Ram Kanvar vs Raj Kumar

R.L. Anand, J.—By this order I will dispose of two appeals i.e. R.S.A. No. 1394 of 1992 titled Ram Kanwar Versus Raj Kumar and others and R.S.A. No.956 of 1992 titled Raj Kanwar etc. Versus Ram Kanwar and others, as both these appeals have arisen from the judgment and decree dated 29.1.1992 passed by the Court of learned Additional District Judge, Rohtak. who reversed the finding of the trial Court on issues No. 1.3 and 6 of the suit filed by Shri Kanwar and dismissed the suit in toto.

The pleadings of the parties can be summarised in the following manner, Manohar Lal had three sons namely, Shiv Kumar. Raj Kumar (Defendant No. 1) and Ram Kanwar (plaintiff) and two daughters Smt. Ram Piari (defendant No.9) and Smt. Kalawati. Ram Kanwar has a son by the name of Shri Jai Bhagwan who is defendant No. 5 in the trial Court. Defendants No.2,3 and 4 namely, Sarbati Devi, Kiran Bala and Anju Bala are the widow and daughters of Shri Shiv Kumar, Shri Bliarat Krishan and Jai Kishan defendants No. 10 and 11 are the children of Smt. Kalawati. The suit was instituted by Shri Ram Kanwar for joint possession of the land described in the head-note of the plaint alleging that deceased Manohar Lal was the ancestor of the plaintiff Ram Kanwar and Shiv Kumar and Raj Kumar defendants and he was the owner in possession of the land in question. The land was allotted to Shri Manohar Lal during the settlement in village Badli. Shri Manohar Lal sold away the land mentioned in para No. 5 of the plaint measuring 18 kanals 12 marlas during his life time. It was also alleged that defendant No. 1 Raj Kumar and Shri Shiv Kumar alias Shiv Lal (husband of defendant No. 2 and father of defendants No. 3 and 4) filed a civil Suit No. 162/74 titled Shiv Kumar etc. vs. Manohar Lal and got a consent decree in respect of the land measuring 59 kanals and 1 marla. it was also averred that plaintiff filed a civil suit against defendant No. 1 Shri Raj Kumar, Shiv Kumar and deceased Manohar Lal bearing No.93/76 titled Ram Kanwar vs. Shiv Kumar etc. challenging consent decree dated 18.5.1974 passed in Civil Suit No. 162/74 which was dismissed by the trial Court. However, the decree dated 18.5.1974 was set aside by the first appellate Court vide judgment and decree dated 8.8.1978. It was also the case set up by the plaintiff that Shri Manohar Lal executed a Will regarding his property on 5.12.1975 in favour of Shri Jai Bhagwan defendant No.5 and the plaintiff is not bound by that Will. Shri Manohar Lal has already expired on 16.8.1977 and alter his death the plaintiff is entitled to 1/3rd of his property according to Hindu Succession Act. Various mortgage deeds and sale deed executed by defendant No. I and Shiv Kumar in favour of defendants No.6 to 8 are illegal, void and not binding on die rights of the plaintiff. The plaintiff asked the defendants to admit his share 10 the extent of 1/3rd and hand over the possession to him but to no effect. Hence the suit.

In short, plaintiff Shri Rain Kanwar was claiming 1/3rd share in the properties held by Shri Manohar Lal on the plea that after the death of his father, it will be snared equally by him and by his two brothers.

Notice of the suit was given to the defendants. A joint written statement was filed on behalf of defendants No. 2 to 4 namely Sarbati Devi, Kiran Bala and Anju Bala and they admitted the claim of the plaintiff. However, in the written statement filed on behalf of defendants No 1 and 6 to 8. the ancestral nature of the suit property was denied. It was also submitted that deceased Manohar Lal was not the owner of any land mentioned in para Nos.2 and 3 of the plaint. It was leaded that defendant No. 1 Shri Raj Kumar and Shiv Kumar, predecessor of defendants No. 2 to 4, were the owners of 2/3rd share. It has been further submitted that land mentioned in para No.3 of the written statement was given by Manohar Lal in a private partition in the year 1973 and after the said partition, a partition note was executed on 15.5.1973. The said partition was effected to resolve a dispute between the parties by way of family settlement and this partition and family settlement was given effected to in a suit which was decreed and plaintiff was given 1/3rd share. The validity of the Will in favour of defendant No.5 has been challenged and it was further submitted by these defendants'' that deceased Manohar Lal was not the owner of any property at the time of his death and, therefore, no question of succession arises and the plaintiff is the only owner of the land fell to his share at the time of family settlement to resolve the family dispute which ultimately was recognised by the decree. It was further submitted that the plaintiff is bound by the various mortgages and sale effected by Shri Raj Kumar, defendant No. 1 and Shiv Kumar. It was also pleaded that father could effect partition in accordance with custom prevailing in the District as parties were agriculturists and follow custom in the matters of partition.

Defendant No.5 Shri Jai Bhagwan filed a separate written statement and he stated that he had become the owner in possession of the entire suit land left by deceased Manohar Lal by virtue of the Will dated 5.12.1975, which was executed by Manohar Lai, in his favour. According to this defendant, the deceased Shri Manohar Lal was of sound and disposing mind at the time of the Will.

The other defendants did not file the written statement and they were proceeded ex parte..

The plaintiff filed a rejoinder to the different written statements in which he reiterated the allegations made in the plaint by denying those of the written statement and from the above ''pleadings of the parties, the learned trial Court framed the following issues :-

Whether the plaintiff is not bound by the Will dated 5.12.1975 executed by Manohar Lal deceased in favour of defendant No.5? OPP.

Whether the plaintiff is entitled to succeed to the share of Manohar Lal in the land in dispute? OPP.

Whether the land in question is ancestral qua the plaintiff? OPP.

Whether any partition was effected by Manohar Lal? If so, to what effect? OPP.

Whether Manohar Lal deceased executed any valid will in favour of defendant No.5? OPP.

Whether mortgages mentioned in para Nos. 10 to 15 of the plaint are binding on the plaintiff? OPD.

Whether the plaintiff is stopped from filing the suit by his act and conduce? OPD.

Whether the suit is barred by time? OPD.

Whether the plaintiff is not entitled to challenge the family settlement effected by his father? OPD.

Whether Manohar Lal deceased and the parties to the suit are governed by agricultural custom in matters of alienation, if so, what that custom is OPD.

Relief.

The parties led oral as well as documentary evidence in support to their case. While deciding issues No. 1 to 3, 5, 6 and 10, it was observed by the trial Court that though Shri Manohar Lal executed a Will in favour of Shri Jai Bhagwan but that Will is only effective vis-a-vis the personal property of Shri Manohar Lal and on the basis of that Will Shri Jai Bhagwan does not get the entire property including the share of his father and uncle and the heirs on his uncle. Issue No. 2 was decided against the plaintiff. Issue No. 3 was decided in favour of the plaintiff. Issue No. 5 was decided in favour of defendant No.5. Issue No.6 and 10 were decided in favour of the defendants. Issue No.4, 7, 8 and 9 were not pressed during the course of arguments before the trial Court. Resultantly, vide judgment and decree dated 15.10.1990, die suit of the plaintiff Shri Ram Kanwar was party decree with the direction that plaintiff is entitled to take possession of the land comprised in Red. No. 146 Khasra Nos. 18/2,19,22/1, Rectangle No. 159 Khasra No.6/1 and Rectangle No. 25 Khasra Nos. 16 and 17 and 1/3rd share in Chan Pukhta bearing No. 159/26 and defendants No. 1 and 2 to 4 are entitled to take possession of 2/3rd share of the remaining ancestral property of the deceased Manohar Lal in equal shares (i.e. half of 2/3rd share top defendant No.1 and another half share to defendants No.2 to 4) and defendant No.5 shall be entitled to take possession of the remaining self-acquired property of the deceased Manohar Lal by virtue of the Will dated 5.12.1975 and sale in respect of the land comprised in Rect. No.159 Killa No.6/1 was held to be void, illegal and not binding on the rights of the plaintiff. The reasons given by. the trial Court while disposing of issues No.1 to 3,5.6 and 10 are contained in paras No.7 to 10 of the judgment dated 15.10.1990 which are reproduced as follows:-

All these issues are inter-linked, therefore, being disposed of together.

It is not disputed that defendant No.1 and Shiv Kumar i.e. predecessor of defendants No.2 to 4 filed a civil suit against their father u No. 162/74 titled as Shiv Kumar etc. vs. Manohar Lal in respect of land comprised in kills No.146/14,15/1,1617, 18/1.24,25 and 159/4.5.6/1 and 2/3rd share in Chan Pukhta bearing No. 159/26 total measuring 59 kanals 1 marla and got a consent decree dated 18.5.1974. It was further not disputed that plaintiff filed a civil suit No.93/76 against Shiv Kumar (predecessor of. defendants No.2 to 4), Raj Kumar defendant No. 1 and his father Manohar Lal challenging the validity of consent decree dt. 18.5.1974 and in that suit Shri Man Singh Saini, the then Sub Judges 1st Class, Jhajjar in his judgment Ex.D.3 dated 31.5.1977 upheld the validity of consent decree dated 18.5.19741 However, granted a decree for possession in respect of land comprised in killa No. 18/2.19 and 22/1 of Rect. No. 146, killa 6/1 of Rect No. 159 and killa No. 16.17 of Rect. No.25 and 1/3rd Share in Chan Pukhta bearing No. 159/26 in favour of plaintiff and against Manohar Lal. However, in appeal Shri N.K. Jain, the then additional District Judge. Rohtak in his judgment Ex. P. 10 set aside the judgment and decree of the trial Court dt. 31.5.1977 to the extent only that consent decree dated 18.4.1974 passed in civil suit No. 162/741 & not biding upon the plaintiff. The inference drawn from judgment Ex. P. K) is that consent decree dated 18.5.1974 passed in Civil Suit No. 162/74 is not binding upon the plaintiff and plaintiff is entitled to a decree for possession regarding the land comprised in Killa No.18/2.19. and 22/1 or Rect No. 146 Killa No.671 Rect/No./159 ami Killa No.16and 17ofRect. No.25and 1/3rd share in Chah Pukhta bearing No. 159/26. Admittedly deceased Manohar Lal executed a Will Ex. D W 5/1 dated 5.12.1975 in favour of defendant No.5 regarding his all properties. The will have been proved by Mukand Lal deed writer and his attesting witnesses namely Hari Ram DW-6 and Hoshiar Singh DW-7. It was further not disputed at bar that parties are governed by agricultural custom in matters of alienation according to which a male proprietor is not free to dispose of his ancestral immovable property by Will. This means that deceased Ma no bar Lal could not make disposition of his ancestral properties by the Will Ex DW 5/A in favour of defendant No.5 and defendant No!5 is entitled to self-acquired property of deceased Manohar Lal and Will Ex. DW 5/A dated 5.12.1975 is binding on the parties only in respect (c)� the self-acquired properties of the deceased Manohar Lal except the land in respect of which a decree for possession has already been passed in favour of the plaintiffs. It is also not disputed that plaintiff has already got a decree. for possession in respect of 1/3rd share of the ancestral property of the deceased Manohar Lai. This means dial 2/3rd share of the ancestral property will be equally taken by defendant No. 1 and defendants No.2 to 4. Since plaintiff has already got a decree for possession of 1/3rd sharp of the ancestral as well as self-acquired property of deceased Manohar Lai. therefore, he is not entitled to succeed the share of Manohar Lal in the suit properly and plaintiff is-only entitled to the possession of the land in respect of which a decree for possession has already been passed in favour of plaintiff on 31.5.1977. The Learned Counsel for The parties stated at bar that there is no dispute regarding the nature of the suit property as that point has already been discussed and decided by the learned appellate Court in its judgment Ex. P. 10 dated 8.8.1978.

So far as validity of mortgage deeds and sale as has been mentioned in para No. 10 to 15 of the plaint is concerned it was fairly conceded by the Learned Counsel for the plaintiff Shri OP. Gupta that except the sale in respect of land comprised in Khewat No. 1548 min Rect. No.159.KiIla No.6/1 which was executed by defendant No. 1 in favour of defendant No. 8 vide registered sale deed dated 5.6.1980 all the mortgages and, sales are valid and binding on the plaintiff as a decree for possession in respect of land comprised in Rect. No. 159 Killa No.6/1 already stands in the name of the plaintiff. Thus, it is held that sale effected by defendant No.2 in favour of defendant No.8 vide registered sale deed dt. 5.6.1980 in respect of land comprised in Rect. No. 159 Killa No.6/1 is void, illegal and not binding on the rights of the plaintiff and other mortgages and sale of the land mentioned in paras No. 10 to 15 of the plaint are valid and binding on the rights of the parties.

In view of my above discussion, issue No. I is decided partly in favour of plaintiff and issue No.2 against plaintiff. Issue No. 3 partly in favour of the plaintiff and issue No.5 is decided in favour of defendant No.5 and issue No.6 in favour of defendants and issue No. 10 also decided in favour of the defendants.

Aggrieved by the judgment and decree of the trial Court S/Shri Raj Kumar son of Shri Manohar Lal. Tej Pal and Dltaram Pal sons of Shri Shiv Kumar alias Shiv Lal filed the appeals before the Court of Additional District Judge, Rohtak who allowed the appeals vide judgment and decree dated 29.1.1992 and reversed the finding of the trial Court on issue No. 1,3 and 6 and dismissed the suit of Shri Ram Kanwar in toto.

Aggrieved by the judgment and decree of the Courts below, the present two Regular Second Appeal have been filed.

The reasons of reversal contained in para Nos. 13 to 29 of the judgment of the first appellate Court which can be reproduced as follows:-

After giving my anxious thought to the rival submission and going through the judgment recorded by the trial Judge. 1 have conic to hold the opinion that the learned Sub Judge did not bestow the proper consideration to the points in controversy not discussed the same with clarity. The judgment is based on the common discussion of issue No. 1 to 3.5. and It) and mainly proceeds on what was said to be not disputed by the counsel for the parties It is pen in cut to note that issues No. 1. 3 and 5 relate to the validity of the Will and these should have been taken up at one place. It was totally uncalled for to mix the discussion on these issues with the issue No.6 and It), which relate to the alienations made subsequently, and as mentioned in para Nos. 10 to 15 of the plaint. As to the family settlement, there was specific issues No.4 and 9. These were decided against the defendants simply on the ground that these were not pressed along with the other objections which form the subject matter of issues No.7 and 8.1 have not come across any statement of the counsel for the defendants in the trial Court record, showing that these issues were not pressed. Importantly, the defendants placed on record of the trail Court, the partition deed Ex. DW 3/1 and examined Ram DW 2 and Lachhi Ram DW 3. the marginal witnesses and Raj Kumar defendant DW 4 also spoke in support of this document. Having led this evidence, it cannot be said that issues No.4 and 9 were not pressed by the counsel for defendants before the trial Court. Certainly, it recorded the judgment in none too careful manner. The controversy, thus, requires to be resolved by entering into fresh discussion regarding the merits and demerits of the points involved therein:

The item that needs first attention is that of family settlement. The document in that behalf is Ex. DW 3/1 and it is mainly proved from the statement of Lachhi Ram DW 3 and Raj Kumar DW 4. On behalf of the plaintiff and Jai Bhagwan defendant, objection was raised when this document was proved for the first time in the statement of Lachhi Ram DW 3. It was stated that the document required compulsory registration and as it was not so registered, it was not admissible in evidence. The Sub Judge, who recorded the statement, kept this objection open to be decided at the time of argument. As noted above, this objection was not even discussed by the trial Judge while recording the judgment. The perusal of document Ex. DW 3/1 leaves no manner of doubt that it is the partition deed, There is no weight in the arguments of the Learned Counsel for Raj Kumar etc. defendants that it is a memorandum of partition. It is dated 15.5.1973 and was written by Manohar Lal himself, being a retired Headmaster. He wrote that it was on that day viz. 15.5.1973, that he was going to do partition of his estate between his three sons, namely. Ram Kumar, Shiv Kumar and Raj Kumar. After specifying the shares of his sons Manohar Lal concluded the writing by saying that he had carried out the partition and this writing was being written so that it can b used at the time of need, It is pertinent that the document Ex. DW 3/A docs not recite of any happening of past. By no stretch of imagination it can be described as memorandum of partition effected earlier. It had the effect of relinquishment of the rights held by Manohar Lal in the immovable property of the value of more than Rs. 100/- Simultaneously, this document created title in favour of his three sons in the said immovable property. It. thus required compulsory registration u/s 17 of the Indian Registration Act. This proposition is axiomatic and reference in this connection can be made to Chander Shekhar and others vs. Des Raj and others, 1983 R.L.R. 103.

The Learned Counsel for Raj Kumar etc. cites 1979 R.L.R. 238. Balbir Singh Bedi and others vs. The Bhaika Bagh Coop. Society and others. There the document involved was held to be a Yadashat (memorandum)''by the authorities as also by the Hon''ble Single Judge of the Hon''ble High Court and the Division Bench in LP A. did not find any ground to differ with that conclusion. That document itself did not create any lease and, therefore, did not require compulsory registration. The ratio of this authority cannot be applied to the facts of the present case as here, the document is not only described as partition deed, but it also carried out the partition on the day it was written. The opposite counsel lost no time in raising the objection against the admissibility of this document at the time it was put in evidence for the first time in the statement of Lachhi Ram DW 3.

In the result, 1 concluded to hold that document Ex. DW 3/A is not admissible in evidence and it cannot be used by the defendants Raj Kumar etc. to lay claim to any property allotted to them in the said partition. The primary evidence of partition being inadmissible in evidence, that matter cannot be decided in favour of the defendants on the strength of secondary evidence, like the oral statements of Raj Kumar etc. It is for these reasons, different from that recorded by the trial Judge, that issues No.4 and 9 are answered against the defendants Raj Kumar etc.

The next point that needs to be determined is the validity of the Will dated 5.12.1975. The original Will has been produced by Jai Bhagwan legatee and it is Ex. DW 5/A. It has been proved through the statements of Mukand Lal DW 5. the scribe, and Hari Ram DW 6 and Hoshiar Singh DW 7, the marginal witnesses. The statements of these witnesses are in conformity with the provisions of Section 63(c) of the Indian Succession Act. These statements amply go to prove the due execution of the document by the deceased Ma no liar Lai. The Will was got registered and attested by the Sub Registrar on that very day.

The plaintiff and defendants Raj Kumar etc. have not led any evidence, whatsoever to dispute the due execution of the Will by Manohar Lai. No doubt. Ram Kumar plaintiff challenged the Will, but he failed to give any precise reason for rejecting it. Raj Kumar etc. in their written statements remained content simply by saying that Manohar Lal was not of disposing mind at the time of execution of the Will and that it was a bogus document. These assertions of the defendants remained totally unproved as they failed to lead and evidence. Rather, the plea raised by Raj Kumar etc. is negatives by the cogent and convincing evidence of Mukand Lai, Hari Ram and Hoshiar Singh. Their statements were not at all attacked by the opposite counsel. These witnesses have no ill-will towards plaintiff and contesting defendants nor they have any reason to depose falsely in favour of Jai Bhagwan. There is no suspicious circumstances surrounding the execution of the Will. The result is (hat the Will stands duly proved.

The Learned Counsel for Raj Kumar etc. did argue that the Will was opposed to custom governing the parties. Il is submitted that the parties are Gaur Brahmins of Rohtak District and they are governed by custom in the manner of alienation.

The last point made out by the Learned Counsel for Raj Kumar etc. cannot be disputed as it is supported by a Full Bench decision reported in Rati Ram and Another Vs. Shiv Charan and Others, But, the question to be seen in whether the custom is attracted to the case in hand. It is well established that the customary law imposes restriction on the alienation of ancestral immovable property. So, before the plaintiff and Raj Kumar etc. can successfully impeach the Will in favour of Jai Bhagwan, it is to be established I hat the property so willed away by Manohar La) was ancestral.

On that point let mc take up the case of the plaintiff first. His point contains detailed reference to the suit property as it existed before and after the consolidation of holdings. In para No. 2 of the plaintiff-the plaintiff described the property which was ancestral in the hands of Manohar Lal and in para No. 3 of the plaint, the land mentioned is that which Manohar Lal held as occupancy and he became owner thereof by operation of law. Both these properties were mixed and in lieu thereof; the land in dispute measuring 107 kanals 13 and half marlas described in para 4 of the plaint was allotted to Manohar Lal after consolidation. It is not possible to say as to which piece of land allotted after consolidation was given 10 Manohar Lal in lieu of his ancestral property and that held by him as occupancy tenant. The land which came to Ma no ha r Lal by way of occupancy rights was certainly non-ancestral because it is Manohar Lal who acquired it as owner for the first time, in the consolidation of holdings, the-two wands of properties got inextricably mixed up. This is obvious from the excerpt Ex. PW 2/1. Reference in this connection can be nude to the copy of jamabandi for the year 1946-47, wherein Manohar Lal was recorded as owner of the land as mentioned in para No.2 of the plaint and occupancy tenant of the other, detailed in para No. 3 of the pliant. The next jamabandi in the excerpt is for the year 1962-63 prepared after consolidation of holding. It records the entire land as detailed in para No.4 of the plaint. It cannot be made out as (o which part of the land was carved out during the consolidation of holdings in lieu of the ancestral property of Manohar Lal and which part was; in lieu of the land acquired by him as occupancy. The result is that the whole of the property has to be treated as non-ancestral and in taking this view of the matter. I find support form the decision of apex court in Mara Singh vs. Mst. Nikko alias Punjab Kaur and another. AIR 1964 SC 182 -1.

On belief of the defendants reliance was placed on copy of judgment Ex. P. 10 wherein Sh. N.K. Jain, the men learned Additional District Judge. Rohtak. held the land ancestral and granted a decree in favour of the plaintiff. 1 have considered the matter and this judgment cannot be enforced against Jai Bhagwan so as to negative the Will. Jai Bhagwan was not patty to this judgment and any finding arrived therein cannot bind hint. True. Jai Bhagwan is the son of Ram Kanwar plaintiff, but then in the present case Jai Bhagwan is claiming his right in the suit land on the basis of Will in his favour and not on the strength of his relationship with Ram Kanwar. Furthermore, the judgment copy Ex. P. 10 docs not relate to the entire" land involved in this case.

Thus, the land being non-ancestral, the Will cannot be set aside on the strength of the custom argued by Learned Counsel for Raj Kumar etc. There is one more point which further negatives the plea of the defendant and Raj Kumar etc. As described above, the plaintiff did not give any specific reasons to urge that the Will dated 5.12.1972 was not binding upon him. In fact, the plaintiff has challenged the Will half-heatedly because it is in favour of his son Jai Bhagwan. As regards other contesting defendants, Raj Kumar etc.. they challenged the Will only on the ground that Manohar Lal was not competent to execute it because he was not of disposing mind. This plea stands discussed an discarded above. Pertinently, these defendants did not urge that the property in dispute was ancestral in the hands of Manohar Lal and he was debarred by custom to alienate it. These defendants, rather stated in para No. 2 of the written statement in clear the rams that the property in dispute was not ancestral. They did not set up any custom to impeach the Will. At this juncture, it deserves to be pointed out that issue No. 10 was wrongly framed by the trial Court. In fact it does not arise from the pleadings of the parties. It was never pleaded by any of the parties that they were governed by custom in matters of alienation. Raj Kumar etc; pleaded custom only in matters of partition in support of their family settlement. Thus, issue No. 10 deserves to be struck off and I order accordingly.

In the light of the aforesaid discussion, the learned trial Judge wrongly decided issues No. 1 and 3. There cannot be decided in favour of the plaintiff to any extent. While granting relief, the learned Sub Judge did speak of the ancestral and non-ancestral portions of the property of Manohar Lai. but lie failed to specify which portion of it was ancestral and which was self-acquired. In fact, whole of the property is to be termed as non-ancestral as discussed and decided above. So, while reversing the decision of the trial court on issues No. 1 and 3.1 maintain that on issue No.5.

Another matter witch derive discussion is tile effect of decree dated 18.5.1974 suffered by Manohar Lal in favour of hi s two sons Raj Kumar and Shiv Kumar. Admittedly, this decree was challenged by present plaintiff by way of civil suit No. 93 of 1976. It was disposed of by Sh. M.S. Saini. Sub Judge I is Class. Rohtak at Bahadurgarh. by judgment dated 31.5.1977. The copy of this judgment is Ex.D.3. In (hat suit. Ram Kanvar plaintiff had sought declaration that the said decree dated 18.5 1974 involved ancestral land in the hands of Manohar Lal and he could no) alienate it under the customary law governing the parties. In the alternative. Ram Kanvar sought a decree for possession of a portion of the suit land which was allotted to him inflict family settlement Sh. Saini in his judgment dated 1.5.1997, copy Ex.D3. dismissed the plea of Ram Kan war for setting aside the decree dated 18.5 1974. but granted the plain! 11T the alternate relief for possession of. he land allotted to him in the partition

Ram Kumar preferred appeal No.Ci.VI3 of 1977 and it was disposed of b\\ Sh. N.K. Jain, the then Addl. Distinct Judge. Rohtak on 8.8. 1978. The copy of judgment is Ex P. 10. The learned appellate Court accepted the appeal and reversed the trial Court decision and granted a declaration to the plaintiff I hat the decree dated 18.5.1974 passed in civil suit No. 162 of 1974 was not binding upon him. Willis this order of the first appellate Court, the decree passed by Sh. Saini on 31.5.1977 granting possession of some laud to Ram Kanwar. became non-existent. This being the situation, the learned trial Judge while passing the judgment (under appeal before this Court, had no jurisdiction, whatsoever, to grant a relief of possession to the plaintiff in respect of that land The learned trail Judge appears to have lost sight of the fact that he could no more rely upon the judgment dated 31.5.1977 because it had been reversed by the first appellate Court through judgment, copy Ex P.10. It may be usefully noted here that the judgment of the first appellate Court, copy Ex. R 10, was ultimately upheld even by the Apex Court as per the order dated 23.7.1979. copy Ex. D. 17. The only modification ordered by the Hon''ble Supreme Court was that the said judgment of the first appellate Court would not conclude the issue as to whether such family arrangement or partition was arrived at between the parties. This matter was left upon for adjudication in Hay appropriate proceedings. It is in the light of these observation of the Apex Court that the question as to the family settlement has been discussed and decided in foregoing paragraphs.

The earlier litigation by the pin hit if through civil suit No.93 of 1976 culminated in a decree in his favour. It laid down t hat the admission decree dated 18.5.1974 suffered by Manohar Lal was not binding upon the plaintiff, This declaration undisputed I v ensures for the benefit of the plaintiff and other reversionary. Thus, the property held by Manohar Lal would go to his heirs according to the position that existed at the time of his death. Manohar Lal having executed a valid Will in favour of Jai Bhagwan. the property left by him has to go to him (Jai Bhagwan). The alienations were made by defendants No. I to 4 in favour of defendants No.6 to " subsequent to the death of Manohar Lai. These alienations were unauthorised. The property having been inherited by Jai Bhagwan. other defendants had no right, whatsoever, to alienate it in any manner.

For the aforesaid reasons, the finding of the lower Court on issue No.2 are approved and that on issue No.6 arc reversed.

The Learned Counsel for Raj Kumar etc. has rightly pointed out that the trial Court had no justification to gram a relief to Jai Bhagwan defendant No. 5 to obtain possession of the property left by Manohar Lal because Jai Bhagwan did not come forward for such a relief. Pertinently. Jai Bhagwan in his written statement, rather asserted that after the death of Manohar Lal. he (Jai Bhagwan) was owner in possession of the entire property left by Manohar Lal. The order of the trial Court cannot be sustained.

I have heard Shri C.B. Goel. Advocate, appearing on behalf of Shri Ram Kanwar. Miss Rita Kohli appearing on behalf of Raj Kumar and others and Shri S.C. Kapoor. Sr. Advocate, appearing on behalf of Sim Jai Bhagwan and with their assistance have gone through the record of the case.

As staled above, we arc dealing with the property which was last held by Shri Manohar Lal who had three sons and two daughters. This appeal has to be decided from three angles; firstly, what was the name re on he property which was held by Shri Manohar Lal and secondly whether the properly was ancestral or non-ancestral and whether the parties are governed by custom or whether they will be governed by the Hindu Law in the matter of alienation and succession and the third aspect would be with regard to the Will executed by Shri Manohar Lal in favour of Shri Jai Bhagwan.

Endeavour was made by Shri C.B. Goel. Advocate, and. by Miss Rita Kohli. advocate, that the property in the hands of Shri Manohar Lal was ancestral and in these circumstances, Shri Manohar Lal could not execute a valid Will bequeathing the entire estate in favour of Shri Jai Bhagwan defendant No.5. They submitted jointly that Shri Manohar Lal executed the Will only to the extent of his share in the ancestral property and in this manner, the Will in favour of Shri Jai Bhagwan was valid to the exotica of only 1/4th share which Shri Manohar Lal had achieved during his life time. While dealing in a case of testamentary succession Miss Kohli further submitted that in fact alt the three sons will get 1/3rd share each in the estate of Shri Manohar Lal by virtue of the family settlement and the Wilt in favour of Shri Jai Bhagwan is a meaningless document because of the decree passed on the basis of the family settlement which was between the three brothers including Ram Kanvar plaintiff So Miss Kohli stated that Shri Jai Bhagwan does not get anything on tootsies of the Will because Shri Manohar Lal had no subsisting right, title or interest at the time of the execution of the Will and by virtue of the family partition all the properties had already gone in favour of the three sons Shri K a poor, Learned Counsel appearing on behalf of Shri Jai Bhagwan submitted his case from two angles, firstly, that the property in the hand of Shri Manohar Lal was non-ancestral property. Shri Kapoor submitted that Shri Manohar Lal was a occupancy tenant He became the owner of the property. The ancestral property in the hand of Shri Manohar Lal was so amalgamated in such a manner that it loses the character of ancestral property The plaintiff has not ''taken any efforts to show which pair of the property was ancestral or non-ancestral. Therefore, every property held by Shri Manohar Lal will get the character of non-ancestral property. In the alternative, it was submitted by Mr. Kapoor that even if it is assumed for the sake of argument that property was ancestral still under the custom the last male holder can alienate the property cither by way of sale, gift or even by Will. In this case Shri Manohar Lal had executed the Will in favour of Shri Jai Bhagwan out of love and affection and. therefore. Shri Jai Bhagwan will get the entire property and the suit of the plaintiff is to be dismissed as a whole and even other two sons of Manohar Lal and their heirs will not gel anything.

Refuting incargumcnl of Mr. Kapoor. the joint argument was raised by Mr. C.B. Goel and Mis Rita Kohli that it is proved on the record that the property in the hand of Shri Manohar Lal was ancestral and it was so held earlier in the previous suit. Shri Manohar La) was not a son less proprietor. In these circumstances, he could not execute a Will regard to the ancestral property. Since the share of Shri Manohar Lal comes to 1/4th, therefore, the Will at the most could be valid to the extent of 174th share. Besides. Shri Jai Bhagwan might inherit those properties which were non-ancestral in the hands of Shri Manohar Lal.

After considering the rival contentions of the parties, firstly. I will try to solve the controversy with regard to the nature of the property. Ex. P. II) is a document of importance for us which shows that earlier Shri Ram Ka invar filed a suit against Shri Shiv Kumar and Raj Kumar, his brothers and his father Shri Manohar Lal and it was the specific case of Shri Ram Kanwar that the property held by his father Shri Manohar Lal was ancestral. There was a specific issue in this regard, The suit was civil suit No. 83 of 1974 filed much earlier to the date of the execution of the Will, which is being relied upon. The date of the Will is 5.12,1975. It is true that Shri Jai Bhagwan was not a party but definite his father Ram Kanwar was the plaintiff. In that suit, there was a specific issue 9708 whether the suit land with Manohar Lal. father of the parties, was ancestral qua the parties and the answer to this issue was in the affirmative. Once it is established and held that the property in the hand of Sim Manohar Lal was ancestral, the second point for determination would be whether Shri Manohar Lal could bequeath the ancestral property in its entirety in favour of his grandson Shri Jai Bhagwan son of Shri Ram Kan war As stated above the contention of Mr. Kapoor was that since the parties were agriculturists and even if it is held that the property was ancestral even then Shri Manohar Lal could bequeath the entire property in favour of his grandsons for love and affection. It is not the case of the plaintiff that Shri Manohar Lal was a num of immoral character, therefore, the Will in favour of Shri Jai Bhagwan is valid in its entirety. Shri Kapoor relied upon a judgment of Full Bench reported as AIR 1981 P&H 376. Rati Ram vs. Shiv Charan and others in which it was held that a soil less Gaur Brahmin governed by customary law and belonging to Rohtak tehsil is competent to make a testamentary disposition of his property in favour of a close relation in lieu of services rendered to him. It was also observed that power of a sonless proprietor in Rohtak tehsil to alienate his ancestral property for consideration is recognized even when there is no necessity for sale, provided, of course, the alienation is not for an immoral purpose. The consideration for alienation may cither be made in cash or in kind i.e. in the form of services and as there is no distinction between a transfer inter vivo and transfer which takes place after the death of the transferor, it would be reasonable to inter that testamentary disposition of ancestral land in favour of a close relation in lieu of service is recognised under the customary law. The counsel appearing on behalf of the opposite party successfully made a distinction of this judgment by stating that it was a case of soil less proprietor but in the present case Shri Manohar Lal was not sonless. He had three sons and, therefore. Shri Manohar Lal could not bequeath the entire property by way of Will in favour of Shri Jai Bhagwan. Therefore, Shri Jai Bhagwan does not become the full owner of all the properties which were ancestral in nature held by Shri Manohar Lal. I agree with the contention of Shri C.B. Goel and Miss Rita Kohli. The judgment relied upon by Mr. Kapoor was a case of sonless proprietor. Mr. Kapoor also relied upon a judgment of the Supreme Court reported as Mara and Others Vs. Nikko and Others, and he submitted that it has been ruled in the Punjab consistently that where lands are so mixed up that the ancestral and non-ancestral portions cannot be separated, they must be regarded as non-ancestral, unless it is shown which are ancestral and which are not. This cited judgment can be distinguished safely with a reference to Annexure P-10 where it was the case of Shri Ram Kanwar himself and father of Shri Jai Bhagwan that the properties in the hand of Shri Manohar Lal were ancestral and the findings of the competent Court are also to that effect. No doubt, Shri Jai Bhagwan is not bound by the judgment Ex. P. 10 but the fact cannot be lost sight of that when the Will dated 5.12.1975 was executed in his favour by Shri Manohar Lal he must be a young man of hardly 20 or 25 years. His father must be knowing best about the nature of the property prior to the existence of the Will. The suit was instituted by his father Ram Kanwar in the year 1974.

In this view of the matter. I am of the opinion that the Will by Shri Manohar Lal in favour of Shri Jai Bhagwan is only valid and binding to the extent of the share of Shri Manohar Lal and he could not bequeath or alienate the interest of his sons or their heirs namely Shiv Kumar alias Shiv Lal. Raj Kumar and Ram Kanwar.

Miss Rita Kohli tried to convince me that by virtue of the family settlement Ex-D. 1, the property had already been divided between the three sons and Shri Manohar Lal had no subsisting interest, therefore, he could not execute the Will. She also stated that by virtue of the settlement, all'' the three sons will get the property in equal shares. This contention of Miss Kohli cannot be accepted because there was a consent decree. The reason being, that though Shri Ram Kanwar is a signatory to Ex. D. I but he was not a party to the consent decree in the suit No. 162 of 1974 filed by Shiv Kumar and Raj Kumar only against their father Shri Manohar Lal.

In these circumstances. Shri Ram Kan war can always ignore the judgment and decree Exs.D.7 and D 6 and can always challenge the effect of compromise/family settlement Ex. D. f. That decree does not affect the rights of Shri Ram Kanwar. Shri Manohar Lal died after coming into force the Hindu Succession Act. Therefore, his estate has to be divided between him and his three sons. In this manner. Shri Manohar Lal. will get 1/4th share and will dated 5.12.1975 Ex. DW 5/A will be valid to that extent meaning thereby that Shri Jai Bhagwan will get 1/4th share of the property. Apart from that he shall inherit all other non-ancestral properties whether movable or immovable which were in the ownership of Shri Manohar Lal al the time of his death. Ram Kanwar will get 1/3rd share like his two brothers Raj Kumar and Shiv Kumar alias Shiv Lal and the interest of Shri Shiv Kumar will devolve upon his legal heirs according to law.

The AIR 1934 998 (Lahore) an submitted that as per the custom of Punjab, a proprietor or Gohana Tehsil can alienate immovable property freely except for immoral purposes. The submission of Mr. Kapoor may be applicable to a case of sonless proprietor but not when Shri Manohar Lal had male issues.

21 In this view of the mailer, the suit of the plaintiff Shri Ram Kanwar partly succeeds by setting aside the judgment and decree of the first appellate Court and a declaration is granted that Shri Ram Kanwar will be joint owner and in possession to the extent of 1/4th share in the ancestral properties held by his father Shri Manohar Lal and remaining 3/4 share shall go to Raj Kumar, Jai Bhagwan and the heirs of Shiv Kumar alias Shiv Lal. It may also be clarified here that Shri Jai Bhagwan will also indirect on the basis of the Will all non-ancestral properties which were held by Shri Manohar Lal. The decree-sheet be prepared on these terms.

The appeals stand disposed of accordingly.