Gopi alias Gopi Chand vs Niranjan

T.H.B. Chalapathi, J.

This appeal is preferred against the judgment and decree dated 26.10.1978, of the learned Additional District Judge, Karnal, in Civil Appeal No. 15/13Addl. of 1977.

The plaintiffs are the appellants in this appeal. They filed the suit for joint possession of the suit property. According to them the suit property belonged to one Nanha. The plaintiffs and the second defendant inherited the same and, therefore, they are entitled to the suit property. They further alleged that the Will said to have been executed by Nanha in favour of the first defendant is not a valid one since the ancestral property cannot be willed out. According to the defendants, Nanha executed a will on 29.11.1966 in favour of the first defendant and that the plaintiffs have no right in the suit property. The trial court found that the property is not the ancestral property and, therefore, the Will executed by Nanha in favour of the first defendant is valid one and accordingly dismissed the suit. The appeal filed by the plaintiffs was also unsuccessful. Hence this appeal by the plaintiffs.

The learned counsel for the appellant contended that a report has been called for by the lower appellate court from the Sub Judge and according to the said report a part of it is the ancestral property and a part of it was purchased by Nanha and the same was purchased with the income of the ancestral property and, therefore, it is coparcenary property and, therefore, the plaintiffs are entitled to the share in the property left by Nanha, who died some time in 1969. The second defendant Munshi and the original plaintiff Hari Singh are brothers of the deceased Nanha. Hari Singh filed the suit claiming a declaration of his right and joint possession on the ground that he along with the second defendant inherited the property of Nanha. According to the first defendant, who is the son of second defendant, Nanha executed a Will in his favour on 29.11.1966, but according to the plaintiffs, Nanha could not execute the Will in favour of the first defendant since the property was ancestral property. But the fact remains that there was a partition in the year 193839 between the three brothers and Hari Singh separated himself and got 34 Bighas 13 Biswas of land in the partition. The revenue records, which have been produced in Court, clearly show that the property was mutated in the names of all the three brothers upto 193435 and the revenue record also shows that there is a partition between the three brothers in 193839 and Hari Singh got himself separated while Nanha and Munshi remained joint. The entries contained in the Jamabandi for the years 194344, 194647, 195051 and 195556 clearly show this fact. It is also not disputed before me that Hari Singh separated himself from other two brothers and Nanha and the second defendant Munshi remained joint. It is also an admitted fact that apart from the ancestral property, Nanha purchased some other property. In the report submitted by the Sub Judge on 21.8.1978, it has been clearly mentioned that the land shown in paragraph 1 of the plaint is ancestral and the property mentioned in paragraph 1(b) is not proved to be ancestral property. But the question whether the property is ancestral or selfacquired property of Nanha, loses importance. The learned counsel for the plaintiffs argued on the basis that the property is ancestral property and even the property purchased by Nanha was with the income of the joint family property and, therefore, the Will executed by him is not enforceable under law. Whether the property is ancestral or not, the plaintiff Hari Singh and his legal representatives cannot claim any right in the property belonging to Nanha. Admittedly, Nanha was not married. He remained joint with his other brother Munshi and has been living with him while Hari Singh separated himself in 193839 itself as proved by the revenue record. Therefore, the property even though it is ancestral in the hands of Nanha, it goes to the other coparcener by survivorship. Hari Singh ceased to be the coparcener, because he separated himself from other two brothers when there is a partition in the family and one brother separates himself from the joint family and when the other two brothers continue to be coparceners on the death of one of them, the property will be inherited by the surviving coparcener, namely, Munshi, the second defendant. Even on the basis that the property is ancestral, Hari Singh who separated himself, will not inherit the property of Nanha on the basis of survivorship and also under section 6 of the Hindu Succession Act. The documentary evidence clearly shows that Nanha and Munshi continue to be joint and, therefore, they continued to be coparceners. On the death of Nanha, the surviving coparcener, namely, Munshi will get the property even in the absence of the Will in favour of the first defendant.

Both the Courts below found that Nanha executed the Will in favour of the first defendant, which is a pure question of fact. The Will is a registered one and has been proved by one of the attestors. In fact the execution of the Will is not seriously disputed before me. The contention of the learned counsel for the appellants is that Nanha could not alienate the ancestral property but when once it is found that Hari Singh, the original plaintiff, separated himself, from the family, he cannot challenge the execution of the Will, because he is no longer a coparcener or joint along with Nanha.

Even assuming that the property will not devolve by survivorship since after the separation of Hari Singh the other two brothers continue to live jointly and, therefore, they are tenants in common, therefore, the principle that a coparcener cannot will out the ancestral property will not apply to the facts of the present case. In this view of the matter, I do not find any grounds warranting interference with the decree and judgment of the Courts below. The appeal, therefore, fails and is accordingly dismissed.