GOPI ALIAS GOPI CHAND Vs. NIRANJAN

JUDGEMENT

(1.) THIS appeal is preferred against the judgment and decree dated 26.10.1978, of the learned Additional District Judge, Karnal, in Civil Appeal No. 15/13-Addl. of 1977.

(2.) THE plaintiffs are the appellants in this appeal. They filed the suit for joint possession of the suit property. According to them the suit property belonged to one Nanha. The plaintiffs and the second defendant inherited the same and, therefore, they are entitled to the suit property. They further alleged that the Will said to have been executed by Nanha in favour of the first defendant is not a valid one since the ancestral property cannot be willed out. According to the defendants, Nanha executed a will on 29.11.1966 in favour of the first defendant and that the plaintiffs have no right in the suit property. The trial court found that the property is not the ancestral property and, therefore, the Will executed by Nanha in favour of the first defendant is valid one and accordingly dismissed the suit. The appeal filed by the plaintiffs was also unsuccessful. Hence this appeal by the plaintiffs.

(3.) BOTH the Courts below found that Nanha executed the Will in favour of the first defendant, which is a pure question of fact. The Will is a registered one and has been proved by one of the attestors. In fact the execution of the Will is not seriously disputed before me. The contention of the learned counsel for the appellants is that Nanha could not alienate the ancestral property but when once it is found that Hari Singh, the original plaintiff, separated himself, from the family, he cannot challenge the execution of the Will, because he is no longer a co-parcener or joint along with Nanha.