SHRI BHIM SEN Vs. SHRI CHUNI LAL AND ORS.
LAWS(HPH)-1991-3-21
HIGH COURT OF HIMACHAL PRADESH
Decided on March 08,1991

SHRI BHIM SEN Appellant
VERSUS
SHRI CHUNI LAL AND ORS. Respondents

JUDGEMENT

Devinder Gupta, J. - (1.) This is plaintiff's Second Appeal against the judgement and decree passed on 6.1.1981 by Additional District Judge, Kangra Division at Dharamsala, dismissing his appeal and there by confirming the judgment and decree passed by the trial court dismissing his suit.
(2.) Plaintiff by filling a suit claimed a decree for possession of the 1/4 share in the estate left by Bidhu his father. He challenged the Will dated 9.3.1966 alleged to have been executed by his father Bidhu in favour of his three other brothers. Besides challenging the due execution of the Will, it was alleged by him that the party and late Shri Bidhu in the matter alienations and succession were governed by agricultural custom and according to the same Bidhu had no right to execute any Will affecting the ancestral property. The defendants contested the suit by supporting the Will by denying the fact of ancestral nature of the property and the alleged custom. The locus standi of the plaintiff to challenge the Will or to claim any share in the property was also challenged on the ground that he, in fact, had been adopted by Smt. Jugni and had succeeded to the estate left by her and as such was not entitled to claim any interest in the estate left by his nature father. The trial court dismissed the suit holding the land to be ancestral qua the plaintiff and Bidhu deceased and the parties to be governed in the matter of alienation and succession by custom under which ancestral property could not be bequeathed in the exclusion of one son. The will was held to have been validly executed. It was further held that the plaintiff had been adopted by Jugni widow of Shankar and had inherited her state and for this reason could not maintain a suit and claim inheritance to the estate left by his father. In appeal, the judgment and decree of the trial court was upheld by the lower appellate court. The plaintiff appellant has come up in Second Appeal before this court challenging the decision of the courts below.
(3.) The findings recorded by the courts qua the ancestral nature of the property and the parties in the matter of alienation bring covered by custom under which a proprietor had no right to make a Will in favour of his sons excluding one of them have not been challenged in this appeal by the parties. The plaintiff has challenged the finding with respect to the due execution of the Will by his father Bidhu but the same is incapable of being challenged in view of concurrent finding of fact. The other grounds on which challenge has been made to the findings recorded by the courts below are with respect to the adoption on the basis of which, it has been contended that the suit was liable to be decreed. It has been argued that as a matter of fact, there was no adoption of the plaintiff and she being the widow and the plaintiff being married at the time of alleged adoption, the adoption, if any was not legal and as such he was not debarred from claiming interest in the property of his father. These arguments have been repelled by the counsel for the respondents by urging that both the courts below have concurrently held that the plaintiff was adopted by Smt. Jugni and had infact inherited her estate and that therefore, the same are not liable to be interfered with in the Second Appeal.;


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