Decided on July 11,1991

POHLO RAM Appellant
MANOHAR LAL Respondents


DEVINDER GUPTA.J. - (1.) Plaintiffs -appellants have preferred this appeal against the judgment and decree passed on June 15, 1979 by Additional District Judge, Kangra Division at Dharamshala, dismissing their appeal and thereby confirming the judgment and decree passed on May 15, 1978 by Subordinate Judge First Class, Palampur, dismissing their suit.
(2.) On December 9, 1969, plaintiffs instituted a suit for grant of a decree for declaration to the effect that on the death of their father Durga on October 16, 1969, they had inherited the suit property as owners and were entitled to occupy the same as such. The will alleged to have been executed by Durga bequeathing his entire movable and immovable property in favour of defendants respondents, who were his brothers sons was also challenged on the ground that since the property was ancestral in the hands of Durga, he was not entitled to execute any will without their consent according to the custom prevalent in their community. Due execution of the will by Durga was also denied. It was alleged that on the basis of the will, defendants had acquired no title or interest to the suit property. As a consequential relief, plaintiffs claimed a decree for possession of the suit property. The trial Court held the will to have been duly executed by Durga in favour of defendants for services rendered by them and their father Subhkaran. The parties were held to be governed by agricultural custom of Palampur tehsil in the matters of succession and alienation under which ancestral property was held could not to be willed away even for services rendered or for necessity Part of the suit property was held to be ancestral.
(3.) In view of the above findings, the trial Court decreed the suit qua that part of the property, which was held to be ancestral. It was dismissed in so far as the non -ancestral property was concerned. The plaintiffs challenged the judgment and decree of the trial Court by filing appeal. Defendants also filed cross -objections. During the course of hearing of arguments, it was conceded that land entered at Khewat No. 27 was ancestral. The remaining portion of the land entered at Khewat No. 28 was held to be non -ancestral. The lower appellate Court observed that the only challenge made to the will was that since the property was ancestral, deceased Durga could not have, under the custom, executed the will and as land entered at Khewat No. 28 was held to be non -ancestral, therefore, the custom was held to be non -applicable Accordingly, the appeal was dismissed. Cross -objections were not pressed. Plaintiffs preferred Second Appeal in this Court. During the course of hearing it was found that the lower appellate Court had not given any finding on the validity of the will, which was under challenge. By an order passed on September 14, 1990, the lower appellate Court was directed to record its finding on issues No. 8 and 9 as framed by the trial Court. The lower appellate Court has since returned its finding on the two issues by holding that deceased Durga was looked after by Subhkaran and other members of his family, who were rendering services to him. It accordingly held the will dated May 4, 1965 to have been duly proved. Finding of the trial Court upholding the validity of the will were affirmed. The appellants have filed their objections challenging the findings recorded by the lower appellate Court in its order, dated November 20, 1990.;

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