Himachal Pradesh High Court
Jagdish Chand vs Piar Singh And Others on 7 May, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
R.S.A. No. 52 of 2018
.
Date of decision: 7th May, 2018.
Jagdish Chand ..... Appellant/Plaintiff.
Versus
Piar Singh and others ....Respondents/Defendants.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No
For the Appellant : Mr. Tarun K. Sharma, Advocate.
For the Respondents : Mr. Vikrant Chandel, Advocate.
Tarlok Singh Chauhan, Judge (Oral)
The appellant is the plaintiff, who having lost before both the learned Courts below, has filed the instant appeal by invoking the provisions of Section 100 of the Code of Civil Procedure, before this Court.
The parties shall be referred to as the 'plaintiff' and 'defendants'.
2. Brief facts giving rise to file the present appeal are that the plaintiff filed a suit for declaration to the effect that he alongwtih proforma defendant No.3 is owner in possession in equal share of the land comprised in Khata No.1, Khatauni No.1, Khasra Nos. 373, 439, 440, 491, 492, 496, 520, 521/1, 524, 540, 548, 549, 612, 608, 627, 645/1, 653, 678, 700, 702, 842, 849, kita 22, area measuring 45 Kanals 13 Marlas, 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 2 situated in Tikka Bailag, Tappa Mewa, Tehsil Bhoranj, District Hamirpur, H.P. (hereinafter referred to as the suit land) as the heir of deceased .
Munshi Ram and the alleged Will dated 9.3.2010 and the mutation No.600 dated 24.7.2010 on the basis of said Will was illegal, null and void and not binding upon the plaintiff and proforma defendant No.3 as the property was ancestral qua the deceased Munshi Ram, plaintiff and proforma defendant No.3, therefore, deceased Munshi Ram had no legal right to alienate the suit property in favour of defendants No. 1 and 2 without any legal necessity and the said alienation was illegal, null and void and the plaintiff and proforma defendant No.3 were legally entitled to inherit the property after the death of deceased Munshi Ram and were further entitled to permanent prohibitory injunction restraining the defendants No. 1 and 2 from alienating the suit land in any manner whatsoever or changing its nature.
3. The defendants resisted and contested the suit by filing written statement wherein they took preliminary objections qua maintainability, estoppel, non-joinder and mis-joinder of parties, cause of action, suppression of material facts and even claimed special costs. On merits, it was admitted that the father of the plaintiff was recorded owner in possession of the suit land and mutation No.600 qua the suit land had been sanctioned in their favour. It was also admitted that the plaintiff and proforma defendant No.3 were the sons of late Munshi Ram. However, it was averred that Munshi Ram had alienated the suit land in favour of Smt. Shakuntla Devi through settlement deed and part of the suit land had been alienated and mutation No. 576 had been sanctioned in her favour and remaining land had been bestowed upon defendants No. 1 ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 3 and 2 through registered Will executed by Munshi Ram on the basis of which mutation No. 600 had been attested. It was further averred that .
Munshi Ram had been murdered by the plaintiff and his family members and they had been convicted by the Additional Sessions Judge, Hamirpur. Earlier to that, the behaviour of the plaintiff and his family members was not cordial with Munshi Ram, constraining him to execute the Will in question. The plaintiff after his marriage had been living in the house of his in-laws and had not served Munshi Ram during his life time, who in fact had been looked after and maintained by defendants No.1 and 2 as well as Smt. Shakuntla Devi.
4. From the pleadings of the parties, the learned trial Court on two occasions framed the following issues, which read thus:
1. Whether the plaintiff is entitled decree for declaration with consequential relief of permanent prohibitory injunction, as alleged? OPP
2. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPP
3. Whether the plaintiff has got no cause of action to file the present suit, as alleged? OPP 3(a) Whether Will executed by late Sh. Munshi Ram in favour of defendants No. 1 and 2 is valid Will ? OPD
4. Whether the plaintiff is estopped to file the suit by his own act and conduct, as alleged? OPD
5. Whether the suit of the plaintiff is bad for non-joinder of necessary parties, as alleged? OPD
6. Whether the plaintiff has not come to the Court with clean hands and has suppressed the material facts, as alleged? OPD
7. Whether the suit of the plaintiff is liable to be dismissed with the special costs, as alleged? OPD ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 4
8. Relief.
5. After recording the evidence and evaluating the same, the .
learned trial Court dismissed the suit on 27.9.2014 and the appeal filed against the same also came to be dismissed vide judgment and decree dated 27.10.2017, constraining the appellant/plaintiff to file the instant appeal.
6. It is vehemently argued by learned counsel for the appellant that the findings recorded by the learned Courts below are perverse inasmuch as they have not appreciated the pleadings of the parties, evidence adduced by them in right perspective and have further ignored the law on the subject. He further argued that as per settled law the ancestral property cannot be alienated by way of Will and, therefore, on this short ground, the judgments and decrees passed by learned Courts below should be set-aside and the suit as filed by the plaintiff ought to be decreed. On the other hand, Mr.Vikrant Chandel, learned counsel for the defendants would canvass that the findings recorded by the learned Courts below are pure findings of fact and, therefore, not immune from interference in second appeal before this Court.
I have heard learned counsel for the parties and have gone through the records carefully.
7. At the out-set, it may be stated that the second appeal can be entertained and admitted only in case the same involves substantial questions of law. What is substantial question of law has been considered by a Division Bench, of which I was a Member in case titled Jai Singh vs. ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 5 State of H.P. and others, LPA No. 67 of 2014, decided on 16.6.2015 and other connected matter, wherein it was held as under:
.
".34. The Apex Court in series of cases has laid down the principle as to what question can be said to be substantial question of law. The Apex Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) By L.Rs. and others, 2008 AIR SCW 2692, has held that in the absence of pleadings and issue, no question of law relating to it could be formulated in second appeal. It was further observed that the question which has not been considered in the suit, cannot be gone into in second appeal. It is apt to reproduce paragraph 25 of the said decision hereunder:
"25. The High Court, in the absence of pleadings and issues, formulated in a second appeal arising from a suit for bare injunction, questions of law unrelated to the pleadings and issues, presumably because some evidence was led and some arguments were advanced on those aspects. The only averment in the plaint that plaintiffs were the owners of the suit property having purchased the same under sale deeds dated 9.12.1968, did not enable the court, much less a High Court in second appeal, to hold a roving enquiry into an oral gift and its validity or validation of ostensible title under section 41 of TP Act. No amount of evidence or arguments can be looked into or considered in the absence of pleadings and issues, is a proposition that is too well settled."
35. It is also well settled proposition of law that the High Court under Section 100 of the CPC can interfere with the concurrent findings recorded by the Courts below only in case the said findings are perverse and arbitrary and are based upon non- appreciation of pleadings and evidence on record.
36. The Apex Court in Kashmir Singh vs. Harnam Singh & Anr., 2008 AIR SCW 2417, has held that as a general rule, the High Court should not interfere with concurrent findings of the Courts below. However, the Apex Court has also pointed out certain well recognized exceptions, where concurrent findings can be interfered with in a regular second appeal. It is apt to reproduce paragraph 17, as under:
::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 6"17. The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the .
courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to 'decision based on no evidence', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."
37. The Apex Court in Gurdev Kaur & Ors. vs. Kaki & Ors., 2006 AIR SCW 2404, while dealing with the scope of Section 100 of the CPC, has held, in paragraphs 68 and 69, as under:
"68. The analysis of cases decided by the Privy Council and this Court prior to 1976 clearly indicated the scope of interference u/s. 100 of the Code of Civil Procedure by this Court. Even prior to amendment, the consistent position has been that the Courts should not interfere with the concurrent findings of facts.
69. Now, after 1976 Amendment, the scope of Sec. 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering u/s. 100 of the Code of Civil Procedure only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 7 amendment mainly, according to the amended section, was:
(i) The High Court would be justified in admitting the .
second appeal only when a substantial question of law is involved;
(ii) The substantial question of law to precisely state such question;
(iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal;
(iv) Another part of the Section is that the appeal shall be heard only on that question."
8. Bearing in mind the aforesaid exposition of law, can it now be said that the findings recorded by the learned Courts below are perverse?
However, before answering this question, it is necessary to understand as to what can be said to be perverse.
9. What is 'perverse' was considered by the Hon'ble Supreme Court in a detailed judgment in Arulvelu and another vs. State Represented by the Public Prosecutor and another (2009) 10 SCC 206 wherein it was held as under:-
"26. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, (1878) 1 LR 1r 331 the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey 106 NW 814, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
27. The expression "perverse" has been defined by various dictionaries in the following manner:::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 8
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE:- Showing deliberate determination to behave in a .
way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition) PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
28. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761, the Court observed thus: (SCC p.766, para 8 "8...We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
29. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under: (SCC p.14, paras 9-10) "9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 910. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon .
it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
30. The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312, this Court observed as under: (SCC pp. 316-17, para 7) "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and r entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
10. What is 'perverse' has further been considered by this Court in RSA No.436 of 2000, titled 'Rubi Sood and another vs. Major (Retd.) Vijay Kumar Sud and others, decided on 28.05.2015 in the following manner:-
"25..... A finding of fact recorded by the learned Courts below can only be said to be perverse, which has been arrived at without consideration of material evidence or such finding is based on no evidence or misreading of evidence or is grossly erroneous that, if allowed to stand, it would result in miscarriage of justice, is open to correction, because it is not treated as a finding according to law.::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 10
26. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material .
or even the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eye of the law.
27. If the findings of the Court are based on no evidence or evidence, which is thoroughly unreliable or evidence that suffers from vice of procedural irregularity or the findings are such that no reasonable persons would have arrived at those findings, then the findings may be said to be perverse.
28. Further if the findings are either ipse dixit of the Court or based on conjectures and surmises, the judgment suffers from the additional infirmity of non application of mind and thus, stands vitiated."
11. What is 'perversity' recently came up for consideration before the Hon'ble Supreme Court in Damodar Lal vs.Sohan Devi and others (2016) 3 SCC 78 wherein it was held as under:-
"8. "Perversity" has been the subject matter of umpteen number of decisions of this Court. It has also been settled by several decisions of this Court that the first appellate court, under Section 96 of The Civil Procedure Code, 1908, is the last court of facts unless the findings are based on evidence or are perverse.
9. In Krishnan v. Backiam (2007) 12 SCC 190, it has been held at paragraph-11 that: (SCC pp. 192-93) "11. It may be mentioned that the first appellate court under Section 96 CPC is the last court of facts. The High Court in second appeal under Section 100 CPC cannot interfere with the findings of fact recorded by the first appellate court under Section 96 CPC. No doubt the findings of fact of the first appellate court can be challenged in second appeal on the ground that the said findings are based on no evidence or are perverse, but even in that case a question of law has to be formulated and framed by the High Court to that effect."::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 11
10. In Gurvachan Kaur v. Salikram (2010) 15 SCC 530, at para 10, this principle has been reiterated: (SCC p. 532) .
"10. It is settled law that in exercise of power under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the finding of fact recorded by the first appellate court which is the final court of fact, unless the same is found to be perverse. This being the position, it must be held that the High Court was not justified in reversing the finding of fact recorded by the first appellate court on the issues of existence of landlord-tenant relationship between the plaintiff and the defendant and default committed by the latter in payment of rent."
11. In the case before us, there is clear and cogent evidence on the side of the plaintiff/appellant that there has been structural alteration in the premises rented out to the respondents without his consent. Attempt by the respondent-defendants to establish otherwise has been found to be totally non-acceptable to the trial court as well as the first appellate court. Material alteration of a property is not a fact confined to the exclusive/and personal knowledge of the owner. It is a matter of evidence, be it from the owner himself or any other witness speaking on behalf of the plaintiff who is conversant with the facts and the situation. PW-1 is the vendor of the plaintiff, who is also his power of attorney. He has stated in unmistakable terms that there was structural alteration in violation of the rent agreement. PW-2 has also supported the case of the plaintiff. Even the witnesses on behalf of the defendant, partially admitted that the defendants had effected some structural changes.
12. Be that as it may, the question whether there is a structural alteration in a tenanted premises is not a fact limited to the personal knowledge of the owner. It can be proved by any admissible and reliable evidence. That burden has been successfully discharged by the plaintiff by examining PWs-1 and
2. The defendants could not shake that evidence. In fact, that fact is proved partially from the evidence of the defendants themselves, as an admitted fact. Hence, only the trial court came to the definite finding on structural alteration. That finding has been endorsed by the first appellate court on re-appreciation of ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 12 the evidence, and therefore, the High Court in second appeal was not justified in upsetting the finding which is a pure question of fact. We have no hesitation to note that both the questions of law .
framed by the High Court are not substantial questions of law.
Even if the finding of fact is wrong, that by itself will not constitute a question of law. The wrong finding should stem out on a complete misreading of evidence or it should be based only on conjectures and surmises. Safest approach on perversity is the classic approach on the reasonable man's inference on the facts.
To him, if the conclusion on the facts in evidence made by the court below is possible, there is no perversity. If not, the finding is perverse. Inadequacy of evidence or a different reading of evidence is not perversity.
13. In Kulwant Kaur v. Gurdial Singh Mann (2001) 4 SCC 262, this Court has dealt with the limited leeway available to the High Court in second appeal. To quote para 34: (SCC pp.278-79) "34. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure (Amendment) Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-à-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication -- what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below:
'103. Power of High Court to determine issues of fact.- In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,--
(a) which has not been determined by the lower appellate court or by both the court of first instance and the lower appellate court, or ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 13
(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in Section 100."
.
The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, that there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with."
14. In S.R. Tiwari v. Union of India (2013) 6 SCC 602, after referring to the decisions of this Court, starting with Rajinder Kumar Kindra v. Delhi Administration, (1984) 4 SCC 635, it was held at para 30: (S.R.Tewari case6, SCC p. 615) "30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC 635 : 1985 SCC (L&S) 131 : AIR 1984 SC 1805] , Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429 : AIR 1999 SC 677] , Gamini Bala Koteswara Rao v. State of A.P. [(2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372 : AIR 2010 SC 589] and Babu v. State of Kerala[(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] .)"
This Court has also dealt with other aspects of perversity.
15. We do not propose to discuss other judgments, though there is plethora of settled case law on this issue. Suffice to say that the approach made by the High Court has been wholly wrong, if not, perverse. It should not have interfered with concurrent findings of the trial court and first appellate court on a pure question of fact. Their inference on facts is certainly reasonable. The strained effort made by the High Court in second appeal to arrive at a different finding is wholly unwarranted apart from being impermissible under law. Therefore, we have no hesitation to allow the appeal ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 14 and set aside the impugned judgment of the High Court and restore that of the trial court as confirmed by the appellate court."
.
12. The learned Courts below have concurrently found the plaintiff to have been prosecuted under Section 302 IPC for having committed murder of his father. It is entirely a different issue that eventually he was found guilty of offence under Section 323 of IPC which is inconsequential as this fact in itself establishes that the relations between deceased Munshi Ram and the plaintiff, who is none other than his son, was far away from cordial and were rather hostile. Therefore, in the given circumstances, there would be but natural for the father to execute the Will in favour of those persons, who had been looking after and maintaining him because it has specifically come on record that the plaintiff after his marriage had been residing in the house of his in-laws and had not been rendering any services to his father Munshi Ram. On the contrary, specific evidence has come on record that deceased Munshi Ram was looked after by defendants No. 1, 2 and Smt. Shakuntla Devi.
13. As regards the execution of the Will, the learned Courts below have meticulously analyzed the evidence and thereafter upheld the execution of the Will. This finding has not otherwise been seriously challenged by the appellant, who would urge with vehemence that Munshi Ram could not have alienated the property by way of Will as the same was ancestral property. Without going into the question of whether the property was ancestral or not and assuming it to be ancestral, even then there was no law which prevented him from executing the Will of the so called ancestral property. In fact, this question is no longer res integra in view of the judgment rendered by a Co-ordinate Bench of this Court in ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 15 Kartari Devi and others versus Tota Ram 1992 (1) Sim. L.C. 402 and thereafter the ratio laid down therein was upheld and approved by a .
learned Division Bench of this Court in Tek Chand versus Mool Raj (1997) 2 Hindu LR 306 and both these judgments, in turn, have been approved by the Hon'ble Supreme Court in Sham Lal alias Kuldip versus Sanjeev Kumar and others (2009) 12 SCC 454 wherein it was observed as under:-
r to "26. There is no denying that the property in the hands of the deceased Balak Ram was ancestral since admittedly he had inherited the same form his father. In so far as the question whether under the custom governing the parties, a Will could be executed in respect of ancestral property is concerned, the same is no more res integra.
27. A learned Single Judge of the High Court in Kartari Devi and Ors. v. Tota Ram (1992) 1 Sim. L.C. 402 has held that in view of section 30 read with section 4 of the Hindu Succession Act, 1956 a male Hindu governed by Mitakshara system is not debarred from making a Will in respect of coparcenary/ancestral property. The above view of the learned Single Judge was upheld and approved by a Division Bench of the High Court in Tek Chand v. Mool Raj (1997) 2 Hindu L.R. 306. (Hindu LR p.310, para 14). In view of the above ratio, the learned District Judge has erred in upholding the validity of the Will Ex. DW 1-A only to the extent of the interest of the deceased in the property. Such findings are wrong and liable to be set aside.
28. There is yet another significant aspect of the case. The present suit was filed by the plaintiff for a declaration that the mutation of inheritance bearing No.1313 sanctioned on 20.2.1988 was wrong, illegal, null and void and not binding on his rights and that the land property in dispute was jointly owned and possessed by him and defendant nos.3 to 6 in equal shares. Further that the Will dated 4.12.1978 was null and void and inoperative beyond ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP 16 the competency of the deceased and also being the result of fraud, misrepresentation etc. Such suit was filed on 21.5.1991."
.
14. In view of the aforesaid discussion, no question of law much less substantial question of law arises for consideration.
15. Accordingly, there is no merit in this appeal and the same is dismissed, so also the pending application.
(Tarlok Singh Chauhan) th 7 May, 2018. Judge (GR) ::: Downloaded on - 11/05/2018 23:06:13 :::HCHP