JUDGMENT Devinder Gupta. J.-Plaintiffs-appellants have preferred this appeal against the judgment and decree passed on June 15, 1979 by Additional District Judge, Kangra Division at Dharamshala, dismissing their appeal and thereby confirming the judgment and decree passed on May 15, 1978 by Subordinate Judge First Class, Palampur, dismissing their suit. 2. On December 9, 1969, plaintiffs instituted a suit for grant of a decree for declaration to the effect that on the death of their father Durga on October 16, 1969, they had inherited the suit property as owners and were entitled to occupy the same as such. The will alleged to have been executed by Durga bequeathing his entire movable and immovable property in favour of defendants respondents, who were his brothers sons was also challenged on the ground that since the property was ancestral in the hands of Durga, he was not entitled to execute any will without their consent according to the custom prevalent in their community. Due execution of the will by Durga was also denied. It was alleged that on the basis of the will, defendants had acquired no title or interest to the suit property. As a consequential relief, plaintiffs claimed a decree for possession of the suit property. The trial Court held the will to have been duly executed by Durga in favour of defendants for services rendered by them and their father Subhkaran. The parties were held to be governed by agricultural custom of Palampur tehsil in the matters of succession and alienation under which ancestral property was held could not to be willed away even for services rendered or for necessity Part of the suit property was held to be ancestral. 3. In view of the above findings, the trial Court decreed the suit qua that part of the property, which was held to be ancestral. It was dismissed in so far as the non-ancestral property was concerned. The plaintiffs challenged the judgment and decree of the trial Court by filing appeal. Defendants also filed cross-objections. During the course of hearing of arguments, it was conceded that land entered at Khewat No. 27 was ancestral. The remaining portion of the land entered at Khewat No. 28 was held to be non-ancestral. The plaintiffs challenged the judgment and decree of the trial Court by filing appeal. Defendants also filed cross-objections. During the course of hearing of arguments, it was conceded that land entered at Khewat No. 27 was ancestral. The remaining portion of the land entered at Khewat No. 28 was held to be non-ancestral. The lower appellate Court observed that the only challenge made to the will was that since the property was ancestral, deceased Durga could not have, under the custom, executed the will and as land entered at Khewat No. 28 was held to be non-ancestral, therefore, the custom was held to be non-applicable Accordingly, the appeal was dismissed. Cross-objections were not pressed. Plaintiffs preferred Second Appeal in this Court. During the course of hearing it was found that the lower appellate Court had not given any finding on the validity of the will, which was under challenge. By an order passed on September 14, 1990, the lower appellate Court was directed to record its finding on issues No. 8 and 9 as framed by the trial Court. The lower appellate Court has since returned its finding on the two issues by holding that deceased Durga was looked after by Subhkaran and other members of his family, who were rendering services to him. It accordingly held the will dated May 4, 1965 to have been duly proved. Finding of the trial Court upholding the validity of the will were affirmed. The appellants have filed their objections challenging the findings recorded by the lower appellate Court in its order, dated November 20, 1990. 4. I have heard the learned Counsel for the parties and have gone through the records. It has been contended by the learned Counsel for the appellants that the Courts below have erred in upholding the validity of the will which findings have been arrived at by it on wrong appreciation of evidence. I was taken through the entire evidence by the learned Counsel for the appellant. Having gone through the contents of the will, Ex. D-l, and having perused the statements of DW 1 Rimal Chand, the two marginal witnesses and DW 2 Sbakti Chand and DW 3 Thakar Dass, petitioner-writer, who scribed the will, I find that no fault can be found in the manner in which the courts below have appreciated the evidence. Having gone through the contents of the will, Ex. D-l, and having perused the statements of DW 1 Rimal Chand, the two marginal witnesses and DW 2 Sbakti Chand and DW 3 Thakar Dass, petitioner-writer, who scribed the will, I find that no fault can be found in the manner in which the courts below have appreciated the evidence. The attesting witnesses unequivocally stated that will Ex D-l was scribed by DW-3 on instructions received from deceased and the same was scribed in their presence and in the presence of the deceased. The same was read over and explained in their presence to him and he after having admitted the contents thereof appended his signature in their presence and in the presence of the petition-writer. Thereafter, they attested the same by appending their signatures in the presence of each other and in the presence of the deceased. The deceased was stated to be in sound and disposing state of mind. No circumstance has been brought out which can be said to be a suspicious circumstance attending the due execution of the will. The contents of the will are also clear and unequivocal. The deceased was of the age of sixty-two years. It is stated in he will that the had two sons, whose marriages had been duly performed by him and thereafter they had been residing in their respective in-laws houses and for the last 32/40 years they were settled on the property of their maternal father. After their marriages, they had not visited him or even cared to maintain and look after him. Only his brother Subhkaran and his sons, Manohar Lal and Satish Kumar, defendants had been rendering services and looking after and maintaining him This is the reason stated for bequeathing the entire property in their favour thus depriving the plaintiffs of their right to inherit the same. The will has been duly registered with the Sub-registrar, Palampur. The Courts below, after correct appreciation of the evidence, found, as a matter of fact, that Subhkaran and other members of his family had been rendering services to the deceased. In view of this, the argument of the appellant that the will was not proved to have been duly and validly executed has no force. 5. The Courts below, after correct appreciation of the evidence, found, as a matter of fact, that Subhkaran and other members of his family had been rendering services to the deceased. In view of this, the argument of the appellant that the will was not proved to have been duly and validly executed has no force. 5. The next submission of the learned Counsel for the appellant was that the property qua which the suit had been dismissed could not be held to be non-ancestral since, the same had been acquired by Durga, on the basis of deed of gift dated April 6, 1919, Ex. PW 6/6, the same having been come to the hands of Durga by way of acceleration of succession was also ought to have been held ancestral property and not as non-ancestral property. This argument has also been made merely to be rejected. Perusal of the contents of the deed of gift on the face of it would show that it was only a part of his holding which Sukhman alias Phuman gifted in favour of his son Durga. 6. After Sukhman had contracted second marriage, this deed of gift, on the basis of which the donor made gift of 1/2 of the property entered in one of the Khewats by retaining the remaining with him cannot be said to be tantamounting to acceleration of succession In order to prove ancestral nature of the land, onus lay heavily upon the plaintiffs. The Supreme Court in Mara and others v. Mst. Nikko alias Punjab Kaur & anther, AIR 1964 SC 1821, in para 7 of its report has held that where lands are so mixed up that the ancestral and non-ancestral properties could not be separated, they must be regarded as non-ancestral unless it is shown, which are ancestral and which are not and the land ceases to be ancestral if it comes to the hand of an owner otherwise than by descent The land in the present case, which was non-ancestral, did not come in the hands of Durga by descent but came to him on the basis of deed of gift. On a review of various judgments on the point and on the question as to whether gift of the part of the ancestral property made by a donor in favour of his only heir would continue to retain the character of ancestral property, learned single Judge of Punjab and Haryana High Court in Kapur Chand Major and another v. Des Raj, 1974 Punjab Law Reporter 522, held that ancestral property as regards sons, means property inherited from a direct male ancestor and as regards collaterals, means the property inherited from a common ancestor The property ceases to be ancestral if it comes into the hands of an owner otherwise than by descent or by reason merely of his connection with the common ancestor. In case the property is acquired by gift, it ceases to be ancestral except when the gift is made of ancestral property by the donor to the person/persons who would succeed to it by inheritance on his death and the gift amounts to acceleration of succession, that is, the donor completely effaces himself and makes a gift of his whole property to the entire body of heirs, who would be entitled to inherit it in the event of his death. 7. In the instant case, it cannot be said that there was any acceleration of succession when Sukhman made a gift of a portion of his property without completely effacing himself. The findings recorded by the courts below holding part of the suit property as non-ancestral do not require any interference in view of the above proposition of law. 8. Learned Counsel for the appellant lastly put forth and argued that on a true interpretation of custom recorded in the Customary Law of kangra District, compiled by L. Middleton, Settlement Officer, Kangra District, pertaining to Wills and legacies, there is no distinction made in the case of Brahmins of Tehsil Palampur, to which the parties belong, in the case of ancestral and non-ancestral properties A reference was made to questions No. 85, 86, 93 and 94 in support of his arguments by the learned Counsel. To appreciate the arguments of the learned Counsel it would be necessary to quote question No. 85 only along with its answer i— "Question-85—Can a proprietor by verbal or written directions dispose of his property after his death— (1) where the power exists, is there any limit to it ? To appreciate the arguments of the learned Counsel it would be necessary to quote question No. 85 only along with its answer i— "Question-85—Can a proprietor by verbal or written directions dispose of his property after his death— (1) where the power exists, is there any limit to it ? (2) Can he gives larger share to one heir with the consent of his next-of-kin ? (3) Can a legacy be left to one of the heirs without the consent of the others ? Does a widow who succeeds to immoveable property as legatee take it in full ownership ? Answer —-The Brahmans of Palampur Tehsil and the Gaddis of Kangra Tehsi! state that there is no custom of making will ort verbal dispositions of property. The other tribes state that a man cannot dispose of ancestral property in a manner contrary to the general rules of inheritance. He can however, dispose of self-acquired property and moveable property in any way he likes. A widow succeeds only to a life-estate, and her power to dispose of such property is governed by the rules laid down in the answer to question 45." 9. It was urged by the learned Counsel for the appellant that in so far as Brahmins of Palampur Tehsil and Gaddis of Kangra Tehsil were concerned, it was specifically provided that there was no custom of making Will or verbal disposition of property and in so far as other tribes are concerned it was stated that ancestral property could not be disposed of but self-acquired property could be disposed of. Implying that in so far as Brahmins of Palampur Tehsil are concerned, it applied both to ancestral as well as non-ancestral properties. I am afraid, the appellants cannot be allowed to set up a new case in Second Appeal and take up totally a new plea for which no foundation has been laid in the pleadings. The only plea raised in the plaint is that the parties were governed in the matters of succession and alienation by the customary law of Kangra District, according to which ancestral property could not be transferred or bequethed without the consent of heirs/collaterals. Having failed to plead the custom as regards non-ancestral property, it is not permissible for the appellants to raise the plea in the Second Appeal. Even otherwise, in Ujagar Singh v. Mst. Having failed to plead the custom as regards non-ancestral property, it is not permissible for the appellants to raise the plea in the Second Appeal. Even otherwise, in Ujagar Singh v. Mst. Jeo, AIR 1959 SC 1041, the Supreme Court, quoted with approval, the following observations of the Full Bench of Lahore High Court in Mst Hurmate v. Hoshiaru, AIR 1944 Lahore 21 a "It is reasonable, therefore, to assume that when manuals of Customary Law were originally prepared and subsequently revised, the persons questioned, unless specifically told to the contrary, could normally reply in the light of their own interest alone and that, as stated above, was confined to the ancestral property only. The fact that on some occasions the question air had particularly drawn some distinction between ancestral and non-ancestral property would not have put them on their guard in every case, considering their lack of education and lack of intelligence in general. Similarly the use of the term in no case or under no circumstances would refer to ancestral property only and not be extended so as to cover self-acquired property unless the context favoured that construction." 10. Referring to various instances given in the Riwaj-i-am of 1913-14, it was further held as under— "In this Riwaj-i-am eight instances are given. Some of them deal with the self-acquired property. That does not in our opinion indicate that the answer recorded in the Riwaj-i-am was intended to cover succession to self-acquired property also. It is not disputed that the instances mentioned under the entries in the Riwaj-i-am are often collected by the officer-in-charge of the preparation of the record- It is impossible to say whether any, and if so, which instance recorded in the Riwaj-i-am had been supplied by the tribesmen in answer to questions put to them by the Settlement Officer. It is not possible therefore to say that there is any indication in the instances in this Riwaj-i-am entry that the answers were intended to cover self-acquired property also." In view of the aforementioned observations, it was incumbent for the plaintiffs-appellants to have specifically alleged and proved the specific custom as to whether it also governed the self-acquired properties. Since no such plea was raised, the appellants cannot be allowed to raise the plea at this stage. 11. No other point was urged before me. 12. Since no such plea was raised, the appellants cannot be allowed to raise the plea at this stage. 11. No other point was urged before me. 12. In view of the above, appeal fails and the same is dismissed. 13. The parties will suffer their respective costs. Appeal dismissed.