RAMESHWARI Vs. JAG RAM

JUDGEMENT

(1.) This is plaintiff's second appeal whose suit was partly decreed by the trial Court, but was dismissed in toto in appeal.

(2.) Nathu son of Ram Sahai had three sons namely, Sheo Singh, Munshi and Mawasi and one daughter Smt. Sarita Devi. The suit land was owned by Mawasi, who died in December 1974, without leaving any widow or any issue. On the death of Mawasi, Rameshwari who is the daughter of Munshi and is the niece of Mawasi set up a will, Exhibit P. 1 dated 31-12-1973, allegedly executed by Mawasi in her favour in respect of the land, in dispute. Earlier, the surviving brothers and sister of Mawasi had got the mutation entered into their favour and also taken the possession of the land. Mutation was finally sanctioned in their favour on June 6, 1975. Smt. Rameshwari filed the present suit alleging that she was the owner of the land, in dispute, on the basis of the will executed in her favour by Mawasi in lieu of the services rendered by her to him and out of love and affection, the deceased Mawasi had for her. She pleaded that the land had been wrongly mutated in the name of the respondents and that they were not entitled to the retain its possession. The defendants in separate but identical written statements contested the suit. They denied the averments of the plaintiff and pleaded that Mawasi did not execute a valid will in favour of plaintiff. It was also alleged by them that the land was ancestral property in the hands of Mawasi qua them and since he was governed by the customary law in the matters of succession and alienation of immoveable property according to which he was legally not competent to alienate the land by means of will in favour of the plaintiff. Thus, according to the defendants, the will, if any, was of no consequence. After framing the issues and allowing the parties to lead evidence, the trial Court found that the will, Exhibit R. 1 was duly executed by Mawasi and that Mawasi was not legally competent to bequeath more than one-fourth share of the land. The suit land was coparcenary and ancestral qua the defendants and Mawasi and defendants were not governed by custom in the matter of alienations and succession, but they were governed by Hindu Law. With these findings, a decree for joint possession to the extent of one-fourth share in the land was passed in favour of the plaintiff and against the defendants. Both the parties were aggrieved and they filed separate appeals. The learned Additional District Judge upheld the validity and the execution of the will, Exhibit P. 1 and further came, to the conclusion that the parties were governed by customary law which did not permit the alienation of ancestral property by will in favour of heirs. In view of these findings, the lower appellate Court found :-

(3.) The learned counsel for the plaintiff submitted that in the written statement no specific custom as such was alleged, nor there was any evidence to that effect. In the absence of any such plea, it will be presumed that, the parties are governed by Hindu Law. In any case, argued the learned counsel, even if it be assumed that the parties are governed by custom, no special custom as such was pleaded and under the general custom, a sonless proprietor could make a testamentary disposition of his, property in favour of a close relation, in lieu of the services rendered. In support of the contention, the learned counsel relied upon a Full Bench judgment of this Court in Rati Ram V. Shiv Charan, 1981 AIR(P&H) 376, Mohd. Khalil V. Mohd. Baksh, 1949 AIR(P&H) 252; Daljit Singh alias Daljit V. Tulla Ram, 1965 CurLJ 867and Bhajna V. Mihan, 1972 CurLJ 206. Reference was also made to Zile Singh V. Smt. Darkan, 1984 PunLJ 346 and Nathu Ram V. Lug Lal,1981 PunLR 754