IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.376 of 2000 Date of decision : 4.5.2010 ____________________________________________________ Daryodhan alias Jodha and another Appellants. Versus Duni Chand and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the appellants : Mr. N.K. Thakur, Advocate. For the Respondents : Mr. Dushyant Dadwal, Advocate, for respondent No.1. None for other respondents. Kuldip Singh, J ( Oral) The defendants No.1 and 2 are in appeal against judgment, decree dated 21.6.2000 passed by learned District Judge, Chamba in Civil Appeal No.25 of 1999, reversing judgment, decree dated 27.2.1999 passed by learned Sub Judge Ist Class, Dalhousie, in Civil Suit No.29/93. 2. The facts in brief are that respondent No.1 had filed a suit for declaration that land comprised in khasra No.169, khatauni _____________________________ whether reporters of Local Papers may be allowed to see the Judgment? Yes 2 No.83/118, Mohal Goli was recorded in ownership and possession of Suchet Singh vide jamabandi 1987-88. The land comprised in khatauni No.19/19 Mohal Jokna, Pargana Bathri vide jamabandi 1989- 90 was recorded in the ownership and possession of Suchet Singh. The land comprised in khata khatauni No.20/20, Mohal Jokna, Pargana Bathri vide jamabandi 1989-90 was recorded in the ownership of Gandho, Smt. Mehto fourth share, Suchet Singh fourth share and in possession of Suchet Singh of his share and non-occupancy tenant under Gandho etc. Suchet Singh died on 16.7.1992. The suit land is ancestral coparcenary property. The appellants are sons of Suchet Singh. The appellants had 1/3rd share each by birth in the suit land. Suchet Singh was the karta. He had not executed any Will. The Will dated 7.8.1987 of Suchet Singh in favour of appellants is fabricated. The Will is not binding on the rights of respondent No.1. Suchet Singh was not competent to execute Will of ancestral coparcenary property. 3. The further case of the respondent No.1 was that after the death of Suchet Singh mutation No.201, Mohal Ghandiar, mutation No.713, Mohal Goli dated 30.1.1993 on the basis of alleged Will were wrongly attested. In the previous suit between respondent No.1 and Suchet Singh, the disputed property was held ancestral property. The prayer was made that the Will dated 7.8.1987 of Suchet Singh may be declared illegal so also mutations No.201 and 713 on the ground that the property in question was ancestral and coparcenary property and could not have been given to appellants through Will. The respondent No.1 has also prayed for joint possession of land comprised in khata 3 khatauni No.52/63,64,65, Mohal Ghandiar. Khata khatauni No.83/118, Mohal Goli and Bathri, khata khatauni No.19/19 and khata khatauni No.20/20 Mohal Jokna and Bathri to the extent of shares indicated in the prayer. 4. The suit was contested by appellants by filing written statement. It was denied that the suit property was ancestral or coparcenary property. It has been alleged that respondent No.1 was adopted by one Rikhia and Devki and he inherited their property. The Will was validly executed by Suchet Singh in favour of appellants. In addition, objections of estoppel, maintainability of suit were also raised. The appellants denied the claim of respondent No.1 and prayed for dismissal of the suit. 5. The replication was filed by respondent No.1 wherein he reiterated his case and denied the case set up by appellants. On the pleadings of the parties the following issues were framed:- 1. Whether the land in suit is Hindu coparcenary property qua plaintiff and deceased Suchet Singh as alleged? …OPP 2. Whether the land in suit is ancestral qua plaintiff and deceased Suchet Singh, if so, its effect? …OPP 3. Whether late Sh. Suchet Singh executed a valid will, dated 7.8.1987, in favour of defendants No.1 & 2 as alleged? …OPD 4. If issue No.3 is proved in affirmative, whether Suchet Singh ( deceased) was not competent to execute a will in favour of defendants No.1&2 ?OPD 5. Whether the suit is not maintainable in the present form? ….OPD 6. Whether the plaintiff is estopped from filing this suit by his act and conduct? …OPD 4 7. Whether the plaintiff has no cause of action? OPD 8. Relief. The issues No.1,2,4,5,6,7 were answered in negative and issue No.3 in affirmative and learned Sub Judge dismissed the suit on 27.2.1999. The respondent No.1 filed appeal against decision dated 27.2.1999 and learned District Judge on 21.6.2000 has held that Suchet Singh had executed valid Will dated 7.8.1987. A part of the suit property namely land comprised in khata/khatauni No.19/19, Mohal Jokna was held to be ancestral land with Suchet Singh qua respondent No.1 and appellants. Suchet Singh could not have made a Will of the entire properties in favour of appellants. He could made a Will in favour of appellants No.1,2 only of his 1/3rd share in land comprised in khata/khatauni No.19/19 as such respondent No.1 is entitled to hold 1/3rd share in land khata/khatauni No.19/19 with appellants No.1,2, on the basis of notional partition with him and his son Duni Chand and Chaino to the extent of 1/3rd share. The appellants aggrieved by judgment, decree dated 21.6.2000 have filed the second appeal which has been admitted on following substantial questions of law:- 1. Whether the suit filed by the respondent-plaintiff is barred by res-judicata? 2. Whether the learned District Judge has rightly held the Will qua the ancestral property to be not valid? 6. I have heard Mr. N.K. Thakur, learned counsel for the appellants and Mr. Dushyant Dadwal, learned counsel for the respondent No.1 and have also gone through the record. The learned counsel for the appellants has submitted that the learned District has wrongly applied the principle of resjudicata in returning the findings that 5 a part of the suit land was ancestral land with Suchet Singh qua respondent No.1. He has also submitted that the learned District Judge has erred in returning the findings that Will qua the ancestral property is not valid. The learned counsel for the respondent No.1 has supported the impugned judgment, decree. Substantial questions of law No.1 & 2. 7. The substantial questions of law No.1 and 2 are interconnected and therefore, both of them are being taken up together for decision. The learned Sub Judge while deciding issue No.3 has held that Suchet Singh had executed a valid Will dated 7.8.1987 in favour of appellants. This finding has been affirmed by learned District Judge who has also held that Suchet Singh had executed a valid Will Ex.PW-2/A in favour of the appellants. The Will is registered. The two Courts below have rightly returned the findings that Suchet Singh had executed the Will Ex.PW-2/A in favour of appellants. It is a finding of fact that in second appeal the evidence cannot be re-appreciated. 8. The connected question is whether on the basis of Will Ex.PW-2/A all properties of the Suchet Singh would go to appellants or only a part of the property as held by learned District Judge would go to appellants. It has come on record that respondent No.1 had earlier filed a suit for declaration against Suchet Singh and Chaino challenging the gift dated 29.5.1971 executed by Suchet Singh in favour of Chaino on the grounds that Suchet Singh had no right to alienate the property to Chaino as the property covered by gift deed was ancestral. In that suit, issue No.1 was whether the land in suit is ancestral qua parties. The learned Sub Judge, Dalhousie vide 6 judgment dated 25.6.1975 Ex.P-6 decided issue No.1 in favour of Duni Chand and held that the property covered by gift dated 29.5.1971 was ancestral. The judgment dated 25.6.1975 was affirmed by learned District Judge vide judgment dated 10.9.1976 Ex.PW-1/B. Thus the finding returned by learned Sub Judge regarding the ancestral nature of the land covered by gift dated 29.5.1971 has attained finality. 9. The description of the land involved in judgment Ex.P-6 has been described in decree Ex.P-7 which tallies with jamabandi for the year 1989-90, Mauza Jokna Ex.P-3 and has not been disputed at the time of hearing of the appeal. Thus, land mentioned in Ex.P-3 was held to be ancestral in the hands of Suchet Singh in the previous litigation. In view of judgment Ex.P-6, upheld in Ex.PW-1/B Suchet Singh, Duni Chand and Chaino were having 1/3rd share each in land described in Ex.P-3. Suchet Singh could will only his 1/3rd share and not the shares of Duni Chand and Chaino in the ancestral property. The learned District Judge after due appreciation of material on record has rightly upheld the Will of Suchet Singh to the extent noticed in the impugned judgment and decree. There is no perversity in the impugned judgment, decree which require no interference. The judgment, decree passed by learned District Judge are upheld. The substantial questions of law No.1,2 are decided against the appellants. 10. No other point was urged. 11. The result of the above discussion, appeal fails and is accordingly dismissed. May 4, 2010 (Kuldip Singh), (sks) Judge.