LABH SINGH Vs. KARTAR SINGH

JUDGEMENT

(1.) Bakshi Singh was the last male-holder who owned 140 Kanals 12 Marlas being the land in dispute. After the death of Bakshi Singh, Labh Singh, Makhan Singh and Dhan Singh got into possession of the land in dispute on the basis of a Will alleged to have been executed by Bakshi Singh in their favour. Kartar Singh, Jangir Singh and Jit Singh filed the present suit for possession of the land in dispute alleging that they were the next heirs of Bakshi Singh being their uncle's son and disputed the Will set up by the three legatees. It was also pleaded that the land in dispute was ancestral qua Bakshi Singh and the plaintiff and, therefore, under the custom Bakshi Singh had no authority to will away the ancestral land and, as such, the Will was invalid. The suit was opposed by the legatees. On the contest of the parties, the following issues were framed :-

(2.) While the suit was still pending in the trial Court, Punjab Act No. 12 of 1973 came into force which amended the Punjab Custom (Power to Contest) Act, 1920 so as to take away the right of collaterals to impugn an alienation being invalid under custom. In view of the amendment, the trial Court came to the conclusion by order dated 18th August, 1973 that issues Nos. 2 and 3 have become redundant inasmuch as even if it is proved that the parties are governed by custom and the land in dispute is ancestral yet the Will could not be challenged to be invalid being opposed to custom and, therefore, struck off issues No. 2 and 3. The trial, thus, proceeded on the remaining issues and ultimately the trial Court by judgment dated 11th September, 1974, came to the conclusion that the Will set up by the legatees was proved to have been duly executed by Bakshi Singh and, therefore, held that the plaintiff could not succeed to the estate left by him. Accordingly, the suit was dismissed. The plaintiffs filed Civil Appeal No. 202/FT/160 of 1974 which came up for final hearing before Additional District Judge, Bhatinda. The learned appellate Court came to the conclusion that since the suit was filed on 30th November, 1971 and the amended plaint also was filed on Ist April, 1972, whereas the amending Act came into force on 27th January, 1973, the suit filed prior to the coming into force of the amending Act had to be decided on all the issues and the trial Court was in error in striking off issues No. 2 and 3. It was also concluded that once the issues are framed,. they cannot be left unanswered in view of the Full Bench decision of this Court in Joginder Singh v. Kehar Singh and Another,1965 CurLJ 567. In view of the above, by order dated 27th July, 1981, the appeal was allowed, the judgment and decree of the trial Court were set aside and the case was sent back to the trial Court for fresh decision after deciding issues No. 2 and 3 in accordance with law. Against the aforesaid order of remand, the three legatees have come to this Court in appeal.

(3.) After hearing the learned counsel for the parties, I am of the view that the lower appellate Court erred in law in coming to the conclusion that issues No. 2 and 3 did not become redundant in view of the amending Act No. 12 of 1973. Even if issues No. 2 and 3 had not become redundant, the course followed by the lower appellate Court in setting aside the judgment and decree of trial Court was clearly erroneous in law. Coming to the first point, the scope of Punjab Act No. 12 of 1973 was considered by a Division Bench of this Court in Charan Singh v. Gehil Singh and Another,1974 RajdhaniLR 80and it was held that the amendment was retrospective and applied to the pending suits and appeals as well. The very right to challenge an alienation under custom has been taken away with retrospective effect and, therefore, even if it is held under issue No. 2 that the land in dispute is ancestral and under issue No. 3 that the parties are governed by custom in matters of alienation and succession, even then the Will could not be held to be without authority because the very right to challenge alienation has been taken away by the amending Act. Therefore, issues No./ 2 and 3 clearly became redundant and were rightly struck off by the trial Court. The learned counsel appearing for the plaintiffs-respondents conceded that in view of the aforesaid Division Bench judgment, the trial Court was justified in striking off issues No. 2 and 3. However, in fairness it deserves mention that the learned counsel wanted to argue that the decision of the Division Bench is wrong. I am bound by the Division Bench judgment and, therefore, hold that the lower appellate Court was in error in remanding the case for decision on issues Nos. 2 and 3. The Full Bench judgment is not applicable to the facts of the present case.