Muni Lal Verma, J. - (1.) THE suit which culminated in this appeal and Regular Second Appeal Mo. 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 :
(2.) LAND once held by Ishar Singh, measured 500 kanals 3 mafias. It included the suit land. Ishar Singh alienated about 233 kanals out of the aforesaid and 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 20th November, 1965 leading behind the laud. 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 instrument. 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. 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 1 IS 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 1st August, 1963 and had deposited the same with the Registrar Gurdaspur, and it (the will) was natural, genuine and a said 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 will on 26th December, 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 doted 1st August, 1953 was not recognised, Charan Singh, out of the appellants, was entitled to 1/11th of the land and neither Shrimati Sowarnomor Makhan Singh was entitled to any portion of the land on account of the will dated 26th December, 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 1st August 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 1st August, 1963 is not proved, whether Shri Ishar Singh made any valid will dated 26th December, 1958 in respect of his property including the property dispute and whether according to the said will the plaintiff No. 1 cannot claim (sic) 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 plaintiff ? OPP. 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 immoveable 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. 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. 6. RELIEF
(3.) The trial court decided issue Nos. 1, 3, 4 and 5 in the negative and it answered issue No. 6 in favour of the plaintiff -appellants. But finding issue No. 2 in the affirmative, it granted decree for possession of 1/11th of the land to Charan Singh only. The suit respecting the other land or of the other plaintiffs was dismissed and the parties were left to bear their own costs Dissatisfied with the said result, Charan Singh, Shrimati Sowarno and Makhan Singh carried appeal to the District Court, Gurdaspur. It was registered at No. 103/165 of 1968. Balwant Singh and Surain Singh had also preferred appeal against the judgment and decree of the trial court and it was registered at No. 105/164 of 1968 in the lower Appellate Court. The lower Appellate Court decided both these appeals by one judgment. It allowed appeal No. 105/164 of 1968 preferred by Balwant Singh and Surain Singh and sitting aside the judgment and decree of the trial Court, dismissed the suit with costs throughout. The appeal No. 03/165 of 1968 preferred by Charan Singh and others was dismissed with costs throughout. Therefore, both these second appeals Nos. 692 and 693 of 1969 have been preferred by Charan Singh and Shrimati Sowarno to this Court, Since both the appeals have arisen out of one case and common questions of law and fact are involved therein, the same are being disposed of by one judgment.;