HARCHARAN SINGH Vs. ISHER SINGH

JUDGEMENT

(1.) HARNAMA, a Jat of village Lalheri in the Ludhiana district, owning a small area of agricultural land and also a house, made a will concerning his property on the 28th of May, 1946 in favour of his sister's son Harcharan Singh. Harnama died on the 2nd of June, 1946, and a dispute arose about the property, the claimants being Nand Singh, a fifth-degree collateral of Harnama who claimed as his heir, and Harcharan Singh who claimed under the will. The revenue authorities entered mutation in favour of Nand Singh on the 19th of July, 1946, and the revenue officer, after considering the parties' claims, sanctioned mutation in favour of Nand Singh on the 28th of January, 1948. On the 28th of March, 1950 Nand Singh made a gift of this property to his own sister's sons -- Ishar Singh and others -- and the revenue authorities sanctioned mutation in their favour on the 11th of May, 1950, Nand Singh then died and after his death Harcharan Singh applied for probate of the will in his favour and obtained a grant on the 24th of May 1951. On the 3rd of October, 1951 he filed a suit in the Civil Court for the possession of the property, the defendants, of course, being Ishar Singh and others, apart from a mortgagee of the land. The main defence was that the suit property was ancestral qua Nand Singh and the will, therefore, made by Harnama was invalid under the rule or custom applicable to the parties. In reply to this, the plaintiff claimed that such a defence was not open to Ishar Singh and others as they were not tile collaterals of Harnama and were, therefore, not competent to control his alienation.

(2.) THE Trial Court found that the agricultural land in suit was ancestral but the house was not. The Court, however, held that, in view of Section 6 of the Punjab Custom (Power to Contest) Act, 1920, the donees from Nand Singh, namely, Ishar Singh and others, were not competent to challenge the validity of the will made by Harnama in favour of the plaintiff, and, on this conclusion, the Court decreed the plaintiff's suit for possession. On appeal, however, the District Judge came to a contrary conclusion on this point and held that the objection raised by Ishar Singh and others against the validity of Harnama's will was competent and that the will was under custom invalid as far as the ancestral property was concerned. On this view the learned District Judge allowed the appeal and dismissed Harcharan Singh's suit as far as the agricultural land was concerned but allowed the decree concerning the house to stand. Harcharan Singh, thereupon, filed a second appeal in this Court concerning the agricultural land. This came up, in the first instance, before Shamsher Bahadur. J. , sitting alone, who referred it to a Division Bench and the Division Bench, in view of the importance of the law point involved in the case, decided to refer the appeal to a larger Bench. Harcharan Singh's second appeal is thus now before us.

(3.) THE only question in the case is whether, Ishar Singh and others can be heard to say that the will made by Hamama in favour of Harcharan Singh appellant a under custom invalid. This, or course, they are saying in defence to Harcharan Singh's claim to the property under the will. The objection on behalf of the appellant is based on the Punjab Custom (Power to Contest) Act, 1920, Section 6 of which says: