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2007 DIGILAW 1268 (PNJ)

Kuldeep Singh v. Gurdial Singh alias Dial Singh

2007-07-03

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. - This order shall dispose of two regular second appeals bearing Nos. 2056 of 1993 and 2843 of 1980 titled Kuldeep Singh and others v. Gurdial Singh alias Dial Singh and others and Bhajan Singh v. Mehma Singh and another, respectively. For facility facts are being taken from RSA No. 2056 of 1993. Present regular second appeal has been filed against the judgments and decrees passed by the learned courts below vide which a decree of separate possession in favour of the plaintiffs to the extent of 66 kanals 12 marlas out of the ancestral land and to the extent of 1/2 share of 8 kanals 6 marlas was passed. 2. The plaintiff-appellants had filed a suit for declaration claiming therein that the plaintiff Nos. 1 to 5 and defendant Nos. 1 to 11 and 13 are joint owners of the suit property as co-parceners, and being heirs of Mehma Singh and also that plaintiff Nos. 1 to 5 and defendant No. 13 being heirs of Bhajan Singh and consequently the plaintiffs and defendants are entitled to get joint possession of the suit property and also separate possession by partition of their respective shares and that the collusive decree in suit No. 422 of 1978 decided on 5.8.1978 suffered by late Mehma Singh in favour of defendant Nos. 2 to 7 of land mentioned in (c) below and the gift deeds executed by late Mehma Singh in favour of defendant No. 2, on 5.2.1971 in respect of land mentioned at (e) and house at (f) and that the will made by late Mehma Singh on 29.9.1977 or any other date in favour of defendant Gurdial Singh or any other defendant in respect of the suit property or any part thereof, are null and void, illegal and ineffective and that disposal of property by such act of Mehma Singh is not binding on the reversionary rights and rights of heirship of the parties and that land (a) of the plaint placed under mortgage with Bhajan Singh and defendant Gurdial Singh by Mehma Singh deceased, out of the suit land was merged into ownership with the parties according to their shares, on the death of Mehma Singh and also that entires made in the revenue records after setting aside the collusive decree in suit file No. 422 are incorrect and are liable to be corrected. (a) Land 18//5/2 (3-18), 19//1/1 (0-18), 10/2 (3-10), Kittas 3 area (8-6) entered in Khewat Khatoni No. 17/31. (b) Land comprising in 18//17/3/4-4), Khewat Khatoni No. 16/30 (c) 7//23/2 (3-18), 29(11-3), 13//1(7-2), 2(7-2), 3(7-2), 4(6-12), 7/2(2-9), 8/2(6-0), 9(8-0), 10/1(6-4), 12/2(6-12), 13/1(4-6), 14//6/1(1-4), 6/2(6-16), 7(2-4), 18//18(8-4), 19//11/1(0-11), 11/2(1-2), Khasra No. 30 min (0-13), Khasra No. 123 Khata 15/29. (d) (1) 18//15/1(4-12), 5(6-18), 14/2/1(2-18), 15(8-4), Kittas 4 Area 22-12 of Khewat Khata 14/28. (2) 4//22/2(3-0), 23/1(4-12), 7//3(7-15), 4(7-7), 5(7-7), 6(8-0), 7/1(4-16), 8/2(2-18), 14/2(3-0), 15(7-12), 16/2(4-1), 17/1(1-11), Khasra Nos. 28(1-5), 41(2-18), 30Min(0-14), 123(0-2), Kittas 26 Area 67-8 of Khewat Khata 14/28. (e) (1) Khasra No. 50(2-0) of Khewat Khatoni No. 18/32 (2) Khasra Nos. 30Min (0-14), 123(0-2), 211/1(0-14), 18//14/2(2-12), 17/2(0- 5), 23(6-12), 24/1(1-2), 22//22/2(3-6), 3/1(4-16), 9/2(4-14), 9/3(2-10), 13(8-0), 12/1(1-6), 3/2(2-0), 8(7-7), 9/1(1-15), 12/2(3-16), 14/1(2-8), 17/2(2-17), 18(9-13), 18(6-1), 14//4(3-0), 5(7-2), Kittas 23 area 83-3 of Khewat Khatoni No. 18/32, as entered in Jamabandi 1982-83 of village Kheri Bir Singh of Tehsil Sirhind. (f) Residential house bounded as :- East : House of Surmukh Singh defendant purchased by him from Gurdial Singh S/o Jevan Singh. West : Thoroughfare South : House of Gurdial Singh defendant. Hara and Gohara within Abadi area of Kheri Bir Singh, Tehsil Sirhind. The facts giving rise to the present appeal are as under : The pedigree-table of the parties is as under :- See Table Below 131806 3. It is claimed by the plaintiff that the land mentioned in the head note of the plaint was got in consolidation proceedings in lieu of land which was inherited by Mehma Singh from his grandfahter Narain Singh some fifty years back. As Amar Singh father of Mehma Singh predeceased his father Narain Singh, Mehma Singh also got inheritance of their house mentioned in head note (f) of the heading of the plaint from his grandfather. Mehma Singh was not employed in any service nor he did carry any business, trade or industry. The only profession of Mehma Singh was agriculture of ancestral land. Mehma Singh did add to or acquire any other property by his own earning and efforts except that he got in inheritance from his grandfather Narain Singh which is the subject-matter of this suit. Mehma Singh died on 8.4.1981 intestate at Kheri Bir Singh. At the time of his death, his parents were already dead. Mehma Singh did add to or acquire any other property by his own earning and efforts except that he got in inheritance from his grandfather Narain Singh which is the subject-matter of this suit. Mehma Singh died on 8.4.1981 intestate at Kheri Bir Singh. At the time of his death, his parents were already dead. Mehma Singh died leaving behind his son Bhajan Singh, Gurdial Singh and his daughter Bhajan Kuar. Bhajan Singh son of Mehma Singh has also died on 28.8.1983, later to the death of his father Mehma Singh at Village Kehri Bir Singh. All the plaintiffs and defendant Nos. 1 to 8, 10 to 13 were born before and were living. Both at the time of the death of Mehma Singh and Bhajan Singh. The land mentioned in the head note at (a), (b), (d) (1) (2) were standing in the name of Mehma Singh at the time of his death as these lands had not been transferred by him in his life time by any mode of transferring instrument or a court decree, collusive or otherwise. The land mentioned in the head note (c) of the plaint, was transferred by Mehma Singh in favour of defendant Nos. 3 to 7 by a collusive decree in 1978. The said decree was set aside by a Civil Court decree in Civil Suit No. 434 of 19.8.1978 decided on 13.2.1981. The land mentioned in the head note (2) and house mentioned in head note (f) of the plaint were given by a so called gift by Mehma Singh to defendant No. 2, vide gift deeds of 5.2.1971. The land mentioned in the head note (e)(1) of the plaint was wrongly entered in the ownership of defendant No. 2, though it was not transferred at any time by any person to defendant No. 2. The land mentioned in the head note (c) of the plaint, transferred by collusive decree by Mehma Singh to defendant Nos. 3 to 7 was set aside subsequently, but it was wrongly mutated in the names of defendant Nos. 3 to 7 in equal shares. In the name of Bhajan Singh deceased 1/3rd. In view of the Civil Court decree in Civil Suit No. 434 decided on 13.2.1981 as aforementioned. 3 to 7 was set aside subsequently, but it was wrongly mutated in the names of defendant Nos. 3 to 7 in equal shares. In the name of Bhajan Singh deceased 1/3rd. In view of the Civil Court decree in Civil Suit No. 434 decided on 13.2.1981 as aforementioned. All the land mentioned in head note (c) of the plaint should have been reverted to Mehma Singh and he should have been entered as owner in the revenue record after the passing of the decree dated 13.2.1981. Mehma Singh deceased who was indifferently disposed of towards Bhajan Singh his elder son and wife and children of Bhajan Singh is said to have been made invalid and illegal will on 29.9.1977 on any other date in favour of Gurdial Singh in respect of the property, which Gurdial Singh claims to have been left by Mehma Singh at the time of death of the later. The parties are Hindus within the definition of Indian Succession Act, 1955, Hindu Marriage Act, Hindu Adoption and Maintenance Act and Hindu Minority and Gurdianship Act and that the parties are governed by the Mitakeshwra School of Hindu law and also Acts mentioned above are applicable to the parties. As the suit property inherited by Mehma Singh from Shri Narain Singh as a Joint Hindu Undivided Family Property and is coparcenary as regards Mehma Singh and his sons, grandsons and great grandsons or the concerned and none of the coparceners had or has right to transfer any part of the suit land by gift or any other mode of transfer or suffered a collusive decree and also no coparceners or has a right to make disposition share in the suit property by a Will. The gift made by Mehma Singh in favour of defendant Sarmukh Singh in the year 1971 in respect of the property mentioned in the head note of the plaint (e)(2) and head note (f) and the collusive decree suffered by Mehma Singh for the benefit of defendant Nos. 3 to 7 in respect of the land mentioned in the head note (c) of the plaint and also the Will made by Mehma Singh dated 29.9.1977 in favour of Gurdial Singh defendant are illegal, void ab initio, ineffective and are not binding on any of the coparcenaries i.e. plaintiff No. 1 and defendant Nos. 3 to 7 in respect of the land mentioned in the head note (c) of the plaint and also the Will made by Mehma Singh dated 29.9.1977 in favour of Gurdial Singh defendant are illegal, void ab initio, ineffective and are not binding on any of the coparcenaries i.e. plaintiff No. 1 and defendant Nos. 1 to 8, 10 to 13 and the suit properties are to devolve upon all the plaintiffs and defendants according to rules laid in the Hindu Succession Act and the parties to the suit are joint owners of the suit and according to the share under the principles of Mitkeshwara School of Hindu Law as applicable under the Hindu Succession Act. The plaintiffs are not aware of any Will made by Bhajan Singh deceased, but in case any Will by Bhajan Singh in favour of any party to the suit is alleged or set up, will be illegal, void, ineffective, because Bhajan Singh could not make any such will in favour of any person in respect of the suit property, it being undivided Hindu Coparcenary property and if such Will is pleaded or proved, it will have no effect on the reversionary rights of the coparceners and also the right of inheritance of the plaintiffs and others heirs of Bhajan Singh under the Hindu Succession Act. So it is stated that the plaintiffs are entitled to inheritance in accordance with the share as mentioned in para No. 21 of the plaint along with the defendants. The shares of parties in the suit properties left by Mehma Singh have also been indicated therein. Plaintiff Nos. 3 and 4 and defendant No. 11 are married and are living with their husband at the houses of their in-laws and are not entitled to any share from the house as mentioned in the head note of the plaint. Therefore, the house is to be divided in equal shares between the plaintiff Nos. 1 and 2 and defendant Nos. 12 and 13 to the extent of 1/2 share and defendant Nos. 1 to 10 to the extent of half share. Plaintiff No. 1 is minor and is pleaded (impleaded ?) through his mother to the next friend. Likewise defendant Nos. 8, 9 and 10 are minors and they are sued through their respective fathers who are their guardian and have no adverse interest against the rights of the minor. 4. 1 to 10 to the extent of half share. Plaintiff No. 1 is minor and is pleaded (impleaded ?) through his mother to the next friend. Likewise defendant Nos. 8, 9 and 10 are minors and they are sued through their respective fathers who are their guardian and have no adverse interest against the rights of the minor. 4. Upon notice having been issued to the defendants, defendant Nos. 1 to 7 filed written statement raising preliminary objections i.e. Mehma Singh son of Amar Singh as exclusive owner filed suit No. 226 dated 15.9.1964 against his son Bhajan Singh for possession of land shown by letters D in the head note of the plaint, Bhajan Singh pleaded his ownership of this land by adverse possession and through the family settlement, but the said suit was decreed on 31.7.1965. The appeal against the said Judgment was also dismissed by the District Judge, Patiala on 20.7.1966 and RSA No. 822 of 196 was also dismissed by this Court on 22.3.1977. Bhajan Singh again filed suit No. 41-T/257/1977 against Mehma Singh in respect of the said land for permanent injunction. But the same was dismissed being barred under the principles of res judicata on 30.7.1980 and its appeal was also dismissed by the Additional District Judge Patiala on 24.11.1980. Bhajan Singh filed suit No. 235 on 20.5.1971 under Customary Law to challenge gift dated 5.2.1971 of land mentioned at head note (b), (e) and (f) of the plaint by Mehma Singh to Sarmukh Singh. The suit was decreed on 21.2.1973 and its appeal by Sarmukh Singh was accepted by Additional District Judge, Patiala on 12.8.1973. RSA filed by Bhajan Singh was also dismissed on 11.1.1974. Bhajan Singh again filed suit No. 387 of 10.6.1977 challenging the aforesaid gift to Sarmukh Singh under Hindu Law and prayed for joint possession of land as coparcener. That suit was dismissed as barred by res judicata by the Additional District Judge Patiala on 5.5.1980. RSA filed by Bhajan Singh was also dismissed on 25.9.1980. There is misjoinder of all defendant Nos. 8, 9 and 10 in the presence of their respective fathers who are also defendants in the case. Nor their interest in the suit land can be determined as entered in para No. 21 of the plaint. 5. RSA filed by Bhajan Singh was also dismissed on 25.9.1980. There is misjoinder of all defendant Nos. 8, 9 and 10 in the presence of their respective fathers who are also defendants in the case. Nor their interest in the suit land can be determined as entered in para No. 21 of the plaint. 5. On merit it was denied that Kuldip Singh plaintiff No. 11 is not son of Kaka Singh defendant No. 13. The relationship as shown in the pedigree table was denied. The allotment of entire land in consolidation proceedings as alleged was also denied. It was also denied that the house at point (f) of the head note of the plaint was inherited by Mehma Singh from his forefeathers. Mehma Singh was doing cotton business. It was admitted that Mehma Singh died on 8.4.1981, but he did not die as intestate. He executed his last Will voluntarily in disposing mind on 29.9.1977 in favour of his son Gurdial Singh in respect of 90 kanals shown by letters D(1) to (2) of the heading of the plaint and in respect of 92 kanals 16 marlas as shown in letter E of the heading of the plaint along with two houses in favour of his grandsons defendant Nos. 3 to 7. The said Will was executed by Mehma Singh. After he fully understood its implication in the presence of attesting witnesses who signed and affixed their thumb-impressions in the presence of Mehma Singh. Will was duly registered on 29.9.1977 after its presentation by Mehma Singh before the Sub Registrar. There has been long standing of civil litigation in between Bhajan Singh and Mehma Singh has stated in the legal objections of the written statement. Still Mehma Singh executed a Will on 18.7.1975 in favour of his grandson Kaka Singh, Mehar Singh sons of Bhajan Singh, but due to their hostile attitude and violent nature causing risk to his life, Bhajan Singh, Kaka Singh were convicted for causing injuries to Mehma Singh. Thereafter, Mehma Singh cancelled that Will on 27.7.1977, by registered cancellation deed in the presence of its witnesses Kuldip Singh being stranger, has no right to figure as plaintiff. The rights of Mehma Singh has been extinguished in the land (A) due to expiry of the limitation of redemption from Bhajan Singh and Gurdial Singh. Thereafter, Mehma Singh cancelled that Will on 27.7.1977, by registered cancellation deed in the presence of its witnesses Kuldip Singh being stranger, has no right to figure as plaintiff. The rights of Mehma Singh has been extinguished in the land (A) due to expiry of the limitation of redemption from Bhajan Singh and Gurdial Singh. Land at head note B forms part of gifted land to Sarmukh Singh. The gift of land and house to Sarmukh Singh is admitted to be correct. This was twice upheld by the High Court. The land mentioned in head note D is entered in the name of Gurdial Singh on the basis of Will dated 29.9.1977. Defendant Nos. 3 to 7 are the owners of the land mentioned in Head note (c) on the basis of the Will of Mehma Singh dated 29.9.1977. The aggessive attitude of Bhajan Singh and his family members causing grave risk to the life to Mehma Singh that he executed last Will on 29.9.1977. The Will is valid one in all respects. Bhajan Singh firstly relied on Customary Law in the litigation with Mehma Singh and Sarmukh Singh in the first series then in the second series he relied upon Hindu Law as coparceners. It was not accepted up to High Court. Nature of the property being Hindu Coparcenary is denied. The plaintiffs are barred taking plea of the suit property as coparcenary in lieu of Civil litigation between Bhajan Singh, Mehma Singh and Sarmukh Singh. The gift of land (B) and E(2) of the head note of the plaint on 5.2.1971 in favour of Sarmukh Singh exclusive ownership and land (d)(1)(2) of Mehma Singh is not open to challenge in this suit by defendant Bhajan Singh in view of the decision up to High Court against Bhajan Singh as alleged by the family as detailed in legal objections. The repeated litigation on the same subject matter at different times by the decedents of Bhajan Singh is not permanently and is not barred by res judicata. Will dated 19.9.1977 by Mehma Singh is valid and is not openly challenged. The plaintiffs had no concern with the land in suit. 6. On the pleadings of the parties the following issues were framed by the learned trial Court :- 1. Whether the suit is barred by the principle of res judicata ? OPP 2. Will dated 19.9.1977 by Mehma Singh is valid and is not openly challenged. The plaintiffs had no concern with the land in suit. 6. On the pleadings of the parties the following issues were framed by the learned trial Court :- 1. Whether the suit is barred by the principle of res judicata ? OPP 2. Whether the property in dispute is coparcenary property of the parties ? OPP 3. Whether Mehma Singh executed valid Will dated 29.9.1977 in favour of his son Gurdial Singh in respect of the land as mentioned in para 5 of the written statement ? OPP 4. Whether the plaintiffs are entitled to the declaration prayed for ? OPP 5. Whether the plaintiffs are entitled for separate possession of the land in dispute by way of partition ? OPP 6. Relief. 7. On issue No. 1 it was held by the learned Trial Court that challenge to validity of a gift hit by the principles of res judicata whereas the collustive decree which was set aside by the civil court did not affect the rights of the plaintiff, whereas issue Nos. 2, 3, 4 and 5 were taken up together and it was held that Mehma Singh had executed a valid gift in favour of Sarmukh Singh for the land measuring 87 kanals 4 marlas of the land mentioned in the head note (b) and (e)(2) and had also mortgaged the land measuring 8 kanals 6 marlas in equal shares with Gurdial Singh, Bhajan Singh and Gurdial Singh each have a right to 1/3rd share i.e. 66 kanals 12 marlas. Thus Mehma Singh had bequeathed this property measuring 66 kanals 12 marlas in favour of his son Gurdial Singh and his grandsons vide Will dated 29.9.1977. Therefore, the plaintiffs are entitled to inherit the property left by Mehma Singh only to the extent 66 kanals 12 marlas plus 4 kanals 3 marlas which is already in their possession on the basis of the mortgagee deed whereas the remaining land i.e. 66 kanals 12 marlas of Mehma Singh and 66 kanals 12 marlas which fell to their share plus 4 kanals 3 marlas of the mortgaged land plus 87 kanals 4 marlas of the land which was gifted to Sarmukh Singh on the basis of the gift deed dated 2.5.1971. It was held that the plaintiffs are thus entitled for separate possession of the land measuring 66 kanals 12 marlas out of the ancestral land plus 4 kanals 3 marlas which was mortgaged by Mehma Singh with Gurdial Singh and Bhajan Singh being 1/2 share of the land measuring 8 kanals 6 marlas and accordingly all these issues were decided partly in favour of the plaintiffs and partly in favour of the defendants. 8. Consequently, the suit was disposed of by the learned court as under : "In view of my decision on the foregoing issues, I pass a decree of separate possession in favour of the plaintiffs to the extent of 66 kanals 12 marlas out of the ancestral land and to the extent of 1/2 share of 8 kanals 6 marlas in favour of the plaintiffs and against the defendants. Since Gurdial Singh has died during the pendency of the suit, leaving behind Dalip Kaur widow, Kaka Singh, Mehar Singh, his sons and Rajinder Kaur and Mohinder Kaur as daughters. Therefore, the property left by Bhajan Singh deceased is to devolve upon his heirs in accordance with Section 8 of the Hindu Succession Act each having 1/5th share in the property left by Mehma Singh. The share of Gurdial Singhs son is to be determined by Gurdial Singh himself. Due to the peculiar circumstances of the case, the parties are left to bear their own costs." In appeal findings recorded above were affirmed and appeal was dismissed. During the pendency of the appeal the parties entered into a compromise and both these appeals were disposed of on 7.9.2005 by passing the following order : "These two appeals, RSA No. 2843 of 1980 and RSA No. 2056 of 1993 have been filed by the plaintiffs, having lost in both the Courts below. However, during the pendency of these appeals, a compromise has been entered into between the parties on 27.7.2007. Accordingly, the two parties represented by Shri Bhajan Singh and Gurdial Singh have decided to divide the properties has been duly signed/thumb-marked by the parties. Gurvinder Kaur widow of Kuldeep Singh, plaintiff-appellant, has signed on her own behalf as well as on behalf of her minor son Amritpal Singh. Accordingly, the two parties represented by Shri Bhajan Singh and Gurdial Singh have decided to divide the properties has been duly signed/thumb-marked by the parties. Gurvinder Kaur widow of Kuldeep Singh, plaintiff-appellant, has signed on her own behalf as well as on behalf of her minor son Amritpal Singh. Similarly, Gurvinder Kaur has also signed on behalf of her minor daughter Navjot Kaur who is present in the Court and has been duly identified by Shri Sukhchain Singh Bains, Advocate. Similarly, Joginder Kaur, Rajinder Kaur and Mohinder Kaur have put their thumb impressions. All the three ladies are present in the court and they have also been identified by Shri Sukhchain Singh Bains. Shri Bains has further stated that the parties have thumb-marked/signed the documents in his presence. It is also evident that Antpal Kaur and Mandeep Singh have also signed the aforementioned compromise deed and their signatures have been identified by Shri Bains. The other 5 parties namely Balbir Singh, Amrik Singh, Karnail Singh, Sukhchain Singh (Advocate) and Randhir Singh are sons of Gurdial Singh, who have also signed the documents. The parties have been identified by Shri Sukhchain Singh. Sh. Sukhchain Singh Bains, Advocate has signed the documents in his capacity as a party being son of Gurdial Singh and he also identifies the signatures of all other by stating that they have signed in his presence. It is further stated by Shri Bains that the witnesses have duly signed the compromise in his presence, which have been further endorsed by the Notary Public on 27.7.2005 at Fatehgarh Sahib. Learned counsel for the parties have stated that the appeals be disposed of in terms of the compromise. In view of the above, the appeals are disposed of in terms of the compromise. However, the parties shall remain bound by the terms detailed in the compromise. Appeals disposed of." 9. However, subsequently an application was made by one Kaka Singh applicant- appellant No. 1 under Section 151 of the Code of Civil Procedure for recallding the order dated 7.9.2005 passed in RSA No. 2843 of 1980 on the plea that Kaka Singh who was shareholder was required to be associated in the compromise. In view of this, the order dated 7.9.2005 was recalled and the appeals were directed to be heard on merit as per roster on January 19, 2007. In view of this, the order dated 7.9.2005 was recalled and the appeals were directed to be heard on merit as per roster on January 19, 2007. The order passed by this court on 19.1.2007 reads as under :- "This is an application filed by one Kaka Singh applicant-appellant No. 1 under Section 151 of the Code of Civil Procedure, (for brevity the Code), for recalling order dated September 7, 2005 passed in RSA No. 2843 of 1980. It remain undisputed that the applicant (Kaka Singh) is a shareholder and required to be associated with any compromise on the basis of which the appeal was disposed of on September 7, 2005. Notice of the application was issued to the respective parties and time was also granted for making efforts to explore the possibility of including Kaka Singh in the compromise by allocating him some share in the disputed land to his satisfaction. However, learned counsel for the non-applicant-appellants as well as respondents have stated that despite efforts made, it is not possible to associate Kaka Singh with the compromise. Mr. Gurcharan Singh, learned counsel for the applicant has submits that in view of the fact that no compromise with Kaka Singh could be reached by other parties, the order dated September 7, 2005 is liable to be recalled. I find merit in the contention raised by Mr. Gurcharan Singh, learned counsel for the applicant-appellant No. 1. Accordingly, I recall the order dated September 7, 2005 because Kaka Singh who has been a shareholder in the land in dispute, was not associated with the comromise and the orders are based on the compromise where Kaka Singh was not a party. Accordingly, the office is directed to list the appeal for decision on merits in accordance with law, as per roster. C.M. stands disposed of." 10. At the time of hearing learned counsel for the parties except learned counsel appearing for appellant Kaka Singh contended that the suit was validly compromised in terms of Order 22 Rule 3 of the Code as Kaka Singh was not one of the plaintiff-in the suit. It was also claimed that Kaka Singh had not even contested the suit by filing a written statement. Rather he had got himself transposed as appellant being the legal heir of Dalip Kaur who otherwise did not have any interest on the property. It was also claimed that Kaka Singh had not even contested the suit by filing a written statement. Rather he had got himself transposed as appellant being the legal heir of Dalip Kaur who otherwise did not have any interest on the property. Therefore, it was claimed that RSA be disposed of in the terms of agreement entered into between the parties. However, keeping in view the order passed by this court on 19.1.2007, the parties were directed to address the arguments on merit. 11. Learned counsel appearing for Kaka Singh appellant firstly contended that the suit as framed was not competent as during the life time of the father Kuldeep Singh had no right to file suit for declaration with respect to coparcenary property. This contention of Mr. Gurchan Singh learned counsel appearing for Kaka Singh is totally misconceived as he had got himself transposed as appellant being legal heir of Dalip Kaur who was one of the plaintiffs in the suit and therefore, it was not open to the appellant- applicant No. 1 to raise plea about the maintainability of the suit. The parties did not challenge the gift by Mehma Singh in view of the fact that in the earlier suit the gift was held to be valid up to this Court and therefor, the partes accepted the gift to be valid. 12. Learned counsel appearing on behalf of the appellants claimed that the following substantial questions of law arise for consideration in this appeal :- 1. Whether a Will of ancestral property be accepted by Karta of a family beyond his share? 2. Whether the judgments of both the courts below are perverse and therefore, liable to be set aside ? 3. Whether the findings recorded by the learned courts below are based on misreading of pleadings and evidence brought on record ? 13. Learned counsel for the appellants contended that it was not open to Mehma Singh to dispose of the ancestral coparcenary property by way of Will. The contention of the learned counsel for the appellant was that it was not open to a coparcener/Karta to dispose of by a Will the ancestral property as the interest of other coparcener in the suit property is by birth. The contention of the learned counsel for the appellant was that it was not open to a coparcener/Karta to dispose of by a Will the ancestral property as the interest of other coparcener in the suit property is by birth. However, this contention of the learned counsel for the appellant cannot be accepted as Section 30 of the Hindu Succession Act makes it clear that the coparcener can always transfer his share in coparceneray property. 14. As a matter of fact substantial question of law framed by the learned counsel for the appellant is also to the same effect that it was not open to Mehma Singh to transfer by way of Will ancestral property beyond his share. 15. The reading of the judgment and decree of the learned trial court shows that the Will executed by Mahma Singh has been upheld to the extent that his share alone and the suit filed by the plaintiff-appellant was decreed qua their share in the ancestral property. Therefore, the finding of the learned courts below could not be said to be perverse or outcome of misreading of the pleadings and evidence. 16. Faced with this situation learned counsel for the parties submitted that as Kaka Singh does not have any right to claim over and above the decree granted in his favour other parties agreed to disposal of the appeal in terms of written compromise entered into between the parties. In view of the position explained above, both the appeals are disposed of in terms of the compromise entered into between the parties on 27.7.2005. Said compromise is taken on record and marked as Ex. A. Both the appeals are disposed of accordingly. Order accordingly.