JUDGMENT L.N. Mittal, J. (Oral) - Plaintiffs are in second appeal. Their suit was decreed by learned Sub Judge Ist Class, Rajpura vide judgment and decree dated 23.09.1982, but first appeal preferred by the defendants-respondents has been allowed by learned Additional District Judge, Patiala vide judgment and decree dated 18.11.1985. 2. Plaintiffs are sons of Harbans Singh-defendant No.1 from his second wife. Defendant No. 2 Sarjit Kaur is first wife of defendant No. 1. Defendants No. 3 and 4 are their sons, whereas defendant No. 5 is their grandson from another son Gurcharan Singh (since deceased). 3. The plaintiffs case is that defendant No. 1 had deserted their mother and was paying her maintenance. Suit land measuring 114 Bighas 11 Biswas, described in the plaint, is coparcenary property of the parties, except defendant No. 2, because defendant No. 1 inherited the suit land from his own father Kirpal Singh. However, defendant No. 1 suffered a consent decree dated 26.03.1972 in favour of defendant No. 2 regarding 37 Bighas 15 Biswas land out of the suit land. In an earlier litigation, the suit land was held to be coparcenary property. The consent decree suffered by defendant No. 1 in favour of defendant No. 2 is, therefore, null and void and is not binding on the coparcenary rights of the plaintiffs. The plaintiffs accordingly sought declaration that the suit land is coparcenary property of plaintiffs and defendants No. 1 and 3 to 5 and that the plaintiffs are entitled to joint possession of the same and further that the decree suffered by defendant No. 1 in favour of defendant No. 2 is null and void. 4. Defendants No. l and 2 filed joint written statement, whereas defendants No. 3 to 5 filed separate, but similar written statement. Defendants have inter-alia pleaded that the plaintiffs had separated from defendant No. 1 thirty years ago, as the plaintiffs and their mother had strained relations with defendant No. 1. Plaintiff No.1 was residing in a different village Rurki for the last 15 years. It was denied that plaintiffs are coparceners with defendant No. 1. It was also denied that the suit land is coparcenary property of plaintiffs and defendants No. 1 and 3 to 5. Decree dated 26.03.1972 suffered by defendant No. 1 in favour of defendant No. 2, was alleged to be legal and valid. It was denied that plaintiffs are coparceners with defendant No. 1. It was also denied that the suit land is coparcenary property of plaintiffs and defendants No. 1 and 3 to 5. Decree dated 26.03.1972 suffered by defendant No. 1 in favour of defendant No. 2, was alleged to be legal and valid. It was alleged that plaintiffs had full knowledge of the said decree. It was denied that the suit land was declared as coparcenary property in previous litigation. It was pleaded that defendant No. 1 had sold 24 Bighas land out of the suit land to defendants No. 3 to 5 for Rs. 48,000/- vide registered sale deed dated 14.03.1980 and defendants No. 3 to 5 are bona fide purchasers thereof for valuable consideration and without notice. Various other pleas were also raised. 5. The plaintiffs filed replication wherein they controverted the pleas raised by the defendants and reiterated the plaint allegations and also pleaded that the alleged sale, if any by defendant No.1 of part of the suit land in favour of defendants No. 3 to 5, is also null and void and without consideration. 6. As already noticed herein above, the trial Court decreed the suit of the plaintiffs, but the lower Appellate Court reversed the judgment and decree of the trial Court. Feeling aggrieved, the plaintiffs have preferred the instant second appeal. 7. I have heard learned counsel for the parties and perused the records. 8. Kirpal Singh, father of defendant No. 1 Harbans Singh, was the original owner of the suit land. He executed a Will dated 06.07.1949 bequeathing half property in favour of his son Tehal Singh and the other half in favour of his four grandsons i.e. plaintiffs, defendants No. 3 and father of defendant No. 5 (sons of Harbans Singh-defendant No. 1) thereby depriving Harbans Singh- defendant No. 1 of any share in the suit land. Harbans Singh challenged the said Will, claiming that the suit land was ancestral in the hands of his father Kirpal Singh and the Will was against custom governing the parties. The suit was decreed by the trial Court. First and second appeals were also dismissed. Vide judgment dated 31.10.1961 Exhibit P-14 of this Court in R.S.A No. 442 of 1960, it was affirmed that the suit land was ancestral. Consequently, Harbans Singh was held to have half share in the suit land. The suit was decreed by the trial Court. First and second appeals were also dismissed. Vide judgment dated 31.10.1961 Exhibit P-14 of this Court in R.S.A No. 442 of 1960, it was affirmed that the suit land was ancestral. Consequently, Harbans Singh was held to have half share in the suit land. This is how the suit land has come to defendant No. 1 from his father Kirpal Singh. In this view of the matter, it is not disputed, even on behalf of respondents that the suit land was ancestral in the hands of Harbans Singh. 9. Learned counsel for the respondents, however, vehemently contended that the plaintiffs had separated from defendant No. 1 several years ago as admitted even by plaintiff No. 1 in witness box and therefore, the plaintiffs cannot be said to be coparceners with defendant No. 1. The contention although apparently attractive, cannot stand closer scrutiny. Merely because the plaintiffs were residing separately from defendant No. 1 because plaintiffs mother has allegedly been deserted by defendant No. 1, it cannot be said that Hindu undivided family or coparcenary constituted by defendant No. 1 along with his sons and grandsons came to an end. In addition to it, merely because the plaintiffs were residing separately from defendant No.1, it cannot be said that the suit land, if otherwise proved to be coparcenary property ceased to be so. 10. Learned counsel for the respondents next contended that the parties are Jat Sikhs and are, therefore, governed by custom in matters of alienation and succession, as held in judgment Exhibit P-14. It was also contended that the Punjab Custom (Power to Contest) Act, 1920 was amended by Amendment Act, 1973 and Section 7 was inserted in the principal Act whereby it was provided that no person shall contest any alienation of immovable property whether ancestral or non-ancestral or an appointment of heir of such property, on the ground of custom. It was accordingly contended that the plaintiffs have no right to challenge the alienation on the ground of the suit land being ancestral. Reliance in support of this contention has been placed on the judgment of Honble Apex Court in the case of Darshan Singh v. Ram Pal Singh and another, 1991(1) RRR 167 : AIR 1991 SC 1654. It was accordingly contended that the plaintiffs have no right to challenge the alienation on the ground of the suit land being ancestral. Reliance in support of this contention has been placed on the judgment of Honble Apex Court in the case of Darshan Singh v. Ram Pal Singh and another, 1991(1) RRR 167 : AIR 1991 SC 1654. However, on the other hand, learned counsel for the appellants contended that after coming into force of the Hindu Succession Act, 1956, custom stands abrogated and the parties being Jat Sikhs are also governed by Hindu Law and form Joint Hindu Family or coparcenary and can have joint Hindu family property. Reliance in support of this contention has been placed on a Full Bench judgment of this Court in the case of, Pritam Singh v. The Assistant Controller of Estate Duty, Patiala, 1976 PLR 342. 11. I have carefully considered the rival contentions. In so far as judgment of Exhibit P-14 is concerned, in that case, Will made before coming into force of the Hindu Succession Act, 1956 was under challenge and since the parties were held to be governed by custom, the case was decided accordingly. However, in view of Full Bench judgment of this Court in the case of Pritam Singh (supra), after enforcement of the Hindu Succession Act, the parties are governed by Hindu law and they form joint Hindu family and can have coparcenary or Joint Hindu Family property, as well. 12. Since the suit land was inherited by defendant No. 1 from his father and was even ancestral in the hands of father of defendant No. 1, the suit land was coparcenary property in the hands of defendant No. 1. In the ease of Pritam Singh (supra), it was held that sons, grandsons and great grandsons of holder of the joint or coparcenary property acquire interest therein by birth. Consequently, in the instant case, the plaintiffs, being sons of defendant No. 1, acquired interest by birth in the suit land being coparcenary property. 13. Learned counsel for the respondents next contended that 37 Bighas 15 Biswas land out of the suit land was given by defendant No. 1 to defendant No.2 in lieu of maintenance. Consequently, in the instant case, the plaintiffs, being sons of defendant No. 1, acquired interest by birth in the suit land being coparcenary property. 13. Learned counsel for the respondents next contended that 37 Bighas 15 Biswas land out of the suit land was given by defendant No. 1 to defendant No.2 in lieu of maintenance. However, learned counsel for the appellants contended that respondent No.2 was residing with respondent No. 1 and therefore, the question of giving any land to respondent No. 2 in lieu of maintenance did not arise. I find force in the contention of learned counsel for the appellants. All the defendants-respondents were residing together and therefore, land measuring 37 Bighas 15 Biswas out of coparcenary property could not be transferred by defendant No. 1 in favour of defendant No. 2 by way of consent decree dated 20.03.1972 in lieu of maintenance. 14. As regards sale of 24 Bighas land out of the suit land by defendant No.1 in favour of defendants No.3 to 5, suffice to mention that the said sale deed dated 14.03.1980 was made during the pendency of the suit as the suit was instituted on 11.03.1980 and so the said sale is hit by the principle of lis-pendens. In addition to it, the said sale cannot be said to have been made in good faith in as much defendants No.3 to 5 are none else but sons and grandson of defendant No. 1-vendor. It is, thus, apparent that the said sale was made only to defeat the rights of the plaintiffs. Consequently, the said sale has also no bearing against the rights of the plaintiffs in the suit land. 15. Learned counsel for the respondents also contended that the suit is time barred, in as much as, decree dated 26.03.1972 has been challenged in the suit instituted on 11.03 1980 i.e. about eight years after the passing of the consent decree in question. However, the plaintiffs have pleaded that the said consent decree came to their knowledge only a month before the filing of the suit. In addition to it, the plaintiffs, being not party to the said decree, cannot be said to be bound by the same. That apart, this is suit for declaration as well as for joint possession. For this reason as well, the suit cannot be said to be barred by limitation. 16. In addition to it, the plaintiffs, being not party to the said decree, cannot be said to be bound by the same. That apart, this is suit for declaration as well as for joint possession. For this reason as well, the suit cannot be said to be barred by limitation. 16. Learned counsel for the respondents lastly contended that during the life time of defendant No. 1 (father), suit by sons for declaration and joint possession is not maintainable. Reliance in support of this contention has been placed on judgment of this Court in the case of, Raghubir Singh v. Dalip Singh, 2004(2) PLR 599. However, this contention also cannot be accepted because the plaintiffs filed the instant suit after defendant No.1 alienated 37 Bighas 15 Biswas land out of the suit land in favour of defendant No.2 by way of consent decree. This act of defendant No.1 provided cause of action to the plaintiffs to file the instant suit. Immediately after filing the suit, defendant No.1 further alienated 24 Bighas land out of the suit land. Had there been no alienation, then the contention raised by learned counsel for the respondents could have been sustained in view of ratio of law laid down in the case of Raghubir Singh (supra). However, the said ratio of law is not applicable in view of alienations made by defendant No. 1. 17. In view of the aforesaid, it is manifest that the impugned judgment and decree of learned lower Appellate Court cannot be sustained, being illegal. Learned lower Appellate Court non-suited the plaintiffs an the ground that the parties are governed by custom and in view of amendment made by Amendment Act, 1973 in the Punjab Custom (Power to Contest) Act, 1920, alienation on the ground of custom could not be challenged. However, this approach of the learned lower Appellate Court is illegal and untenable in view of discussion made herein above. Moreover, the plaintiffs have challenged the alienation under Hindu law and not under custom. Consequently, the substantial question of law arising in the instant second appeal "Whether the finding of the lower Appellate Court that parties are governed by custom and therefore, alienation cannot be challenged by the plaintiffs, is illegal and untenable", is answered accordingly in favour of plaintiffs-appellants. For the reasons recorded herein above, the instant appeal is allowed. Consequently, the substantial question of law arising in the instant second appeal "Whether the finding of the lower Appellate Court that parties are governed by custom and therefore, alienation cannot be challenged by the plaintiffs, is illegal and untenable", is answered accordingly in favour of plaintiffs-appellants. For the reasons recorded herein above, the instant appeal is allowed. Impugned judgment and decree dated 18.11.1985 of the learned Additional District Judge, Patiala are set aside and judgment and decree dated 23.09.1982 of the learned Sub Judge Ist Class, Rajpura are restored and the suit filed by the appellants accordingly stands decreed, leaving, however, the parties to suffer their respective costs throughout. Appwal allowed.