ZILE SINGH AND ANOTHER Vs. DARKAN

JUDGEMENT

(1.) One Nihala son of Jhandu was owner in possession of agricultural land measuring 56 Kanals 12 Marlas. He died on 10.9.1977 without leaving any issue and a widow. Defendants Zile Singh and Mansa Ram on the basis of a Will alleged to have been executed by Nihala in their favour, had taken possession of the suit land. Plaintiff Darkan claiming herself to be real sister of Nihala filed the suit challenging the said Will on the ground that it was a fictitious document and Nihala was not of sound and disposing mind at the time of making the Will. The trial Court came to the conclusion that the Will is a valid document and was validly executed by Nihala and thus is binding upon the plaintiff. Consequently, the plaintiffs suit was dismissed.

(2.) In appeal, the plaintiff-appellant moved an application under Order 6, Rule 17, Civil Procedure Code for amendment of the plaint. By virtue of the said application, the plaintiff proposed to amend the application to the effect that the parties are Jats and they follow by Custom of Rohtak District in the matter of alienation and according to the same, a proprietor cannot dispose of his ancestral property by way of Will. In the application for amendment, it was alleged that the said plea was left over in the plaint inadvertently and same is necessary for final adjudication of the case and to avoid multiplicity of proceedings. This application was contested on behalf of the defendants. However, the lower Appellate Court allowed the said amendment on payment of costs of Rs. 150/- and consequently set aside the judgment and decree of the trial Court and remanded the case for taking fresh decision in accordance with law after taking amended plaint on the record. Dissatisfied with the same, the defendants have come up in appeal in this Court.

(3.) Learned counsel for the appellants contended that no such amendment could be allowed by the lower Appellate Court in view of the provisions of Section 6 of the Punjab Custom (Power to Contest) Act, 1920, because unless such person is descended in male lineal descent from the great-great-grandfather of the person making the alienation or appointment he could not challenge the same. On that basis, it was argued, that such an amendment even if allowed was of no legal consequence as the plaintiff was not entitled to challenge the alienation of Nihala deceased, being her sister. It was further argued that in the Rohtak district a sonless proprietor governed by customary law is competent to make a testamentary disposition of the property in favour of his close relations in lieu of services rendered to him. Reliance in this respect was made to a Full Bench judgment of this Court in Rati Ram v. Shiv Charan, 1981 AIR(P&H) 376. It was further contended that in any case such an amendment could not be allowed at the appellate stage as it will re- open the whole matter again and the parties will have to lead evidence. In support of this contention reliance was placed on Md. Ishaq v. Md. Iqbal and Md. Alia and Co., 1978 AIR(SC) 798.