K. Kannan, J. - (1.) The defendants are the appellants before this Court. The suit by the plaintiff was for a declaration that the Court decree obtained by the defendants No.2 and 3 with the 1st defendant was collusive and amounted to alienation of ancestral properties without any necessities. The Court found that the properties were ancestral and although it found that the decree obtained by the defendants No.2 and 3 constituted a gift of properties from the 1st defendant without any necessity dismissed the suit, taking note of the fact that the 1st defendant had died during the pendency of the suit and the properties had been in the possession of the defendants No.2 and 3 and the suit could not have been maintained in the manner framed without a consequential relief of recovery of possession. The Court found, however, as a matter of fact that the 1st defendant had purported to have executed a Will in favour of the defendants No.2 and 3 before his death on 16.01.1968 and held that the Will was true but disposition by the 1st defendant in respect of ancestral property amounted to alienation of the property and therefore, not valid in law.
(2.) In appeal by the plaintiffs, the plaintiffs sought for an amendment of the plaint seeking for the relief of recovery of possession. The amendment was ordered and the technical objection that came in the way of the plaintiffs from securing the relief was no longer there and the trial Court judgment was set aside but affirming all other findings and holding that the plaintiffs were entitled to the declaration as sought for and to recover possession of the property as well. The defendants have challenged the findings of the trial Court and the decree granted by the Appellate Court in the second appeal.
(3.) The relationship between the parties would require to be given briefly to examine the basis of the claim of the defendants. Dallu Ram was the father, who had three sons Bhagwana, Telu and Ganga Ram. Bhagwana had two sons Kanhiya and Chamela. Chamela was the plaintiff. Kanhiya had sons Ram Chander and Lachhman, the defendants No.2 and 3. Telu was the 1st defendant. The contention of the plaintiffs was that the property held by the 1st defendant was ancestral having got the property from Dallu Ram. He had no issues and the suit had been instituted by defendants No.2 and 3 claiming that there had been a family settlement under which defendants No.2 and 3 had been allotted all the properties, which Telu Ram possessed. Mutations had also been sanctioned on the basis of such settlement. The suit was not contested by Telu Ram and he conceded for a decree to be obtained in favour of defendants No.2 and 3. The collusion was writ large in the proceedings and the trial Court held that the moment it was admitted that Telu Ram did not have any self-acquisition and that he had inherited the property from his father, it because matter of legal inference that they were ancestral and such an ancestral property could not have been allowed to be alienated in favour of his brother's children to the exclusion of the surviving brother's son. It is not very clear from the pleadings or the evidence of parties whether Telu Ram had exclusive entitlement from his father without reference to his brother Bhagwan and Ganga Ram. Both parties appeared to have accepted the fact that Telu Ram himself did not purchase the property and that he had inherited from his father. When Telu Ram died could have been a matter of relevance, for if the succession had been subsequent to the date of the Hindu Succession Act, the property held by Telu Ram under Section 8 could have been still seen only as his separate property in terms of the law laid down by the Hon'ble Supreme Court in Yudhisiter v. Ashok Kumar AIR 1987 SC 558 . I take the property, however, as the ancestral property as contended by the plaintiff and as affirmed by the trial Court as well as the Appellate Court.;