Rakesh Garg, J. - (1.) THE plaintiffs -appellants have filed the present appeal challenging the judgments and decree of the Courts below whereby the suit of the plaintiffs for declaration and possession has been dismissed raising the following substantial questions of law: 1. Whether right in immovable property of the value of more than Rs. 100/ - can only be transferred by a registered instrument in view of, A.I.R. 1996 S.C. 1967. 2.WHETHER Ram Sarup could make any alienation which is not in accordance with law? Whether jats of Rohtak District who have a son had unrestricted power of alienation? 3.WHETHER appellate Court was justified in upholding the judgment of Trial Court even after reversing finding on major issues? 4.WHETHER collusive decree in which appellant is not a party can be called family settlement?
(2.) The case of the appellants is that Ram Sarup, father of plaintiff -appellants and defendant No. 5 was owner in possession of the properties in dispute which was inherited by him from his father Kanheya and the said property in his hands was ancestral qua plaintiff -appellants and defendant No. 5. On 18.11.1978, the said Ram Sarup died intestate and upon his death the plaintiffs -appellants and defendant No. 5 succeeded to his property in equal share i.e. 1/3rd each. The said Ram Sarup and the parties to the suit were governed by custom in the matters of alienation. After the death of Ram Sarup, respondents No. 1 to 4 began to assert that said Sh. Ram Sarup in his lifetime had bequeathed his property in their favour by way of a Will. However, the said Will, if any, is illegal and subsequent to that the defendants have based their claim on the disputed property on the basis of decree dated 9.10.1978 in Civil Suit No. 426 of 1978 allegedly passed in their favour and against Ram Sarup deceased. The said decree is illegal, void and ineffective against the rights of the appellant. They are in possession of the house to the extent of l/3rd share each. The defendants are not admitting the rights of the plaintiffs over the suit property to the extent of l/3rd each and hence this suit.
(3.) The respondents contested the suit pleading that the property in suit was self acquired property of Ram Sarup deceased and that Ram Sarup and the parties were not bound by any custom and rather they are governed by Hindu Law. It has been further pleaded by the respondent -defendants that the Will and decree are legal and binding upon the parties. From the pleadings of the parties the following issues were framed: 1. Whether the property in suit was ancestral in the hands of Ram Sarup qua plaintiff No. 1 and Tej Singh, defendant No. 5 as alleged? OPP 2. Whether the parties are governed by custom in matters of alienation as alleged? OPP 3. Whether the plaintiffs succeeded to the estate of Ram Sarup in shares specified in para 4 of the plaint? OPP 4. Whether the decree in suit No. 462 decided on 9.10.78 is ineffective, illegal and void and inoperative against the rights of the plaintiffs as alleged? OPP 5. Whether the plaintiffs are in possession of the property fully detailed in para 2(v) of the plaint? OPP Whether the property in suit was the self acquired property of Ram Sarup ? OPD 6.WHETHER aforesaid Ram Sarup executed any valid Will of the property in favour of defendants No. 1 to 4? OPD 7.WHETHER the plaintiffs have no right to challenge the Will as alleged ? OPD Whether the suit has been properly valued for purpose of Court fee and jurisdiction? OPP 8.WHETHER the suit is false and vexatious and the defendants are entitled to special costs under Section 35A CPC as alleged? OPD 9.RELIEF . ;