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1999 DIGILAW 264 (HP)

HOSHIAR SINGH v. RAJ MAL

1999-12-06

M.R.VERMA

body1999
JUDGMENT M.R. Verma, J.—This Regular Second Appeal is directed against the judgment and decree dated 3.5.1993 passed by the learned Additional District Judge, (II), Kangra at Dharamsala whereby judgment and decree dated 28.12.1991 passed by the learned Sub-Judge 1st Class, Dharamsala has been reversed. 2. The case of the appellant-plaintiff (hereinafter referred to as the plaintiff), as made out in the plaint, is that one Mango Ram, father of the plaintiff, was last male holder of the land bearing Khata No. 124, khatauni Nos. 265 and 266 to the extent of one half share, khata/khatauni No. 128/270 to the extent of 11/28 shares, land bearing khata/khatauni No. 24/93 to the extent of one half share, land bearing khata/khatauni No. 25/54 to the extent of one fourth share, land bearing khata/khatauni No. 31 min/147 to the extent of one half share, situated in Mohal Yol, Tehsil and District Kangra, Himachal Pradesh more specifically detailed in the heading and para 1 of the plaint (hereinafter referred to as the land in suit.) He died leaving behind the plaintiff as the sole heir of the property. The will dated 22.5.1984 purporting to have been executed by said Mango Ram, as claimed by the respondents-defendants (hereinafter referred to as the defendants), is no will in the eyes of law and is an unvalid document. The land in suit is the ancestral property qua the plaintiff and the said Mango Ram and could not be disposed of by way of will and thus, the alleged will is not binding on the reversionary rights of the plaintiff. It is further case of the plaintiff that he and Mango Ram are Ghrith by caste and agriculturist and are governed by the agricultural customs in the matter of alienation and succession. No will of ancestral property can be made in order to exclude the reversioner. Therefore, the will deserves to be declared void and the plaintiff is entitled for possession of the suit land. Hence, the suit for possession of the land in suit. 3. The defendants contested the claim of the plaintiff. No will of ancestral property can be made in order to exclude the reversioner. Therefore, the will deserves to be declared void and the plaintiff is entitled for possession of the suit land. Hence, the suit for possession of the land in suit. 3. The defendants contested the claim of the plaintiff. In their written statement they took preliminary objections that the suit is not legally and factually maintainable in the present form, that the plaintiff has no locus standi to file the present suit, that the suit is not properly valued, that the parties are not governed by customs and the custom has been abrogated, the suit is barred by act, conduct and acquiescence of the plaintiff and that suit is time barred. On merits, the description of the suit land, as given in the plaint, has been denied and it has also been denied that the plaintiff is the legal heir of Mango Ram. On the contrary, it is claimed that said Mango Ram was uncle of defendants, who were brought up by the deceased and they served and looked after Mango Ram in his old age which services were never rendered to him by the plaintiff, who was residing at a different place and was born of the loins of Konga Ram and succeeded him in village Dhaloon. It is thus claimed that the plaintiff has no concern whatsoever with the suit land which has been bequeathed to the defendants by virtue of a valid document. Thus, claim of the plaintiff has been denied, as aforesaid. 4. Plaintiff filed replication wherein the grounds of defence, as averred in the written statement, have been denied and claim, as made out in the plaint, has been reaffirmed. On the pleading of the parties, the learned trial Judge framed the following issues:— 1. Whether the land is ancestral qua the plaintiff and Mango deceased? OPP 2. Whether the plaintiff and Mango deceased are governed by agricultural custom in the matter of alienation and succession, if so, what that custom is? OPP 3. Whether the will is void as alleged? OPP 4. Whether the will was executed for legal necessity, if so, its effect? OPD 5. Whether the suit is not maintainable in the present form, as alleged? OPD 6. Whether the suit is within time? OPP 7. OPP 3. Whether the will is void as alleged? OPP 4. Whether the will was executed for legal necessity, if so, its effect? OPD 5. Whether the suit is not maintainable in the present form, as alleged? OPD 6. Whether the suit is within time? OPP 7. Whether the plaintiff has got no cause of action and locus standi to sue? OPD 8. Whether act and conduct of the plaintiff is a bar to the present suit? OPD 9. Relief. 5. Vide judgment dated 28.12.1991 the trial Court decided issues Nos. 1 to 3 and 6 in favour of the plaintiff and other issues were decided against the defendants and consequently the suit was decreed. 6. Feeling aggrieved, the defendants preferred an appeal-which was heard by the learned Additional District Judge (II), Kangra at Dharamsala and was dismissed by the impugned judgment, hence the present appeal. 7. I have heard learned Counsel for the parties and have also gone through the records. 8. This appeal has been admitted for hearing on the following substantial question of law— "Whether the first appellate Court was right in setting aside the decree and judgment passed by the trial Court by applying the law laid down in Kartari v. Tota, 1992(1) Sim. L.C. 402, in which this Court has not considered the provisions of Himachal Pradesh (Restriction to Contest Alienation or Adoption) Act, 1976." 9. In Kartari Devis case, supra a learned Single Judge of this Court held as follows:— "7. Therefore, in view of Section 30 of the Act, which specifically provides that interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by way of will irrespective of any provision in the Act or any other law to the contrary, read with Section 4 of the Act, I hold without any hesitation that any custom prohibiting testamentary succession by way of will of a coparcenary property stands abrogated. In view of Section 30 read with Section 4 of the Act, a male Hindu governed by Mitakshara system is not debarred from making a will in respect of coparcenary/ ancestral property." 10. In R.S.A. No. 196/93, another learned Single Judge of this Court could not agree with the ratio in the aforesaid judgment and referred the question to a Division Bench. In R.S.A. No. 196/93, another learned Single Judge of this Court could not agree with the ratio in the aforesaid judgment and referred the question to a Division Bench. The learned Judge formulated the question for reference as follows:— "Where the parties to the list are undoubtedly governed by custom of District Kangra, whether the alienation made by way of a Will cannot be challenged in the light of the provisions contained in Sections 4 and 30 of the Hindu Succession Act?7 11. Thus, the question whether the customary law of district Kangra in relation to alienation made by a will is abrogated by the provisions of Sections 4 and 30 of the Hindu Succession Act came to be considered by a Division Bench of this Court in case Tek Chand and another v. Mool Raj and others, wherein it was held as under:— "34. In the light of the aforesaid rulings, if the provisions of Section 30 of the Hindu Succession Act are looked into, it is clear that the legislature had intended and brought about a change in the right of a male member of Hindu Mitakshara coparcenary viz-a-viz disposition of property by Will or other testament. The language is so specific that a male Hindu in a Mitakshara coparcenary can dispose of his interest in the coparcenary property by a Will or other testamentary disposition notwithstanding anything contained in the Act or any other law for the time being in force. If a member of Mitakshara coparcenary can dispose of his interest by a Will, a fortiori, the last male holder who has no other coparcener to share the property with him, is entitled to dispose of the same by a testament. In fact the Supreme Court has held clearly in Smt. Dipos case that the character of the property in the hands of a such last male holder is non-ancestral and hence the restriction imposed by the customary law against alienation of ancestral property will not apply to such non-ancestral property. Consequently, the provisions of Section 30 are automatically applicable to such male Hindu." 12. In view of the above conclusion, the Division Bench agreed with the view expressed by the learned Single Judge of this Court in Kartari Devis case, supra. Consequently, the provisions of Section 30 are automatically applicable to such male Hindu." 12. In view of the above conclusion, the Division Bench agreed with the view expressed by the learned Single Judge of this Court in Kartari Devis case, supra. Hence the ratio, as laid down in Kartari Devis case holds good in view of the view taken by the Division Bench of this Court in case Tek Chand and others (supra). 13. In the instant case the main controversy between the parties is whether the Will executed by Mango Ram in favour of the defendants was invalid in view of the agricultural custom prevalent in Kangra district in respect of alienation of and succession to the ancestral property. It is a will executed by Mango Ram in respect of the ancestral property in favour of the defendants which is challenged by the plaintiff claiming that the plaintiff and said Mango Ram are governed by the agricultural custom in the matter of alienation and succession under which ancestral property could not be bequeathed by Mango Ram. The learned District Judge relying on the ratio of Kartari Devis case held that said Mango Ram could dispose of the property in his hand irrespective of its being ancestral by way of a testamentary disposition in view of the abrogation of the alleged custom byHindu Succesvsion Act, 1956. Since the view taken in Kartari Devis case in this regard has been re-affirmed by a Division Bench of this Court, therefore, it cannot be said that ratio of the former case applied to the present case by the learned District Judge is no more good law. On the contrary, the learned District Judge has applied the law, as laid down in Kartari Devis case, rightly and correctly. 14. Learned Counsel for the appellant has submitted that the learned lower Appellate Court had not applied its mind to the findings of the trial Court on other issues, whereas he should have dealt with all the issues and recorded his findings thereon. 15. 14. Learned Counsel for the appellant has submitted that the learned lower Appellate Court had not applied its mind to the findings of the trial Court on other issues, whereas he should have dealt with all the issues and recorded his findings thereon. 15. It is evident from the perusal of the contents of para 8 of the impugned judgment that the learned District Judge had adverted to all the material controversies between the parties in the suit, whereas the only point raised before him for the parties was whether custom, if any, prevalent amongst Ghirth of Kangra district, who are agriculturist by profession regarding alienation by way of Will stands abrogated and ancestral property could be bequeathed. When no other controversy was raised before the District Judge , he was not expected to give detailed findings on each and every issue, but was supposed to deal with the grounds of attack or defence, as raised before him, which he had done. The contention raised by the learned Counsel for the appellant, therefore, does not hold good. 16. No other substantial question has been urged not arises in this appeal. 17. In view of the above, this appeal merits dismissal and is accordingly dismissed. However, in the facts and circumstances of the case parties are left to bear their own costs. Appeal dismissed.