M.L. Verma, J. - (1.) The suit which culminated in this appeal and Regular Second Appeal No. 693 of 1969, was instituted by Charan Singh, Shrimati Sowarno, the appellants; and Makhan Singh respondent for possession of two thirds of the land measuring 267 kanals 15 marlas situate within the limits of village Kalair Kalan, Tehsil and District Gurdaspur, described in the heading of the plaint (hereinafter called the land), on the basis of title. The following pedigree table would be helpful in understanding the case of the parties: - JUDGEMENT_24_LAWS(P&H)11_1974.htm
(2.) Land once held by Ishar Singh, measured 500 kanals 3 marlas. It included the suit land. Ishar Singh alienated about 233 kanals out of the aforesaid land during his lifetime but continued to be owner of the land till his death. Both his sons - Narinjan Singh and Teja Singh, and daughter Budho had predeceased him. He died on 20 -11 -1965 leaving behind the land. Therefore, Charan Singh and Shrimati Sowarno claiming to be son and daughter, respectively, of the predeceased son (Narinjan Singh) and Makhan Singh claiming himself to be the son of the predeceased daughter (Shrimati Budho) of Ishar Singh sought, through the suit, possession of two -thirds of the land. They averred that Balwant Singh and Surain Singh who are sons of the predeceased son (Teja Singh) of Ishar Singh were entitled to one -third of the land, but they were in illegal possession of whole of the Land representing that Ishar Singh had bequeathed it (the land) in their favour. The will alleged by them (Balwant Singh, and Surain Singh) to have been executed by Ishar Singh in their favour, was impeached on the allegation that it had not been executed by him (Ishar Singh) and was a forged in strument. In the alternative, it was alleged that Ishar Singh was not of sound disposing mind when he executed the alleged will and it was not valid because it related to the land which was ancestral qua them (the appellants, Makhan Singh) and Ishar Singh and they were governed by custom in matters of alienation which prohibited the disposition of ancestral property by means of will or gift.
(3.) Balwant Singh and Surain Singh contested the suit. They admitted the pedigree -table given above as well as the death of Ishar Singh and also that he was owner of the land at the time of his death. They controverted the other material allegations of the appellants and pleaded, inter alia, that in the year 1958, Ishar Singh had gifted land measuring about 118 kanals to Charan Singh appellant and had also given an equal area of land by means of gift to them, and that Ishar Singh had made a will bequeathing the land in their favour on 1 -8 -1963 and had deposited the same with the Registrar, Gurdaspur, and it (the will) was natural, genuine and a valid and it was on the basis of the said will that they were in possession of the land, out of which, an area of 128 kanals was unencumbered. At a later stage, Balwant Singh and Surain Singh amended their written statement and raised the plea that Ishar Singh had also executed new will on 26 -12 -1958 whereby he had given only 1/11th of the land to Charan Singh and the other land had been given to them or to their wives and, in case, will dated 1 -8 -1963 was not recognized, Charan Singh, out of the appellants, was entitled to 1/11th of the land and neither Shrimati Sowarno nor Makhan Singh was entitled to any portion of the land on account of the will dated 26 -12 -1958. Hence the suit was tried on the following issues: - 1. Whether Shri Ishar Singh deceased owner of the suit land made any valid will dated 1 -8 -1963 bequeathing his entire property including the suit land in favour of the defendants and whether the defendants are entitled to remain in possession of the suit land as owners to the exclusion of the plaintiffs on that account. O.P.D. 2. In case the execution or validity of the aforesaid will dated 1 -8 -1963 is not proved, whether Shri Ishar Singh made any valid will dated 26 -12 -1958 in respect of his property including the property in dispute and whether according to the said will the plaintiff No. 1 cannot claim more than 1/11th share in the estate of Shri Ishar Singh deceased? O.P.D. 3. Whether the suit land is ancestral of Shri Ishar Singh deceased qua the plaintiffs? O.P.P. 4. Whether the plaintiffs Nos. 2 and 3 have locus standi to challenge the validity of the aforesaid wills even if the suit land is proved to be ancestral of Shri Ishar Singh deceased, qua the plaintiffs? O.P.P. 5. Whether the alienation of his entire ancestral immovable land could be made validly by Shri Ishar Singh deceased by means of a will in lieu of services according to Customary Law of Punjab? O.P.D. 6. In case both the wills said to have been executed by Shri Ishar Singh deceased are held to be invalid ones, whether the plaintiffs would be entitled to possession of 2/3rd share of the entire suit land? O.P.P. 7. Relief. ;