DALIP SINGH Vs. SANTA SINGH, ETC

JUDGEMENT

(1.) This judgment shall dispose of the Regular Second Appeal No. 946 of 1964 filed by Shri Dalip Singh defendant and cross-objections filed by Shri Santa Singh plaintiff-respondent, against the judgment and decree dated 9th April, 1964, of the lower appellate Court.

(2.) The facts of the case are that Shri Santa Singh plaintiff-respondent had filed this suit for the usual declaration under the Customary law of Punjab that the will, Exhibit D.2 dated 7th August, 1961, registered on 8th August, 1961, alleged to have been executed by his real brother, Shri Bachan Singh deceased, in favour of Shri Dalip Singh appellant shall not affect the plaintiff's right to succeed to and get possession of the land as the will related to ancestral property. The trial Court had decreed the suit in its entirely on the finding that the will, Exhibit D.2, was not proved to have been made by the legator while he was of sound disposing mind and that the plaintiff-respondent, as the brother of the deceased, would succeed to the land, whether it was ancestral or not, in preference to Shri Dalip Singh appellant who was not related to the deceased in any manner. The issue about the ancestral nature of the land in dispute had, therefore, been left undecided by the learned trial Court.

(3.) Shri Dalip Singh's appeal in the lower appellate Court was partly accepted only in respect of 4/47th share in the land in dispute but the decree in Santa Singh's favour was affirmed in respect of 43/47th share in the land on finding that the land had been proved to be ancestral qua the plaintiff-respondent to that extent. The issue about the ancestral nature of the land was decided after admitting some additional documentary evidence under Order 41, Rule 27. Civil Procedure Code. The learned lower appellate Court was of the opinion that these documents were necessary to enable it to pronounce proper judgment in the case. These documents, comprising of certified copies from consolidation records, had been produced in the trial Court and had been declined even though it was felt by the trial court and been declined even though it was respondent to prove that the land was ancestral qua him in the hands of the legator. The reason given by the trial Court for declining this material documentary evidence was that he was precluded from admitting these documents because of the limited scope of an order of the appellate Court remanding the case for fresh decision. The learned Court of first appeal had, therefore, granted the plaintiff-respondent's request for the admission of the additional documentary evidence which appeared material for property disposing of the case.