plea has been taken nor any of the issues framed by the trial Court cover the stand now being taken by the learned counsel for the appellant. Secondly it is a settled law that the mutation entries do not confer any title on the parties. Thirdly, the succession does not remain in abeyance. Now it is to be seen how the succession of Bachint Singh goes, who had two sons and two widows. Though it has come in the statement of Jit Singh (P.W.1) that Bachint Singh had daughters but they are not claiming any interest in the estate of their father. Two sons, namely, Ramail Singh and Karnail Singh could get one-third share each and the remaining one-third share would devolve upon between the two widows, namely, Smt. Bhago and Smt. Bant Kaur. There is overwhelming evidence that the relations between Smt. Bhago and Smt. Bant Kaur were cordial. There was no issue from the womb of Smt. Bant Kaur and with her death her share would devolve upon Smt.Bahago. It has been rightly held both by the trial Court as well as by the first appellate Court that she became the owner to the extent of one-third share in the suit land measuring 68 kanals 7 Marlas. The land measuring 9 Kanals 2 Marlas was earlier sold by Smt. Bhago and vide sale deed (Ex.D1) dated 14.1.1986 she sold the land measuring 19 Kanals 19 Marlas, whereas her interest remained only upto 13 Kanals and 13-2/3 Marlas (Say 14 Marlas). Beyond that Smt. Bhago was not competent to pass any interest in favour of defendant No.2 and it was rightly held both by the trial Court as well as by the first appellant Court that Jit Singh would not get any title more than what Smt. Bhago had at the time of the execution of the sale deed (Ex.Dl) dated 14.1.1986. In other words,Jit Singh appellant became co-sharer with the plaintiff till the land is partitioned by metes and bounds. Vide sale deed (Ex.Dl) Smt. Bhago could only convey title with respect to the land measuring 13 Kanals 13-2/3 (say 14 Marlas and not 19 Kanals and 19 Marlas, as is being claimed by the appellant through sale deed (Ex.Dl). Under these circumstances, the second argument of the learned counsel for the appellant is also rejected being devoid of any merit.
11. It was also one of the arguments of the learned counsel for the appellant that the present suit has been filed in a collusive manner between the plaintiffs and defendant No. l. The counsel submitted that since defendant No. l had not chosen to contest the suit, it is a prima facie evidence that she is siding with her sons, more so when Jit Singh (P.W.1) admitted that ration cards of the plaintiffs and that of Kewal Singh were separate but mess is common in-between Kewal Singh and Smt. Bhago and the plaintiffs. The argument cannot be accepted. In order to prove the collusion, it has to be established by the appellant that the present suit has been filed on the active connivance between Smt. Bhago and the plaintiffs and that Smt. Bhago was instrumental in putting up the plaintiffs through Kewal Singh for the institution of the suit. Here the controversy is about the interests of the plaintiffs in the estate of their father. Admittedly, Smt. Bhago could not sell more than one-third share even after inheriting the interests of her co-widow Smt. Bant Kaur. The plaintiffs are agitating the rights through Kewal Singh. In no circumstances it can be said that there was any collusion between the plaintiffs, Smt. Bhago and Kewal Singh. This assertion of the learned counsel for the appellant also stands repelled.
12. Lastly, it was submitted by the learned counsel for the appellant that the suit of the plaintiff was bad for mis-joinder of necessary parties. The daughters of Bachint Singh were not added as parties to the suit. The onus of this issue was upon the defendants. No doubt Jit Singh (P.W.1) deposed that daughters of Bachint Singh are alive, but beyond that there is no evidence that at any point the daughters were also claiming any interest in the estate of their father. It is a common case of the parties that at the time of the mutation of the property of Bachint Singh, none of the daughters came forward to claim any share in the estate of their father. Furthermore there is no evidence on the record to establish that what the names of the daughters are. No daughter has been produced by the defendants in the witness-box in order to succeed on this point. This aspect of the case was also fairly treated by the first appellate Court in Para No.9 of the judgment when it held that the defendants did not lead any evidence to prove who were the daughters of Bachint Singh. I affirm the finding of the first appellate Court and disagree with the findings of the trial Court on this issue.
13. No other point was urged in this case.
14. Resultantly, I do not see any merit in this appeal, which is hereby dismissed with no order as to costs.