DHANPAT Vs. AJIT SINGH

JUDGEMENT

(1.) PLAINTIFF Dhanpat who was successful in the trial court but has been non-suited by lower appellate court has filed the instant second appeal. The dispute relates to inheritance of Mange Ram father of plaintiff and defendants no. 2 to 4. Defendant no. 1 is son of defendant no.4. Plaintiff in the suit has challenged registered Will dated 31.5.1994 allegedly executed by Mange Ram whereby suit properties were bequeathed to the extent of half share in favour of grandson Ajit Singh defendant no. 1 and the remaining half share equally to plaintiff and defendants no. 2 to 4 i.e. two sons and two daughters. It was alleged that the suit properties being ancestral coparcenary properties in the hands of Mange Ram could not be bequeathed by way of Will. The plaintiff accordingly claimed share according to natural succession. Defendants no. 1, 3 and 4 contested the suit. While admitting the relationship between the parties, it was denied that the suit properties were ancestral or coparcenary properties in the hands of Mange Ram. Valid execution of the Will was also pleaded. Various other pleas were also raised. Defendant no. 2 was proceeded ex parte. Learned Civil Judge (Junior Division), Charkhi Dadri vide judgment and decree dated 31.10.2008 decreed the plaintiff's suit holding suit properties no. 1 and 3 to be coparcenary and suit property no. 2 to be non-coparcenary. However, first appeal preferred by defendants no. 1 and 4 has been allowed by learned Additional District Judge, Bhiwani vide judgment and decree dated 18.2.2010 and thereby suit filed by the plaintiff stands dismissed. Plaintiff has, therefore, filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant contended that Will in question is not proved because no attesting witness of the Will was examined. The contention although apparently attractive is devoid of any substance. The plaintiff himself acted on the basis of Will and therefore, accepted the execution of the Will and is estopped from denying its execution. The Will has been rightly held by lower appellate court to be proved to have been executed by Mange Ram. Counsel for the appellant next contended that properties no. 1 and 3 have been held to be ancestral coparcenary properties in the hands of Mange Ram by both the courts below and therefore, the Will could not operate qua the said properties. There is considerable merit in the submission. It has been proved on record that properties no. 1 and 3 were purchased by Matu father of Mange Ram. The same were inherited by Mange Ram from his father Matu and consequently, the same became ancestral coparcenary property in the hands of Mange Ram qua plaintiff and defendant no. 4 who being sons of Mange Ram became coparcenars with him. In this view of the matter, Mange Ram had no right to bequeath the said properties by way of Will. Counsel for the respondents vehemently contended that the parties were born after enforcement of the Hindu Succession Act, 1956 (in short, the Act) and therefore, concept of coparcenary property is not applicable to the parties because of over-riding effect of the Act in view of section 4 thereof. The contention is completely misconceived and devoid of merit. Section 6 of the Act specifically refers to the concept of coparcenary property. Thus, concept of coparcenary has not been abrogated or abolished by the Act but has been specifically saved by section 6 of the Act. For the reasons aforesaid, it is apparent that impugned judgment of the lower appellate court is completely unsustainable. Substantial question of law arises for adjudication in this second appeal as to whether upholding of the impugned Will qua properties no. 1 and 3 by the lower appellate court despite being ancestral coparcenary properties is perverse, illegal and unsustainable. The said question of law is answered in favour of the plaintiff-appellant in view of the discussion made hereinbefore. However, the aforesaid Will is valid qua suit property No. 2 which is not proved to be ancestral or coparcenary property. Accordingly, the instant second appeal is allowed partly. Impugned judgment and decree of the lower appellate court are set aside and plaintiff's suit is decreed partly regarding suit properties No. 1 and 3 by restoring judgment and decree of the trial court to that extent whereas in suit property no. 2, the parties shall have share as per Will i.e. half share of defendant no. 1 and remaining half share of plaintiff and defendant nos. 2 to 4 in equal shares.