Bija Ram (Died) through Lrs. vs Raja Ram and Others

T.H.B. Chalapathi, J.—The plaintiff is the appellant in this appeal. He filed this appeal against the judgment and decree of the teamed Additional District Judge, Ambala in Civil Appeal No. 92 of 1981 dated 13.3.1986.

The plaintiff-appellant filed the suit for possession of the suit property on the ground that it belonged to his father Sant Ram who died on 23.10.1973 leaving behind him the plaintiff and the 1st defendant and one Kukandi, who is the father of defendants 2 and 3 and his father Sant Ram has not executed any Will and, therefore, he is entitled to 1/3rd share in the suit property.

The defendants contended inter alia that Sant Ram executed a Will in their favour and they are in possession "of the suit land and the suit is not maintainable. On the basis of the pleadings, the trial Court framed appropriate issues and held that the suit property was not ancestral property in the hands of Sant Ram and Sant Ram executed a valid Will in favour of the defendants. Aggrieved by the said judgment of the trial Court, the plaintiff preferred an appeal to the learned Additional District Judge, Ambala, who, by the impugned order, confirmed the findings of the trial Court and dismissed the appeal. Aggrieved by the same, the plaintiff filed the second appeal.

Both the Courts below held that the suit property originally belonged to one Badama and Bhura. On the death of Badama, Sant Ram inherited the share of Badama and the share of Bhura was inherited by Jasmat and Jasmat died leaving behind his widow Nihali and Nihali entered into Karewa marriage with Santa and on her death Santa inherited the land of Nihali. Thus the entire property was inherited by Sant Ram from Badama and Bhura. Thus Sant Ram did not get the property through his ancestors. He got the property through Badama and Nihali. Therefore, it cannot be said that the suit property was ancestral in the hands of Sant Ram. Since Sant Ram has inherited the property not from his father, but as reversioner to Badama and Nihali, it cannot be said that the property in the hands of Sant Ram was ancestral property. Therefore, it is a self-acquired property. I am, therefore, in agreement with the Courts below that the suit property is not ancestral property of Sant Ram. Therefore, the plaintiff cannot claim a share in the property on the basis that it is ancestral property.

It is next to be seen whether the Will set up by the defendants has been executed by Sant Ram. If the Will set up by the defendants is not valid, then the plaintiff would certainly get a share in the suit property left by his father, though it is not ancestral property. Admittedly, the burden of proof will lie on the propounder of the Will i.e. the defendants. Copy of the Will was produced as exhibit DW-7/1. It shows that the plaintiff had been residing at a different village Isharpur for the last 30/35 years with his in-laws and he got agricultural land from the family of his in-laws and he had not come to village Ramgarh where Sant Ram was living. It is also stated in the Will that his two other sons Raja Ram and Mukandi were serving him. He bequeathed his property into two equal shares to Raja Ram, the 1st defendant and defendants 2 and 3 who are sons of his other son Mukandi. These circumstances would certainly go to show that since the plaintiff is staying with his in-laws and got agricultural property from his in-laws, he is excluded to inherit the property of his father under the Will. The Will is a registered document. The attestor of the Will one Swaran Singh who was the Lambardar of the village, was examined to prove the Will. He was ex- amined as DW-4. He deposed that Sant Ram had voluntarily executed the Will and he proved the requirements of attestation. The scribe of the Will Mohinder Nath was examined as DW-7. Even the other attestor, who was examined by the plaintiff as PW-6 admitted that he affixed his thumb mark on the Will. The Courts below rightly placed reliance on the evidence of Srawan Singh, the attestor of the will and scribe of the Will Mohinder Nath to prove the execution of the Will. I am, therefore, of the opinion that the Courts below rightly held that the Will has been executed by Sant Ram bequeathing his property to the defendants. Sant Ram excluded his son, the plaintiff from inheriting the property since Bija Ram, plaintiff, has,got the agricultural property from his in-laws in the village Isharpur. This conduct of Sant Ram is nothing, but natural.

In view of my foregoing discussion, I do not find any ground warranting interference with the judgments and decrees of the Courts below.

The appeal, therefore, fails and is accordingly dismissed.