1. The facts giving rise to this appeal are elaborately stated in my referring order dated February 28, 1969, and need not be reproduced. When the matter came up before us in Division Bench on January 22, 1970, we came to the conclusion that the decision on issue No. 1 was not proper and that the original documents had not been considered. We, therefore, remitted the case to the learned Additional District Judge, Barnala, to decide this issue afresh after permitting any additional evidence which the parties may produce before him. The learned Judge has in pursuance of our order dealt with the matter and has submitted his report. His report is that the plaintiff is the son of Shrimati Harnam Kaur.
2. There is no dispute now before us that the property in dispute must be treated as the property of Harnam Kaur and it will devolve on her heirs. It is also not disputed that Shrimati Harnam Kaur left behind the plaintiff and Har Kaur, a daughter. The daughter is dead and is survived by her only son Partap Singh who is P.W. 4. Mr. Wasu contends that the report of the learned Additional District Judge holding the plaintiff to be the son of Shrimati Harnam Kaur, cannot be accepted. After hearing the learned counsel we have come to the conclusion that the report is based on consideration of the entire evidence. The only question that requires determination is one of fact namely, whether the plaintiff is the son of Shrimati Harnam Kaur. The finding of the learned Additional District Judge is based on evidence, and is binding on us in second appeal. We, therefore, agreeing with the finding of the learned Additional District Judge, hold that the plaintiff is the son of Shrimati Harnam Kaur. Faced with this situation, Mr. Wasu contends that as Shrimati Harnam Kaur left two heirs and the suit has been brought by one of them, a decree qua the share of the other heir. According to the Hindu Succession Act, both the son and daughter are entitled to succeed to Shrimati Harnam Kaur in equal shares. Shrimati Harnam Kaur died on November 13, 1958 and, therefore, her property would devolve on her two heirs. The appellants took possession of the property on the death of Shrimati Harnam Kaur and would obviously be in the position of trespassers. The rule is firmly established that only a rightful owner can obtain possession from a trespasser because a trespasser can hold the estate against the entire worlds excepting the true owner. So far as the plaintiff is concerned, he is owner only of half of the estate. On the death of Harnam Kaur her estate vested in her son and daughter in equal shares, inasmuch as it is settled proposition of law that the inheritance never remains in abeyance. There is no vacuum. The plaintiff can only claim what he owns and not what his sister owns. It is not a case where the sister has authorised her brother to recover her estate for her. Therefore the plaintiff is only entitled to a decree to the extent of his share, that is, one-half of the estate left by Shrimati Harnam Kaur. In this connection reference may be made to the decision of Narula J. in Smt. Dropti v. Chinta, Second Appeal No. 361 of 1961 decided on 1-4-1971.
3. The plaintiff made an application that his sister's son who now represents his mother in succession to the estate of Shrimati Harnam Kaur be impleaded as a party and a decree be passed in his favour. It is significant that he was not impleaded as a party throughout the trial. The position might have been different if he was even a defendant in the suit or respondent in the appeal. The limitation, so far as he is concerned to file a suit to recover the property has since long expired because a suit to recover the estate of Shrimati Harnam Kaur could only be brought within twelve years of the death of Shrimati Harnam Kaur. That period expired in November, 1970 and, therefore, on that basis also the application that he be impleaded as a party at the stage of appeal cannot be entertained. In addition to this there is no application by him for being impleaded as a party.
4. For the reasons recorded above, we allow this appeal to this extent that the decree in favour of the plaintiff qua half of the estate of Shrimati Harnam Kaur stands, while the suit qua the other half will stand dismissed. There will be no order as to costs.
S.S. Sandhawalia, J.
5. I agree.
6. Appeal allowed in part.