ASHOK Vs. GANESHI

JUDGEMENT

(1.) THE appellants filed suit challenging alienation by decree dated 27.10.1978 in favour of the defendants on the ground that as per custom, ancestral property could not be alienated without legal necessity and without consent of the plaintiffs. Declaration was sought that the said decree did not affect plaintiffs' rights.

(2.) THE trial Court decreed the suit. It was held, under Issue No. 2, that land transferred by way of decree was ancestral and alienation was in violation of custom as incorporated in para 59 of Rattigan's Digest on 'Customary Law', being without consideration and legal necessity. Accordingly, the following decree was granted :-

(3.) LEARNED counsel for the appellants submitted that accepting the finding of the lower appellate Court to the effect that part of the suit property was self-acquired, to be correct, the appellants were entitled to relief in respect of ancestral property, since the appellants were not party to the family settlement. The plaintiffs had acquired right of inheritance on the death of Ram Gopal and Ganeshi could not alienate property in respect of which the right of inheritance of the plaintiffs had been crystalised. He also submitted that finding of the trial Court that gift in favour of the plaintiffs had never been questioned by the defendants, could not be held to be invalid or a ground justifying alienation of right of the plaintiffs for inheritance. He submitted that a substantial question of law, arises, viz. :