MADAN LAL Vs. YOG RAJ
LAWS(HPH)-1997-4-54
HIGH COURT OF HIMACHAL PRADESH
Decided on April 02,1997

MADAN LAL Appellant
VERSUS
YOG RAJ Respondents


Referred Judgements :-

DIPO VS. WASSAN SINGH [REFERRED TO]


JUDGEMENT

M.SRINIVASAN, J. - (1.)This case can be disposed of on two short grounds. The appellants herein are the plaintiffs in the suit, in which they challenged the validity of a gift deed executed by the second defendant in the suit, by name Kali Dass, on 8.7.1974 in favour of the first defendant Jagat Ram, who is respondent in this appeal. The ground, on which the challenge was made, was that the property was ancestral property in the hands of Kali bass and the appellants being collaterals are entitled to challenge the validity of the gift. It is to be noted that the suit was filed as one for possession. That was not maintainable on that date as such, because Kali Dass was alive on that date. He died only during the pungency of the suit, but we do not propose to dispose of the appeal on that ground, as both the Courts have gone into the questions raised in the suit and the appeal, without referring to that aspect of the matter.
(2.)The trial Court found that the property was not ancestral property in the hands of Kali Dass, as he was the last male holder and he was not a member of any co -parcenery. He had no son or grandson and his brothers children will not constitute a coparcenery. The trial Court also found that there was no proof of the custom alleged to prevail among the parties to the suit.
(3.)The Appellate Judge disposed of the appeal on the only ground that the property was not ancestral property in the hands of Kali Dass The Appellate Judge placed reliance on a judgment of the Supreme Court in Smt. Dipo v. Wassan Singh AIR 1983 Supreme Court 846. In that view, the Appellate Court did not go into the other question relating to the custom.


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