HARNEK SINGH, ETC Vs. PARGAT SINGH (MAJOR), ETC

JUDGEMENT

(1.) This appeal is directed against the decision of the lower appellate Court reversing the decision of the trial Court decreeing the plaintiffs suit.

(2.) The plaintiffs filed the suit for joint possession of 1/3rd share of land measuring 17 kanals 8 1/2 marlas, i.e. on one-half share of land measuring 34 kanals 17 marlas, as specified in the plaint. The land in dispute, according to the plaintiffs, belonged to Bhan Singh deceased. Puran Singh, defendant No. 6, was a co-sharer with him, the shares being equal, Bhan Singh, before his death, executed a Will of his entire property on June 16, 1964. This will was registered on July 3, 1964. The will was in favour of his grandsons and was made in lieu of services rendered by them. Bhan Singh died on August 8, 1967. Two of Bhan Singh's sons Harnek Singh and Gurdev Singh plaintiffs filed the present suit against the legatees who are the sons of Nand Singh, a third son of Bhan Singh, on the plea that after the death of Bhan Singh, the defendants took possession of the land collusively to the exclusion of the plaintiffs. It was also pleaded that the custom and Bhan Singh could not make a valid will of his ancestral property in favour of defendants Nos. 1 and 2. The trial Court came to the conclusion that the land was ancestral, the parties were governed by custom and that according to custom, the ancestral land could not be willed away. The plaintiffs were held to be sons of Bhan Singh and were thus, entitled to 2/3rd share in the land left by Bhan Singh. Against this decision, the legatees preferred an appeal to the District Judge, which came up for hearing before the learned Additional District Judge, Ludhiana. The learned Judge held that the entire land in suit was proved to be ancestral. The learned Judge also found that the will had been validly executed and the parties were governed by custom in matters of alienation and succession. However relying on the decision of the Court in Arjan Singh v. Chand Singh and others, (Regular Second Appeal No. 506 of 1961 decided on 7th October, 1963), it was held that there was no bar under the customary law for a male-holder to make a gift of ancestral land in lieu of the services rendered to him. In this view of the matter, the learned Judge reverted the decision of the trial Court and dismissed the suit. In other words, full effect was given to the will of Bhan Singh. Against this decision, the present second appeal has been preferred by the plaintiffs.

(3.) During the pendency of the appeal, the Punjab Custom (Power to Contest) Act, 1920, has been amended by the Punjab Custom (Power to Contest) Amendment Act 1973, (Punjab Act No. 12 of 1973), whereby Section 7 of the Principal Act has been amended by Section 3 of the amending Act. Section 7 of the original Act is in the following terms :-