Decided on October 01,1991

TOTA RAM Respondents


KAMLESH SHARMA,J, - (1.) This is a Regular Second Appeal against the decree and judgment dated 23rd June, 1979 passed by the Additional District Judge, Kangra at Dharamshala, whereby the decree and judgment dated 22nd June, 1978 of Senior Sub -Judge, Kangra at Dharamshala, was affirmed and the suit of respondent -plaintiff, Tota Ram, was decreed.
(2.) The facts of the matter are that one Kapura had three sons, namely. Narainu, Gopala and Surat Ram. Out of them, Narainu died on 6 -6 -1967 and did not leave behind either widow or any child. He bequeathed his property, which is subject matter of the present litigation, in favour of two of the sons of his brother Surat Ram, namely, Lashkri, the original defendant and Udham Singh, the present appellant -defendant No. 2. Lashkri had died in the lower Court and his legal representatives, Smt Kartari Devi and others, were brought on record, who are now appellants -defendants No. 1 and 3 to 6. The original plaintiff was Gopala who had also died in the trial Court and his legal representative, Tota Ram, was substituted in his place. The original plaintiff, Gopala, had filed a suit for possession of the land in dispute challenging the will executed by Narainu in favour of original defendant Lashkri and Udham Singh. His claim was that after the death of Narainu on 6 -6 -1967, he being his brother, had a right to inherit his property. According to him, the will dated 14 -2 -1966 was not a valid will binding on his rights. His case, further was that parties being agriculturist Rajputs wore governed by custom under which Narainu had no right to execute a will of the land which he had inherited from a common ancestor.
(3.) The suit was resisted by Kartari Devi and others and all the allegations made therein were denied. It was alleged that the will made in their favour was in lieu of services and was valid According to Ksirtari Devi and others, neither the parties were governed by custom as alleged by Tota Ram nor the land in dispute was ancestral. The trial Court held the will as valid will but decreed the suit holding that the parties were governed by custom under which Narainu had no right to execute the will in respect of the suit property which was ancestral. These findings were confirmed in appeal filed by Smt. Kartari Devi and others. Hence the present Regular Second Appeal.;

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