SUKH DYAL Vs. MANGAL CHAND

JUDGEMENT

(1.) THIS appeal was admitted on the following questions of law:-

(2.) BRIEFLY stated, the facts of the case are that the disputed property was originally owned by one Shri Bhanna. On his death, the property was inherited by his son Karam Dass. Karam Dass had four sons. Prabh Dyal (deceased), Hardyal (father of plaintiff No.2), Sukh Dyal (plaintiff No.1) and Sukh Chand (father of the defendants). Prabh Dyal expired on 28.5.1993 without any issue. His widow had pre deceased him. The plaintiffs, who are the brother and nephew of Prabh Dyal, filed a suit claiming that the parties belong to Swangla Tribe, which is a recognized tribe under the Constitution of India. According to the plaintiffs, the parties were governed by a custom of District Lahaul and Spiti, known as, "Rewaz-e-Zamindara". According to the plaintiffs, as per this custom no male holder of ancestral property could alienate, bequeathe or transfer his ancestral property without any genuine pressing legal necessity. The plaintiffs, therefore, challenged the Will dated 16.11.1976 allegedly executed by Prabh Dyal in favour of his nephews, the defendants. The defendants contested the suit and according to them they were not governed by "Rewaz-e- Zamindara" since the suit land and they belong to Udaipur area, which was earlier part of Chamba District and had merged in the Lahaul and Spiti District only in the year 1976. However, they also pleaded a custom and even according to them a male could alienate his ancestral property by Will for valid legal necessity.

(3.) ASSUMING for the sake of arguments that the Will was executed and is genuine then also the question which arises is whether Prabh Dyal could have executed such a Will. Admittedly, the property which is the subject matter of the Will was ancestral property in the hand of Prabh Dyal. The plaintiffs have pleaded that they belong to Swangla Tribe and as per the custom applicable to such tribe no person can alienate the ancestral property except by way of legal necessity. No legal necessity has been shown in the present case. The main case set up by the defendants was that this area fell in Chamba District and they were governed by another custom, according to which a Will could be executed. Surprisingly, even according to them the Will could only be executed in case of legal necessity. Both the parties are ad idem on the issue that they are tribals and governed by custom. The plaintiffs have led evidence to show that there is a custom which is recorded in Lahaul and Spiti District as a "Rewaz-e-Zamindara" and as per this custom no male heir of ancestral property can alienate the same without legal necessity. The defendants tried to show that since the area earlier fell in Chamba District they were not governed by this custom. However, the defendant while appearing in the witness box admitted that they follow the custom of Lahaul and Spiti. Even DW-2 stated that the persons of this area follow the custom of Lahaul and Spiti. Therefore, it is obvious that the defendants virtually admitted that they are governed by the custom set up by the plaintiffs. Merely because the land fell in District Chamba and not in District Lahaul and Spiti will not make any difference when the parties admit in Court that they follow the custom applicable in District Lahaul and Spiti. The learned lower Appellate Court fell in grave error while setting-aside the well reasoned judgement of the learned trial Court. He has not cared to either go through the evidence or see what was pleaded by the parties. The findings of the learned lower Appellate Court being totally against the law are, therefore, set-aside.