RSA No.2365 of 1988 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 2365 of 1988 Date of decision: March 09,2011 Tej Ram and others .....Appellants Versus Raghbir Singh and Others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present:Mr. Gopi Chand, Advocate, for the appellants Mr. Adarsh Jain, Advocate for the respondents **** SABINA, J. Plaintiff had filed a suit for declaration and permanent injunction challenging Will dated 3.9.1981 executed by Rura in favour of defendants No. 1 and 4. The case of the plaintiff was that the suit property was ancestral in nature and the parties were jats by caste and were governed by agricultural custom in the matters of alienation. As per the custom, the ancestral property could not be given away by way of sale, mortgage, gift, will etc. in the presence of his collaterals. Rura had not executed the Will in question. The said Will was not binding on the rights of the plaintiff. RSA No.2365 of 1988 2 Defendants, in their written statement, averred that Rura was the sole surviving coparcener regarding the suit property and, hence, it became his self-acquired property. Parties were Hindus and were governed by Hindu law in the matter of succession and alienation. Rura had executed the registered Will in question in favour of defendants No. 1 to 4. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the land in dispute is ancestral land of the plaintiff and Rura deceased?OPP 2.Whether the parties are governed by custom in the matters of alienation, if so by what custom?OPP 3.Whether the mutation dated 27.1.984 is contrary to the provisions of law and not binding upon the interests of the parties?OPP 4.Whether Rura deceased was sole surviving coparcener and the disputed property was his separate property?OPD 5.Whether Rura deceased has executed a valid will on 3.9.81, in favour of the defendants?OPD 6. Whether the suit is liable to be dismissed with special costs under Section 35-A CPC?OPD 7. Relief” Vide judgment and decree dated 27.4.1987, Sub Judge IInd Class decreed the suit of the plaintiff and held that the Will dated 3.9.1981 was opposed to custom and was not binding on the rights of the plaintiff. The said judgment and decree were set aside in appeal filed by defendants by the Additional District Judge vide judgment and RSA No.2365 of 1988 3 decree dated 23.4.1988. Consequently, the suit filed by the plaintiff was dismissed. Hence, the present appeal by the plaintiff and proforma defendants. Learned counsel for the appellants has submitted that the first appellate Court had made out a new case for the parties. As per the custom prevailing between the parties, Rura could not have executed a Will qua his property in favour of defendants no. 1 to 4. In support of his arguments, learned counsel has placed reliance on Apex Court's judgment Messrs.Trojan & Co. vs. RM.N.N.Nagappa Chettiar AIR 1953 Sup.Court 235 wherein it was held that the Court could not not travel beyond the pleadings. Learned counsel has also placed reliance on Siddu Venkappa Devadiga vs. Smt.Rangu S.Devadiga and others AIR 1977 Supreme Court 890 wherein the similar view was taken. In the present case, Rura was brother of the plaintiff-Tej Ram and proforma defendants. Defendants No. 1 to 4 are the sons of defendant No.5-Manohar Lal, brother of Rura. Rura had executed the Will in dispute dated 3.9.1981, Exhibit D1, in favour of defendants no.1 to 4. Admittedly, Rura was unmarried and issueless. The said fact is duly stated in the Will, Exhibit D1. In these circumstances, the property in the hands of Rura could not be considered to be his ancestral property. Since the property in the hand of Rura was liable to be considered his self-acquired property, Rura could dispose of the same in the manner he liked. Hence, the deceased-Rura was capable of executing the Will in favour of defendants No. 1 to 4. In order to establish the due execution of the Will, defendants examined Daulat Ram, Deed Writer, DW1 and Mohar Singh Lambardar, RSA No.2365 of 1988 4 attesting witness to the Will as DW2. The said witnesses deposed qua due execution of the Will by Rura in favour of defendants No. 1 to 4. In these circumstances, the suit filed by the plaintiff was liable to fail. The argument raised by the learned counsel for the appellant that the first appellate Court had travelled beyond the pleadings is without any basis. Hence, the judgments relied upon by the learned counsel for the appellant fail to advance the case of the appellant. No substantial question of law arises in this case. Accordingly, this appeal is dismissed. ( Sabina ) Judge March 09, 2011 arya