Zile Singh vs Tale Ram

J.V. Gupta, C.J.—This is plaintiff''s second appeal whose suit for declaration was decreed by the trial Court, but dismissed in appeal.

It is an unfortunate litigation between the father and the son. According to the allegations made in the plaint filed by the son, Lakhi Ram

(deceased), was the owner of the suit land. He made a Will on November 24, 1969, and got it registered on November 28, 1969, in favour of the

plaintiff who is the grandson of the said Lakhi Ram, testator. The defendant never tendered any service to the testator and was a loafer and for this

reason, Lakhi Ram, ignored him. The plaintiff came into possession of the suit land on March 11, 1973, i.e. from the date of the death of Lakhi

Ram and had been cultivating since then. Since the mutation was wrongly sanctioned in favour of Tale Ram, he filed the present suit. The suit was

contested on the ground that the suit property was ancestral in the hands of Lakhi Ram who was governed by custom in the matters of alienations

of ancestral property. The Will made by Lakhi Ram was contrary to customary law and did not affect the rights of the defendant to succeed to the

estate of Lakhi Ram. Even otherwise, the Will was not validly executed. The trial Court found that Lakhi Ram deceased, validly executed the Will

on November 24, 1969, in favour of the plaintiff and that the whole of the suit land was not ancestral property in the hands of the said Lakhi Ram.

The said Lakhi Ram was governed by custom in the matter of alienations of ancestral property. There was no custom forbidding the alienations of

ancestral property by means of a Will or otherwise. In view of these findings, the plaintiff''s suit was decreed. In appeal, the learned Additional

District Judge found that the Will was not validly executed by the testator and, therefore in view of that finding, the plaintiff''s suit was dismissed.

Since it was a dispute between the father and the son, a compromise was suggested.

According to the findings of the trial Court, the whole of the land was not found to be ancestral land. That being so, it couldnot be successfully

contested that the Will with respect to the nonancestral land is to be upheld whereas with respect to the ancestral land, the same is to be rejected.

Consequently, this appeal succeeds. The judgment and decree of the lower appellate Court is set aside and that of the trial Court is modified to

the extent that the plaintiff''s suit Will stand decreed with respect to the nonancestral land only and will stand dismissed with respect to the ancestral

land as found by the Trial Court. However, in order to safeguard the interest of the plaintiff, the defendant is expected not to alienate the ancestral

land during his life time so that his son may succeed to the same after his death.