IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1706 of 1990 Date of Decision: 5.5.2010 Saroj @ Sarjo. ....... Appellant through Shri Dinesh Ghai, Advocate. Versus Kapoor Singh (since deceased) through L.Rs. and another. ....... Respondents through Shri R.N.Raina, Advocate with Shri Daman Dhir, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 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? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 19.5.1989 and 18.5.1990 passed respectively by the Sub Judge Ist Class, Jhajjar (hereinafter described as `the trial Court') and the Additional District Judge-II, Rohtak (referred to hereinafter as `the first appellate Court') vide which the suit and the appeal of the plaintiff-appellant were dismissed. The appellant had filed a suit against Kapoor Singh (since deceased and now represented by his legal representatives) and his wife – Smt.Krishna Devi for joint possession of the land mentioned in paragraph 1 of the plaint to the extent of ½ share. She had also challenged Will dated 18.1.1982 executed by Dhanna son of Har Chand, her father, in favour of R.S.A.No.1706 of 1990 -2- .... the defendants and consequent mutation no.4317 dated 26.3.1985 as null & void and not binding on her rights. It was pleaded that Dhanna, who was owner of the suit land and died at the age of 70 years, was deaf, dumb and blind for the last five years before his death and was a man of lesser intellect and, thus, was incapable of understanding intricacies of executing a Will; that the Will did not bear the thumb impressions of the testator; and that Dhanna was Jat by caste and was governed by custom according to which no male proprietor of Rohtak District could alienate ancestral property by executing a Will or a Gift. The defendants contested the suit and defended the Will in their favour. They pleaded that Dhanna was a man possessed of sufficient sense and was capable of understanding the import of his actions and, therefore, the Will which he executed on 18.1.1982 could be said to be the result of free mind. The averment that the Will did not contain the thumb impressions of deceased-Dhanna was also denied. The parties went to trial on the following issues:- 1. Whether after thedeath of Dhanna, plaintiff and defendant no.1 inherited the suit land?OPP 2. Whether the land in suit was ancestral qua deceased Dhanna?OPP 3. Whether the parties are governed by custom. What the custom is and to what effect?OPP 4. Whether Dhanna executed a valid Will dated 18.1.1982 in favour of defendants. If so, to what effect?OPD R.S.A.No.1706 of 1990 -3- .... 5. Whether the said Will is illegal, void, ineffective and not binding upon the rights of the plaintiff as alleged in para No.4 of the plaint?OPP 6. Whether mutation no.4317 dated 26.3.1986 is illegal, void and not binding upon the rights of plaintiff?OPP 7. Whether defendants on the force of the said Will forcibly got possession of the land in suit from plaintiff on 27.3.1985?OPP 8. Whether the plaintiff has no locus standi to file this suit?OPD 9. Whether the suit is not maintainable in the present form?OPD 10. Whether the suit is not legally maintainable?OPD 11. Whether the suit is time barred?OPD 12. Whether the defendants entitled to special costs u/s 35-A C.P.C.?OPD 13. Relief. The trial Court, as also the first appellate Court held that the appellant had failed to establish the custom as was pleaded by her. The Will in question was also held to be valid. It was further concluded that the suit land was ancestral in nature. As a cumulative result of the aforesaid findings, the suit and the appeal of the appellant were dismissed. In the second appeal, the appellant has assailed the findings of the Courts below and learned counsel for the appellant has contended that R.S.A.No.1706 of 1990 -4- .... the suit land being ancestral and the parties being governed by custom, the same was incapable of being alienated by any means. He also referred to Sections 6 and 8 of the Hindu Succession Act,1956 (for short, `the Act') to say that the suit property should have devolved in the manner indicated therein. Reliance was placed on Pritam Singh Versus The Assistant Controller of Estate Duty, Patiala, 1976 P.L.R. 342 (F.B.); Mit Singh and others Versus Malkiat Singh and others, 1984 P.L.R. 278 (S.B.); Gurdip Singh Versus Kartar Singh and others, 1985 P.L.R. 165 (S.B.); and Manohar Lal and another Versus Dewan Chand and others, 1985 P.L.R. 689 (F.B.). On the other hand, learned counsel for the respondents has contended that the appellant failed to establish the custom and admitted the existence of Will, the validity of which she could not shatter with evidence on record. It was next contended that there was no merit in the appeal and the same ought to be dismissed. I have considered the rival contentions and have perused the impugned judgments, as also the records. The appellant has pleaded custom which she failed to establish. There was no material on the basis of which it could be inferred that the parties were governed by custom. The counsel for the appellant then fell back on the provisions of Section 5 and 6 of the Act, but failed to substantiate the provision pertaining to a Hindu male not dying intestat. In the instant case, the existence of Will has not been denied by the appellant. It was specifically pleaded by her that a Will existed in favour of the R.S.A.No.1706 of 1990 -5- .... defendant which Will, according to her, was a nullity on account of reasons that were set out in the plaint, but if evidence on record is to be seen, none of the grounds taken up to assail the validity of the Will has been satisfied. It was then argued by the learned counsel for the appellant that the Will was never produced in evidence and, therefore, the defendants could not claim any right on that basis. I am afraid, this argument must fail because the existence of the Will has not been denied by the appellant. Once the existence of the Will has been admitted by the appellant, the only ground that was available to her was that she was to prove that the testator was incapable of executing such a document. Moreover, secondary evidence qua the Will was permitted to be adduced as it was a registered document and a copy thereof was exhibited on record. The Courts below have also held the Will to be free from suspicion on account of there being specific recital therein as the reason to exclude the appellant from succession. The judgments relied upon by the learned counsel for the appellant are on their own facts and do not apply to the facts of the instant case. They pertain to cases where a person died intestate and where custom had been pleaded and proved. Besides, in Rur Singh (dead) through LRs. and others Versus Bachan Kaur, (2009) 11 S.C.C. , their Lordships of the Supreme Court held that the determination of validity of a Will is a question of fact and no substantial question of law is involved therein. R.S.A.No.1706 of 1990 -6- .... For the aforesaid reasons, this Court is of the opinion that there is no merit in the appeal and the same is dismissed. May 5,2010 ( Mahesh Grover ) “SCM” Judge