IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 78 of 2000 Date of decision : 6.12.2010. Sukh Dyal and another …Appellants. Versus Mangal Chand and others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellants: Mr. Bhupinder Gupta, Sr. Advocate with Mr. Janesh Gupta, Advocate. For the respondents: Mr. Vinod Gupta, Advocate. Deepak Gupta, J. (oral) 1. This appeal was admitted on the following questions of law:- 1. When the parties to the suit were admittedly Tribal belong to Swangla Tribe of Lahaul and Spiti District , could the parties be held to be not governed by Agricultural Custom of Lahaul and Spiti merely on the ground that such custom was neither specifically pleaded nor proved? 4. Whether the Lower Appellate Court has ignored the provisions of the Hindu Succession Act as well as the provisions of the constitution of India which specifically 1 Whether the reporters of the local papers may be allowed to see the Judgment? yes. 2 preserves the applicability of agricultural custom to the Tribal areas and the persons belong to the Scheduled Tribes? Could the findings as arrived at by the Lower Appellate Court be sustained when the Compilation Record and Tribal custom has been shown to be in existence and followed notoriously from the time immemorial? 5. Whether the Lower Appellate Court has exceeded its jurisdiction in not rendering any findings on the execution, attestation and validity of the Will when the Trial Court has rejected the Will on the ground of the same being suspicious and having not been valid executed? 2. Briefly stated, the facts of the case are that the disputed property was originally owned by one Shri Bhanna. On his death, the property was inherited by his son Karam Dass. Karam Dass had four sons. Prabh Dyal (deceased), Hardyal (father of plaintiff No.2), Sukh Dyal (plaintiff No.1) and Sukh Chand (father of the defendants). Prabh Dyal expired on 28.5.1993 without any issue. His widow had pre deceased him. The plaintiffs, who are the brother and nephew of Prabh Dyal, filed a suit claiming that the parties belong to Swangla Tribe, which is a recognized tribe under the Constitution of India. According to the plaintiffs, the parties were governed by a custom of District Lahaul and Spiti, known as, “Rewaz-e-Zamindara”. According to the 3 plaintiffs, as per this custom no male holder of ancestral property could alienate, bequeathe or transfer his ancestral property without any genuine pressing legal necessity. The plaintiffs, therefore, challenged the Will dated 16.11.1976 allegedly executed by Prabh Dyal in favour of his nephews, the defendants. The defendants contested the suit and according to them they were not governed by “Rewaz-e- Zamindara” since the suit land and they belong to Udaipur area, which was earlier part of Chamba District and had merged in the Lahaul and Spiti District only in the year 1976. However, they also pleaded a custom and even according to them a male could alienate his ancestral property by Will for valid legal necessity. 3. On the pleadings of the parties various issues were framed and the learned trial Court held that the parties were governed by the custom. The learned trial Court further held that the Will was against the custom and also came to the conclusion that the Will itself had not been properly proved. Accordingly, the suit of the plaintiffs was decreed and the Will was declared illegal, null and void and not binding on the plaintiffs. The defendants filed an appeal and the learned lower Appellate Court came to the conclusion 4 that the parties were not governed by custom and held that the Will was valid. Hence, this appeal. 4. The first question, which I take up for consideration is, whether the execution of the Will itself has been proved. Two witnesses have been examined to prove this Will. They are, DW-3 Tulsi Ram and DW-4 Yog Dass. As far as DW-3 is concerned, he has supported the defendants’ case and according to him he came to Keylong at the asking of deceased Prabh Dyal and in his presence Prabh Dyal got prepared a Will from some Government Officer. This witness identified his signatures on the Will Ext.DW-3/A and stated that DW-4 Yog Dass had also signed the Will. According to this witness, the Will was signed by Prabh Dyal in the presence of both the witnesses and both the witnesses had signed in the presence of each other and in the presence of Prabh Dyal. However, the statement of Yog Dass is totally contrary. According to him, Prabh Dyal had executed one Will Ext.DW-3/A in favour of his nephew on 16.11.1976. In examination-in-chief itself he stated that he came after the Will had been executed only at the time of registration of the Will and it was then that he had affixed his signatures on the Will. He further stated that the Will was not executed or signed in his presence. He stated that 5 he had affixed his signatures only at the time of registration. Under Section 63 a Will to be valid must be attested by two or more witnesses, both of whom should have seen the testator sign or affix their mark to the will or should have received from the testator a personal acknowledgment of the signature or mark. Obviously, Yog Dass did not see Prabh Dyal signing the Will and he has clearly stated so. Furthermore, even with regard to the other witnesses, Tulsi Ram, it is apparent that the date under his signature has been changed from 17.11.1976 to 16.11.1976. Therefore, the execution of the Will itself is doubtful and the same has not been proved in accordance with law. 5. Assuming for the sake of arguments that the Will was executed and is genuine then also the question which arises is whether Prabh Dyal could have executed such a Will. Admittedly, the property which is the subject matter of the Will was ancestral property in the hand of Prabh Dyal. The plaintiffs have pleaded that they belong to Swangla Tribe and as per the custom applicable to such tribe no person can alienate the ancestral property except by way of legal necessity. No legal necessity has been shown in the present case. The main case set up by the defendants was that this area fell in Chamba District and they were governed 6 by another custom, according to which a Will could be executed. Surprisingly, even according to them the Will could only be executed in case of legal necessity. Both the parties are ad idem on the issue that they are tribals and governed by custom. The plaintiffs have led evidence to show that there is a custom which is recorded in Lahaul and Spiti District as a “Rewaz-e-Zamindara” and as per this custom no male heir of ancestral property can alienate the same without legal necessity. The defendants tried to show that since the area earlier fell in Chamba District they were not governed by this custom. However, the defendant while appearing in the witness box admitted that they follow the custom of Lahaul and Spiti. Even DW-2 stated that the persons of this area follow the custom of Lahaul and Spiti. Therefore, it is obvious that the defendants virtually admitted that they are governed by the custom set up by the plaintiffs. Merely because the land fell in District Chamba and not in District Lahaul and Spiti will not make any difference when the parties admit in Court that they follow the custom applicable in District Lahaul and Spiti. The learned lower Appellate Court fell in grave error while setting-aside the well reasoned judgement of the learned trial Court. He has not cared to either go through the 7 evidence or see what was pleaded by the parties. The findings of the learned lower Appellate Court being totally against the law are, therefore, set-aside. 6. In view of the above discussion, the appeal is allowed. The questions of law are decided in favour of the plaintiffs and suit is decreed. The Will dated 17.11.1976 is held to be not proved and not binding on the plaintiffs and therefore, plaintiff Sukh Dyal and plaintiff Bal Chand are both held to be entitled to 1/3rd share each in the suit property and respondents are jointly held entitled to 1/3rd share in the suit property. The suit is decreed in the aforesaid terms. No order as to costs. 6th December, 2010 ( Deepak Gupta ) ™ Judge.