JUDGMENT : Tarlok Singh Chauhan, J. The defendants No.1 to 3 are the appellants, who aggrieved by the judgment and decree passed by learned first Appellate Court whereby it reversed the judgment and decree of the learned trial Court and decreed the suit of the plaintiff, have filed the instant appeal. The parties shall be referred to as the 'plaintiff' and the 'defendants'. 2. The plaintiff filed a suit for declaration to the effect that he is the son of defendant No.1 having been born to Smt. Apsra Devi, who was the first wife of defendant No.1. After the birth of the plaintiff, defendant No.1 had performed another marriage with defendant No.4 and out of the wedlock, defendants No.2 and 3 were born. In the books of the Collector, defendant No.1 had been recorded owner in possession of the land described in Khata Khatauni No. 136/237, Khasra No. 690, measuring 0-00-89 hectares, Khata Khatauni No. 108/195, Khasra No. 885, measuring 0-43-11 hectares, situated in Mauza Ribba, Up-Mohal Holdang, Tehsil Moorang, District Kinnaur, H.P. The suit land was stated to be ancestral with defendant No.1 qua the plaintiff as the same had been acquired by him through inheritance from his father Sh. Ram Singh. The parties were governed by custom in the matter of alienation and succession. According to the custom applicable to the parties, defendant No. 1 could not alienate the suit land without the consent of the plaintiff. It had been stated that defendant No. 1 on 30.8.1988 had executed gift deed Nos. 30/88 and 31/88 of the suit land in favour of defendants No.2 to 4 and the mutation to this effect was attested in their favour on 27.01.1989. The plaintiff alleged that this alienation of the suit land by defendant No.1 in favour of defendants No.2 to 4 was wrong, illegal and void and therefore not binding on him. In the earlier proceedings under Section 125 Cr.P.C., defendant No.1 had admitted the plaintiff to be his son. As such, defendant No.1 could not be permitted to challenge the paternity of the plaintiff and was estopped from denying his relationship with the plaintiff. However, on these allegations, the suit was instituted before the trial Court on 28.4.1990. 3. The defendants No.1 to 4 contested the suit by filing written statement wherein they denied the relationship of the plaintiff with defendant No.1. However, on these allegations, the suit was instituted before the trial Court on 28.4.1990. 3. The defendants No.1 to 4 contested the suit by filing written statement wherein they denied the relationship of the plaintiff with defendant No.1. It was averred that Smt. Apsra Devi had not given birth to the plaintiff from defendant No.1 and defendant No.1 could not be estopped from challenging the paternity of the plaintiff. It was averred that Smt. Apsra Devi was the joint wife of defendant No.1 and his elder brother Sh. Vidya Krishan (PW-3). Defendant No.1 admitted having performed another marriage with defendant No.4 and claimed himself to be the owner in possession of the suit land and denied the ancestral character of the same. It was averred that defendant No.1 had not inherited the suit land from his father Sh. Ram Singh and further denied that the parties were governed by any custom relating to alienation and succession as set up by the plaintiff. It was averred that as per local custom applicable to the parties, alienation of ancestral property was permitted and, therefore, the gift deeds in question were legal, valid and were binding on the plaintiff. It was averred that under local custom, the alienation of a portion of ancestral property by way of gift to the wife was recognized. The objections regarding the suit land having not been properly valued for the purpose of court fee and jurisdiction and further that the plaintiff had no locus standi to institute the suit, were also taken. 4. From the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is the son of defendant No.1 from his first wife Smt. Apsra Devi? OPP 1-A. Whether the defendant NO.1 is estopped from challenging the paternity of the plaintiff, as alleged? OPP 2. Whether the land allegedly gifted to defendants No.2 and 3 by defendant No.1 forms part of ancestral property? OPP 3. Whether the local custom of Kinnaur District permits alienation of ancestral property? OPD 4. Whether the registered gift deeds 30/88 and 31/88 dated 30.8.1988 are illegal or against the principle of natural justice? OPP 5. Whether this suit has not been properly valued for purposes of court fee and jurisdiction? OPD 6. Whether plaintiff has no locus-standi to file the present suit? OPD 7. OPD 4. Whether the registered gift deeds 30/88 and 31/88 dated 30.8.1988 are illegal or against the principle of natural justice? OPP 5. Whether this suit has not been properly valued for purposes of court fee and jurisdiction? OPD 6. Whether plaintiff has no locus-standi to file the present suit? OPD 7. Whether the local custom permits alienation of some portion of ancestral property by way of gift to one's wife? OPD 8. Relief. 5. After recording the evidence and evaluating the same, the learned trial Court decided the issues No.5 and 6 in favour of the plaintiff and rest of the issues were decided against him and in favour of the defendants, which resulted in the dismissal of the suit. Aggrieved by the judgment and decree passed by learned trial Court, the plaintiff preferred an appeal before the learned Appellate Court, which came to be allowed vide judgment and decree dated 01.08.2000. 6. Aggrieved by the judgment and decree of the learned first Appellate Court, defendants No.1 to 3 have filed the instant appeal, which came to be admitted on 29.9.2000, on the following substantial questions of law: 1. Whether a suit for declaration with no alternative plea in the plaint is maintainable? 2. Whether the court of learned District Judge could proceed with the hearing of the appeal without passing appropriate orders on an application under Order 41 Rule 27 C.P.C. filed by the appellant-defendant? 3. Whether the learned District Judge could introduce and rely upon the theory of Hindu Law where the parties are governed by custom like the persons of District Kinnaur? 4. Whether the first Appellate Court could comment upon the judgment of the earlier District Judge who had allowed the appeal and had remanded the case back to the trial Court without their being no review petition pending before it? 5. Whether the admission made in earlier proceedings by parties to the suit is a substantive evidence more so when the parties making the admission have appeared in the witness box and explained the admission? 6. Whether the first Appellate Court could rely upon custom when it was not proved by documentary or other oral evidence? I have heard learned counsel for the parties and gone through the material placed on record. SUBSTANTIAL QUESTIONS OF LAW NO.1, 2 & 5: 7. 6. Whether the first Appellate Court could rely upon custom when it was not proved by documentary or other oral evidence? I have heard learned counsel for the parties and gone through the material placed on record. SUBSTANTIAL QUESTIONS OF LAW NO.1, 2 & 5: 7. Substantial questions of law No.1 and 2 appear to have been wrongly framed A perusal of the plaint would go to show that the plaintiff had filed the suit claiming therein the following reliefs: (a) That the suit property is ancestral qua the plaintiff and the defendant No.1 and has no legal sanction as per custom of the area to alienate the suit land. (b) To cancel the gift deeds No.30/88 and 31/88 dated 30.8.88 registered by the Sub Registrar, Moorang, Tehsil Moorang and also to mutation order dated 27.1.89 in Chak/Mauza Ribba and Up-muhal Holdang, Tehsil Moorang, District Kinnaur, H.P. (c) To restrain the defendant No.1 from alienating the suit property in future. 8. A perusal of the same would go to show that apart from the declaration, the plaintiff had also sought alternate plea and additional relief to restrain defendant No.1 from alienating the suit property in future. 9. The substantial question of law No.2 as framed in fact does not arise for consideration as the application filed by the plaintiff under Order 41 Rule 27 CPC for leading additional evidence was allowed vide detailed order passed to this effect on 22.7.2000. Therefore, substantial questions of law No.1, 2 and 5 are answered accordingly. Substantial questions of law No.3, 4 and 6: 10. It is admitted case of the parties that they are governed by the custom and frame of substantial question of law No.3 itself suggest the same. That apart, it is not in dispute that the parties are tribals and in terms of sub section (2) of Section 2 of the Hindu Succession Act, 1956, are governed by custom as the applicability of Hindu Succession Act has been specifically excluded to the tribals in their case as would be evident from the bare perusal of sub section (2) of Section 2 of the Hindu Succession Act, which reads thus: (2). Notwithstanding anything contained in sub section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs." 11. Even though, defendant No.1 tried to dispute that the property in his hands was not the ancestral. However, there is overwhelming evidence on record to suggest that the property was ancestral. The ground taken by defendant No.1 to claim that the property was not ancestral and he had got it from defendant No.4 and had not inherited the same from his father. However, the records reveal that it was defendant No.1, who after having inherited the property from his father in the year 1977 had gifted the suit land in favour of his wife defendant No.4. Mutation No. 2623 was duly attested in favour of defendant No.4 on the strength of the gift deed on 23.12.1977. However, thereafter defendant No.1 had managed re-conveyance of the suit land from his wife defendant No.4 in his name in the year 1978 and mutation No.2647 had been duly attested in his favour on 7.9.1978. In such circumstances, the learned first Appellate Court was absolutely right in holding that the transfer of ancestral property from the hands of defendant No.1 time and again was only to blemish its ancestral character. Transfers had been made within the family to the wife and back to himself and then to the sons from the second wife and to the second wife. These transfers clearly go to show that defendant No.1 wanted to deprive the plaintiff of his share in the suit property by all means be it legitimate or illegitimate. 12. This is clearly evident from the fact that when the plaintiff had instituted the suit on 28.4.1990, defendants No.2 and 3 were sought to be sued through defendant No.1, who was their father and natural guardian and had no adverse interest to that of defendants No.2 and 3. On 21.5.1990, defendant No.1 had been appointed as guardian ad-litem of defendants No.2 and 3. However, at the later stage defendant No.1 refused to act as next friend of defendants No.2 and 3, which was clearly in violation to the provisions of Order 32 Rule 3, sub rule 5 CPC, which reads as under: "(5). On 21.5.1990, defendant No.1 had been appointed as guardian ad-litem of defendants No.2 and 3. However, at the later stage defendant No.1 refused to act as next friend of defendants No.2 and 3, which was clearly in violation to the provisions of Order 32 Rule 3, sub rule 5 CPC, which reads as under: "(5). A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree." 13. That apart, defendant No.1 in the written statement even denied the paternity of the plaintiff claiming that the plaintiff was not his son. However, it has been duly proved on record that earlier to the suit the plaintiff had filed proceedings for grant of maintenance under Section 125 Cr.P.C. on the allegation that defendant No.1 being the father was not maintaining the plaintiff. The proceedings were contested by defendant No.1 on the ground that PW-2 Smt. Apsra Devi, mother had not been paying due attention to the plaintiff and even sought custody of the plaintiff. The learned Chief Judicial Magistrate tried the case and had rejected the defence of defendant No.1 and proceeded to allow maintenance at the rate of Rs.100/- per month in favour of the plaintiff and against defendant No.1 with effect from 8.5.1979. 14. Defendant No.1 had filed revision against the said order and had pressed for rejection of the petition under Section 125 Cr.P.C. of the plaintiff before the learned Sessions Judge on the ground that he was prepared to maintain the plaintiff. During the pendency of the proceedings under Section 125 Cr.P.C., defendant No.1 had applied for transfer of custody of the plaintiff under the Guardian and Wards Act in his favour and the same was allowed in favour of defendant No.1 by the then learned Senior Sub Judge vide order dated 26.3.1980. On the basis of said order, defendant No.1 had prayed for setting aside the order of learned Chief Judicial Magistrate allowing the maintenance in favour of the plaintiff. On the basis of said order, defendant No.1 had prayed for setting aside the order of learned Chief Judicial Magistrate allowing the maintenance in favour of the plaintiff. But the revision petition was rejected vide order dated 6.1.1981 Ex.P-15 by the learned Sessions Judge and the order passed by the Senior Sub Judge ordering the transfer of custody of the plaintiff from PW-2 to defendant No.1 was ordered to be set-aside. 15. However, more important is the statement of defendant No.1 given before the Chief Judicial Magistrate where he unequivocally acknowledged the plaintiff to be his son. Even though defendant No.1 in these proceedings did try to deny having made statement Ex.DA and further having appended his signatures on this statement. However, as rightly noted by learned first Appellate Court, defendant No.1 had clearly admitted his relationship with the plaintiff in the proceedings under Section 125 Cr.P.C. as is evident from his statement Ex.DA dated 10.9.1979 wherein in the opening lines the defendant No.1 in his examination-in-chief has clearly admitted the plaintiff to be his son. In fact those proceedings were contested only on the ground that the mother of the plaintiff had not been taking proper care of the plaintiff and as such, defendant No.1 had sought transfer of the custody of the plaintiff in his favour. Having unequivocally and unconditionally accepted the plaintiff to be his son, defendant No.1 cannot wriggle out of such admission. 16. Interestingly, the trial Court refused to act on the basis of the statement and order on the ground that the orders passed by the criminal Court were not binding on the Civil Court. However, the reasoning given to say the least is fallacious apart from being perverse. It was not order alone that was passed by the Criminal Court holding the plaintiff to be the son of defendant No.1, but it was the unequivocal and unconditional admission made by defendant No.1 in those proceedings that led to passing of the order by the Criminal Court and therefore, Civil Court was bound to take notice of this order which was based on the admission of defendant No.1. 17. Additionally and more importantly, it needs to be noticed that it was pursuant to the maintenance of Rs.100/- granted to the plaintiff being the son of defendant No.1 that he paid this amount of maintenance for about 8 years. 17. Additionally and more importantly, it needs to be noticed that it was pursuant to the maintenance of Rs.100/- granted to the plaintiff being the son of defendant No.1 that he paid this amount of maintenance for about 8 years. Thus, it is clearly evident that defendant No.1 by hook and crook wanted to deprive the plaintiff of his share in the property which is ancestral. 18. Now adverting to question as to whether such property can be alienated as per custom? PW-1 Chander Nath, plaintiff has stated that ancestral property could not be alienated. Even PW-4 Ganga Sain has also stated that ancestral property could not be alienated except with the consent of the son. 19. Whereas defendant No.1 Ram Nath and DW-3 Girdhari Lal, have stated that according to the customary law applicable to the parties, after partition, the ancestral property was to be held by the owners as absolute property and could be alienated in any way. Attested copy of the Wajib-ul-Arz governing the matter has been produced by the appellant before the first Appellate Court and in terms thereof, ancestral property inherited from the father could not be alienated in the presence of the male child without his consent except small portion out of love and affection or for legal necessity. In terms of the custom, son alone is entitled to succeed to the estate of his father. 20. Notably, DW-2 Ram Nath had quoted several instances wherein the alienation of joint property has been made by the proprietors in Kinnaur District. The defendants had instituted an application under Order 41 Rule 27 CPC at the appellate stage and had sought leave to tender in evidence mutations whereby the proprietors had alienated the property. Ext. RZ-2 is the copy of one such mutation No.153 dated 21.3.1998, whereby DW-2 had gifted his property in favour of one Bal Krishan son of Sh. Bhagi Ram. In his own evidence, DW-2 had nowhere stated having gifted ancestral or selfacquired property in favour of Bal Krishan. Even from the other mutations placed on record as Ext. RZ-1,Ext. RZ-3 and Ext. RZ-4 it cannot be gathered that whether the property alienated was ancestral or self-acquired. 21. Bhagi Ram. In his own evidence, DW-2 had nowhere stated having gifted ancestral or selfacquired property in favour of Bal Krishan. Even from the other mutations placed on record as Ext. RZ-1,Ext. RZ-3 and Ext. RZ-4 it cannot be gathered that whether the property alienated was ancestral or self-acquired. 21. Similar issue regarding alienation of ancestral property as per custom governing parties belonging to Kinnaur came up before this Court in RSA No. 475 of 1989 titled Tej Ram and others vs. Bharat Bhushan and it was held that alienation of ancestral property could only be made with the consent of the legal heirs. 22. The aforesaid judgment was carried in appeal before the Hon'ble Supreme Court and vide judgment reported in Bharat Bhushan vs. Tej Ram and Others, (2016) 15 SCC 655, the appeal so filed was also dismissed and it was held as under: "8. We have considered the respective submissions advanced at the bar. The substantial questions of law framed by the High Court upon remand of the matter have already been noticed. While it is correct that the answer to the said questions is in favour of the defendants, the same does not necessarily answer the core issue that was required to be decided in the second appeal in favour of the appellant-defendant, namely, that the transfer made by Defendant No. 3 to Defendant No. 1 was permissible under the Customary Law in force. This is because the substantial question of law relate to the question of legal necessity which principle of Hindu Law stands excluded by the explicit principles of the Customary Law that govern the parties. 9. We have read and considered sub-clauses 9, 10 and 11 of Clause 30 as well as Clause 16 of the Wajib-ul-Arz, the original of which in Urdu and the translated versions thereof have been placed before us by the respective parties. As there is no variance in the translations offered by the respective parties, the above provisions may be reproduced below: Clause 16: Rights regarding sale and mortgage of property 1. Land holders can sell or mortgage their own properties. State will make no interference except in case of a sale to an outsider where permission of State is required. 2. In case of sale or mortgage of the entire Khata the incidence of Atwara shall be on Mushtari (Purchaser) and Murtehan (Mortgagee). 3. Land holders can sell or mortgage their own properties. State will make no interference except in case of a sale to an outsider where permission of State is required. 2. In case of sale or mortgage of the entire Khata the incidence of Atwara shall be on Mushtari (Purchaser) and Murtehan (Mortgagee). 3. A Mujara (i.e person cultivating for the owner i.e tenant) cannot sell or mortgage ancestral property without permission of the owner of land. * * * Clause 30: Rights of widows regarding share in partition and shares of issues Sub-clause 9 In the case of daughter, daughter shall not get any share along with her brothers. Sub clause 10 In the absence of male issues, the owner of land can get the land mutated during his life time in favour of daughters through gift or will and the widow shall have no right. The Reyasat shall not take notice of the same. Sub-clause 11 In the presence of absence of male issues, the owner of a holding has the right that he may out of his holding transfer the same through gift or will in favour of his daughter, son-in law, or an adopted son and can do so through Sankalpa or alm but in that condition registration of the same is compulsory." 23. Now, adverting to Wajib-ul-Arz placed on record by way of additional evidence before the learned first Appellate Court, it would be noticed that in terms of clause (2) in Kinnaur, only the son has the right on the property and in terms of clause (4) if children are born to two or more married wives of a person, then they will be entitled to the equal inheritance. 24. It would be noticed that the learned first Appellate Court has not at all relied upon the theory of Hindu Law as canvassed by the appellants and to the contrary has solely relied upon the custom governing the parties. Once it is admitted case of the appellants themselves that the parties are governed by the custom, then the substantial question of law No.6 is superfluous, more particularly, when the applicability of Wajib-ul-Arz has not been denied by the appellants. 25. Likewise, the substantial question of law No.4, whether the first Appellate Court could comment upon the judgment of his predecessor is also superfluous as the doctrine of merger is clearly attracted in this case. 25. Likewise, the substantial question of law No.4, whether the first Appellate Court could comment upon the judgment of his predecessor is also superfluous as the doctrine of merger is clearly attracted in this case. Moreover, the learned counsel for the appellants has failed to point out any comment made by the learned first Appellate Court on the earlier judgment of the then District Judge, which is either erroneous or has caused prejudice much less serious prejudice to the appellants. The substantial questions of law are answered accordingly. 26. In view of the aforesaid discussion, there is no merit in the instant appeal and the same is accordingly dismissed so also the pending application(s), if any, leaving the parties to bear their own costs. JUDGMENT : Tarlok Singh Chauhan, J. The defendants No.1 to 3 are the appellants, who aggrieved by the judgment and decree passed by learned first Appellate Court whereby it reversed the judgment and decree of the learned trial Court and decreed the suit of the plaintiff, have filed the instant appeal. The parties shall be referred to as the 'plaintiff' and the 'defendants'. 2. The plaintiff filed a suit for declaration to the effect that he is the son of defendant No.1 having been born to Smt. Apsra Devi, who was the first wife of defendant No.1. After the birth of the plaintiff, defendant No.1 had performed another marriage with defendant No.4 and out of the wedlock, defendants No.2 and 3 were born. In the books of the Collector, defendant No.1 had been recorded owner in possession of the land described in Khata Khatauni No. 136/237, Khasra No. 690, measuring 0-00-89 hectares, Khata Khatauni No. 108/195, Khasra No. 885, measuring 0-43-11 hectares, situated in Mauza Ribba, Up-Mohal Holdang, Tehsil Moorang, District Kinnaur, H.P. The suit land was stated to be ancestral with defendant No.1 qua the plaintiff as the same had been acquired by him through inheritance from his father Sh. Ram Singh. The parties were governed by custom in the matter of alienation and succession. According to the custom applicable to the parties, defendant No. 1 could not alienate the suit land without the consent of the plaintiff. It had been stated that defendant No. 1 on 30.8.1988 had executed gift deed Nos. Ram Singh. The parties were governed by custom in the matter of alienation and succession. According to the custom applicable to the parties, defendant No. 1 could not alienate the suit land without the consent of the plaintiff. It had been stated that defendant No. 1 on 30.8.1988 had executed gift deed Nos. 30/88 and 31/88 of the suit land in favour of defendants No.2 to 4 and the mutation to this effect was attested in their favour on 27.01.1989. The plaintiff alleged that this alienation of the suit land by defendant No.1 in favour of defendants No.2 to 4 was wrong, illegal and void and therefore not binding on him. In the earlier proceedings under Section 125 Cr.P.C., defendant No.1 had admitted the plaintiff to be his son. As such, defendant No.1 could not be permitted to challenge the paternity of the plaintiff and was estopped from denying his relationship with the plaintiff. However, on these allegations, the suit was instituted before the trial Court on 28.4.1990. 3. The defendants No.1 to 4 contested the suit by filing written statement wherein they denied the relationship of the plaintiff with defendant No.1. It was averred that Smt. Apsra Devi had not given birth to the plaintiff from defendant No.1 and defendant No.1 could not be estopped from challenging the paternity of the plaintiff. It was averred that Smt. Apsra Devi was the joint wife of defendant No.1 and his elder brother Sh. Vidya Krishan (PW-3). Defendant No.1 admitted having performed another marriage with defendant No.4 and claimed himself to be the owner in possession of the suit land and denied the ancestral character of the same. It was averred that defendant No.1 had not inherited the suit land from his father Sh. Ram Singh and further denied that the parties were governed by any custom relating to alienation and succession as set up by the plaintiff. It was averred that as per local custom applicable to the parties, alienation of ancestral property was permitted and, therefore, the gift deeds in question were legal, valid and were binding on the plaintiff. It was averred that under local custom, the alienation of a portion of ancestral property by way of gift to the wife was recognized. It was averred that as per local custom applicable to the parties, alienation of ancestral property was permitted and, therefore, the gift deeds in question were legal, valid and were binding on the plaintiff. It was averred that under local custom, the alienation of a portion of ancestral property by way of gift to the wife was recognized. The objections regarding the suit land having not been properly valued for the purpose of court fee and jurisdiction and further that the plaintiff had no locus standi to institute the suit, were also taken. 4. From the pleadings of the parties, the learned trial Court framed the following issues: 1. Whether the plaintiff is the son of defendant No.1 from his first wife Smt. Apsra Devi? OPP 1-A. Whether the defendant NO.1 is estopped from challenging the paternity of the plaintiff, as alleged? OPP 2. Whether the land allegedly gifted to defendants No.2 and 3 by defendant No.1 forms part of ancestral property? OPP 3. Whether the local custom of Kinnaur District permits alienation of ancestral property? OPD 4. Whether the registered gift deeds 30/88 and 31/88 dated 30.8.1988 are illegal or against the principle of natural justice? OPP 5. Whether this suit has not been properly valued for purposes of court fee and jurisdiction? OPD 6. Whether plaintiff has no locus-standi to file the present suit? OPD 7. Whether the local custom permits alienation of some portion of ancestral property by way of gift to one's wife? OPD 8. Relief. 5. After recording the evidence and evaluating the same, the learned trial Court decided the issues No.5 and 6 in favour of the plaintiff and rest of the issues were decided against him and in favour of the defendants, which resulted in the dismissal of the suit. Aggrieved by the judgment and decree passed by learned trial Court, the plaintiff preferred an appeal before the learned Appellate Court, which came to be allowed vide judgment and decree dated 01.08.2000. 6. Aggrieved by the judgment and decree of the learned first Appellate Court, defendants No.1 to 3 have filed the instant appeal, which came to be admitted on 29.9.2000, on the following substantial questions of law: 1. Whether a suit for declaration with no alternative plea in the plaint is maintainable? 2. 6. Aggrieved by the judgment and decree of the learned first Appellate Court, defendants No.1 to 3 have filed the instant appeal, which came to be admitted on 29.9.2000, on the following substantial questions of law: 1. Whether a suit for declaration with no alternative plea in the plaint is maintainable? 2. Whether the court of learned District Judge could proceed with the hearing of the appeal without passing appropriate orders on an application under Order 41 Rule 27 C.P.C. filed by the appellant-defendant? 3. Whether the learned District Judge could introduce and rely upon the theory of Hindu Law where the parties are governed by custom like the persons of District Kinnaur? 4. Whether the first Appellate Court could comment upon the judgment of the earlier District Judge who had allowed the appeal and had remanded the case back to the trial Court without their being no review petition pending before it? 5. Whether the admission made in earlier proceedings by parties to the suit is a substantive evidence more so when the parties making the admission have appeared in the witness box and explained the admission? 6. Whether the first Appellate Court could rely upon custom when it was not proved by documentary or other oral evidence? I have heard learned counsel for the parties and gone through the material placed on record. SUBSTANTIAL QUESTIONS OF LAW NO.1, 2 & 5: 7. Substantial questions of law No.1 and 2 appear to have been wrongly framed A perusal of the plaint would go to show that the plaintiff had filed the suit claiming therein the following reliefs: (a) That the suit property is ancestral qua the plaintiff and the defendant No.1 and has no legal sanction as per custom of the area to alienate the suit land. (b) To cancel the gift deeds No.30/88 and 31/88 dated 30.8.88 registered by the Sub Registrar, Moorang, Tehsil Moorang and also to mutation order dated 27.1.89 in Chak/Mauza Ribba and Up-muhal Holdang, Tehsil Moorang, District Kinnaur, H.P. (c) To restrain the defendant No.1 from alienating the suit property in future. 8. A perusal of the same would go to show that apart from the declaration, the plaintiff had also sought alternate plea and additional relief to restrain defendant No.1 from alienating the suit property in future. 9. 8. A perusal of the same would go to show that apart from the declaration, the plaintiff had also sought alternate plea and additional relief to restrain defendant No.1 from alienating the suit property in future. 9. The substantial question of law No.2 as framed in fact does not arise for consideration as the application filed by the plaintiff under Order 41 Rule 27 CPC for leading additional evidence was allowed vide detailed order passed to this effect on 22.7.2000. Therefore, substantial questions of law No.1, 2 and 5 are answered accordingly. Substantial questions of law No.3, 4 and 6: 10. It is admitted case of the parties that they are governed by the custom and frame of substantial question of law No.3 itself suggest the same. That apart, it is not in dispute that the parties are tribals and in terms of sub section (2) of Section 2 of the Hindu Succession Act, 1956, are governed by custom as the applicability of Hindu Succession Act has been specifically excluded to the tribals in their case as would be evident from the bare perusal of sub section (2) of Section 2 of the Hindu Succession Act, which reads thus: (2). Notwithstanding anything contained in sub section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs." 11. Even though, defendant No.1 tried to dispute that the property in his hands was not the ancestral. However, there is overwhelming evidence on record to suggest that the property was ancestral. The ground taken by defendant No.1 to claim that the property was not ancestral and he had got it from defendant No.4 and had not inherited the same from his father. However, the records reveal that it was defendant No.1, who after having inherited the property from his father in the year 1977 had gifted the suit land in favour of his wife defendant No.4. Mutation No. 2623 was duly attested in favour of defendant No.4 on the strength of the gift deed on 23.12.1977. However, thereafter defendant No.1 had managed re-conveyance of the suit land from his wife defendant No.4 in his name in the year 1978 and mutation No.2647 had been duly attested in his favour on 7.9.1978. Mutation No. 2623 was duly attested in favour of defendant No.4 on the strength of the gift deed on 23.12.1977. However, thereafter defendant No.1 had managed re-conveyance of the suit land from his wife defendant No.4 in his name in the year 1978 and mutation No.2647 had been duly attested in his favour on 7.9.1978. In such circumstances, the learned first Appellate Court was absolutely right in holding that the transfer of ancestral property from the hands of defendant No.1 time and again was only to blemish its ancestral character. Transfers had been made within the family to the wife and back to himself and then to the sons from the second wife and to the second wife. These transfers clearly go to show that defendant No.1 wanted to deprive the plaintiff of his share in the suit property by all means be it legitimate or illegitimate. 12. This is clearly evident from the fact that when the plaintiff had instituted the suit on 28.4.1990, defendants No.2 and 3 were sought to be sued through defendant No.1, who was their father and natural guardian and had no adverse interest to that of defendants No.2 and 3. On 21.5.1990, defendant No.1 had been appointed as guardian ad-litem of defendants No.2 and 3. However, at the later stage defendant No.1 refused to act as next friend of defendants No.2 and 3, which was clearly in violation to the provisions of Order 32 Rule 3, sub rule 5 CPC, which reads as under: "(5). A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree." 13. That apart, defendant No.1 in the written statement even denied the paternity of the plaintiff claiming that the plaintiff was not his son. However, it has been duly proved on record that earlier to the suit the plaintiff had filed proceedings for grant of maintenance under Section 125 Cr.P.C. on the allegation that defendant No.1 being the father was not maintaining the plaintiff. However, it has been duly proved on record that earlier to the suit the plaintiff had filed proceedings for grant of maintenance under Section 125 Cr.P.C. on the allegation that defendant No.1 being the father was not maintaining the plaintiff. The proceedings were contested by defendant No.1 on the ground that PW-2 Smt. Apsra Devi, mother had not been paying due attention to the plaintiff and even sought custody of the plaintiff. The learned Chief Judicial Magistrate tried the case and had rejected the defence of defendant No.1 and proceeded to allow maintenance at the rate of Rs.100/- per month in favour of the plaintiff and against defendant No.1 with effect from 8.5.1979. 14. Defendant No.1 had filed revision against the said order and had pressed for rejection of the petition under Section 125 Cr.P.C. of the plaintiff before the learned Sessions Judge on the ground that he was prepared to maintain the plaintiff. During the pendency of the proceedings under Section 125 Cr.P.C., defendant No.1 had applied for transfer of custody of the plaintiff under the Guardian and Wards Act in his favour and the same was allowed in favour of defendant No.1 by the then learned Senior Sub Judge vide order dated 26.3.1980. On the basis of said order, defendant No.1 had prayed for setting aside the order of learned Chief Judicial Magistrate allowing the maintenance in favour of the plaintiff. But the revision petition was rejected vide order dated 6.1.1981 Ex.P-15 by the learned Sessions Judge and the order passed by the Senior Sub Judge ordering the transfer of custody of the plaintiff from PW-2 to defendant No.1 was ordered to be set-aside. 15. However, more important is the statement of defendant No.1 given before the Chief Judicial Magistrate where he unequivocally acknowledged the plaintiff to be his son. Even though defendant No.1 in these proceedings did try to deny having made statement Ex.DA and further having appended his signatures on this statement. However, as rightly noted by learned first Appellate Court, defendant No.1 had clearly admitted his relationship with the plaintiff in the proceedings under Section 125 Cr.P.C. as is evident from his statement Ex.DA dated 10.9.1979 wherein in the opening lines the defendant No.1 in his examination-in-chief has clearly admitted the plaintiff to be his son. However, as rightly noted by learned first Appellate Court, defendant No.1 had clearly admitted his relationship with the plaintiff in the proceedings under Section 125 Cr.P.C. as is evident from his statement Ex.DA dated 10.9.1979 wherein in the opening lines the defendant No.1 in his examination-in-chief has clearly admitted the plaintiff to be his son. In fact those proceedings were contested only on the ground that the mother of the plaintiff had not been taking proper care of the plaintiff and as such, defendant No.1 had sought transfer of the custody of the plaintiff in his favour. Having unequivocally and unconditionally accepted the plaintiff to be his son, defendant No.1 cannot wriggle out of such admission. 16. Interestingly, the trial Court refused to act on the basis of the statement and order on the ground that the orders passed by the criminal Court were not binding on the Civil Court. However, the reasoning given to say the least is fallacious apart from being perverse. It was not order alone that was passed by the Criminal Court holding the plaintiff to be the son of defendant No.1, but it was the unequivocal and unconditional admission made by defendant No.1 in those proceedings that led to passing of the order by the Criminal Court and therefore, Civil Court was bound to take notice of this order which was based on the admission of defendant No.1. 17. Additionally and more importantly, it needs to be noticed that it was pursuant to the maintenance of Rs.100/- granted to the plaintiff being the son of defendant No.1 that he paid this amount of maintenance for about 8 years. Thus, it is clearly evident that defendant No.1 by hook and crook wanted to deprive the plaintiff of his share in the property which is ancestral. 18. Now adverting to question as to whether such property can be alienated as per custom? PW-1 Chander Nath, plaintiff has stated that ancestral property could not be alienated. Even PW-4 Ganga Sain has also stated that ancestral property could not be alienated except with the consent of the son. 19. Whereas defendant No.1 Ram Nath and DW-3 Girdhari Lal, have stated that according to the customary law applicable to the parties, after partition, the ancestral property was to be held by the owners as absolute property and could be alienated in any way. 19. Whereas defendant No.1 Ram Nath and DW-3 Girdhari Lal, have stated that according to the customary law applicable to the parties, after partition, the ancestral property was to be held by the owners as absolute property and could be alienated in any way. Attested copy of the Wajib-ul-Arz governing the matter has been produced by the appellant before the first Appellate Court and in terms thereof, ancestral property inherited from the father could not be alienated in the presence of the male child without his consent except small portion out of love and affection or for legal necessity. In terms of the custom, son alone is entitled to succeed to the estate of his father. 20. Notably, DW-2 Ram Nath had quoted several instances wherein the alienation of joint property has been made by the proprietors in Kinnaur District. The defendants had instituted an application under Order 41 Rule 27 CPC at the appellate stage and had sought leave to tender in evidence mutations whereby the proprietors had alienated the property. Ext. RZ-2 is the copy of one such mutation No.153 dated 21.3.1998, whereby DW-2 had gifted his property in favour of one Bal Krishan son of Sh. Bhagi Ram. In his own evidence, DW-2 had nowhere stated having gifted ancestral or selfacquired property in favour of Bal Krishan. Even from the other mutations placed on record as Ext. RZ-1,Ext. RZ-3 and Ext. RZ-4 it cannot be gathered that whether the property alienated was ancestral or self-acquired. 21. Similar issue regarding alienation of ancestral property as per custom governing parties belonging to Kinnaur came up before this Court in RSA No. 475 of 1989 titled Tej Ram and others vs. Bharat Bhushan and it was held that alienation of ancestral property could only be made with the consent of the legal heirs. 22. The aforesaid judgment was carried in appeal before the Hon'ble Supreme Court and vide judgment reported in Bharat Bhushan vs. Tej Ram and Others, (2016) 15 SCC 655, the appeal so filed was also dismissed and it was held as under: "8. We have considered the respective submissions advanced at the bar. The substantial questions of law framed by the High Court upon remand of the matter have already been noticed. We have considered the respective submissions advanced at the bar. The substantial questions of law framed by the High Court upon remand of the matter have already been noticed. While it is correct that the answer to the said questions is in favour of the defendants, the same does not necessarily answer the core issue that was required to be decided in the second appeal in favour of the appellant-defendant, namely, that the transfer made by Defendant No. 3 to Defendant No. 1 was permissible under the Customary Law in force. This is because the substantial question of law relate to the question of legal necessity which principle of Hindu Law stands excluded by the explicit principles of the Customary Law that govern the parties. 9. We have read and considered sub-clauses 9, 10 and 11 of Clause 30 as well as Clause 16 of the Wajib-ul-Arz, the original of which in Urdu and the translated versions thereof have been placed before us by the respective parties. As there is no variance in the translations offered by the respective parties, the above provisions may be reproduced below: Clause 16: Rights regarding sale and mortgage of property 1. Land holders can sell or mortgage their own properties. State will make no interference except in case of a sale to an outsider where permission of State is required. 2. In case of sale or mortgage of the entire Khata the incidence of Atwara shall be on Mushtari (Purchaser) and Murtehan (Mortgagee). 3. A Mujara (i.e person cultivating for the owner i.e tenant) cannot sell or mortgage ancestral property without permission of the owner of land. * * * Clause 30: Rights of widows regarding share in partition and shares of issues Sub-clause 9 In the case of daughter, daughter shall not get any share along with her brothers. Sub clause 10 In the absence of male issues, the owner of land can get the land mutated during his life time in favour of daughters through gift or will and the widow shall have no right. The Reyasat shall not take notice of the same. Sub clause 10 In the absence of male issues, the owner of land can get the land mutated during his life time in favour of daughters through gift or will and the widow shall have no right. The Reyasat shall not take notice of the same. Sub-clause 11 In the presence of absence of male issues, the owner of a holding has the right that he may out of his holding transfer the same through gift or will in favour of his daughter, son-in law, or an adopted son and can do so through Sankalpa or alm but in that condition registration of the same is compulsory." 23. Now, adverting to Wajib-ul-Arz placed on record by way of additional evidence before the learned first Appellate Court, it would be noticed that in terms of clause (2) in Kinnaur, only the son has the right on the property and in terms of clause (4) if children are born to two or more married wives of a person, then they will be entitled to the equal inheritance. 24. It would be noticed that the learned first Appellate Court has not at all relied upon the theory of Hindu Law as canvassed by the appellants and to the contrary has solely relied upon the custom governing the parties. Once it is admitted case of the appellants themselves that the parties are governed by the custom, then the substantial question of law No.6 is superfluous, more particularly, when the applicability of Wajib-ul-Arz has not been denied by the appellants. 25. Likewise, the substantial question of law No.4, whether the first Appellate Court could comment upon the judgment of his predecessor is also superfluous as the doctrine of merger is clearly attracted in this case. Moreover, the learned counsel for the appellants has failed to point out any comment made by the learned first Appellate Court on the earlier judgment of the then District Judge, which is either erroneous or has caused prejudice much less serious prejudice to the appellants. The substantial questions of law are answered accordingly. 26. In view of the aforesaid discussion, there is no merit in the instant appeal and the same is accordingly dismissed so also the pending application(s), if any, leaving the parties to bear their own costs.