SHAM KAUR Vs. KARTAR SINGH

JUDGEMENT

(1.) This judgment will dispose of Regular Second Appeal Nos. 60 and 78 of 1973, which arise out of the same judgment.

(2.) Briefly, the case of the plaintiffs is that Chanan Singh son of Diwan Singh was the last male-holder of land measuring 137 Kanals 18 Marlas situated in village Jhoran, tehsil Jagraon, according to Jamabandi of 1966-67. He died 14 months prior to the institution of the present suit. After his death Sham Kaur alias Bhagwan Kaur defendant-daughter of Santokh Singh, got the possession of the property in dispute on the ground that a will dated February 29, 1964, had been executed by Chanan Singh deceased in her favour. The plaintiffs alleged that no valid will was executed by Chanan Singh deceased in her favour. They also alleged that the land in dispute was ancestral property qua the plaintiffs and the deceased and under custom, by which the parties were governed, he had no right to will away the property. They further alleged that they being the collaterals within five degrees of the deceased were entitled to challenge the will. Consequently, they instituted the suit for possession against the defendants Ujaggar Singh, Sham Kaur and Bhan Kaur. The suit was contested by both the defendants. The defendants denied the relationship of the plaintiffs with the deceased. They also denied that the property was ancestral qua the plaintiffs. They pleaded that Sham Kaur had been brought up by Chanan Singh as his daughter and he executed a valid will on February 29, 1964, in her favour. They also pleaded that Sham Kaur had been rendering services to him and the property was given by will to her in lieu of the services. Bhan Kaur pleaded that she was the widow of the deceased and she was entitled to the property. The trial Court held that the deceased Chanan Singh had executed a valid will in favour of Sham Kaur alias Bhagwan Kaur, that Bhan Kaur was not a widow of the deceased and that the plaintiffs were governed by custom under which a male-holder could not will away his ancestral property. It also held that the plaintiffs were collaterals of the deceased and the property was ancestral qua them. Consequently, it decreed the suit of the plaintiffs. The defendants having felt aggrieved by the judgment and decree of the trial Court filed two appeals before the Additional District Judge. The appeal filed by Sham Kaur was numbered as 31/168 of 1971 and that of the Bhan Kaur as 45/179 of 1971. The first appellate Court affirmed the findings of the trial Court on all the issues. Consequently, it dismissed both the appeals. Both of them have come up in appeals against the judgment and decree of the trial Court. The appeals by Sham Kaur and Bhan Kaur have been numbered as R.S.A. Nos. 60 and 78 of 1973 respectively.

(3.) The first question that arises for determination is as to whether the plaintiffs can challenge the will on the ground that they were governed by custom under which a male-holder of the property cannot alienate the ancestral property without consideration and necessity. After the filing of the appeals, the legislature passed the Punjab Custom (Power to Contest) Amendment Act, 1973, Section 3 of the Act provides that Section 6 of the Punjab Custom (Power to Contest) Act, 1920, shall be omitted. The power to contest alienations had been given under the aforesaid section. By repealing that Section, the ancestral property had become immune from challenge in the Court of law. In view of the aforesaid provision, no right is left in the plaintiffs to institute the present suit. In this view, I get support from the decision of a Division Bench of this Court in Charan Singh v. Gehl Singh and another,1974 PunLR 125. In the aforesaid circumstances, the decree of the Courts below cannot be upheld.