SHER SINGH Vs. SADHU SINGH

JUDGEMENT

(1.) THIS appeal has been remanded by the apex Court with a direction to examine the cases of the willing appellants under Hindu Law after hearing the parties and if need be, giving them opportunity to adduce further necessary evidence.

(2.) PLAINTIFF filed a suit for declaration to the effect that he is owner of the land as detailed in the heading of the plaint and in the alternative for possession. According to the allegations made in the plaint, Natha Singh alias Nathu died on 7.10.1967 leaving behind his sons Sadhu Singh -plaintiff, Sher Singh, defendant No. 1 and daughter Basant Kaur, defendant No. 2. Plaintiff in this suit challenged the will alleged to have been executed by Natha Singh in favour of defendant No. 1 on the ground that the disputed property being ancestral property and parties governed by custom, such a transfer could not adversely affect the right of the plaintiff. The suit of the plaintiff was decreed by the trial Court to the extent of 1/3rd share vide judgment dated 22.4.1971. Appeal filed by Sher Singh, defendant was dismissed by Additional District Judge on 7.12.1972. The matter came up for consideration in Regular Second Appeal No. 760 of 1973 and was allowed by this Court on 13.9.1982 in view of the amendment in the Punjab Custom (Power to Contest) Amendment Act, 1920, which came in to force w.e.f. January 23, 1973. On the basis of the amended provision, no reversioner is now permitted to contest an alienation of immovable property, whether ancestral or non -ancestral, after the coming into force of the Amending Act. The Court relying upon the decision in Bant Singh v. Gurpreet Singh, 1973 P.L.J. 661 and Gurdial Singh v. Piara Singh etc., 1973 CLJ 529, came to the conclusion that the amended provision has a retrospective effect and so would affect all pending proceedings.

(3.) A bare perusal of the plaint clearly reveals that the plaintiff setup his case on the basis of customary law as applicable to the parties. There is no averment in the plaint that in the absence of the custom, his case need to be examined under Hindu Law. In any case, there is no specific issue that in case the custom applicable to the parties is not proved, whether the alienation made by the erstwhile owner in respect of the ancestral/coparcenary property is valid in law. Since, there is no material on record, the matter cannot be examined by this Court and so in the fitness of the circumstances the same is remitted to the trial Court for fresh adjudication. The trial Court will permit the parties to amend the pleadings, if need be, frame issues which arise out of the amended pleadings, permit the parties to lead evidence and thereafter decide the matter afresh in the light of the directions given by the apex Court in its decision dated 20.11.1990 between the parties. Parties through their counsel are directed to appear before the trial Court on 313.1995.