RSA No.4086 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.:9950-51-C of 2009 & RSA No.4086 of 2006 Decided on :28.11.2009 Kanwar Jatinder & others ... Appellants versus Smt. Shanti Devi & others ...Respondents CORAM : HON'BLE MR. JUSTICE AJAY TEWARI Present : Mr. Arun Jain, Sr. Advocate with Mr. Jaivir S. Chandail, Advocate for the appellants. Mr. Ashok Bector, Advocate for the respondent No.2. Mr. M.K.Chouhan, Advocate for respondents No.5 & 6. Mr. Pritam Saini, Advocate for respondents No.3, 4 & 7 to 9. **** 1.Whether Reporters of local newspapers may be allowed to see the judgment? 2.To be referred to the reporters or not? 3.Whether the judgment should be reported in the Digest? AJAY TEWARI, J. (ORAL) Reply filed to the application under order 41 rule 27 CPC has been taken on record. This appeal has been filed against the concurrent judgments of the courts below dismissing the suit of the appellants that they were entitled to inherit half the property left behind by Randhir Singh or in the alternative 1/3rd share of the RSA No.4086 of 2006 -2- property left behind by Randhir Singh. The main case was based primarily on an alleged custom among the Rajput Chandel community of Ram Garh, as per which there was a custom of Chunda Bandh prevalent in the family. The respondents denied the plea of any custom and pleaded that the parties were governed by the Hindu Succession Act. On behalf of the appellants reliance was placed on Ex. P-9 which was a letter dt. 08.12.1954 from the Deputy Commissioner of Ambala on the subject of succession of Tika Jagjit Singh of Ram Garh. Learned counsel has relied upon a mention on the last page of this letter, as per which as far as ancestors of the present parties are concerned, the custom of Bhai Bandh and not of Chunda Bandh was mentioned. As per learned counsel even if his case that the custom of Chunda Bandh was prevalent is not accepted yet this letter clearly shows that at last the custom of Bhai Bandh was prevalent in the family. Learned counsel for the appellants further argued that the appellant had sought an amendment to the plaint but that had also been illegally rejected. As per learned counsel the case would be covered by sub section (ii) of Section 5 of Hindu Succession Act, which is to the following effect: “ Act not to apply to certain properties: (ii) any estate which descends to a single heir by the terms of any covenant or agreement entered into by the Ruler of any Indian State with the Government of RSA No.4086 of 2006 -3- India or by the terms of any enactment passed before the commencement of this Act;” Both the courts below have negatived this claim and as mentioned above had held that succession in the family has to be as per Hindu Succession Act since any alleged custom to the contrary was abrogated. The following questions have been proposed: a) Whether in the facts and circumstances of the instant case, the approach of the ld. Lower Appellate Court in dismissing the application seeking amendment of the plaint can be sustained in law when the plea sought to be taken was based on the order dt. 26.11.1954, which is already on record as Ex.P-9? b) Whether in the facts and circumstances of the instant case the appellants, admittedly belonging to Rajput Chandel community of Tehsil Naraingarh, predominanntly an agricultural tribe, they are governed by custom in the matter of succession? With regard to question No.(a) once it is held that custom was abrogated, this question does not arise. Apart from this it has to be noticed that the application for amendment was filed only before the ld. Lower Appellate Court and in my opinion in these circumstances the same is barred by delay also. In my opinion reliance on sub section (ii) of Section 5 is clearly misplaced. Letter Ex.P-9 in no manner can be deemed to be a covenant or agreement entered into by any Ruler of any RSA No.4086 of 2006 -4- Indian State with the Government of India. The best case of the appellant was that their ancestors were feudal landlords, even then they could in any case not be deemed to be Ruler of an Indian State. In this view of the matter sub section (ii) of Section 5 has no application. Consequently, this appeal is dismissed. No costs. Since the main case has been decided, all the pending civil miscellaneous applications if any, stand disposed of. November 28, 2009 (AJAY TEWARI) sonia JUDGE