IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 55 of 2001 Date of Decision : October 7, 2010 Smt. Saroti Devi and others Appellants. Versus Sh. Hukam Singh and others Respondents Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No. For the appellants : Mr. B. B. Vaid, Advocate, for the appellants. For the respondents : Mr. M. L. Sharma, Advocate, for respondents No. 1 to 5. Sanjay Karol, J. (Oral) This is the defendants’ appeal filed under Section 100 of the Code of Civil Procedure. 2. The appeal was admitted on a single substantial question of law but however at the time of hearing learned counsel for the parties agreed that in effect substantial questions of law No. 4 and 5 as originally framed with the grounds of appeal arises for consideration. As such they argued on the same. Whether reports of Local Papers may be allowed to see the judgment? 2 3. Facts are short. Pedigree table of the parties not in dispute is reproduced as under:- Bishamber Das (Original Owner) / / / Atmi Devi (Ist Wife) Rupan Devi (2nd wife) (Married:20-2-31) (Married:7-11-49) / / / / / / / / Hukam Singh Dhanato Devi Vidya Devi Rumalo Devi / (son) (daughter) (daughter) (daughter) / / / / / / / Kultar Singh Veena Kumar Shitlan Kumari Kamlesh (son) (daughter) (daughter) Kumari (pre-deceased (daughter) Bishamber Das) (died in 1984) / / / / / Saroti Devi Vandna Parmal Singh Tina Kumari (widow) (daughter) (son) (daughter) 4. Plaintiffs are the legal heirs of late Sh. Bishamber Das through his wife Smt. Atmi Devi and defendants are some of the legal heirs of Sh. Bishamber Das through his second wife Smt. Rupan Devi. 5. Parties do not dispute that except for the land situated in Tikka Manoh Upper, Sh. Bishamber Das inherited the suit land from his father late Sh. Paras Ram. Consequently suit land other than the one situated in Tikka Manoh Upper, being ancestral property, as such fell into the hands of Sh. Bishamber Das. 6. Undisputedly Sh. Bishamber Das executed Will dated 15.5.1982 bequeathing his entire estate in favour of his second wife Smt. Rupan Devi and son Sh. Kultar Singh through her in equal 3 shares. Sh. Bishamber Das died sometime in the year 1988 and based on the said Will land was also mutated in favour of the beneficiaries vide mutation No. 136 dated 25.5.1988/15.5.1989. It is also not in dispute that Sh. Kultar Singh predeceased his father Sh. Bishamber Das. 7. On 23.8.1989 plaintiffs filed a suit for possession of half share of the suit land on the ground that the parties being Rajputs by caste, were governed by the Kangra Agriculture Custom which prohibited testamentary disposition of agricultural land. Suit was hotly contested by the defendants inter alia on the ground that parties were governed by the provisions of the Hindu Succession Act, 1956 (hereinafter referred to as the Act) and not customary rights. Plaintiffs sought amendment of the plaint by introducing a plea that in the alternative suit be decreed under the law governing the parties. 8. On the respective pleadings of the parties trial court struck the following issues: “1. Whether the plaintiffs are entitled for possession of shares of the suit land as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD 3. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD 4. Whether suit is bad for misjoinder of the parties? OPD 5. Whether the plaint is not properly designed and verified? OPD 4 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 6A. Whether the parties are governed by custom in the matter of alienation of ancestral property? OPP 6B. Whether the suit land is ancestral qua the parties and deceased Bishamber Dass? OPP 6C. Whether the plaintiffs are entitled for decree of possession under Hindu Law qua the share of the plaintiffs as prayed for in prayer B ? OPP 7. Relief.” 9. While deciding issue No. 6(B) trial Court found that other than self acquired, the suit property was ancestral. However since the parties were found to be governed by the customary laws suit was dismissed in terms of judgment and decree dated 9.6.1993 passed by the Sub Judge, Ist Class (II), Hamirpur, H.P. in Civil Suit No. 183 of 1989, titled as Hukam Singh and others versus Rupan Devi and others. 10. Aggrieved of the same plaintiffs preferred an appeal. In terms of judgment and decree dated 5.10.2000 passed by the District Judge, Hamirpur, H.P. in Civil Appeal No. 130 of 1993, titled as Hukam Singh and others versus Smt. Saroti Devi and others, lower appellate Court held the parties to be governed by the statutory laws and not the customary laws. Section 4 of the Act provided for uniform code of succession amongst the Hindus. Subject to exceptions all customary laws stood modified or repealed. Consequently the lower appellate Court decreed the plaintiffs’ suit 5 for possession to the extent of half share in the suit land. However decree was restricted only to the ancestral property and not the self acquired property of late Sh. Bishamber Das. 11. The execution and genuineness of the Will in question is not disputed. Status of the parties is also not in dispute. 12. The point which falls for consideration is as to whether findings returned by the lower appellate Court in decreeing the suit to the extent of half share is in consonance with the provisions of the Act or not. 13. Section 30 of the Act confers unfettered powers on a male Hindu to dispose of his share/interest in the ancestral property by way of a testamentary document. His interest in the ancestral property/coparcenary property would be the share which he would get on the basis of a notional partition on the date of his death. 14. In the present case coparcenary of Sh. Bishamber Das consisted of himself, his son Sh. Hukam Singh and successor-in- interest of his predeceased son Sh. Kultar Singh. Thus, as per the provision of Section 6 of the Act, share of the deceased in the suit property, other than self acquired, on the basis of notional partition on the date of his death would work out to be 1/3rd. The beneficiaries were thus entitled to get 1/3rd share on the basis of the Will. 15. The net result therefore is that the decree passed by the Court below needs to be modified to the extent that, other than the self acquired land of late Sh. Bishamber Das, in the suit land 6 plaintiffs would be entitled to possession of the suit land to the extent of 1/3rd share and defendants would be entitled to possession of the remaining 2/3rd share. 16. The impugned judgment and decree thus stands modified accordingly. (Sanjay Karol), Judge. October 7, 2010 (PK)